Communiqués, newsletters and advisories by the attorneys of Clark Hill Thorp Reed demonstrate the quality of our legal reasoning and help inform clients on crucial issues. By examining legal developments, dissecting rulings and explaining how cases might affect an issue or industry, these articles enable clients to work smarter, ask better questions of counsel and take full advantage of Clark Hill Thorp Reed’s legal insights.
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DOL Issues Guidance On PPACA's Marketplace Notice to Employees and Revised COBRA Model Notice Requirements
NLRB Posting Rule Struck Down by Appeals Court
By: Thomas P. Brady and Kurt A. Miller
On May 7, 2013, the United States Court of Appeals for the District of Columbia Circuit (Court of Appeals) invalidated the National Labor Relations Board's (Board) rule requiring employers to post a notice of employee rights under the National Labor Relations Act (Act). ...
Insurance & Reinsurance Briefing - Spring 2013
Clark Hill Thorp Reed's Insurance & Reinsurance Briefing highlights recent developments in the insurance and reinsurance industry.
"The International Emergency Economic Powers Act and the Sergei Magnitsky Rule of Law Accountability Act of 2012: Has a Visible Fissure Appeared in the Once-Impenetrable Wall Protecting the Foreign Official Bribe Taker Under the FCPA?"
John P. Donohue, Partner and Leader of the firm’s International Practice Group, has written an article titled “The International Emergency Economic Powers Act and the Sergei Magnitsky Rule of Law Accountability Act of 2012 – Has a Visible Fissure Appeared in the Once-Impenetrable Wall Protecting the Foreign Official Bribe Taker Under the FCPA?” for the March 2013 edition of the Financial Fraud Law Report.
"Path Cleared for Supreme Court to Address Interplay Between Section 220 Claims, Derivative Actions"
Christopher J. Day, Partner in Thorp Reed's Commercial and Corporate Litigation and Insurance & Reinsurance practice groups, authored an article titled "Path Cleared for Supreme Court to Address Interplay Between Section 220 Claims, Derivative Actions,” for the Delaware Business Court Insider.
Nolan Shenai Pens a Blog on The Legal Intelligencer Website
Nolan G. Shenai, an attorney in Thorp Reed's Commercial & Corporate practice group, penned a blog on The Legal Intelligencer website. His most recent blog is titled “Actual Value Initiative: Bad Move, Philadelphia.”
Making the Most of Your First Legal Job Search After Law School
Elizabeth F. Collura, an attorney in Thorp Reed's Commercial & Corporate Litigation practice group, authored an article for The Legal Intelligencer titled "Making the Most of Your First Legal Job Search After Law School."
Enforceability of Non-Competition Agreements in the Marcellus Shale Industry
Kurt A. Miller, Partner and Chair of Thorp Reed’s Labor & Employment Law Practice Group, has authored an article titled “Enforceability of Non-Competition Agreements in the Marcellus Shale Industry.” The article originally appeared in the January 2013 edition of The PIOGA press: Official publication of the Pennsylvania Independent Oil & Gas Association. Re-published with permission.
KDKA Radio host Rob Pratte's January 5, 2013 interview of Joseph Friedman regarding future prospects of financially troubled West Penn Allegheny Health System
Trial Court Sets Limits on Production of Private Social Media Content
Elizabeth F. Collura, Associate in Thorp Reed’s Commercial and Corporate Litigation Practice Group, recently authored an article titled “Trial Court Sets Limits on Production of Private Social Media Content,” which focuses on and discusses the implications of Judge Wettick’s recent Opinion on the discovery of private social media content. The article originally appeared in the Lawyers Journal – The Journal of the Allegheny County Bar Association. Reprinted with permission.
Insurance & Reinsurance Briefing - Winter 2013
Thorp Reed & Armstrong's Insurance & Reinsurance Briefing highlights recent developments in the insurance and reinsurance industry.
Employment Law and Regulations - What to Expect During President Obama's Second Term
Kurt A. Miller, Partner and Chair of Thorp Reed’s Labor & Employment Law Practice Group, has authored an article titled “Employment Law and Regulations – What to Expect During President Obama’s Second Term.” The article originally appeared in the December 2012/January 2013 edition of Working PArts magazine: Official publication of the SMC Business Councils. Re-published with permission.
The Employer's Affordable Care Act (ACA) Compliance Playbook: Your Pre-Game Warm-Up for "Pay or Play"
For many "large" employers, determining whether to "pay or play" may not be an easy process. The ACA's employer shared responsibility provision goes into effect in 2014, making advance preparation even more important if you have part-time, seasonal or "variable hour" employees. Since you are only required to either potentially pay (a penalty for) or play (offer coverage to) those individuals who are considered your full-time employees, your ability to substantiate whether an employee is or is not "full-time" will be critical to successfully navigating the "pay or play" provisions of the ACA. ...
Affordable Care Act's Medical Loss Ratio Provision: Is There A Private Right Of Action?
The Employer's Affordable Care Act (ACA) Compliance Playbook: The 2013 and 2014 Game Plan
The Supreme Court has spoken, the election is over, and if you did not plan for compliance with the ACA, you are now playing "catch-up." If your group health care plan is maintained on a calendar-year basis, you are either in the midst of finalizing open enrollment materials for 2013 or in the midst of open enrollment. ...
Sitting in Judgment
The Employer's Affordable Care Act Compliance Playbook: Comparative Effectiveness Fees
The ACA added Sections 4375, 4376 and 4377 to the Internal Revenue Code of 1986 (Code). These new Code sections impose fees on issuers of certain health insurance policies (each called a "specified health insurance policy") and on plan sponsors of certain self-insured plans (each called an "applicable self-insured health plan"). ...
PHFA Restarts the Homeowners' Emergency Mortgage Assistance Program
On August 27, 2011, the Pennsylvania Housing Finance Agency ("PHFA") suspended the notice requirements under Act 91 due to the lack of funding of the Homeowners' Emergency Mortgage Assistance Program ("HEMAP"). Consequently, after August 27, 2011, a lender could initiate foreclosure proceedings against a residential mortgagor who otherwise qualified for notice under Act 91 without sending an Act 91 notice.
How Philadelphia Can Foster Development Without Speculation
Nolan Shenai has written a blog for The Legal Intelligencer.
The Employer's Health Care Reform Playbook: What Do I Do With This Check? (Special Non-Federal Governmental Employer Edition)
First Consumer Agency Civil Enforcement Action Seeks Permanent Injunction Against Law Firm
Financial institutions and law firms alike should take note of a recent lawsuit filed by the U.S. Consumer Financial Protection Bureau in July 2012.
Attorney Pitfalls with Social Media and E-Mail: Ethics Considerations Raised by Social Media and Dangers to the Attorney-Client Privilege
The Employer's Health Care Reform Playbook: What Do I Do With This Check?
Under the Affordable Care Act(ACA), employer sponsors of insured group health plans might soon receive a rebate check in the mail from the insurance company. The rebate check relates to the ACA's "medical loss ratio" requirement or MLR. ...
Health Plans' Commercial Uncertainties Persist After Supreme Court's Decision Upholding the Affordable Care Act's Constitutionality
Pennsylvania Cracks Down on Predatory Commercial Lenders
Commercial lenders in Pennsylvania need to be aware of the Commonwealth Court’s July 27, 2012 decision in Girard Finance Company and Thomas Richter v. Pennsylvania Human Relations Commission.
The Health Care Reform Playbook: The SBC
Now that the Supreme Court has issued its opinion, it is time for plan sponsors to focus on new compliance obligations under the Affordable Care Act (ACA) that impact the upcoming open enrollment season.
Health Care Reform -The Supreme Court Speaks: Where Do Plan Sponsors Go From Here?
U.S. Supreme Court Requires "Credit Bidding" For Confirmation Of Chapter 11 Plans
'Made-Whole Doctrine' Doesn't Apply to Collision Coverage
This article, authored by Christopher M. Brubaker, appears in the June 2012 Litigation: Auto Law Supplement of The Legal Intelligencer.
Additional Insureds, Indemnification Agreements, and Certificates of Insurance. Are You Really Covered?
For businesses involved with commercial services contracts the issue of indemnification and provision of insurance clauses are becoming ever more prevalent and important.
Insurance & Reinsurance Briefing - Spring 2012
Thorp Reed & Armstrong's Insurance & Reinsurance Briefing highlights recent developments in the insurance and reinsurance industry.
