The Legal Intelligencer Blog

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 this morning is the U.S. Supreme Court upholding the centerpiece of the nation’s new health care law – the so-called individual mandate to buy insurance. As Marcia Coyle of Legal affiliate The National Law Journal writes, it was upheld as a constitutional exercise of Congress’ taxing authority.

Also above the fold on Page 1, reporters Gina Passarella and Zack Needles write that lawyers are focusing on the practical impact of the Affordable Care Act and advising clients on whether it makes sense to offer employees health care come 2014.

Below the fold on Page 1, reporter Saranac Hale Spencer writes that a Harrisburg municipal authority must pay $19 million it owes for technology installed in its garbage incinerator, which helped lead to a declaration of insolvency by the Harrisburg city government in 2011.

Also below the fold on Page 1, Gina Passarella writes that suspended state Supreme Court Justice Joan Orie Melvin has lost her bid to have the entire Allegheny County bench recuse itself from hearing the nine criminal charges against her.

In more Regional News on Page 3, Gina Passarella writes that a midyear report indicates Pittsburgh is one of the hottest legal markets thanks to the “shale rush,” along with North Dakota and Houston.

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, including much more Supreme Court coverage.

In a Real Estate Law column on Page 5, Bernie Bittner writes that Pennsylvania has approved title insurance rate changes.

In a Litigation column on Page 7, Judy Weintraub and Harrie Samaras write another part in their series on mediation preparation, this time advising not to let the informality fool you.

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 lead story in PLW is a look at the effect Justice Joan Orie Melvin’s suspension will have on the state Supreme Court. As reporters Zack Needles and Ben Present write, the high court might have lost its tiebreaker based on a study of cases over the past two years.

Below the fold on Page 1, Ben Present writes that new juvenile rules aim to protect confidentiality.

On Page 3, Ben Present writes that the Commonwealth Court has ruled there is no benefits exception for “funded” employment.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he writes about lawyers drafting pleadings without signing their names; Sam Pond and Allison Wheeler’s Workers’ Compensation commentary on the real goal behind eliminating administrative burdens; and Shira J. Goodman and Lynn A. Marks’ Judiciary commentary on why sufficient funding and willing citizens are critical to the courts.

The top story in today’s Legal is Dechert’s products liability and mass torts group no longer serving as the king of the firm’s litigation focus. As reporter Gina Passarella writes, the firm has lost at least five products liability partners since last year and has adjusted its focus in some ways.

Below the fold on Page 1, reporter Saranac Hale Spencer writes that the U.S. Court of Appeals for the Third Circuit sympathized with Blank Rome and another law firm in a document battle between a defunct corporation and the government, which is seeking hundreds of allegedly privileged documents being held by Blank Rome. The company tried to appeal a district court order granting the government’s request for the documents, but was ultimately dismissed, although a split three-judge panel took a sympathetic view of the position the law firms were in.

In more Regional News on Page 3, reporter Zack Needles writes that the state Supreme Court justices have agreed to hear arguments on whether medical malpractice defendants may rely on an “error in judgment” defense at trial.

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.

In a Health Care Law column on Page 5, Vasilios J. Kalogredis and Karilynn Bayus write about the dilemma of recovering costs in an overpayment victory.

In an Intellectual Property column on Page 7, Paul F. Prestia and Antranig Baronian write that patent clearance opinions are still important and still relevant.

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 first in a series looking at law firm revenue trends and how firms can find growth in a no-growth market. As reporter Gina Passarella writes, Pennsylvania firms are lagging behind their national brethren in revenue growth in a post-recession market.

Below the fold on Page 1 is a story about litigator Diane Sullivan departing Dechert to take her practice to Weil Gotshal & Manges in New York. Reporter Zack Needles, along with Sara Randazzo of Legal affiliate The American Lawyer, writes that Sullivan decided to make the move after spending two years brushing off calls from Weil.

In more Regional News on Page 3, reporter Amaris Elliott-Engel writes that Montgomery County Common Pleas Court’s new president judge believes that the lawyer-driven civil system is a reflection that attorneys should have responsibility for handling their cases. In a recent interview, Judge William J. Furber Jr. discussed a variety of topics regarding the Montgomery County system.

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 is today’s Appellate Law column, as Howard J. Bashman writes about the 3rd U.S. Circuit Court of Appeals’ negative views toward requests to exceed word limits on briefs.

Today’s Page 7 column is Technology Law, where Matthew P. Keris writes about reducing medical malpractice-related e-discovery issues and costs.

As it is Tuesday, it’s also your chance to read this week’s Pennsylvania Law Weekly. The lead story for PLW comes from Zack Needles, who writes about a Luzerne County case in which an insurer was prejudiced by an insured’s failure to timely notify it that a phantom vehicle had been involved in an accident before filing a claim for uninsured motorist benefits.

Below the fold on Page 1, reporter Ben Present writes an analysis piece that takes a look at the redistricting lines for the upcoming primary. Following the recent decision, it appears likely that the 2001 lines will be used.

On Page 3, Ben Present writes that an addition to a house can be consider an “improvement,” and therefore invoke consumer protection law.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he discusses judicial officers using social media; Matthew Mangino’s Criminal Practice column in which he takes a look at cross-examination and inaccurate eyewitness identification; a government contracts article detailing a contractor unable to collect a seven-digit debt owed to it by the city’s redevelopment authority; and an error that forced a man to testify at his wife’s trial.

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 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 increasing trend of Philadelphia firms adding groups in other cities as lateral movement in the city remains stagnant. As reporter Gina Passarella writes, the most recent big move was Ballard Spahr adding four Atlanta-based partners from Schiff Hardin and an of counsel from Atlanta-based Miller & Martin. But Ballard isn’t alone, as the saturated Philadelphia market is leading firms to look elsewhere to expand.

