The Legal Intelligencer Blog

High Court Orders Speaker to Issue Special Election Writs for Vacant House Seats

By Ben Present
Of the Legal Staff

The state Supreme Court, exercising its King’s Bench powers, has ordered Rep. Samuel H. Smith, R-Jefferson, the speaker of the state House of Representatives, to issue special election writs for six vacancies in the House.

The decision from the high court grants the request of 11 citizens, at least one from every district, who asked the high court to guarantee them elected representation after challenges to the state Legislative Reapportionment Commission’s 2011 legislative maps garnered unprecedented remand from the Supreme Court.

Smith had argued that a provision in Section 2778a of the Election Code allowed him to delay the writs of election indefinitely until a final reapportionment plan has the force of law, the court said.

But the justices disagreed, noting the right to be represented trumped that provision. The 4-3 court said in a per curiam order Wednesday that the provision “obviously is in tension with the plain terms of the Constitution.”

Following the order, the special elections to fill the House vacancies were set to be held on April 24, the same day as the Pennsylvania primary election. In a footnote, the court said the General Assembly has yet to take action to push the primary back. The special elections would fill seats that were elected November 2010 and will finish out 2012. They would run along the 2001 legislative lines and the newly elected representatives would “merely step into the shoes of their predecessors,” the court said.

“We find that petitioners here have met their burden and are entitled to a writ of mandamus ordering [] Smith to issue writs of election for special elections to fill the currently vacant seats in the House of Representatives,” the order said. “The right at issue is the fundamental right to representation in these House districts.”

The vacancies fall in Legislative Districts 22, 134, 153, 169, 186 and 197, the order said. Three of those district seats are in Philadelphia County.

Justice Thomas G. Saylor filed a dissenting statement in which he agreed with Smith that Section 2778a granted him discretion to put off issuing writs of special election until a final reapportionment plan. Justices Joan Orie Melvin and J. Michael Eakin joined Saylor.

Eakin filed a separate dissenting statement, joined by Orie Melvin.

Kevin Greenberg, one of the attorneys for the petitioners, said that if the court had ruled the other way, more than a quarter of a million Pennsylvanians would likely not have been represented for the upcoming hearings on the state budget.

“We’re gratified the court recognized the importance of representation of these approximately 350,000 citizens,” said Greenberg, of the Philadelphia office of Flaster Greenberg. “The speaker was abusing his authority and was on course to unnecessarily extend the disenfranchisement due to these six representatives being elected to other [offices].”

Are Consumer Class Actions the 'Walking Dead'?

By Joshua Wolson
Special to the Legal

Many people declared the Supreme Court’s decision in ATT Mobility v. Concepcion to be the death of the consumer class action. After all, in Concepcion, the court held that courts cannot invalidate arbitration clauses on grounds of unconscionability merely because those clauses bar a class action. That followed the court’s decision two years earlier in Stolt-Nielsen v. Animal Feeds International, in which the court held that parties to an arbitration agreement cannot be compelled to participate in a class action arbitration unless the arbitration agreement between the parties contemplates such a procedure. So, the reasoning has gone, businesses don’t like class actions, which assert (fairly or unfairly) tremendous economic pressure. Therefore, any rational business will add an arbitration clause to its form agreement or terms of service, including a class action waiver, and consumer class actions will die a silent death. But, like a zombie rising from the dead, a recent decision from the 2nd U.S. Circuit Court of Appeals might revive consumer class actions.

In In re American Express Merchants Litig., the 2nd Circuit was asked to revisit, for the third time, whether an arbitration clause, which included a class action waiver, in American Express’ merchant agreements, was enforceable. On an initial appeal, the 2nd Circuit (per a panel that included then-Judge Sonia Sotamayor) concluded that they were not, but after Stolt-Nielsen, the Supreme Court reversed the case and remanded it for further consideration. The 2nd Circuit held that Stolt-Nielsen did not change anything. Again, the case went to the Supreme Court, and again, in the wake of Concepcion, the court reversed and remanded for further consideration. And, once again, the 2nd Circuit held that nothing had changed.

So, how did the 2nd Circuit reach a decision that seems to fly in the face of recent Supreme Court decisions? The court focused on earlier Supreme Court decisions which held that as a matter of federal substantive arbitration law, if an arbitration clause effectively deprives a plaintiff of its statutory rights, then it is not enforceable. The panel focused on an affidavit submitted by an economist, which estimated the cost to the plaintiff to perform the economic study needed to win a complicated antitrust case. The court concluded that that cost was so significant that no plaintiff would rationally bear it to recover a small amount of money in an individual arbitration. Therefore, in the court’s view, the arbitration clause had the effect of preventing a plaintiff from vindicating its rights under the Sherman Act. The court held that it could not force a class arbitration, but it could invalidate an arbitration clause that had the effect of depriving a plaintiff of a federal statutory right.