Entering the United States Market: Business Entity Selection, Location and Formation
Entering the United States market is an important business strategy and consideration for foreign companies in the high technology, life sciences and green energy industries. The United States market is large and a traditional leader in technology and pharmaceutical products. Successfully establishing a presence in the United States can substantially help a foreign business increase its market share both in the United States market and in its home market.
The Court of International Trade Rejects Customs' Prior Rulings on Retail Sets in Reusable Containers
Cosmetic Sets Return to the Essentials. The Court of International Trade Rejects Customs’ Prior Rulings on Retail Sets in Reusable Containers. Estée Lauder, Inc. v. United States, No. 07-00217 (Ct. Int’l Trade, Jan. 3, 2012).
Health Care Reform Employer Compliance Obligations 2012
Employer health plans (and insurers for insured plans) are required to prepare and distribute a document called a Summary of Benefits and Coverage (“SBC”). The purpose is to assist individuals in understanding and comparing their health coverage options. The SBC is in addition to, and not in lieu of, the Summary Plan Description (SPD) that employers must already provide to participants.
Insurers May Be Relieved Of Their Fiduciary Status When Paying ERISA Plan Benefits Through Retained Asset Accounts
Recently, the United States District Court for the Eastern District of Pennsylvania issued an opinion in Edmonson v. Lincoln National Life Ins. Co., et al., 2012 WL 368367 (E.D. Pa. February 3, 2012) addressing a matter of first impression within the Third Circuit: “whether an insurer of an ERISA-governed[1] employee welfare benefit plan – the terms of which do not specify the method of payment of life insurance proceeds – was acting as an ERISA fiduciary when it held and invested for its own profit the funds backing retained asset accounts[2] used to pay plan beneficiaries their proceeds.”
Phila. Commerce Court Affirms That Business Judgment Rule Is Fundamental Part of Pennsylvania Corporate Law
Customs Proposes to Clarify Critical Valuation Rule on Related-Party Transfer Pricing and Post-Entry Price Reductions. Comments Due by January 27, 2012.
In a move that had been anticipated for some time and will have a wide-ranging effect on related-party importers, the U.S. Bureau of Customs and Border Protection is proposing to consider recognizing downward adjustments in a transfer price for imported merchandise, made after the date of entry, when the reduction in price is in conformity with an existing corporate transfer pricing policy.
Insurance & Reinsurance Briefing - Winter 2012
Thorp Reed & Armstrong's Insurance & Reinsurance Briefing highlights recent developments in the insurance and reinsurance industry.
Three Bilateral Free Trade Agreements: U.S. - Colombia Trade Promotion Agreement, U.S. - Panama Trade Promotion Agreement, and the U.S. - Korea Free Trade Agreement
Three bilateral Free Trade Agreements (FTAs) were passed in October 2011: the U.S. – Colombia Trade Promotion Agreement, the U.S. – Panama Trade Promotion Agreement, and the U.S. – Korea Free Trade Agreement, known as KORUS (in order of approval). Recently, the implementation phase of the U.S. – Colombia Trade Promotion Agreement was launched formally and the South Korean President signed KORUS implementation laws on November 29, 2011.
The Holidays, the Workplace and Political Correctness: "Ho Ho Ho" or "Ho Ho Hum"
Materials from the December 8, 2011 DELVACCA presentation.
Ownership Rights to Marcellus Shale Gas Questioned by Superior Court
The Pennsylvania Superior Court recently determined that it is not equipped to answer whether Marcellus shale gas is, under the law, a "mineral" or "gas," and that further scientific evidence is needed to enable the courts to make that determination.
Corporate Political Rights
Jonathan W. Hugg's recent presentation on Corporate Political Rights
Recent Cases Indicate Trend Toward Awarding Prevailing Parties Substantial e-Discovery Costs
This C3 | Complex Commercial Contract Litigation alert is provided by the attorneys of Thorp Reed's C3 Practice Group. The Group is comprised of skilled commercial litigators who will analyze, strategize, negotiate, prosecute, or defend your company's contract dispute.
GSP Renewal Legislation Passes the House of Representatives, MPF Rate is Increased
On September 7, 2011 the House of Representatives by voice vote passed and sent on to the Senate for consideration HR 2832, entitled “An Act to extend the Generalized System of Preferences, and for other purposes.”
SEC Decides Not To Appeal Rule 14a-11 Proxy Access Decision; Rule 14a-8 Stay Expires Next Week
As we previously reported, on July 22, 2011, the United States Court of Appeals for the District of Columbia Circuit ("Court of Appeals") vacated Rule 14a-11 adopted by the Securities and Exchange Commission ("Commission") on August 25, 2010. Rule 14a-11 would have permitted shareholders or shareholder groups who owned not less than 3 percent in voting power of a U.S. public company (including investment companies) for at least three years to include their nominees (up to 25 percent of the board) in the company's proxy materials. The Commission entered a stay on October 4, 2010 of the proxy access rules (Rule 14a-11, together with amended Rule 14a-8 and other related amendments) that were scheduled to become effective November 15, 2010.
Revisiting the Subprime Meltdown: A Report from the Tranches
In early 2008, we authored an article entitled “Identifying the Categories of Disputes Emerging From the Subprime Meltdown.” In that article, we predicted that the “subprime meltdown” would lead to various “tranches” of public and private enforcement and recovery activity. We identified the first tranche as including the predictable and garden variety consumer and regulatory suits against lenders, brokers and appraisers. As anticipated, over the past three years, we have seen these disputes materialize, in different shapes and sizes, and docketed in state and federal courts across the country.
C3 | Complex Commercial Contract Litigation Alert
National City Mortgage Company v. Brian Stephen, et al., United States Court of Appeals for the Third Circuit, No. 09-1731. Appeal from the U.S.D.C. for the Middle District of Pennsylvania (No. 3-07-cv-02070), Decided July 22, 2011.
Insurance & Reinsurance Briefing - Summer 2011
Thorp Reed & Armstrong's Insurance & Reinsurance Briefing highlights recent developments in the insurance and reinsurance industry.
The Benefits Game: Challenging Health Care Reform's Individual Mandate
Since the Affordable Care Act (“Act”) became law in March of 2010, the question we benefits attorneys are most often asked is, “Don’t you think health care reform is going to go away (be repealed) (be ruled unconstitutional)?” We consistently have answered “no.” And despite the opinion of the United States Court of Appeals for the Eleventh Circuit issued on August 12, 2011, our answer stays the same.
Court of Appeals Vacates Proxy Access Rule 14a-11
On July 22, 2011, the United States Court of Appeals for the District of Columbia Circuit (“Court of Appeals”) vacated Rule 14a-11 adopted by the Securities and Exchange Commission (“Commission”) on August 25, 2010.
Product Liability Update - Summer 2011
The Summer 2011 edition of the Product Liability Update contains such articles as "United States Supreme Court Holds Failure to Warn Claims against Generic Drug Manufacturers are Federally Pre-empted" and "Pennsylvania Supreme Court Upholds Product Line Exception to Rule of Successor Non-liability, and Justices Split on Recovery of Bystander Emotional Distress Damages.”
The New Danger of Limiting Employees' Speech on Social Media Sites
This article, authored by Jeffrey R. Gordon, appears in the June 14, 2011 Labor & Employment Supplement of The Legal Intelligencer.
"That is the Question" - When Does the Customs Assessment Question End and the Investigation Question Begin - Customs Cautions the Ports Against the Misuse of the Customs Form 28 "Request For Information"
Some of the largest fines imposed by our Government on businesses relate to violations of the rules of international dealing. Most business executives now can recite, virtually from memory, the $536 million dollar fine imposed by the Office of Foreign Assets Control on Credit Suisse Group dealing with prohibited entities; or the whopping $1.6 billion dollar fine imposed on Siemens, AG and its subsidiaries for violations of the Foreign Corrupt Practices Act; or the $100 million dollar fine imposed on ITT Corp. for violations of the Arms Export Control Act. And for their part, government officials will tell you these infractions are serious because they impair the fundamental notions of foreign policy, territorial integrity and national security. These are not your average violations.
The Real Dollars At Stake: Don't Overlook The Value Of Protecting Your Copyrightable Materials
In the recent decision in William A Graham Company, d/b/a The Graham Company v. Thomas P. Haughey and USI MidAtlantic, Inc., No. 10-2762, Slip Op. (May 16, 2011), the United States Court of Appeals for the Third Circuit addressed the significant relief available to a prevailing plaintiff in a commercial copyright case.
