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The Library
On April 25, 2008, the Environmental Law Section presented a CLE seminar
which explored some of the nuances involved in negotiations with Federal, State
and Local environmental agencies. One of the questions which arose involved the
interpretation of Rule 4.2 of the Pa. Rules of Professional Conduct.
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The California Supreme Court recently issued a decision recognizing same sex marriages and joined the growing number of states that legally recognize same sex marriages or same sex civil unions. We write this to highlight the important implications of the various state decisions recognizing same sex marriages/civil unions in the context of state and federal law, as well as clarify a confusion among certain providers who administer self funded welfare benefit plans pursuant to a ASO contract.
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The Internal Revenue Service recently issued the final draft of its fully-redesigned Form 990, the annual return used by nonprofit organizations to report information regarding their activities. The new version of the Form 990 is designed to “enhance transparency, promote tax compliance and minimize the burden on the filing organization. As such, it dramatically differs from its predecessor in the amount of detail that nonprofits are required to report.
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This article written by Thorp
Reed attorney Eric M. Hocky for e-mail publication in the American Short Line
and Regional Railroad Association's (ASLRRA) Legal Tracks Newsletter
(Volume 3, Issue 1, April 18, 2008).
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The Spring 2008 edition of our Product Liability Update newsletter contains such articles as: "U.S. Supreme Court Holds That FDA Approval Process for Medical Devices Preempts Common Law Tort Claims," "E.D.Pa. Court Conducts Pre-Trial Review to Determine Whether Product Is Unreasonable Dangerous," "W.D.Pa. Court Limits Testimony From Plaintiff's Expert," "PA Supreme Court Grants Allocatur in Asbestos Case to Determine Whether the Court Should Adopt Section 2 of the Restatement (Third) of Torts," and more.
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February 14, 2008, Governor Rendell signed into law the Pennsylvania Right-To-Know Law, Act 3 of 2008 (Senate Bill No. 1 of 2007, Printer’s Number 1763) this new law should not be confused with the Pennsylvania Worker and Community Right-to-Know Law, 35 P.S. 7301, et seq., the latter which relates to hazardous chemical disclosure requirements in the community and workplace). The old Right-to-Know Law, the Act of June 21, 1957 (P.L. 390, No. 212) was repealed by the new legislation.
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When Melvyn Weiss entered a plea of guilty to racketeering charges last week, many business lawyers considered it as justice long overdue. Viewed in the light of two recent filings in the United States District Court for the Southern District of Florida, however, Weiss' prosecution may be just the opening salvo in the Justice Department's campaign to hold lawyers accountable for the advice they give.
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This article examines recent Food & Drug Administration enforcement in the international arena, the facts giving rise to recent indictments and the legal basis for prosecution. The article also explains the legal framework that regulates food and drug imports. Finally, the article offers some proactive steps a U.S. company should take to protect the public from harmful products and themselves from criminal prosecution.
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A recently published Federal Register Notice by the U.S. Bureau of Customs and Border Protection, interpreting the law by which imported merchandise is valued for Customs purposes, will reverse a 1992 Court ruling and could increase Customs duty liability for U. S. importers. Comments to the Customs proposal are returnable April 23, 2008.
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This article was written by Thorp Reed & Armstrong attorneys Robert J. Ridge and Lauren D. Rushak and published in The Subprime Crisis: A Thomson West Special Report.
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The Internal Revenue Service (IRS) recently issued proposed regulations under
Section 125 of the Internal Revenue Code (Code). This Code provision regulates
the ability of an employer to provide its employees the opportunity to receive
certain, qualified benefits, on a pre-tax basis through a Cafeteria Plan, which
may also be known as a Flexible Benefit Plan or § 125 Plan. The proposed
regulations are intended to be effective on January 1, 2009, but
employers may rely upon them now.
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This article was orginally written by Thorp Reed & Armstrong attorney John P. Donohue for the Spring 2008 edition of The Beacon, a publication of the Maritime Exchange for the Delaware River and Bay.
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This matter arises from a conditional use application for a landfill expansion filed in 2003 by Southeastern Chester County Refuse Authority (SECCRA). London Grove Township is the host municipality. In addition to the conditional use application, SECCRA also challenged the validity of the local zoning requirements (related to landfill setbacks and height) in an action before the Zoning Hearing Board (ZHB), and alternatively sought a variance.
