Litigation

Commentary

Exchange Students, Visitors: You May Be Barred From US and Not Know It

Natalia Gouz | August 15, 2018

Last week, the U.S. Citizenship and Immigration Services (USCIS) put into effect a new policy that significantly impacts the foreign student and exchange visitor population in the United States.

Commentary

Emerging Alcohol Categories: The Strange Case of Hard Seltzer

Alva C. Mather | August 14, 2018

Over the past several years, a new category of alcoholic beverage has emerged known as “hard seltzer.”

News

Report Says Law Firm Demand Hit New Heights in Second Quarter

Roy Strom | August 14, 2018

Demand for law firms' services in the second quarter of 2018 grew more than in any quarter during the past six years, according to an analysis by Thomson Reuters.

Commentary

9th Circ. Reconsiders the Propriety of Counting a Dead Judge’s Deciding Vote

Howard J. Bashman | August 13, 2018

U.S. Court of Appeals for the Ninth Circuit Judge Stephen Reinhardt died suddenly and unexpectedly earlier this year on March 29. Since then, the Ninth Circuit has issued two appellate rulings in which Reinhardt provided the decisive vote in favor of the outcome of those appeals.

Commentary

Firefighting Foam to Blame for Widespread Water Contamination

Joshua Cohan | August 13, 2018

Municipalities and individuals living near military bases are discovering that their water supplies have been contaminated by use of firefighting foam that contains chemicals causing life-threatening illnesses.

Defendant in Rear-End Collision Not Liable for Injuries

VerdictSearch | August 09, 2018

On Sept. 11, 2014, plaintiff Hassania Firoud, 53, a retail employee, was driving a minivan on Frankford Avenue, in Northeast Philadelphia. After she became stopped in traffic at Robbins Street, she was rear-ended by a sport-utility vehicle.

Commentary

Harness the Power of the Integration Clause to Protect Your Business

Andrew J. DeFalco | August 09, 2018

Most business owners have seen “entire agreement” or “integration” clauses in contracts with employees, vendors, purchasers of their products and services, and joint venture partners. To many, it is boilerplate jargon that sounds strange and has little practical meaning.

Commentary

Potential New Tools to Sue for a Faster Cleanup

David G. Mandelbaum | August 09, 2018

Soil or groundwater cleanups can take a long time. When one person conducts the cleanup and another has an interest in its completion, the two can disagree over the pace of the project. That is typically a three-party issue involving the regulator—for example, the Environmental Protection Agency or the Department of Environmental Protection.

Commentary

Ruling Provides Guidance on How to Address 'Actual Damages' Under RESDL

Alan Nochumson | August 09, 2018

In Phelps, for the first time, the Superior Court also outlined how courts in Pennsylvania should calculate “actual damages” under RESDL.

Ethics Forum: Questions and Answers on Professional Responsibility

Samuel C. Stretton | August 09, 2018

I am about to be sued and I don’t have legal malpractice insurance. Will I have any problems because I don’t have malpractice insurance?

News

Employers Can't Dodge Medical Payments With Revised Agreement, Court Rules

Lizzy McLellan | August 09, 2018

Cabinet Transport Inc. had refused to pay over $6,600 to Armour Pharmacy for an employee's medicine.

Commentary

With Subrogation, It's the Injured Worker Left Paying the Price

Maureen “Morty” Cassidy | August 09, 2018

As plaintiff lawyers, we are familiar with the plight of the innocent victim following an injury. We regularly have conversations where an injured individual is forced to remortgage a home or sell property for financial support.

Commentary

Pa. Supreme Court to Decide Retroactivity of 'Birchfield v. North Dakota'

Anthony L. Ciuca | August 09, 2018

The Pennsylvania Supreme Court granted allocatur in Commonwealth v. Hays, 2018 Pa. Super. Unpub. LEXIS 176 (Jan. 19, 2018), on July 24, to decide the following: Should Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), apply to all cases not yet final when the decision was rendered?