Transparency Amendments: Dealers to Provide Additional ARS and VRDO Information and Documentation to SHORT System
Insurance & Reinsurance Briefing - Spring 2011
Thorp Reed & Armstrong's Insurance & Reinsurance Briefing highlights recent developments in the insurance and reinsurance industry.
Facebook and Work Place Come Center Stage
This article, authored by Barry R. Elson, appears in the Spring 2011 edition of The Philadelphia Lawyer.
New Pennsylvania Law Provides Guidance For Businesses Utilizing Independent Contractors
Pennsylvania recently joined the growing number of states that have passed laws regarding the classification of independent contractors in the construction industry with the enactment of the Construction Workplace Misclassification Act (the “Act”), which took effect on February 10, 2011.
IRS Announces 2011 Offshore Voluntary Disclosure Initiative
On February 8, 2011, the Internal Revenue Service (the "IRS") announced the implementation of a new compliance and penalty remission program on foreign income, known as the 2011 Offshore Voluntary Disclosure Initiative (the “OVDI”).
Impact on Employer Plans Of President Obama's Decision Not To Defend DOMA
For now, President Obama’s decision not to defend the constitutionality of the Defense of Marriage Act (“DOMA”) should not affect how employers administer their employee benefit plans. This Communiqué explains the President’s decision and its impact on employer-sponsored plans.
The New I-129 Form Requires Employers To Certify Export Licensing Enforcement and Compliance
Effective February 20, 2011, companies sponsoring certain nonimmigrant visas for foreign workers will be required to certify their compliance with U.S. export controls set forth in the Export Administration Regulations (“EAR”) and International Traffic in Arms Regulations (“ITAR”) governing the release of “technology” or “technical data” to foreign nationals.
New Developments: Third Circuit Successor Liability for Employee Benefit Plan Liabilities in an Asset Sale
The United States Court of Appeals for the Third Circuit (which covers Pennsylvania, New Jersey, Delaware, and the Virgin Islands) recently held that a purchaser of assets may be liable for a seller’s delinquent ERISA fund contributions where the buyer had notice of the liability prior to the sale and there exists sufficient evidence of continuity of operations between the buyer and seller.
Health Care Reform 2011: Group Plan Mandates
Health care reform creates new challenges for plan sponsors. They may face significant excise tax penalties for noncompliance, as well as participant claims under Employee Retirement Income Security Act (ERISA) enforcement rules. Modulating it all is the fact that the mandates are “people-friendly.” In the final analysis, every reader of this article is a person who may ultimately benefit when the time comes to be a consumer of care.
U.K. Ministry of Justice Announces Delay in Implementation of the U.K. Bribery Act of 2010
The U.K. Ministry of Justice announced on January 31, 2011 that it has delayed the long awaited publication of clarification Guidance required by the U.K. Bribery Act of 2010.
Health Care Reform 2011: The 'Family-Friendly" Adult Child Mandate
The Patient Protection and Affordable Care Act (P.L. 111-148), as amended by the Health Care and Education Reconciliation Act of 2010 (P.L. 111-152), combined, make up the law commonly referred to as Health Care Reform. This article refers to Health Care Reform as the Affordable Care Act or the ACA.
Dealing with Medical Errors: Legal Strategies for Improving Performance and Reducing Costs
The Nov. 24 issue of the prestigious New England Journal of Medicine included an article by Dr. David C. Ring, a surgeon at Massachusetts General Hospital, that might have made defense counsel cringe. In the article, Ring vividly describes how a series of personal and systemic mistakes led him to operate on the wrong arm of a 65-year-old woman. Through this disclosure, Ring hoped that others would learn from and avoid his traumatic mistake.
Healthcare is Not Spinach
In his Jan. 10 opinion piece, Professor Ronald Rotunda argues that "not buying [health] insurance, like not buying spinach, is not an economic act," and therefore the individual mandate is unconstitutional. Health care, however, is not spinach, and his analogy deserves a failing grade.
Exporting National Mores: The Foreign Corrupt Practices Act and The UK Bribery Act of 2010 - Similarities, Differences and the Emerging Lessons
In 1977, the United States Congress, having been confronted with a series of corporate scandals that had international political consequences, enacted the Foreign Corrupt Practices Act (FCPA), which had two objectives.
Bankruptcy and Financial Restructing E-Alert
Stub Rent: Payment as an Administrative Expense
Insurance & Reinsurance Briefing - Winter 2011
Thorp Reed & Armstrong's Insurance & Reinsurance Briefing highlights recent developments in the insurance and reinsurance industry.
Interpreting 'Beneficiary' Under the Fraud and Abuse Control Act
This article, authored by Christopher M. Brubaker, appears in the November 2010 Personal Injury Supplement of The Legal Intelligencer.
New Continuing Disclosure Obligations
On May 26, 2010, the Securities and Exchange Commission approved amendments to Rule 15c2-12 under the Securities Exchange Act of 1934 relating to the disclosures required for municipal securities. The amendments go into effect on December 1, 2010.
Reform's Reach - Get to Know Financial Reform's Possible Impact on Commercial Real Estate
Since the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act this past July, there has been much confusion and speculation about its possible impact on commercial real estate.
Insurance & Reinsurance Briefing - Summer 2010
Thorp Reed & Armstrong's Insurance & Reinsurance Briefing highlights recent developments in the insurance and reinsurance industry.
Employee Online Social Networking: Advantages and Risks for Employers
In the past decade, the public use of online social networking and video sharing websites and blogs has grown exponentially. With the development and expansion of sites like Facebook, MySpace, YouTube, and Twitter, many employers are taking an increased interest in their employees’ use of these kinds of sites both during and after work hours.
ESOP Development
Shifting Employer Stock Among Participant Accounts
The IRS has recently authored guidance (“Reallocation Position”) regarding reallocations of qualified employer securities (“Employer Stock”) among participant accounts within an employee stock ownership plan (“ESOP”).
Health Care Reform - The Employer's Perspective: Installment Nine
Agencies Issue Interim Final Regulations on Internal Claims and Appeals and External Review Procedures Applicable to Non-Grandfathered Plans
This ninth installment in our series on Health Care Reform[1] discusses the Interim Final Regulations issued by Health and Human Services, Treasury and the Department of Labor (“Agencies”) on July 23, 2010 (“Interim Rules”) related to new claims and appeals procedures that apply to all non-grandfathered health plans.
The Impact of The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010
The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, (the "Act") which was recently signed into law, is anticipated to significantly impact a number of Thorp Reed & Armstrong clients. Provisions of the Act may affect consumer finance transactions; municipal and corporate securities offerings; registrations; enforcement; filings and disclosure requirements; investment advisors; and the executive compensation landscape.
Department of Labor Issues Requirements for Avoiding Prohibited Transactions
The Department of Labor has issued interim final regulations that must be followed in order for your plan to avoid a prohibited transaction. These rules only apply to retirement plans: both defined benefit and defined contribution plans (hereafter, “plan(s)”). They do not apply to a Simplified Employee Pension (“SEP”), a SIMPLE Plan, or an IRA, and also do not apply to welfare plans such as health, dental, vision, or disability plans.
Product Liability Update - Summer 2010
The Summer 2010 edition of the Product Liability Update contains such articles as “Pa. Superior Court Holds That Expert’s Methodology Relying on Extrapolation As Basis of Opinion Regarding Causation is Admissible Under Frye Standard” and “Third Circuit Holds Foreseeable Misuse of a Product Does Not Support a Strict Liability Claim.”
Health Care Reform - The Employer's Perspective: Installment Eight
Agencies Issue Interim Final Regulations on Preventive Care Mandates for Non-Grandfathered Plans
This installment, which is the eighth in our series on Health Care Reform,[1] discusses the Interim Final Regulations issued by Health and Human Services, Treasury and the Department of Labor (“Agencies”) on July 23, 2010 (“Interim Rules”).
Federal Jury Awards Employer $2.17 Million in Breach of Employee Duty of Loyalty Case
A common belief among employers is that, without non-competition agreements, they have no legal basis to prevent employees from competing against them.