If it stands, the 2nd Circuit’s decision seems to provide a roadmap to plaintiffs who want to avoid arbitration clauses and pursue class actions instead. All they have to do is submit a detailed affidavit from a potential expert demonstrating the costs of litigation and show how those costs outweigh any potential recovery. Of course, that need not be the end of the story. A defendant might want to show that the costs are overstated because any study can be used in several proceedings, at no additional cost, meaning that the costs can be spread over many plaintiffs who want to pursue their claims. For example, in the American Express case, Amex might point out that the many plaintiffs can each use the same economist’s report, which will likely focus on the market-wide effects of Amex’s conduct. The cost of the economic study will then be spread over many different members of what would otherwise be a class. The costs then might not seem so out of proportion.

So, to invoke Mark Twain, have reports of the death of consumer class actions been greatly exaggerated? Maybe, if the 2nd Circuit’s decision stands. But, based on the past few years, it seems likely that the Supreme Court will have the last word.

Joshua D. Wolson is a partner in the litigation department at Dilworth Paxson. He can be reached at 215-575-7295 or jwolson@dilworthlaw.com.

Fresh Ink: Inside Today's Legal

Welcome to your Wednesday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Today’s top story is the broadening of the separate-disease rule in asbestos cases by the Pennsylvania Supreme Court. As reporter Gina Passarella writes, the court has expanded the rule to allow a plaintiff to sue more than once for two distinct, malignant, asbestos-related diseases arising at different times.

Below the fold on Page 1, reporter Amaris Elliott-Engel writes that a state Superior Court panel has upheld a $17.3 million judgment in a Philadelphia products liability case entered against the manufacturer of a racking system used in a frozen food warehouse. In Rice v. 2701 Red Lion Road Associates LP, plaintiff Leroy Rice, a forklift operator, was partially paralyzed when several 90-pound boxes of frozen food fell on him.

In more Regional News on Page 3, Amaris Elliott-Engel writes that the state Supreme Court has retained and modified the paternity by estoppel doctrine. The common-law doctrine bars DNA testing in every case in which a putative father of a child has held a child out as his own. The modifications will require that judges only apply the doctrine if they determine it is in the best interests of the child.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In a Health Care Law column on Page 5, Vasilios J. Kalogredis and Karilynn Bayus write about the Pennsylvania Supreme Court’s decision that sales tax applies to PET/CT and MRI scan systems.

As it is Wednesday, this week’s GC Mid-Atlantic column is on Page 7, as Krista P. Harper writes that it’s important to keep costs in mind while guiding clients through litigation.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Tuesday morning round-up of stories in today’s edition of The Legal Intelligencer, which also includes this week’s edition of Pennsylvania Law Weekly. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Today’s top story is the third and final installment in a series looking at law firm growth in a no-growth market. Reporter Zack Needles writes that midsized firms are mining their existing client base as a method for revenue growth, seeking to provide the most value to existing and prospective clients.

Also above the fold on Page 1, reporter Amaris Elliott-Engel writes that Philadelphia Common Pleas Court Judge M. Teresa Sarmina has denied the latest defense motion to dismiss charges in the priest sex-abuse case. Prosecutors called the motion to dismiss charges “a press release … [that] spews false information that serves no purpose other than to pollute the pool of jurors.” The case is in the second week of jury selection.

Below the fold on Page 1, reporter Gina Passarella writes that a federal judge’s comments affected sentencing in a $74 million fraud case. The 3rd U.S. Circuit Court of Appeals has remanded the case for resentencing.

In more Regional News on Page 3, reporter Ben Present writes that a RICO claim has survived an early motion in the “kids-for-cash” suit. A federal judge allowed the claim to move forward, but dismissed claims under the Civil Rights Act because they were barred by the statute of limitations.

As always, our People in the News section is on Page 2, and the top stories from our sibling publications across the country make up the Page 4 National News section.

On Page 5 today is a Commentary written by Troy Crichton, who writes about the Barristers’ Association of Philadelphia celebrating its “Meet the Judges and Legislators” event.

In a Litigation column on Page 7, Harrie Samaras and Judy Weintraub write about determining whether mediation is the right choice for your dispute.