Commentary

'Janus v. AFSCME'—Top 5 Takeaways From Supreme Court Decision

Michael V. Puppio Jr. | August 08, 2018

On June 27, the U.S. Supreme Court overruled more than 40 years of established precedent by handing down a decision in favor of nonunion member public employees.

News

DC Circuit Says Prosecutor Discipline Records Fair Game in FOIA Suit

Scott Flaherty | August 07, 2018

Siding in part with a convicted fraudster's Freedom of Information Act request, the D.C. Circuit found that the Justice Department's internal disciplinary office can't invoke a blanket exemption for "law enforcement" records.

News

Mental Health Records at Issue in St. Joe's Assault Case

Lizzy McLellan | August 07, 2018

Alleged sexual assault victim Jane Roe said a request for her mental health records "smacks of victim blaming."

Commentary

Expansion of Small Business Health Plans: A Good Option With Some Limitations

Vasilios J. Kalogredis | August 06, 2018

On June 19, the Department of Labor (DOL) issued a final rule allowing employers, regardless of size, to offer health insurance through an Association Health Plan (AHP).

News

Judges' Confirmation Vote Met With Relief, Surprise in Delaware

Tom McParland | August 03, 2018

Colm Connolly and Maryellen Noreika were confirmed this week to serve as judges on Delaware's federal bench, in a sudden move that was expected to bring much-needed relief to a shorthanded district court amid a surge of filings.

Commentary

New Act 27 Changes the Pa. Contractor and Subcontractor Payment Act

Robert R. Watson Jr. | August 03, 2018

The changes signed into law will go into effect on Oct. 10—120 days after it was signed—and further clarify certain aspects of CASPA which were left unanswered in the original legislation, often leading to disputes between parties as they negotiated contracts for a project or proceeded with work once it was underway.

News

MDL Panel Sends Shingles Vaccine Lawsuits to Pennsylvania

Amanda Bronstad | August 02, 2018

A federal judicial panel has sent about 100 lawsuits brought over Merck’s shingles vaccine to Pennsylvania.

Commentary

The Demise of Fair Share Fees: 'Janus' and Its Impact

Adam Santucci and Langdon Ramsburg | August 02, 2018

Recently, the U.S. Supreme Court issued a landmark decision, which may ultimately prove to alter the landscape of public sector labor relations and undermine the political clout of public sector labor unions throughout the United States.

Commentary

Conversion of the Notice of Temporary Compensation Payable

Christian Petrucci | August 02, 2018

The notice of temporary compensation payable (NTCP) and its use has always been the topic of much debate since its inception.

Trucker Said Plaintiff's Improper Attempt to Pass Him Led to Crash

VerdictSearch | August 02, 2018

On April 13, 2015, plaintiff Margaret McMearty, a school-bus driver in her mid-50s, was in a sedan on Route 401/Conestoga Road, heading toward Willing Way, in Malvern.

Commentary

Cellphone Tracking, Privacy and Tech: Losing Focus on the Fourth Amendment (Part 2)

Leonard Deutchman | August 02, 2018

Editor's note: This is the second in a two-part series. In last week's column, I discussed Carpenter v. United States, No. 16-402 (S.Ct. June 22,…

Commentary

Significant Changes to Pennsylvania's CASPA Coming Soon

Joshua Lorenz | August 01, 2018

It’s not often that construction contract statutes are changed in Pennsylvania, so it was notable when Gov. Tom Wolf on July 12 signed legislation to amend the Contractor and Subcontractor Payment Act (CASPA).

News

Women Exit Ogletree Deakins in Wake of Gender Bias Allegations

Miriam Rozen | July 31, 2018

“A lot of my good friends had left. I looked around and said, ‘Why am I still here?’” said a former nonequity partner at Ogletree Deakins, a national labor and employment firm facing a $300 million gender bias suit.

Energy/Environmental Law

The Legal Intelligencer | July 30, 2018

In the Legal's Energy/Environmental supplement, read about pipeline construction, the environmental quality board and the rule of capture in the oil and gas industry.