SEC Adopts New Rule Banning Pay to Play Practices
On June 30, 2010, the Securities and Exchange Commission unanimously approved a new rule to prevent investment advisers from making political contributions to influence their selection to manage public pension funds or other municipal investments. Rule 206(4)-5 (the “Rule”) under the Investment Advisers Act will be similar in many respects to Municipal Securities Rulemaking Board Rule G-37 already applicable to broker-dealer firms.
Health Care Reform - The Employer's Perspective: Installment Seven
Agencies Issue Interim Final Regulations Implementing Selected Health Reform Provisions
This is the seventh installment of our series on Health Care Reform, which discusses Interim Final Regulations issued by Health and Human Services, Treasury and the Department of Labor (“Agencies”), that appeared in the Federal Register on June 28, 2010 (“Interim Rules”).
Health Care Reform - The Employer's Perspective: Installment Six
TO BE OR NOT TO BE GRANDFATHERED – THAT IS THE QUESTION.
This is the sixth installment of our series on Health Care Reform. This installment discusses the grandfathered plan concept and Interim Final Regulations issued by Health and Human Services, Treasury and the Department of Labor, which appeared in the Federal Register on June 17, 2010.
Health Care Reform - The Employer's Perspective: Installment Five
OTHER PLAN CHANGES REQUIRED BY THE AFFORDABLE CARE ACT
This is the fifth installment in our series on the Affordable Care Act or “Reform Act.” In our fourth communiqué (as updated to reflect recent interim regulations) we covered the Affordable Care Act’s requirement that group health care plans (“plan” or “plans”) cover adult children until age 26, and the recent IRS guidance (Notice 2010-38) indicating that such coverage would not be taxable to the employee even if the child is not the employee’s tax dependent.
Joseph Friedman Authors "What Every IP Litigation Trial Team Needs: An Experienced Commercial Trial Lawyer," Westlaw Journal Intellectual Property
Health Care Reform - The Employer's Perspective: Installment Four
Updated for Recent DOL/IRS/HHS Guidance
“Coming Soon to Your Health Care Plan: Coverage for Adult Children”
This is the fourth installment in our series on Health Care Reform. Continuing our effort to provide you with Health Care Reform in “small bites,” this particular communiqué will focus solely on the requirement under the Affordable Care Act to provide health care coverage to your employees’ adult children.
PA Tax Amnesty Program Starts This Month
The new Pennsylvania tax amnesty program begins April 26, 2010, and ends on June 18, 2010.
Pennsylvania Environmental Quality Board Proposes Rules
On March 6, 2010, the Pennsylvania Environmental Quality Board (“EQB”) published proposed regulations intended to address ambiguities in the Uniform Environmental Covenants Act (“UECA”), 27 Pa. C.S. § 6501, et seq., and to clarify how UECA interfaces with the Land Recycling and Environmental Remediation Standards Act (“Act 2”), 35 P.S. § 6026.101, et seq., and the Storage Tank and Spill Prevention Act (“Tank Act”), 35 P.S. § 6021.101, et seq.
The Dangers of Being a Team Player: Joint Ventures and the Risk of Antitrust Liability
In its recent decision in American Needle, Inc. v. National Football League, No. 08-661, Slip Op., 560 U.S. __, 2010 WL 2025207 (May 24, 2010), the United States Supreme Court addressed the antitrust implications of coordinated action between the teams of the National Football League and clarified that the prohibition on conspiracies in restraint of trade contained in Section 1 of the Sherman Act remains applicable to joint ventures throughout the economy.
TRICARE Secondary Payer Rules: Department of Defense Regulations Affecting Your Health Plan
On April 9, 2010, the Department of Defense (“DOD”) issued final regulations governing TRICARE Secondary Payer rules. The regulations implement remedies and penalties, including a penalty of up to $5,000 for each violation. These rules will be effective June 18, 2010.
It is Beginning to Feel Like "Groundhog Day"! Another Extension for the COBRA Subsidy
The COBRA subsidy has been extended a third time to cover involuntary terminations through May 31, 2010 with passage of the “Continuing Extension Act of 2010” (the “Act”).
Product Liability Newsletter - Spring 2010
The Spring 2010 edition of the Product Liability Update contains such articles as: “W.D.Pa. Court Strikes Expert Opinion in Chemical Exposure Case Defended by Thorp Reed,” “S.D.W.Va. Court Holds Statute of Repose Does Not Apply to Seller and Installer of Power Source System,” and “PA Superior Court Disallows Personal Injury Claims to be Brought by Employees with Mesothelioma Against Employers Citing Exclusive Remedy Provisions of Workers’ Compensation Act and Occupational Disease Act.
Insurance & Reinsurance Briefing - Spring 2010
Thorp Reed & Armstrong's Insurance & Reinsurance Briefing highlights recent developments in the insurance and reinsurance industry.
Health Care Reform - The Employer's Perspective: Installment Three
Reducing the Cost of Health Care to “Early Retirees”
This third article in our series about Health Care Reform discusses a potential opportunity if you provide an “employment-based group health benefits plan” (“plan”) to retirees over age 55 that are not eligible for coverage under Medicare (an “early retiree”).
Health Care Reform - The Employer's Perspective: Installment Two
Tax Credit for Small Businesses – Including Certain Tax-Exempt Employers
As the second in a series of articles about Health Care Reform, this communiqué addresses the small business tax credit for “eligible small employers,” available for taxable years beginning on or after December 31, 2009.
Health Care Reform - The Employer's Perspective: Installment One
This is the first in a series of articles that will focus on how the Reform Act impacts you as an employer.
Trademark Trial and Appeal Board Tightens Rule on Fraud
It has always been important for trademark owners to carefully consider all statements made in connection with obtaining, maintaining and/or renewing a trademark registration so as to avoid committing fraud on the United States Patent and Trademark Office (USPTO).
Pennsylvania Supreme Court Upholds Validity of Gas Leases Permitting Deduction of Post-Production Costs When Calculating Royalties
Yesterday, one could almost hear the collective sigh of relief from gas companies after the Pennsylvania Supreme Court issued its long-awaited opinion in the Kilmer v. Elexco Land Services, Inc. and Southwestern Energy Production Co. case.
PA Environmental Quality Board Proposes Rules for Administration of the Uniform Environmental Covenants Act
On March 6, 2010, the Pennsylvania Environmental Quality Board (“EQB”) published proposed regulations intended to address ambiguities in the Uniform Environmental Covenants Act (“UECA”), 27 Pa. C.S. § 6501, et seq., and to clarify how UECA interfaces with the Land Recycling and Environmental Remediation Standards Act (“Act 2”), 35 P.S. § 6026.101, et seq., and the Storage Tank and Spill Prevention Act (“Tank Act”), 35 P.S. § 6021.101, et seq.
Amended COBRA Subsidy Notices - Here We Go Again
As you know, with the passage of the Temporary Extension Act of 2010, eligibility for the 15 month COBRA subsidy was recently extended by Congress to cover involuntary terminations occurring through March 31, 2010.
What To Do When The IRS Comes Knocking
The IRS will soon conduct 6,000 employment tax audits over a three-year period.
Webcast Archive - Litigation Holds: Understanding the Duty to Preserve Electronic Records
Courts are imposing harsh sanctions for failure to preserve electronic evidence, including monetary penalties, default judgments, and more. A Litigation Hold is the process for preserving records for anticipated or pending litigation. It is critical for businesses to recognize a triggering event, and to understand the essential steps for implementing a Litigation Hold.
Still Not Sure that Climate Change Affects Your Business? - SEC Adopts Climate Change Disclosure Guidance
Most of us are familiar with the annual disclosure requirements for companies as represented by the Form 10-K. The federal securities laws require publicly traded companies to disclose information on a periodic basis for the benefit of investors.
What the Heck is a Nephelometric Turbidity Unit? If You Discharge Stormwater, You Better Find Out Soon
A Nephelometric Turbidity Unit (“NTU”) is a means of measuring the amount of suspended solids in a water sample. The word nephelometric is derived from a Greek work meaning cloud or cloudy. Cloudy water has suspended solids (as well as other dissolved materials possibly) in it.
Does the Attorney-Client Privilege Protect In-House Counsel's Advice? Uncertainty Rules - Nationwide v. Fleming
The Pennsylvania Superior Court and Supreme Court have made a mess of things.