As it is Tuesday, it’s also your chance to read this week’s Pennsylvania Law Weekly. The lead story for PLW comes from Ben Present, who writes an analysis of the campaign funds for the Pennsylvania attorney general race. Former Lackawanna County prosecutor Kathleen Kane has more cash in her coffers, but former U.S. Rep. Patrick Murphy has a wider array of supporters.

Below the fold on Page 1, Amaris Elliott-Engel writes about a Pennsylvania workers’ compensation certification process that is set to launch in the fall.

On Page 3, reporter Dan McCormick writes that a judge has denied a grocery store company’s request for a plaintiff’s cellphone records in a slip-and-fall case.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he discusses lawyers making campaign contributions to judges; Sam Pond and Allison Wheeler’s commentary on proposed utilization review changes that they believe will prove unfair to injured workers; the state Superior Court ruling that a deactivated e-mail account can still be searched; and David Mandelbaum’s Environmental Law column on tracking environmental debts.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

AJ Suspends New System for Homicide Appointments

By Amaris Elliott-Engel
Of the Legal Staff

Philadelphia Common Pleas Court Judge John W. Herron, the administrative judge of the trial division, has temporarily suspended the First Judicial District’s homicide appointment system committee in order to “immediately increase the number of qualified criminal defense lawyers willing to accept court appointment.”

The new system started at the beginning of year to replace an old system in which judges actually appointed attorneys. The new system created a screening committee, including judges and lawyers, vetting the qualifications of attorneys.

Herron said in his court regulation issued Monday that the “Homicide Appointment System Committee” needed to be temporarily suspended because only 12 lawyers have been qualified by the committee so far. “Reliance solely on the approved panel would exhaust the list after the first six new capital cases requiring court-appointed private counsel,” Herron said. “Inevitably this would lead to multiple capital case appointments for attorneys on the panel, which is a major part of the problem this court is working to correct.”

The review process, as well as the 25-page application, of the committee will not allow for an increase of attorneys in enough time to address a backlog in homicide cases, Herron’s regulation said.

The committee will review its procedures and notify the bar when it is prepared to accept new applications for court appointments beginning Jan. 1, 2013, Herron wrote. Under the interim process, attorneys will be expected to be available for appointment through Dec. 31, 2012, and no attorneys added to the panel will be asked to accept appointment to more than two capital cases, Herron said. Herron’s action is the latest salvo on the issue of the quality of representation of defendants facing homicide charges.

Last week, the Administrative Governing Board of the FJD, made up of all of the president judges and administrative judges of the FJD’s three courts, increased the fees for indigent capital case representation while the state Supreme Court considers a report from fact-finder Senior Judge Benjamin Lerner that the pay for capital defense lawyers, while not unconstitutional on a global basis, is “grossly inadequate.” The report is still pending with the state Supreme Court.

There is a 30-day comment period authorized before the court will consider Lerner’s report and recommendations, Herron wrote in a letter Thursday to Kevin V. Mincey, chair of the Philadelphia Bar Association’s criminal justice section.

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.

Fresh Ink: Inside Today's Legal

Welcome to your Monday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story this morning is a class action against HSBC that has settled for $23.5 million. As reporter Gina Passarella writes, the plaintiffs brought the suit against the credit card issuer over the company’s payment protection plan for its users.

Below the fold on Page 1, reporter Zack Needles writes that a Bucks County jury has awarded $3.6 million to a developer that claimed a bank breached its contract when it reneged on a $12.3 million loan for a retail and office complex. The 11-member jury returned a unanimous verdict in favor of the plaintiff on Feb. 10, following a two-week trial and about two hours of deliberation.

In more Regional News on Page 3, reporter Jeff Mordock writes that e-discovery litigator Kevin F. Brady has left the Wilmington, Del., office of Connolly Bove Lodge & Hutz to join Eckert Seamans Cherin & Mellott. Brady will focus on corporate litigation, e-disovery issues, environmental insurance coverage litigation and director and officer insurance coverage litigation.

Also on Page 3, reporter Amaris Elliott-Engel writes that the First Judicial District’s electronic filing system is slated to become available to the public online today.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

On Page 5, the Editorial Board writes that, having been acquitted of murder, William J. Barnes should be released from prison. Barnes shot a Philadelphia police officer in 1966 and when the officer died in 2007, the district attorney charged Barnes with murder.

In a Public Interest column on Page 7, Mark S. Schwartz, Judy F. Berkman and Margaret Henn write that pre-condemnation municipal liens are causing problems for homebuyers. Page 7 also features the public interest calendar of events.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

 

Subpoena Issued to Penn State GC

By Amaris Elliott-Engel
Of the Legal Staff

Cynthia Baldwin, Penn State’s vice president and general counsel, has been subpoenaed to appear with a wide variety of documents before the federal grand jury investigating the university, former Penn State assistant football coach Jerry Sandusky and Sandusky’s former charity for at-risk youth, The Second Mile.