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One of the most influential phases of trial is the presentation of expert
testimony. It is highly important that a testifying expert possess the ability
to convey such skill and expertise to the jury in a manner that is interesting,
simple, brief, and the explanation is understandable. When dealing with
truck, tractor-trailer or motor carrier accident litigation where issues of
defects to the tractor or trailer or lack of vehicle maintenance are asserted,
the expert’s persona and communication skills become increasingly important.
This article provides best practices for selecting an engineer or mechanic as an
expert witness for trail.
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The attorney-client privilege does not protect facts from discovery. The privilege, however, does apply with full vigor to a client’s communication of facts to his or her lawyer. Courts have struggled with that important distinction. A recent decision from the United States Court of Federal Claims – Christofferson v. United States, 78 Fed. Cl. 810 (2007) – provides an example.
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On December 18, 2007, Governor Rendell signed the Uniform Environmental Covenants Act (UECA)into law. This new statute, Act 68 of 2007, will become effective in 60 days, or on February 16, 2008. The new law was sponsored by State Representative Carole Rubley (R-Chester/Montgomery), and was designed to strengthen the control over future uses of remediated brownfields when the real estate is transferred to new wners.
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On January 22, 2008, the Municipal Securities Rulemaking Board (MSRB) issued Notice 2008-04. The Notice urges Brokers, Dealers and Municipal Securities Dealers that execute trades for municipal bonds that carry bond insurance, to review the MSRB Rules regarding fair dealing, fair pricing, suitability and disclosure as a result of the rating agency reviews and downgrades of some bond insurers.
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The subprime lending crisis has spawned lawsuits across the nation involving a broad cast of players and a variety of claims. Some believe that the lawsuits are just beginning and that the complete litigation “landscape” cannot yet be defined. This communique explores the types of disputes filed of record to date.
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The Winter 2008 edition of our Product Liability Update features
such articles as: "PA Superior Court Permits Jury to Consider Whether Byproduct
of Welding Rods Establishes Existence of Defective Welding Rod," "E.D.Pa. Court
Allows Discovery Relating to Products that are Not in Litigation," "E.D.Pa.
Court Finds Research Organization is Potentially Liable When a Manufacturer
Alters Study Results," "E.D.Pa. Court Allows Action Against Successors in
Interest Under Pennsylvania's Product-Line Exception," "West Virginia Supreme
Court Holds Medical Malpractice Statute Governs Product Liability Action Against
Hospitals" and more.
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The December edition of our newsletter for contractors, subcontractors, developers, owners and architects features such articles as "General Contractors: An Unlicensed Contractor is Fortunate to be Allowed to Indirectly Recover Payment for Work Performed When Not Properly Licensed," "What's New in Pennsylvania: Two Debarred COntractors Illustrate the Danger of Classifying Skilled Workers as Laborers on Public Works Projects," "Subcontractors: Ambiguous Provisions in Your Contract May Lead to Unintended Results," and "What's New in Ohio: Owner Entitled to Contractual Indemnification for Attorney's Fees and Costs."
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This article provides a list of a few important examples of items that benefit managers should review in the New Year to ensure that their employee benefit plans comply with recent changes in the law.
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The Internal Revenue Service recently issued final Internal Revenue Code (the “Code”) § 403(b) regulations. Code § 403(b) (“§ 403(b)”) governs contributions to certain funding arrangements for employees who are working for a public school of a State or local government or a Code § 501(c)(3) tax exempt organization. The § 403(b) funding arrangements provide these employees with the opportunity for retirement savings through an employer provided plan, a § 403(b) tax sheltered annuity plan. The requirements imposed by regulations are generally effective for taxable years beginning on or after December 31, 2008.
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A supplemental article to Construction Law News written by Sunah Park,
Esq. that covers New Jersey Bond Claim Requirements.
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Have an idea for a new product or process? Want to get a patent? If the normal three to five year application period is too long for you, you might consider a relatively new program offered by the U.S. Patent and Trademark Office (PTO). A little over a year ago, the PTO introduced an expanded Accelerated Examination program whereby an applicant who files electronically and submits the appropriate supporting documentation can expect a decision on patentability within 12 months of the date of filing.