COBRA Extension Notices Due to Some Qualified Beneficiaries No Later Than January 30, 2010
As we previously informed you in our prior communiqué, the COBRA premium reduction provisions originally passed under the American Recovery and Reinvestment Act of 2009 (“ARRA”), were amended by provisions in the Department of Defense Appropriations Act, 2010 (“2010 DODA”), signed into law on December 19, 2009. The provisions in the 2010 DODA expanded the so-called COBRA premium reduction or COBRA subsidy in two ways.
Recoverability of Attorney's Fees by A Reinsured in Defending Arbitration Award in Court
Costs of collecting reinsurance are a regular source of concern for reinsureds. Ideally, a reinsurer will pay a reinsurance claim on a timely basis after raising few, if any, inquiries about the claim. Or the reinsurer may raise questions or request documents to enable the reinsurer to understand the basis on which the underlying claim was settled or ceded to the reinsurance contract.
U.S. Government's Aggressive Tactics Against Corruption
The U.S. government has recently expanded its reach in the fight against extraterritorial corruption using innovative theories to investigate and charge companies and individuals.
Product Liability Update - Winter 2010
The Winter 2010 edition of the Product Liability Update contains such articles as: "Pa. Supreme Court Upholds Summary Judgment in Malfunction Theory Case Where Product Performed Successfully for Ten Years Prior to Alleged Malfunction" and "Pa. Superior Court Holds There is No Constitutional Guarantee of Recovery for Claims Barred by Time Limitation under Workers’ Compensation Act."
PA Post Construction Stormwater Discharge Permit: When Does a Non-Discharge Alternative Really Mean No Discharge?
In Crum Creek Neighbors v. Commonwealth, DEP and Pulte Homes, EHB Docket No. 2007-287-L (10/22/2009), PaDEP issued a post construction stormwater discharge permit to Pulte Homes for a residential development project located in Marple Township, Delaware County. The project site features an exceptional value (“EV”) stream, known as Holland Run, thus triggering heightened Post Construction Stormwater Management (“PCSM”) standards for any stormwater discharges.
EPA Announces Consequences for Failure to Meet Cleanup Targets for Chesapeake Bay Restroration Plan
On May 12, 2009, President Obama signed Executive Order 13508 (EO 13508) entitled: Chesapeake Bay Protection and Restoration. In the Order, President Obama described renewed and enhanced action necessary to respond to a pollution crisis affecting the Chesapeake Bay, the nation?s largest estuary ecosystem.
COBRA Subsidy Extended
On December 21, 2009, President Obama signed the Department of Defense Appropriations Act, 2010 (“DODAA”). Tagged on near the very end of DODAA is language that extends the COBRA subsidy under the American Recovery and Reinvestment Act of 2009 (“ARRA”).
EPA Rule Establishes New Requirements for Stormwater Discharges From Construction Sites
On November 23, 2009, the U.S. Environmental Protection Agency (“EPA”) issued a final rule establishing monitoring requirements and a numeric discharge limitation for stormwater discharges from construction sites that disturb 10 or more acres.
Construction Law News - December 2009
The December 2009 edition of Construction Law News is designed for contractors, subcontractors, developers, owners and architects.
Using Heightened Federal Pleading Standards, Court Dismisses Tortious Interference With Contract Claim
In Warfield Philadelphia, L.P. v. Nat’l Passenger R.R. Corp., 2009 WL 4043112 (E.D. Pa. Nov. 20, 2009), the owner of a parking facility (“Warfield”) sued Amtrak, alleging tortious interference with contract, among other claims.
Making Heads or Tails of Oil and Gas Instruments
You know you may be in trouble when a court opinion opens with the linguistic equivalent of red lights and warning signs.
The Benefits Game - Year End Edition
It has been a busy year for benefit professionals. During 2009 numerous new rules have been issued and/or gone into effect that may impact your benefit programs. Other rules require compliance by the end of 2009 or in 2010.
Insurance & Reinsurance Briefing - Fall 2009
Thorp Reed & Armstrong's Insurance & Reinsurance Briefing highlights recent developments in the insurance and reinsurance industry.
Chesapeake Bay Restoration Plans Mean Tougher Standards for Dischargers of Nitrogen, Phosphorus and Sediment
On May 12, 2009, President Obama signed Executive Order 13508, entitled: Chesapeake Bay Protection and Restoration. In the Order, President Obama described action necessary to respond to a pollution crisis affecting the Chesapeake Bay, the nation’s largest estuary ecosystem.
Pollution, Indemnification, Successor Liability and Third Party Beneficiary Claims: Drafting Caution is Advised!
In a case involving pollution associated with a famous South Philadelphia refinery known as “Point Breeze,” Judge Anita Brody of the U.S. District Court for the Eastern District of Pennsylvania issued a memorandum decision on June 10, 2009, involving an interesting interpretation of successor liability (United States v. Sunoco, Inc., et al., C.A. No. 05-6336-ABB).
HITECH Breach Notification Rule
The Department of Health and Human Services (HHS) recently published an interim final “breach notification” rule (HHS Rule), which clarifies several requirements of the Health Information Technology for Economic and Clinical Health Act (HITECH). The HHS Rule was developed in conjunction with the recent Federal Trade Commission (FTC) rule, which pertains to breaches by vendors of personal health records and certain other entities not covered by the Health Insurance Portability and Accountability Act (HIPAA).
New Filing Requirements - Continuing Disclosure Obligations
Effective July 1, 2009, issuers of municipal securities, such as school districts and municipalities ("Issuers") and obligated persons who are committed by contract or other arrangement to support the payment of municipal securities ("Obligated Persons") must now provide the annual financial information and operating data that is required by Securities and Exchange Commission ("SEC") Rule 15c2-12 (the "Rule") via the EMMA system, instead of via NRMSIRS.
Importer Security Filings & Additional Carrier Requirements a.k.a. 10+2
By now, most significant importers of goods into the United States have heard of the Safe Port Act of 2006 and the rule it created – the Importer Security Filing (ISF) requirement. The Act requires importers of all containerized and some non-containerized cargo imported into the United States by vessel to file with Customs certain information concerning the cargo, its ownership and the manner in which it was handled.
Resolving Claims Arising from Employment - Often More to Consider Than Settlement Amount - Taxes & Other Complexities
It is predictable that the number of employment related disputes will increase with the current economic climate and that many of them will result in payments.
Construction Law News - July 2009
The December 2009 edition of Construction Law News is designed for contractors, subcontractors, developers, owners and architects.
Insurance & Reinsurance Briefing - Summer 2009
Thorp Reed & Armstrong's Insurance & Reinsurance Briefing highlights recent developments in the insurance and reinsurance industry.
Product Liability Update - Summer 2009
The Summer 2009 edition of the Product Liability Update contains such articles as: "Pa. Supreme Court Declines to Determine Whether the Court Should Adopt Section 2 of the Restatement (Third) of Torts" and "Third Circuit Court Recognizes Bystander Strict Liability Actions."
14 Penn Plaza: Supreme Court Okays Mandatory Arbitration of Discrimination Claims
On April 1, 2009, a divided United States Supreme Court decided, in 14 Penn Plaza LLC v. Pyett, that a provision in a collective bargaining agreement (“CBA”) that clearly and unmistakably requires union members to arbitrate age discrimination claims under the federal Age Discrimination in Employment Act (“ADEA”) is enforceable as a matter of law.
Health Care & The Benefits Game: New Rules - Immediate Action Required
The recently enacted economic stimulus package, the American Recovery and Reinvestment Act (“ARRA”), imposes significant new HIPAA Privacy and Security requirements on any entity or individual who comes into contact with protected health information (“PHI”). These new rules require that both HIPAA Covered Entities and Business Associates review their HIPAA compliance procedures and protocols and take steps to ensure that they are HIPAA compliant.
Insurance & Reinsurance Update - Spring 2009
Thorp Reed & Armstrong's Insurance & Reinsurance Update highlights recent developments in the insurance and reinsurance industry.
Product Liability Update - Spring 2009
The Spring 2009 edition of our Product Liability Newsletter contains such articles as: "Pa. Superior Court Rejects Constitutional Challenge to Statutory Limit on Asbestos Liability" and "Third Circuit Court Holds Strict Liability Does Not Apply to a Refurbisher."
The New FMLA Regulations: Steps Employers Must Take To Comply With Recent Changes
On January 16, 2009, the United States Department of Labor’s newly-issued Family and Medical Leave Act (“FMLA”) regulations went into effect. The new regulations are intended to address many of the concerns raised by both employers and employees over the 15 year history of the FMLA and were also developed to implement recent amendments to the FMLA which provide new military family leave entitlements. Employers covered by the FMLA (i.e. employers with 50 or more employees) will need to take several specific steps in order to ensure compliance with the new regulations.