Sandusky has been charged in state court with more than 50 counts of sex abuse and related charges.

The scandal led to the ouster of Graham Spanier as university president, as well as head football coach Joe Paterno, Penn State’s most revered figure. Paterno died last month.

Baldwin has been subpoenaed to appear before the grand jury at 9 a.m. Wednesday, and has been instructed to bring records dating from January 1998 to the present involving the names and addresses of all university board members and payments by those board members to the university or to third parties on behalf of the university.

The subpoena also requires records related to Sandusky, The Second Mile, allegations made to the university against Sandusky of “misconduct and inappropriate relationships with minors,” and records about Penn State’s reporting requirements relating to allegations of misconduct of people employed or otherwise associated with Penn State. The subpoena also requires the hard drives of Sandusky, former Penn State vice president of business and finance Gary Schultz, former Penn State athletic director Tim Curley, and Spanier.

Both Schultz and Curley face charges in state court of failure to report sex abuse and perjury, stemming from statements they made to grand jurors last year.

The subpoena is dated from Feb. 2, but the school released a copy of the subpoena more recently. The subpoena was from U.S. Attorney Peter J. Smith of the Middle District of Pennsylvania and Assistant U.S. Attorneys Gordon Zubrod and Francis P. Sempa.

Appeals of Interlocutory Orders, Part 2: Interlocutory Appeals by Permission

By Mandi L. Scott
Special to the Legal

This is the second part in a series on appeals of interlocutory orders. Here is Part 1.

Sometimes a court or government unit entering an interlocutory (non-final) order is of the opinion that the order in question involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the matter. 42 Pa. C.S. §702(b) permits the court or government unit to state the same in its interlocutory order, thus giving a party the right to attempt to file an interlocutory appeal by permission pursuant to Pa. R.A.P. 312 and Chapter 13 of the Pennsylvania Rules of Appellate Procedure.

The most important thing to know about Chapter 13 is that, even if the trial court includes the “magic” language required by 42 Pa. C.S. §702(b), an immediate appeal from an interlocutory order is not permissible. Instead, the party seeking to file an appeal must file a Petition for Permission to Appeal with the prothonotary of the appropriate appellate court within 30 days after the entry of the interlocutory order containing the statement required by Section 702(b). See Pa. R.A.P. 1311.

One other note of caution to those filing a Petition for Permission to Appeal an interlocutory order, the filing of such a petition does not stay the proceedings before the lower court or other government unit, unless the lower court or other government unit, or the appellate court, orders a stay.

That statement, again, is: “[this] order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter[.]”

Rule 1311 further requires that any petition be served on all other parties to the matter and on the government unit or lower court issuing the interlocutory order so that the petition may be docketed of record before the lower tribunal.

As for the contents of a Petition for Permission to Appeal an interlocutory order, the petition must contain the following:

1. A jurisdictional statement.

2. The text of the interlocutory order in question.

3. A concise statement of the case.

4. The controlling question(s) of law presented to the appellate court for review and a concise statement of why a substantial ground exists for a difference of opinion on the question and why an immediate appeal may materially advance termination of the case.

The failure of a petitioner to present its position with accuracy, brevity and clarity is a sufficient reason for the appellate court to deny the petition.

Finally, if a Petition for Permission to Appeal is filed asking the appellate court to exercise its discretion and accept the subject order for review, but the order is actually a final order which was immediately appealable as of right, the appellate court may treat the petition as an appeal from a final order pursuant to Pa. R.A.P. 1316.

Mandi L. Scott is an associate with the Pittsburgh-based law firm of Goehring Rutter & Boehm, where she has been practicing since 2004. Currently, her practice focuses on appellate issues and municipal law. To contact her, e-mail mscott@grblaw.com.

Fresh Ink: Inside Today's Legal

Welcome to your Friday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story today is the state Supreme Court ruling that uninsured drivers can sue insured drivers for economic damages. As reporter Zack Needles writes, the court ruled unanimously in favor of plaintiff Mary Corbin, an uninsured motorist who was injured in an accident and had sought to sue the other driver, who was insured, for economic damages. Justice Seamus P. McCaffery, writing for the majority, said that while the issue seemed to deal with two incongruous sections of the Motor Vehicle Financial Responsibility Law, when considered together “there is no ambiguity.”