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The Fall 2007 edition of our Product Liability
Update features such articles as "Third Circuit Refuses to Apply
Delaware Consumer Fraud Act Exemption to Actions of the FDA," "W.D.Pa. Court
Excludes Expert Opinion Resulting in Dismissal of Negligence Claim," "E.D.Pa.
Court Finds that Admission of Defect by Product Manufacturer Binds Distributor,"
and more.
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Federal court decisions over the past few years have weakened the restraints
placed upon companies by the antitrust laws. In two recent examples, in
Texaco Inc. v. Dagher,(Feb. 28, 2006), the United States Supreme Court
opened the possibility of greater joint venture activity even in the presence of
apparently collaborative joint price determinations; and in Leegin Creative
Leather Products, Inc. v. PSKS, Inc., 127 S. Ct. 705 (June 28, 2007), the
Supreme Court eliminated the long-standing strict per se prohibition on
minimum resale price maintenance (a manufacturer’s establishment of a minimum
price at which its goods may be resold).
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When an employer’s driver has been involved in a motor vehicle accident that occurred during the course of employment, the employer may be forced to make decisions regarding that driver’s future with the company so as to limit its exposure to liability in the face of almost certain litigation. Whether an employer opts to retain the driver depends on various considerations. This article expresses considerations that an employer should take into account when assessing whether to discharge the driver who was at fault in a vehicular accident.
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State and local governments are confronted with increasing pressures to balance their budgets without raising taxes. Many Pennsylvania counties may be overlooking a genuine opportunity to reduce costs significantly by out-sourcing the operation of their jails.
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Banking regulators recently completed guidelines that call on lenders to strictly evaluate borrowers’ ability to repay home loans. The tightened standards, which apply to federally regulated lenders, attempt to curtail “risky” practices that have been blamed for a record level of foreclosures in the subprime lending market.
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The August edition of our newsletter for contractors, subcontractors, developers, owners and architects features such articles as "What's New in Pennsylvania: Significant Changes to Pennsylvania's Mechanics' Lien Laws," "Subcontractors: Third Circuit Court Tells 'Cautionary Tale' of Bids and Acceptance," "What's New in Ohio: Beware of and Follor Your Contract Language in Ohio," and "General Contractors: How Specific are Your Project Specifications?"
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Thorp Reed & Armstrong, continues its efforts to educate the transportation industry and increase its awareness about potentially significant damage awards and settlements that can arise from commercial vehicle accidents in various jurisdictions. This communique contains a brief overview of various cases in Ohio, Pennsylvania, Maryland and New Jersey, all of which were decided in 2006 and 2005 and are representative of the jury verdicts rendered in those jurisdictions.
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On July 24, 2007, a federal appeals Court in the District of Columbia struck down, for the second time in four years, the U.S. Department of Transportation’s Hours-of-Service rules that regulate and limit the number of working and driving hours for commercial truck drivers. The Court further ordered the DOT’s Federal Motor Carrier Safety Administration to revise its regulations in a manner consistent with the Court’s opinion.
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If employers do not ensure that interviewers conduct themselves appropriately during interviews, those employers may face the time and expense of a discrimination lawsuit, even if the interviewer’s motivations for asking questions were innocent. Therefore, employers should get up speed on “loaded” interview questions to avoid.
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As major United States based subprime lenders, such as New Century Financial, have sought bankruptcy protection, companies that have purchased debt from subprime lenders find themselves without the recourse they had depended upon when they originally purchased the debt.
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On June 14, 2007 the Internal Revenue Service released for public comment a discussion draft of a redesigned Form 990, Return of Organizations Exempt from Income Tax, the annual return required to be filed by tax-exempt organizations to report information about their operations. The discussion draft constitutes a significant redesign of the form, which has been revised only on a piecemeal basis since 1979. The IRS anticipates using the form for the 2008 tax year (returns filed in 2009).
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Recent developments in the subprime mortgage market have wreaked havoc on the subprime lending industry and threaten to derail the U.S. economy as a whole. Stocks fell sharply last week after reports on record-breaking mortgage defaults, heavily concentrated around subprime mortgages, unnerved investors and further exposed a troubled housing market. Financial companies’ shares were hardest hit.