Contractual Protections Against Cancellations and Delays
In the current economic crisis, it’s not surprising that many businesses are confronting more requests than ever to cancel or delay performance of contracts to acquire goods or services.
Attorney-Client Privilege: While the PA Supreme Court Remains Silent, the Eastern District Departs from the PA Superior Court's Fleming Decision
In a controversial 2007 decision, the Pennsylvania Superior Court, in Nationwide v. Fleming, declared that Pennsylvania’s attorney-client privilege applies only to communications flowing from client to counsel, and the Court also took a very narrow view of the “derivative protection” that Pennsylvania courts typically and historically have afforded to confidential communications flowing in the opposite direction, from counsel to client. Fleming is on appeal to the Pennsylvania Supreme Court. The Supreme Court heard argument in March 2008, but the Court has not yet issued a decision.
Trademark Trial and Appeal Board Tightens Rule on Fraud
It has always been important for trademark owners to carefully consider all statements made in connection with obtaining, maintaining and/or renewing a trademark registration so as to avoid committing fraud on the United States Patent and Trademark Office (USPTO).
The Benefits Game: New COBRA Subsidy Rules Require Notices by April 18, 2009
This is a follow-up to our previous communiqué discussing the new COBRA health care continuation requirements under the American Recovery and Reinvestment Act of 2009 (“ARRA” or “Stimulus Act”) which became law on February 17, 2009, and which made amendments to both the Internal Revenue Code of 1986, as amended (“Code”) and the Employee Retirement Income Security Act of 1974, as amended (“ERISA”).
Commonwealth Court of PA Departs from Kelo - Taking of Property for Economic Purpose Invalid
The Commonwealth Court of Pennsylvania has declared that the government cannot take private property merely because the government has concluded that the property could be put to a more productive economic use.
The Benefits Game: Strategies for Evaluating the Risks of Downsizing
While there are many labor and employment issues (and laws) to consider when planning a reduction in force ("RIF"), there are also employee benefit issues that should not be overlooked. If you are planning a RIF or considering voluntary or involuntary terminations, the employee benefit considerations will depend, in part, upon the types of employee benefit plans you currently maintain, the types of termination packages you decide to implement, and the nature of your workforce.
The Lilly Ledbetter Fair Pay Act of 2009 and the Return of the Paycheck Accrual Rule
On January 29, 2009, President Barack Obama signed into law the Lilly Ledbetter Fair Pay Act (“Fair Pay Act” or “Act”), the President’s first piece of legislation. Almost immediately after the United States Supreme Court’s May 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), several members of Congress introduced legislation to overturn the decision.
New Standard Available for Conducting All Appropriate Inquiries of Large Tracts of Forestland or Rural Property
On December 23, 2008, the U.S. Environmental Protection Agency ("EPA") published a final rule recognizing ASTM International's E2247-08 "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland and Rural Property" as compliant with the EPA’s All Appropriate Inquiries regulation (“AAI Rule”) and allowing for its use to satisfy the statutory requirements for conducting “all appropriate inquiries” under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA").
The Benefits Game: Cafeteria and Health & Welfare Plan Edition
New SCHIP Law Results in Plan Amendments and a New Disclosure Requirement
Product Liability Update - Winter 2009
The Winter 2009 edition of our Product Liability Newsletter contains such articles as: "Pa. Supreme Court Upholds Jury Verdict Finding Manufacturer Not Liable for Dissemination of PCBs in Public Building" and "E.D.Pa. Court Uses Risk-Liability Balance to Determine Whether Product is Unreasonably Dangerous as a Matter of Law."
Insurance & Reinsurance Update - Winter 2008-2009
Thorp Reed & Armstrong's Insurance & Reinsurance Update highlights recent developments in the insurance and reinsurance industry.
New Years Eve Deadline For Code Section 409A Compliance
As you may be aware, Section 409A (“409A”) addressing deferred compensation arrangements, was added to the Internal Revenue Code (“Code”) in 2004, but final regulations were not issued until April 2007. The law and final regulations make major changes in the tax treatment of many compensation practices and impose tougher standards for how compensation is promised and paid, as well as how it is taxed for federal income tax purposes.
The Benefits Game: Non-Profit, Public School and Government Employers - 11th Hour Reprieve From The IRS
The Internal Revenue Service (IRS) has extended the deadline for adopting a written plan document for an Internal Revenue Code (the “Code”) Section 403(b) plan. On December 11, 2008, the IRS issued Notice 2009-3, which allows sponsors of a 403(b) Plan to adopt a written plan document prior to December 31, 2009, which is effective as of January 1, 2009. If you recall, recent amendments to the Code Section 403(b) regulations mandated the adoption and implementation of a Section 403(b) Plan document prior to January 1, 2009, for plan years beginning on or after January 1, 2009.
Compensation Arrangements: Code Section 409A - A Last-Minute Action Plan for Procrastinators
There goes your holidays. If you have failed to pay any attention to Section 409A of the Internal Revenue Code (“409A”), you have only days to get your act together. The compliance deadline is New Years Eve, 2008.
Compensation Arrangements: Code Section 409A - Penalties and Corrections
This is the ninth in a series of articles that we hope will provide you with a better understanding of the rules applicable to certain compensation arrangements under Section 409A of the Internal Revenue Code (“409A’”).[1] In this installment, we will discuss the penalties for failure to comply with 409A and recent IRS guidance regarding corrections.
Compensation Arrangements: Code Section 409A - Traditional Deferral Arrangements
This is the eighth in a series of articles that we hope will provide you with a better understanding of the rules applicable to certain compensation arrangements under Section 409A of the Internal Revenue Code (“409A’”).[1] This installment discusses some of the 409A rules that are applicable to the traditional deferral arrangement – an arrangement where an employee or independent contractor (“service provider’”) elects to defer the receipt of compensation from his or her employer (“service recipient”).
Compensation Arrangements: Code Section 409A - Welfare Benefits and Reimbursements
This is the seventh in a series of articles that we hope will provide you with a better understanding of the rules applicable to certain compensation arrangements under Section 409A of the Internal Revenue Code (“409A’”).[1] This installment discusses the continuation of benefits after a separation from service.
Compensation Arrangements: Code Section 409A - Separation Pay Arrangements Outside the Exemption
This is the sixth in a series of articles that we hope will provide you with a better understanding of the rules applicable to certain compensation arrangements under Section 409A of the Internal Revenue Code (“409A”).[1] As discussed in our fourth installment of this series, some severance arrangements are exempt from 409A if they satisfy specific requirements. The following discusses severance pay arrangements that do not satisfy the separation pay exemption.
Compensation Arrangements: Code Section 409A - Special Rules for Equity-Based Compensation
This is the fifth in a series of articles that we hope will provide you with a better understanding of the rules applicable to certain compensation arrangements under Section 409A of the Internal Revenue Code (“409A’”).[1] In our last (fourth) installment we discussed arrangements that are not subject to 409A, including certain equity plans. However, in order to be exempt, equity arrangements must meet certain conditions, as outlined below.
Being Both a Responsible Mentor and Mentee
"Being Both a Responsible Mentor and Mentee" - Voices and Views - a newsletter from the Pennsylvania Bar Association - Commission on Women in the Profession, Winter 2008.
Compensation Arrangements: Code Section 409A - Plans That Are Not Subject to 409A
This is the fourth in a series of articles that we hope will provide you with a better understanding of the rules applicable to certain compensation arrangements under Section 409A of the Internal Revenue Code ("409A").
ADA Amendments Act of 2008: The Expansion of the Americans with Disabilities Act
On September 25, 2008, the Americans with Disabilities Amendments Act of 2008 (ADAAA or the Act), was signed into law. The law passed in Congress with broad bipartisan support. The ADAAA will amend and make substantial changes to the Americans with Disabilities Act (ADA), enacted and signed into law in 1990. These amendments represent some of the most significant changes to federal employment law in more than a decade. The primary effect of the amendments was to increase the number of people that fall within the protection of the Act. The new law became effective on January 1, 2009.
Compensation Arrangements: Code Section 409A - What is a Plan?