Commentary

How Video Game Mods Are Changing the Intellectual Property Game

Jeffrey N. Rosenthal and Ethan M. Simon | July 30, 2018

A year ago, the word “fortnight” was relegated to relative obscurity—an archaic way of saying two weeks. In July 2017, however, all that changed. After software developer Epic Games released the blockbuster video game Fortnite Battle Royale—a multi-platform, free-to-play game in which players participate in a cartoonish fight for survival in a post-apocalyptic world—the word "Fortnite" can now be heard everywhere.

Commentary

'Actavis' and Reverse-Payments Suits in the Third Circuit After Five Years

Carl W. Hittinger and Jeffry W. Duffy | July 27, 2018

For over 20 years, purportedly anticompetitive patent-litigation settlement agreements between rival branded and generic pharmaceutical manufacturers—so-called “reverse payment” or “pay for delay” settlements—have generated numerous private lawsuits and ranked as one of the Federal Trade Commission’s top enforcement priorities, with private plaintiffs and the FTC alike claiming such agreements have cost consumers millions of dollars by keeping generic drugs off the market.

Commentary

'Drastic Plastic' TV Show Video—Defamatory or in Poor Taste?

Ryan Boland | July 27, 2018

On July 18, the Pennsylvania Superior Court addressed whether a plastic surgeon’s promotional video for the reality TV show “Drastic Plastic,” which was filmed on the plaintiff’s premises, was actionable.

Commentary

Modifying an Arbitration Award Due to 'Evident Miscalculation'

Abraham J. Gafni | July 26, 2018

Miscalculation of an award by an arbitrator represents one of the few grounds warranting modification. But what evidence and what procedures are required by a court when reviewing a contention of arbitrator miscalculation?

Couple Contended Broadside by Drunken Driver Caused Injuries

VerdictSearch | July 26, 2018

On April 17, 2015, plaintiff James Yaremko, a sales and marketing manager in his 50s, was driving north on Peach Street toward Robinson Road, in Erie, when his minivan broadsided the passenger's side of a car.

Commentary

Cellphone Tracking, Privacy and Technology: Losing Focus on the Fourth Amendment (Part I)

Leonard Deutchman | July 26, 2018

In Carpenter v. United States, No. 16-402 (S.Ct. June 22, 2018), the U.S. Supreme Court held that the Fourth Amendment prohibited the government from using the Stored Communications Act, 18 U. S. C. Section 2703(d) (the SCA), to obtain from wireless cellphone carriers the “time-stamped record known as cell-site location information (CSLI),” which records (as explained below), created over time and saved, can, when looked at together, provide a picture of the public movements of the cellphone user.

Commentary

Should an Arbitrator Determine Arbitrability Where a Claim Is 'Wholly Groundless'?

Edward T. Kang and Kandis Kovalsky | July 26, 2018

While arbitration clauses are often a topic of concern in the consumer context, they can also be a major issue in sophisticated party transactions as well—the agreements where the arbitration clause is the least of everyone’s worries.

Commentary

Grand Jury Reports, the Right to Due Process and a Corporation's Reputation

Christopher Carusone | July 24, 2018

Abraham Lincoln once said, “Character is like a tree and reputation like a shadow. The shadow is what we think of it; the tree is the real thing.” Unfortunately, in a world where opinion often replaces fact, and one negative article or blog post can live on the internet forever, a person’s reputation is not always a product of one’s true character, particularly online.

News

Reed Smith Takes Pinsents Middle East Chief in Triple Partner Hire

Rose Walker | July 24, 2018

The U.S. firm rebuilds its Middle East practice with a trio of hires following exits to Eversheds Sutherland.

Cybersecurity

The Legal Intelligencer | July 23, 2018

In the Legal's Cybersecurity supplement, read about how to mitigate risks in cloud offerings, due diligence in M&A transactions and how to manage law firm cybersecurity threats.

Commentary

Courts Dial Back Autodialer Definition Following 'ACA International'

Ana Tagvoryan, Jeffrey N. Rosenthal, Alen H. Hsu and Matthew P. Rubba | July 23, 2018

The TCPA was passed to strike a balance between protecting the privacy of individuals, while still permitting legitimate telemarketing practices. In modern times, however, the TCPA has been expanded well beyond its intended purpose and scope.