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In a split panel decision, the Pennsylvania Superior Court has held that an individual who observed but was not physically injured in a motor vehicle accident could recover first-party medical benefits for post-traumatic stress disorder treatment. Glickman v. Progressive Cas. Ins. Co.,2007 PA Super. 41 (Feb. 12, 2007). The Superior Court’s decision distinguished its recent ruling from a decade old opinion, Zerr v. Erie Ins. Exch., 667 A.2d 237 (Pa. Super. 1995), which held that the benefits were not recoverable.
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The Tax Study Commission was formed, the numbers were examined, and choices were made and presented to School Boards. The Tax Study Commission was charged with making a recommendation to its Board of School Directors on whether to increase the earned income tax, or instead to impose a personal income tax, to pay for a homestead exclusion. Ultimately, that question will be asked of the voters in the May, 2007 primary.
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Consider this: An insurance client applies for automobile coverage and decides to reject underinsured motorist protection coverage. The insured signs and dates a form entitled “Rejection of Underinsured Motorist Protection” and readily admits that by doing so, he is rejecting underinsured motorist (“UIM”) coverage. The insured’s policy premiums are calculated so that he does not pay premiums for UIM coverage. The policy, without UIM coverage, is renewed for several years until the insured is involved in a motor vehicle accident. May the insurance company properly reject the insured’s claim for UIM benefits? In a recent Pennsylvania Superior Court decision, the answer was “No.”
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In an opinion written by Chief Justice Cappy, the Pennsylvania Supreme Court reaffirmed the long-standing rule that an insurer’s duties to defend and indemnify under a comprehensive general liability (“CGL”) policy are triggered solely by the factual averments in the complaint against the insured and further held that an “accident” required to establish an “occurrence” under a CGL policy cannot be satisfied by claims based on faulty workmanship. Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., et al., 908 A.2d 888 (Pa. 2006). In so holding, the Court rejected the Superior Court’s ruling that it could consider evidence outside of the complaint allegations when determining whether coverage is triggered by the claims against the insured.
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How often do you find yourself asking, as the seasons change or another birthday rolls by, “where does the time go?” Here is another mile-marker for you – did you realize, as the calendar page turns from October to November, that your Local Tax Study Commission is already middle-aged?
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Even if your company does not maintain any elective non-qualified deferred compensation arrangements, you may inadvertently violate Section 409A of the Internal Revenue Code of 1986, as amended, (“Code”) if you have non-qualified stock options or have granted stock appreciation rights (“SARs”) either under the terms of a plan or through individual arrangements with employees or independent contractors.
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On Friday, October 6, 2006 President Bush signed into law the Trademark Dilution Revision Act of 2006 (“Revision Act”). Before reviewing the Revision Act, it is important to first understand the concept of dilution and why the Federal Trademark Dilution Act (“FTDA”) needed to be revised.
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Three federal courts have recently considered the issue of the federal government’s power (and the scope of that power) to preempt state law in the area of banking. Most recently in Wachovia Bank v. Watters, 431 F.3d 556 (6th Cir. 2005), the United States Court of Appeals for the Sixth Circuit affirmed the holding that the National Bank Act (the "Act") and related federal regulations preempt conflicting Michigan laws governing mortgage lenders. The Court also held that the Act and regulations did not violate the Tenth Amendment of the United States Constitution, which reserves to the states those rights and powers not enumerated to the federal government.
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For employers who are required to make contributions to multiemployer pension plans, those plans will be subject to new funding rules, generally beginning in 2008. This is as a result of the recent enactment of H.R. 4, known as the Pension Protection Act of 2006 (“PPA”). The bill was signed by President Bush on Thursday, August 17, 2006.
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While you were waiting for further guidance with respect to the deferred
compensation provisions of Section 409A of the Internal Revenue Code of 1986, as
amended (“Code”), Congress decided to further complicate your life.
Both the House and the Senate have passed the Pension Protection Act of 2006
(“PPA”), which is anticipated to be signed into law by President Bush during the
week of August 14, 2006.
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Thorp Reed & Armstrong attorney Allan L. Fluke published this article in the Constructors Association July 25, 2006 newsletter.
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Message to all School Boards from the Pennsylvania General Assembly: "Cut short your summer vacation – you’ve got work to do under the Taxpayer Relief Act.”