This is the third in a series of articles that we hope will provide you with a better understanding of the rules applicable to certain compensation arrangements under Section 409A of the Internal Revenue Code ("409A"). Our first installment provided a brief introduction to 409A, and our second installment discussed the general rules under 409A.
Potential Ramifications of the Employee Free Choice Act
The November elections are likely going to bring change to the world of collective bargaining as we know it. The likelihood that the elections will result in an increased Democratic majority in Congress makes the passage of the Employee Free Choice Act of 2007 (“EFCA” or “the Bill”) probable.
Compensation Arrangements: Code Section 409A - The 409A Rules
This is the second in a series of articles, published by our Employee Benefits Practice Group, that provide an overview of the rules applicable to certain compensation arrangements under Section 409A of the Internal Revenue Code ("409A”). The first installment provided a brief introduction to 409A.
Compensation Arrangements: Code Section 409A - A Brief Introduction to Code Section 409A
This is the first in a series of articles, published by our Employee Benefits Practice Group, that provides an overview of the rules applicable to certain compensation arrangements under Section 409A of the Internal Revenue Code ("409A"). 409A was intended to address some of the perceived abuses with respect to executive compensation arrangements. Unfortunately, 409A is very broad in its reach, impacting numerous types of compensation programs including those for rank-and-file employees. In addition to covering employee elective deferral arrangements, it also covers arrangements that are wholly paid for or funded by the employer.
Act 38 Does Not Affect A Chiropractor's Statutory Right To Delegate Certain Services
Many commentators have offered opinions with respect to whether a recent amendment to Pennsylvania’s Physical Therapy Practice Act (the “PTPA”) impacts adversely the ability of a Doctor of Chiropractic (“DC”) to delegate massage or rehabilitative services to an unlicensed Chiropractic Assistant (“CA”).
Steven H. Seel Authored a Chapter on Striking the Planning Balance -- Practical Results for Sophisticated Clients
Third Circuit Decision Provides Guidance as to Protectability and Survey Evidence in Trademark Litigation
In its recent decision in the case of E.T. Browne Drug Co. v. Cococare Products, Inc., Nos. 06-4543, 06-4658, 2008 WL 2972730 (3d Cir. Aug. 5, 2008), the United States Court of Appeals for the Third Circuit addressed the challenge of differentiating between unprotectable generic terms and potentially protectable descriptive trademarks.
The Benefits Game: Winning Strategies; Plan Governance - Limiting the Liability of Directors and Officers
Several recent court decisions highlight the importance of understanding and mitigating the liability of directors and officers in the governance of employee benefit plans. Most recently, in MetLife v. Glenn, the Supreme Court highlighted the risks for a plan decision maker who does not follow its own procedures. In addition, recent increased fiduciary litigation activity regarding plan investments and fees places a risk on officers and directors being named as parties to these suits. Employee benefit plan sponsors should review their plan documents, board resolutions, governance and claims procedures to ensure that the potential liability of directors and officers relative to employee benefit plans is limited to the extent possible and that these written documents follow the actual decision making process.
Product Liability Update - Fall 2008
The Fall 2008 edition of our Product Liability Newsletter contains such articles as: "Third Circuit Finds That Informal FDA Action Is an Insufficient Basis for Preemption," and "In Asbestos Action, Philadelphia Court of Common Pleas Excludes Expert Testimony on Causation of Injury."
No Puffing At Work: 5 Steps Employers Need To Take To Comply With Pennsylvania's New Statewide Smoking Ban
The Pennsylvania Clean Indoor Air Act, which prohibits smoking in most public places, including workplaces, goes into effect on September 11, 2008.
The Benefits Game: Rules; Back to School Revisiting Fiduciary Duties Under Erisa
Certain employee benefit plans are subject to fiduciary provisions under the Employee Retirement Income Security Act of 1974, as amended ("ERISA"). Given the increase in litigation against ERISA plan fiduciaries and recent court rulings addressing fiduciary obligations, it seems to be a good time to review the rules. The following is a general outline of the fiduciary duties under ERISA, and is not intended to be comprehensive in nature.
The Practical Prospective - What You Need to Know About the New Franchise Rule
"The Practical Prospective - What You Need to Know About the New Franchise Rule," Hospitality Lawyer Newsletter, August 2008.
Insurance & Reinsurance Update - Summer 2008
Thorp Reed & Armstrong's Insurance & Reinsurance Update highlights recent developments in the insurance and reinsurance industry.
Mentoring Opportunities Abound Across The Generational Divide
"Mentoring Opportunities Abound Across The Generational Divide," Women Lawyers Journal, Summer 2008, Vol. 93, No. 2.
Federal Investigations of Corporations-Changes to the
On July 9, 2008, U.S. Attorney General Michael Mukasey told the Senate Judiciary Committee that the Department of Justice would soon issue revisions to the so-called “McNulty Memo,” which sets forth the factors that federal prosecutors are to consider in deciding whether to charge a corporation with a crime.
The Philadelphia Lawyer Publishes Delimiting Defamation
The Philadelphia Lawyer published an article, “Delimiting Defamation: Pennsylvania Supreme Court Protects Reputation From Freedom of Speech Defense,”" by Kevin P. Allen, partner in Thorp Reed's Commercial & Corporate Litigation Practice. The article was printed in the Summer 2008 edition of the magazine.
Product Liability Update - Summer 2008
The Summer 2008 edition of our Product Liability Newsletter contains such articles as: "Third Circuit Holds That Subsequent Remedial Measures May Be Considered by Expert Witnesses," "FDA's Public Statements May Infer Conflict Preemption," and "A Defective Container That Holds a Product That Is Otherwise Not Defective May Give Rise to Product Liability Claims Against the Product's Manufacturer."
Employee Benefits for Same Sex Partners - Implications of the Recent California Decision - How Your Employee Benefit Plan is Funded Matters
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.
Increased Transparency in the Nonprofit Sector: The Redesigned Form 990
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.
Protecting Your Privates - Controlling Access Across Your Right of Way
Most railroads have a variety of people crossing their rights of way – there are public roadway crossings, private crossings and there are trespassers. Potential injuries to railroad employees, as well as the users, and property damage are a continual concern. As a railroad, you have little control over public roadway crossings other than your input on the type of crossing protection. You have little control over where and how trespassers may cross your right of way other than policing your property. What about private crossings?
Product Liability Update - Spring 2008
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.
Forewarned is Forearmed - Some Reflections on the Relationship Between Counsel and the Department of Justice
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.
Are U.S. Companies and Executives Safe When the Public Is Not? A Look at FDA Enforcement in the International Arena
Recent events, such as deaths attributable to tainted prescription drugs, massive food recalls, and tainted pet foods, expose the extent to which U.S. consumers are at the mercy of imported products. Those events also reveal the many ways in which antiquated domestic regulatory frameworks strain to keep pace with the globalization of manufacturing. As always, where markets outpace the regulators’ capacities to protect the public, the Federal government looks to the criminal law to establish a last line of defense.
Bureau of Customs and Border Protection Proposes to Eliminate the "First Sale" as a Method of Determining the Value of Imported Merchandise
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.
Compensation and Benefits Update: Employers who Provide Welfare Benefits on a Pre-Tax Basis Must Have a Plan Document in Place by January 1, 2009 (Even Non-Profit and Public School Employees)
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.
The WTO - How a Geneva-based Organization is Changing American Trading Rules
Last semester I made what I thought was a bold statement to my law students in my class on International Trade Law. “It will not happen in my professional lifetime,” I told my students, “but within the next 25 years, we will be seeing private parties, with their own attorneys, appearing before the Dispute Settlement Panel (the court of first instance) and the Appellate Body (the court of last resort) of the World Trade Organization.” The World Trade Organization is presently constituted to hear only disputes between nations, not between private parties.
Considering the Jury: Selecting an Engineer or Mechanic as an Effective Expert Witness for Trial
Courts Continue to Struggle with the Application of the Attorney-Client Privilege to Purely Factual Communications
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.
Be Fair or Beware: Act with Caution when Dealing in Municipal Securities
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.
The Subprime Debacle Continues - The Nature and Scope of Litigation Begins to Reveal Itself
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.
Product Liability Update - Winter 2008
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.
Compensation and Benefits Update: New Year's Resolutions for Benefit Managers
The following list provides 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. Some of these changes permit delayed adoption of formal plan amendments. In the meantime your plans must comply in operation. It is important for you to take a moment to review your plan documents in order to ensure that they comply with these and other important items impacting your benefit plans.