Commentary

Pa. Death Penalty Report Is Chock-Full of Recommendations

Matthew T. Mangino | July 19, 2018

Did the commonwealth of Pennsylvania need a report, six and a half years in the making, to acknowledge that the state’s death penalty has some problems?

Commentary

Who Breached First? Unpublished Opinion Helps Clarify Rule

Craig R. Tractenberg | July 19, 2018

Should all contract breach litigation be decided on who breached first? Perhaps that should be the rule on deciding complex commercial cases. It seems to work well to simplify complex fact patterns and responsibilities. Do all breaches have the same weight?

Commentary

Is Telling the Truth Good for Patient Safety? Will It Reduce Errors?

Cliff Rieders | July 19, 2018

Preventable medical errors are routinely covered up by health care professionals who do not always put the truth in the medical records or address poor medical care in the context of peer review. In Pennsylvania, as in most states, peer review cannot be disclosed even in litigation.

Commentary

Best, Brightest and Backlogged: Highest-Skilled Stuck Waiting in Line

Feige M. Grundman and Steven R. Miller | July 18, 2018

While many of President Donald Trump’s immigration comments are misinformed, he is not wrong when he points out that the current system for giving permanent resident status (or green cards) on the basis of employment-related skills has not kept up with the needs of the U.S. workforce

News

Plaintiffs Lawyers Get TV Time as CBS Launches Whistleblower Reality Show

Miriam Rozen | July 17, 2018

Ready for your primetime closeup, plaintiffs lawyers? The first episode of "Whistleblower" featured cases filed by litigators from Berger & Montague and Waters Kraus & Paul.

Commentary

'Phelps' Tackles 'As Is' Language in Residential Agreement of Sale Under RESDL

Alan Nochumson | July 17, 2018

In many situations with distressed properties, the property owner wishes to wipe his hands clean of the property. In these situations, the property owner will agree to sell the property only if the prospective buyer acquires the property in “as is” condition.

Analysis News

Fox Rothschild and the ‘Dark Art of Copyright Trolling’

Roy Strom | July 13, 2018

The firm is representing a pornography company in its latest nationwide copyright infringement campaign. Can it avoid the controversies that preceded its involvement? Or will a small-time lawyer from Oregon provide the blueprint to stop it?

Best Practices Commentary

Learning to Let Go for a Successful and Rewarding Legal Career

Frank Michael D’Amore | July 13, 2018

The stakes tend to rise as one’s career progresses, and it is disappointing to learn that the equation no longer automatically yields winning results. For instance, despite being very smart, doing terrific work, and logging mega hours, someone is edged out for partnership by another lawyer who may be just a step behind in one or more of those categories, but has built a nice book of business.

Commentary

Tips and Warnings Related to International FOIA for Lawyers, Journalists

Terry Mutchler | July 13, 2018

This column contains both tips and warnings related to records-access laws and ensuring that lawyers and journalists not only read them, but maximize the use of these laws.

News

Third Circuit Revives Harassment Suit Against Susquehanna County

Michael Booth | July 11, 2018

A former part-time secretary for the Susquehanna Department of Veterans Affairs may pursue sexual harassment and discrimination claims against the county and her ex-boss, even though she never reported the former boss's alleged unwanted sexual advances toward her, a federal appeals court has ruled.

Update

Judge Grants Preliminary Approval of $210M Settlement in Wilmington Trust Shareholder Suit

Tom McParland | July 11, 2018

A federal judge in Delaware has granted preliminary approval to a proposed $210 million settlement in a shareholder class action accusing Wilmington Trust of hiding hundreds of millions of dollars in bad loans from regulators and investors.

News

Pepper Hamilton Files Action Seeking FBI Records of US Troops' WWII-Era Heist of Crown Jewels

Tom McParland | July 06, 2018

Attorneys from Pepper Hamilton are aiding a Delaware author in his bid to force the FBI to release records of the agency’s investigation into the theft of crown jewels belonging to the House of Hesse, a German royal family, by U.S. soldiers at the end of World War II.