Effective June 27, 2006, Act 1 of Special Session 2006 now forces the basic rules of Act 72 onto all Pennsylvania School Districts. While the overall legislative scheme is the same, certain differences do appear. For example, under Act 72, School Boards were required to make the difficult choice of imposing additional earned income taxes in order to be eligible for the property tax relief expected from an allocation of gaming revenues. Under Act 1, all Districts will receive gaming revenues and the public through referendum, not the Board, must decide whether to augment property tax relief with a shift to increased wage (“EIT”) or personal income (“PIT”) taxes.
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In a sweeping eighty-three page opinion, a Federal trial judge recently set about correcting some of the “structural defects” of the Federal criminal justice system. According to Judge Lewis Kaplan of the United States District Court for the Southern District of New York, the defects were inherent in the “Thompson Memorandum”, a set of guiding principles for Federal prosecutors issued by the Bush Justice Department in the wake of the corporate finance scandals of the early 2000’s. In an opinion that will be heralded by business executives across the country, Judge Kaplan declared unconstitutional those provisions of the Thompson memorandum that permit prosecutors, when deciding whether to indict a corporation, to consider a corporation’s decision to advance defense costs to its employees as evidence of the corporation’s willingness to cooperate with the government investigation. The Court held that the Government violates the Fifth and Sixth Amendments to the Constitution when it pressures a corporation to forego its obligations to indemnify employees for costs incurred in response to a federal probe.
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For months, developers and attorneys practicing in the area of wetlands regulation have been anticipating the U.S. Supreme Court’s decisions in the cases of Rapanos v. United States and Carabell v. United States Army Corps of Engineers. On June 19, 2006, the Supreme Court issued its decision in those consolidated cases, but the lack of a majority opinion means that the Court’s decision provides little guidance on the scope of the United States’ jurisdiction over wetlands that arguably are “adjacent to waters of the United States.”
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The July edition of our quarterly newsletter for contractors, subcontractors, developers, owners and architects features such articles as "School Construction: Contractors are Allowed to Keep Refunded Permit Fees," "Subcontractors: The Perils of Relying on Bids Without a Contract," and "General Contractors: Express Language of Subcontractor's Bid Defeats General Contractor's Claims for Breach of Contract and Promissory Estoppel."
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In a recent decision, a federal court found that evidence introduced at trial
established that a defendant bank (the “Bank”) did not agree in language or
conduct to provide financing to the plaintiff, a potential borrower.
The Plaintiffs, a debtor corporation and its president, brought an adversary
proceeding against the Bank in a United States Bankruptcy Court in an attempt to
enhance the value of the bankrupt estate. The Plaintiffs brought the action
under theories of breach of written and oral contract and fraud after
negotiations with the Bank for financing had been unsuccessful. The Plaintiffs
voluntarily dismissed the fraud count prior to trial. Going into trial, the
Plaintiffs’ position was that the Bank had breached an alleged oral and/or
written agreement to provide over $3 million in financing to enable the
Plaintiffs to purchase a facility that would be used to process steel. The
allegations stemmed from the parties’ negotiations for the Bank to provide the
Borrower with a standby letter of credit to support a loan from the Pennsylvania
Economic Development and Financing Authority (“PEDFA”), as well as for a line of
credit for working capital. In particular, the Plaintiffs argued that they
relied on the Bank’s continued negotiations, attendance at a PEDFA pre-closing
and signing of loan documents held in escrow in attempting to establish that an
agreement for financing had been reached. The Plaintiffs further argued that
they paid almost $73,000 in fees and costs associated with the PEDFA loan at the
pre-closing in detrimental reliance on the Bank’s alleged promise to reimburse
them for those expenses.
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By way of background, National Pollutant Discharge Elimination System (“NPDES”) storm water permits are now required for construction activities involving the disturbance of one acre or more, as well as earth disturbances of less than one acre that occur as part of a larger common plan of development or sale of more than one acre. In Pennsylvania, these NPDES permits require the development and execution of a Post-Construction Stormwater Management Plan in addition to an Erosion and Sediment Control Plan. A Stormwater Management Plan also may be required under a municipal ordinance adopted pursuant to the Pennsylvania Stormwater Management Act (Act 167) program. In recognition of the need for guidance and consistency in the development of stormwater management plans, the Pennsylvania Department of Environmental Protection (“DEP”) organized a committee to develop a manual setting forth “best management practices (“BMPs”) to control the volume, rate and water quality of post-construction stormwater runoff so as to protect and maintain the chemical, physical and biological properties of waters of the Commonwealth.”