Construction Law News - December 2007
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."
Compensation and Benefits Update: 403(b) Model Plan Language for Public Schools
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.
Product Liability Update Fall 2007
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, but Holds that Consumer Protection Cliamsare Preempted"
- "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"
- E.D.Pa. Court Dismisses Manufacturing Defect Claims after Finding Product is not Unreasonably Dangerous"
- "Pennsylvania Superior Court Rules that OSHA Regulations Preempt State Tort Product Liability Law"
- "Pike County Court Admits Evidence of Seatbelt Non-Use in Design Defect Case"
- "West Virginia District Court Rules that Expert Testimony is Required in Defective Airbag Case"
- West Virginia Supreme Court Rejects Learned Intermediary Doctrine"
A Victory for Antitrust Plaintiffs: The Third Circuit Issues a Decision Limiting the Plaintiff's Burden in Robinson-Patman Act Claims
Federal court decisions over the past few years have weakened the restraints placed upon companies by the antitrust laws.
Changes
"Changes" - Voices and Views - a newsletter from the Pennsylvania Bar Association - Commission on Women in the Profession, Summer 2007.
Thinking Outside of the Jail Cell: Pennsylvania Counties' Opportunity to Save Taxpayer Dollars through Out-Sourcing Jail Operations
State and local governments are confronted with increasing pressures to balance their budgets without raising taxes.
Another Look at the Subprime Lending Industry: New Federal Guidelines, Among Other Proposed Changes to Federal Law, Attempt to Curtail
Banking regulators recently completed guidelines that call on lenders to strictly evaluate borrowers’ ability to repay home loans.
Construction Law News - August 2007
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?"
Subprime Insolvency: Secondary Sources of Recovery, Potential Liability and Possible Opportunities to Buy Debt at Distressed Prices
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.
Superior Court Rules That Post-Traumatic Stress Disorder is a Covered "Bodily Injury" Under Motor Vehicle Policy
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.
Understanding Recent Developments in the Subprime Lending Market
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.
Leading Up, Leading Down and Leading Sideways
"Leading Up, Leading Down and Leading Sideways," Voices and Views - a newsletter from the Pennsylvania Bar Association - Commission on Women in the Profession, Spring 2007.
Act 1: The Back-End Referendum; Increasing Taxes Over PDE's Published Index
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.
What a Difference a Word Can Make: Omission of "All" Invalidates UIM Rejection Form
Consider this: An insurance client applies for automobile coverage and decides to reject underinsured motorist protection coverage.
PA Supreme Court Reaffirms That Insurer's Duties to Defend & Indemnify Are Triggered Solely By Complaint Allegations
Act 1- The Devil is in the Details
The following is the second in a series of Communiqués from Thorp Reed & Armstrong, LLP regarding the changes to School District financial affairs brought about by the Taxpayer Relief Act, Act 1 of Special Session 2006.
Is Women Only Networking Working?
"Is Women Only Networking Working?" - Voices and Views - a newsletter from the Pennsylvania Bar Association - Commission on Women in the Profession, Fall 2006.
The Trademark Dilution Revision Act of 2006
Compensation and Benefits Update for Plan Sponsors
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.
Local Tax Study Commission: The First Mandate of Act 1
The following is the first in a planned series of Communiqués from Thorp Reed & Armstrong, LLP regarding the changes to School District financial affairs brought about by the Taxpayer Relief Act, Act 1 of Special Session 2006.
Recent Developments in Employee Indemnification: One Federal Court?s Attempt to Restore Balance to the Federal Criminal Justice System
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.
Supreme Court Misses Opportunity to Clarify Scope of Federal Jurisdiction Over Wetlands
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.”
Construction Law News -- July 2006
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."
Environmental Issues: Pennsylvania Department of Environmental Protection Publishes Final Draft of Stormwater Best Management Practices Manual
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.
The Stages of Women in Leadership in the Law
"The Stages of Women in Leadership in the Law," co-authored with Mary Cushing Doherty. Voices and Views - a newsletter from the Pennsylvania Bar Association - Commission on Women in the Profession, Summer 2006.
Develop Your Leadership Skills with the Help of a Queen
"Develop Your Leadership Skills with the Help of a Queen," Voices and Views - a newsletter from the Pennsylvania Bar Association - Commission on Women in the Profession, Summer 2006.
Construction Law News - April 2006
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?"
State Supreme Court Expands Potential Liability for Premises Owners in Products Liability Lawsuits
New Environmental Due Diligence Rule Will Require Greater Effort, Time and Coordination
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.
California Courts Will Not Enforce Waiver of Right to Jury Trial Obtained Pre-Litigation
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.
Construction Law News - January 2006
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.
In Your Court - November 2005
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.
Construction Law News - October 2005
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.
Clients and Counsel Beware: Harsh Penalties Ahead for Failure to Comply with Discovery Obligations
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.
Construction Law News - August 2005
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."
Construction Law News - March 2005
What's New in Ohio: The Standard To Determine Substantial Completion
In Ohio, in order for a contractor or subcontractor to recover damages for contract work completed on a project, the contractor or subcontractor must establish that it substantially completed its contract work. 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.
New Rules For
A new Section 409A of the Internal Revenue Code of 1986 (“Code”), as amended, was added by the American Jobs Creation Act of 2004, requiring “deferred compensation plans” to now comply with new distribution, election and funding rules. Preliminary Internal Revenue Service (“IRS” or “Service”) Guidance, in Notice 2005-1 (“Notice”), clarifies certain issues and provides transition relief.
The Class Action Fairness Act of 2005: School Is Out For Class Action Lawsuits and Plaintiffs' Attorneys Who File Them
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. The law creates fundamental differences in the administration of class action lawsuits, filed as of February 18, 2005, and stands to drastically reduce the amount of attorneys’ fees awarded to plaintiffs’ attorneys who often stand to reap most of the financial gain in such litigation.
The Class Action Fairness Act of 2005: School Is Out For Class Action Lawsuits and Plaintiffs' Attorneys Who File Them
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.
In Your Court - March 2005
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."
Compensation and Benefits Client Alert: Involuntary Distributions and Automatic Rollover Requirements for Distributions Made On or After March 28, 2005
The automatic rollover provisions were added to the Internal Revenue Code of 1986 (Code), as amended at Code Section 401(a)(31)(B) by the Economic Growth and Tax Relief Reconciliation Act of 2001. The 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.
FDIC Further Restricts Payday Lending by Forbidding Some Repeat Loans
As the “payday” lending industry has evolved into a multi-billion dollar enterprise, it has undergone increased scrutiny from a multitude of governmental agencies, including the Federal Deposit Insurance Corporation (“FDIC”).
Pennsylvania Supreme Court Partially Solidifies the Claim of Negligent Misrepresentation Under Pennsylvania Law
In a January 19, 2005 opinion in the case of Bilt-Rite Contractors, Inc. v. The Architect Studio, Case No. 74 MAP 2002, slip op. (Pa. Jan. 19, 2005), the Pennsylvania Supreme Court addressed the status of the claim of negligent misrepresentation under Pennsylvania law. The Court’s decision has clarified the application of this tort in professional contexts but did not specifically address the broader application of the tort to misrepresentations made in general business settings.
Responding to GIC Investigations
First Pennsylvania Court Ruling on Legality of "Check Cashing" Payday Loan Enterprises Which Were Targeted by Attorney General in 1999 Investigation
Westmoreland County Common Pleas Judge Gary Caruso recently made what is believed to be the first judicial finding in Pennsylvania related to the legality of “check cashing” payday loan enterprises, which were targeted by the Attorney General in a 1999 investigation and enforcement action.
Township's Business Privilege Tax Unconstitutional
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 in Northwood Constr. Co. v. Twp. of Upper Moreland, 856 A.2d 789 (Pa. Commw. 2004).
Construction Law News - December 2004
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"
Construction Law News - September 2004
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!"
Construction Law News - June 2004
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?”
Records Management: A Critical Concern for Businesses of All Sizes
Records management has been a major concern for businesses and organizations for years. The importance of effective records management has increased with the exponential growth in the volume of business records, particularly electronic ones.
Subprime Mortgage Lender and Servicers Beware!
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.
Construction Law News - December 2003
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.”
Construction Law News - September 2003
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.”
U.S. Supreme Court Demarcates Liability Under Federal Copyright and Unfair Competition Law
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.