Also above the fold on Page 1, reporter Gina Passarella writes that Cozen O’Connor has hired Joseph Dever, who most recently served as an assistant regional director of the enforcement division for the Securities and Exchange Commission in New York, as the new chairman of its securities litigation and SEC enforcement practice group.

In more Regional News on Page 3, reporter Amaris Elliott-Engel writes that Pennsylvania Chief Justice Ronald D. Castille asked Thursday that legislators find more funding for the state judiciary. He recommended an extension of a temporary fee surcharge to traffic citations in order to help cover a project $29.6 million shortfall under Gov. Tom Corbett’s proposed budget.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In a Franchise Law column on Page 5, Craig R. Tractenberg writes that most franchise professionals have expressed a cautious optimism for the industry, despite economic pressures that abound.

In an Environmental Law column on Page 7, Katherine L. Vaccaro and Diana A. Silva write that uncertainty looms over the EPA’s cross-state air pollution rule.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Do’s and Don’ts for Departing a Law Firm: Part 3

By Don P. Foster
Special to the Legal

Yesterday, we covered the checklist of things a lawyer should do when departing his or her law firm. Today, in Part 3 of this series, we’ll take a look at what both the lawyer and the law firm should avoid.

The “Don’t” Checklist

The departing lawyer should not:

1. Seek a client’s commitment of legal work to a new firm before notifying the old firm of the intent to leave.

2. Remove client files from the firm prior to notice to the firm. Note: the issue of copying electronically stored documents to a flash drive or other portable storage device has not been addressed by ethics committees or courts. Because no one’s interests are harmed and the client is protected in the event of a delay in the transfer of a file, there does not appear to be anything wrong with it.

3. Advise a client not to pay an existing bill or to pay the attorney directly.

4. Compete with the old firm prior to departure by comparing services or rates of the two firms.

5. Malign the quality or price of the legal services of the firm.

6. Solicit associates or other firm employees prior to actual departure to leave with him. Note, however, this non-solicitation rule should be subject to the same distinction drawn in Part 2 between the “what if” exploratory conversation with a client and active solicitation once the decision to leave has been made. Furthermore, there is nothing that prevents the withdrawing attorney from responding to inquiries from associates and staff after the announcement of his departure.

Practice Pointer: Once the decision to leave has been made and the firm notified, the firm and the departing attorney should identify active clients for which the departing lawyer is responsible or plays an important role in representation of those clients. They should then jointly prepare a letter, for the departing lawyer’s signature, informing them of:

a. The departing lawyer’s intended departure, the timing of the departure, the departing lawyer’s new association and willingness of both the old and new firm to continue the current representation of the client.

b. The client has the sole right to decide who will complete or continue the representation, whether the old firm, the departing lawyer or a new lawyer altogether.

The letter should also seek client direction regarding the transfer of files. As it is a joint letter, as a practical matter it will not contain disparaging comments about either party, nor will the letter urge the client to continue with one relationship or another. Nevertheless, the joint opinion expressly proscribes both. If the firm and the departing lawyer cannot agree on the language of a letter, then separate letters can be sent.

The old law firm should not:

1. Prevent the departing lawyer from honoring his ethical obligations to clients or attempt to thwart any ongoing relationship between that lawyer and departing clients.

2. Forbid a departing lawyer from announcing his departure, notifying clients or opposing counsel in a litigated matter.

3. Instruct firm personnel not to disclose the whereabouts of former lawyers to clients or other callers.

4. Withhold files of departing clients as leverage in disputes with departing lawyer over fees or other strictly lawyer-to-lawyer issues.

Conclusion

It is the unusual case when an attorney with a substantial practice, or the potential for such a practice, decides to leave a law firm, that the blueprint for a professional, noncombative, cooperative transfer of the attorney’s practice is followed. Rather, it is too often the case that acrimony, jealousy, greed and distrust cloud judgment and cause people to do things that result in litigation. No one wants that. Not only is it costly, it is emotionally taxing. It also is unseemly to the client. It is therefore wise for the departing attorney to retain experienced counsel to go over the do’s and don’ts of his jurisdiction, and to serve as an intermediary in discussions with the firm in case it does not take the news of the departure well.

Counsel can also review any applicable partnership or employment agreements in order to advise on the effect that the timing of a departure would have on the departing lawyer’s compensation from the old firm. This topic requires concentration on the law of fiduciaries and contracts and will be addressed in a separate article.

Don P. Foster is a principal at Offit Kurman, which he recently joined as a lateral from another Philadelphia firm. He has represented both attorneys and firms in matters related to departures, dissolutions and related compensation.