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The Administrative Review Board of the U.S. Department of Labor recently ruled that the Labor Department’s Wage and Hour Division abused its discretion in determining prevailing wage rates for residential classifications in six Pittsburgh-area counties without adequately explaining the basis for the wage determinations under the Davis-Bacon Act (the “Act”) in the matter of Mistick Construction and the Associated Builders and Contractors of Western Pennsylvania, ARB Case No.: 04-051.
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The April edition of our quarterly newsletter for contractors, subcontractors, developers, owners and architects features such articles as "Contract Interpretation: The Clear Language of a Contract Trumps the Discovery Rule for Latent Defects," "What's New on the Gulf Coast: Compliance with Bidding Laws on Publicly Owned Projects," and "What's New in Pennsylvania: What Constitutes 'Public Work' Under the Pennsylvania Prevailing Wage Act?"
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The New Jersey Supreme Court extended the potential liability of premises owners by holding that landowners may be liable to third parties who never set foot on the actual premises. Olivo v. Owens-Illinois, Inc. This decision arose from a wrongful death/survival action in which the plaintiff, a former steamfitter/welder sought damages for the death of his spouse.
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The American Academy of Neurology issued new guidelines effective January 10, 2006, regarding expert witness testimony by its members. According to the Academy, the new guidelines are a response to several complaints by physicians about unqualified expert witnesses. The Academy’s goal in enacting the new guidelines is to promote accurate testimony by neurologists and to ensure they have expertise in the area of their testimony.
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A recent U.S. Environmental Protection Agency (“EPA”) regulation will have a significant impact on the way in which environmental due diligence activities are conducted for property acquisitions. On November 1, 2005, the EPA published its All Appropriate Inquiries Rule (“AAI Rule”), which establishes standards and practices for the performance of “all appropriate inquiries” in order to qualify for the innocent landowner, bona fide prospective purchaser or contiguous property owner defenses under the Federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”).(1) These defenses provide liability relief, for those who qualify, from the strict liability imposed by CERCLA on current owners of property contaminated with hazardous substances.
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Companies often use “jury waiver” provisions in their agreements to take advantage of the reduced expense and limited delay associated with bench trials. Such waivers also give companies the ability to avoid the expense and loss of appeal rights associated with arbitration. In a recent decision, the California Supreme Court acknowledged these benefits of contractual jury waivers and then declared the waivers to be invalid. As a result, companies using jury waiver provisions will no longer get the benefit of their bargain in California state court unless the California legislature acts to modify the law.
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The January edition of our quarterly newsletter for contractors, subcontractors, developers, owners and architects features such articles as "Liquidation Agreements: Design Professionals are not Untouchable in the Absence of Contractual Privity," "Florida Court: Provides No Relief for 9/11 Delay Damages and Strict Construction of a Claim For Damages Under Eichleay Formula," "Developers: EPA Publishes All Appropriate Inquiries Rule for Landowner Liability Protection," and more.
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In a new decision, the United States District Court for the Southern District of Georgia ruled in favor of allowing Defendants to remove a case to Federal Court under the Class Action Fairness Act (CAFA). By allowing removal to Federal Court, Defendants will be able to avoid trying cases in front of “local juries” who may be prejudiced toward out of state corporations.
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The November edition of our litigation newsletter features such articles as "Are Your Secrets Confidential, and Will a Court Agree?," Trademark Infringement - Looking Beyond The Direct Infringer," "The Importance of Preserving Potential Evidence," and more.
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The October edition of our quarterly newsletter for contractors, subcontractors, developers, owners and architects features such articles as "What's New in Pennsylvania: Recent Cases Considering the Validity of Bid Protests," Arbitration: Think Twice Before Agreeing to Arbitrate as Your Appeal Rights are Extremely Limited," and more.
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In Jefferson v. Toyota Motor Manufacturing, West Virginia, Inc., et al. (S.D. W. Va., Case No. 2:03-CV-02345), plaintiff’s counsel requested a deposition from the plaintiff’s treating physician. The physician required payment in the amount of $350 per hour, with $700 payable in advance for two hours of deposition time. Plaintiff’s counsel paid the physician $350, proposing a one hour telephonic deposition, and asked defense counsel to pay for any time over one hour. The physician then informed the plaintiff’s lawyer that because she had not treated the plaintiff (patient) in over two years, she would need to review the plaintiff’s medical records for 15 to 20 minutes prior to the deposition, and she intended to charge for this time.
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Evidenced by recent orders in Dauphin County, Pennsylvania, and from a monumental ruling earlier this year in Florida, courts are increasingly becoming less tolerant of companies and their counsel who fail to comply with the rules of discovery. Penalties are becoming drastic and are dramatically impacting the evidence that parties may introduce at trial.
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The August edition of our quarterly newsletter for contractors, subcontractors, developers, owners and architects features articles such as: "Execute A Written Contract: Define Your Intent Or Pay Without Receiving Any Benefit", "Indemnification/Insurance Coverage Language: Do Not Overrate Your Coverage" and "What's New in Ohio and New Jersey."
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In Hinchman v. Gillette, ___ S.E. 2d ___, ___ W. Va. ___ (No. 31760) (2005), the West Virginia Supreme Court (“WVSCA”) ruled that a defendant healthcare provider cannot challenge the legal sufficiency of a plaintiff’s pre-suit notice of claim or screening certificate of merit under W. Va. Code 55-7B-6 (2003), unless the plaintiff was given specific written notice of, and an opportunity to address and correct, the alleged defects and insufficiencies.
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In Louk v. Cormier, ___ S.E.2d ___, ___ W. Va. ___ (No. 31773) (2005), the West Virginia Supreme Court (“WVSCA”) declared unconstitutional a recent amendment to the Medical Professional Liability Act (“MPLA”). The amendment at issue required twelve person juries, and permitted those juries to return non-unanimous verdicts.
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The March edition of our quarterly newsletter for contractors, subcontractors, developers, owners and architects features articles such as: "The Pennsylvania Supreme Court Creates An Open Season On Architects And Other Design Professionals" and "Multi-Prime Contracts Must Be Awarded For Public School Buildings."
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The Court of Appeals of Ohio recently issued a decision which sets forth the standard to determine whether a contractor or subcontractor has substantially completed its contract work.
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In Hertzberg v. Zoning Board of Adjustment, 721 A.2d 43 (Pa. 1998), the Pennsylvania Supreme Court held that a more relaxed standard of “unnecessary hardship” could justify the grant of dimensional variances...
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A recent Pennsylvania Supreme Court decision may support negligence liability for misrepresentations made by entities or individuals in the course of their business dealings, as well as for misrepresentations made by professionals engaged in the business of supplying information.
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A new Section of the Internal Revenue Code of 1986 was added by the American Jobs Creation Act of 2004, requiring “deferred compensation plans” to now comply with new distribution, election and funding rules.
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On February 18, 2005, President Bush signed into law the Class Action Fairness Act, marking a systemic shift in the American judicial system and the end of a decades-long quest to reign in class action lawsuits across America.
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The March edition of our quarterly litigation newsletter features articles such as "Proof Of Absence Of Confusion Is Not Good Faith Defense To Trademark Infringement," "Employers Beware: Commercial General Liability Policy May Not Protect From Employee Lawsuits," and "Full And Accurate Disclosure: Protecting The Rights Of Businesses To Commercial Information."
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The Ohio Supreme Court has recently issued a ruling which will help defendants defeat class certification in many medical monitoring claims.
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The West Virginia Human Rights Act continues to play an important role in workplaces throughout the State of West Virginia. All covered employers should review their policies and practices to ensure the compliance of those policies and procedures with the applicable provisions of the law.
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These new automatic rollover requirements apply to all tax-qualified plans under 401(a) of the Code, 403(b) plans, governmental 457(b) plans and church plans.
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Under the FDIC's new guidelines, FDIC-supervised institutions involved in the payday loan industry are subject to an affirmative duty to “ensure that payday loans are not provided to customers who had payday loans outstanding at any lender" for a specified amount of time.
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In a significant precedent-setting decision, the West Virginia Supreme Court of Appeals halted out-of-state plaintiffs' efforts to file claims for medical monitoring in West Virginia.
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By being prepared and responding effectively, your company can minimize the intrusion associated with responding to a government investigation.
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In January 2005, the Federal Motor Carrier Safety Administration published a Notice of Proposed Rulemaking in order to re-examine the 2003 Hours-of-Service rules.
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In a recent ruling on a case involving a payday loan business, a judge held, possibly for the first time in Pennsylvania, that a payday lender using the "check cashing" system of operation had been making short-term loans, and therefore the company's activites had fallen within the purview of Pennsylvania's usury law.
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The West Virginia Supreme Court of Appeals recently issued a ruling which may help hospitals avoid apparent agency claims outside the emergency room setting.
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Selecting a mark that functions as a trademark looks to be a rather simple task. Looks, however, can be deceiving and great care should be taken in selecting a mark.
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The Pennsylvania Supreme Court has held that a business privilege tax that fails to apportion receipts by in-state and out-of-state commerce violates the Commerce Clause of the United States Constitution...
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The December edition of our quarterly newsletter for contractors, subcontractors, developers, owners and architects features articles such as: "Land Use: Michigan Decision Casts Doubt On Use Of Eminent Domain” and “Recent Interpretations Of The Pennsylvania Mechanics’ Lien Law"
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The September edition of our quarterly newsletter for contractors, subcontractors, developers, owners and architects features articles such as: "Bid Protests: Do Not Get Caught On Treacherous Footing" and "Liens: Final Means Final!"
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On July 20th, the SEC released the text of its proposed new rule and rule amendments regarding "hedge funds."
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The June edition of our quarterly newsletter for contractors, subcontractors, developers, owners and architects features articles such as: “Who May Successfully File A Miller Act Claim?” and “Who Is A Responsible Bidder?”
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In today’s business and legal climate, there is no viable alternative to an effective records management program. The risks of failure to address records management issues, including drastic legal consequences and prohibitive costs, are too great to ignore.
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The March edition of our quarterly newsletter for contractors, subcontractors, developers, owners and architects features articles such as: “Can a Project Manager’s Signature Prevent a Lawsuit” and “Do Not Let Others Do Your Bidding.”
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The country’s largest servicer of “subprime” home mortgages has reached a preliminary agreement to settle claims of “predatory” servicing that could cost it upwards of $55 million. On November 12, 2003, the Federal Trade Commission (FTC) and the U.S. Department of Housing and Urban Development (HUD) reached settlements with Fairbanks Capital Holding Corp., its wholly-owned subsidiary Fairbanks Capital Corp. (collectively, Fairbanks), and Thomas D. Basmajian, the founder and former CEO of Fairbanks, to settle serious allegations of predatory servicing of subprime mortgage loans. The settlement will resolve a sweeping complaint filed against Fairbanks in the federal district court of Massachusetts, and will be coordinated with a related settlement in a class action consolidating four suits in California.
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The December edition of our quarterly newsletter for contractors, subcontractors, developers, owners and architects features articles such as: “A Material Supplier Is Not Covered by a Roofer’s Insurance Policy” and “Penalties and Attorneys’ Fees Found to Be Not Waiveable Under the Pennsylvania Contractor and Subcontractor Payment Act.”
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The Securities and Exchange Commission recently made the first significant revisions to its custody rule for investment advisers since the rule was adopted more than 40 years ago.
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The September edition of our quarterly newsletter for contractors, subcontractors, developers, owners and architects features articles such as: “Silence Is Not Contract Acceptance: Do Not Begin Work Until Your Contract Is Executed” and “Left Out in the Cold: Bid Win Turns into Loss for HVAC Sub-subcontractor.”
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As of September 22, 2003, diabetic truck and bus drivers are able to apply for an exemption from the medical restrictions contained in the Federal Motor Carrier Safety Regulations (FMCSRs). On September 2, 2003, the Federal Motor Carrier Safety Administration (FMCSA) announced its decision to begin granting case-by-case exemptions for certain insulin-using, interstate commercial drivers, otherwise restricted from operating a commercial vehicle in interstate commerce.
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The Supreme Court of the United States recently provided businesses with further guidance on how best to protect their intellectual property. In Dastar Corp. v. Twentieth Century Fox Film Corp., the Court articulated certain distinctions in the protections and liability imposed under federal copyright and unfair competition law.
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