Also on Page 1 today, reporter Zack Needles writes that Boeing Co. has agreed to pay nearly $4.4 million to settle a Federal False Claims Act whistleblower lawsuit in which the company was alleged to have submitted inflated bills to the U.S. government for work related to the Chinook Helicopter program performed at Boeing’s plant in Ridley Park, Pa. There is an approval hearing for the settlement, made official on Dec. 23, 2011, set for Feb. 27.

In other Regional News on Page 3, the 3rd U.S. Circuit Court of Appeals has ruled that courts may appoint a substitute arbitrator when the one designated in a contract clause is not able to hear the case. The report comes from David Gialanella, a reporter for Legal affiliate New Jersey Law Journal.

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, including New Jersey Gov. Chris Christie tapping a pair of diverse nominees for New Jersey Supreme Court.

As it is Wednesday, the weekly GC Mid-Atlantic column is in today’s paper on Page 5, and it covers a niche firm that specializes in representation for colleges without their own counsel. Reporter Shannon Green, of Legal affiliate Corporate Counsel, writes that the National Center for Higher Education Risk Management is capitalizing on the growing trend of outsourcing legal functions.

On Page 7, the Editorial Board writes that merit selection is the answer for Pennsylvania’s appellate courts.

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 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 follows up on a report that state Supreme Court Justice Joan Orie Melvin is now a target of the Allegheny County grand jury that has already recommended charges against her sisters. Reporter Zack Needles writes that Orie Melvin reportedly received a target letter and a subpoena to testify in mid-December. According to Duquesne University School of Law professor Bruce Ledewitz, “The subpoena is simply an embarrassment to the justice.”

Below the fold on Page 1 today, reporter Amaris Elliott-Engel writes that a man rendered paraplegic when he was crushed by a slab of granite has reached a $7 million settlement with the manufacturer of a stone cutting table and two distributors of the table. The Upper Darby, Delaware County, man had his spine crushed in 2009 when a 1,200-pound slab of granite fell on him out of the “Intertool Slab Rocker Table” made by defendant Leitch & Co. Inc.

Today’s Page 3 story details Stradley Ronon Stevens & Young’s hiring of Douglas Grimm as a partner and head of its health care practice, writes reporter Gina Passarella. Grimm had previously been the head of Pillsbury Winthrop Shaw Pittman’s health care fraud and abuse practice in Washington, D.C.

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.

This week’s Employment Law column, written by Sid Steinberg, explains that a negative evaluation is not an “adverse action” in the employment context. As Steinberg writes, “‘Unfairness’ does not necessarily amount to a violation of the anti-discrimination laws.’”

As it is Wednesday, the weekly GC Mid-Atlantic column is in today’s paper on Page 7, written by Hayes Hunt and Brian Kint. They provide some practical suggestions for what to do if your company is raided by government agents, including identifying all agents involved and controlling as much of the situation as possible.

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.

At Issue: State Governments Interfering With Law School Clinics

By Anthony S. Volpe
Special to the Legal

The recent news report that Maryland Governor Martin O’Malley threatened the budget of the University of Maryland Francis King Carey School of Law because it filed suit against Perdue Farms Inc. and a chicken farm that supplies Perdue is troubling on all levels. Putting aside all merit considerations regarding the suit, there are no positives in the governor’s actions.

Law schools are charged with educating advocates for all sides of an issue and the decision to use the clinic program to advocate for a particular position should not be influenced by the potential that it could result in a loss of funding for the school. The only lesson that can be learned from such meddling is negative – powerful people or companies can apply pressures to bend and twist events to their advantage regardless of the law.

In addition to the harmful lesson this teaches at the law school, it reinforces the public perception that the law is manipulated by the rich and powerful. There is already too much distrust of the process and a public intervention by the state’s top official in a litigated matter can have no good outcome. The governor’s argument that he intervened to save a family chicken farm is unavailing. While it is commendable that the governor is protecting the welfare of the chicken farmer, the families down stream of the alleged pollution and the many users of the Chesapeake Bay are entitled to the same protection. Since there is an obvious dispute over the accuracy of the pollution charges, the matter is best settled by the courts.

There is no good that can come from politicians mixing in judicial issues, regardless of how pure the heart of the mixer.

Anthony S. Volpe, a shareholder at Volpe & Koenig, has corporate and private practice experience in securing, licensing and enforcing all aspects of intellectual property rights. His patent work includes appeals before the USPTO Board of Patent Appeals and interferences and international trade commission, prosecution of patent applications, rendering opinions regarding patentability and enforcement of patent rights.

'Don't Ask, Don't Tell' Repeal Just the Beginning for Former Pa. Congressman

By Gina Passarella
Of the Legal Staff

Former U.S. Congressman Patrick Murphy, D-Pa., made his rounds today to media outlets to discuss Tuesday's official repeal of the military's Don't Ask, Don't Tell policy regarding gays in the military.

Before losing his seat in last November's election, Murphy (pictured, left) was a driver of efforts to do away with the policy.

The media tour will culminate with an HBO documentary airing at 8 p.m. tonight in which Murphy, an Iraq war veteran, is interviewed. He said the stars of the documentary are the servicemen who describe how the country's national security was hurt by the policy's enforcement.

According to HBO's website highlighting the documentary, "The Strange History of Don't Ask, Don't Tell," more than 13,000 service members were discharged from the military in the 17 years the policy was in place.

"There's a lot of folks … that thought it was impossible[to repeal the policy] because of the power of the far right wing," Murphy said. "We proved the naysayers wrong."

But Murphy was quick to point out this is just one step toward full equality. He said there are still no protections for gays in the workplace and unequal protections when it comes to marriage. Now that he is running for Attorney General of Pennsylvania, Murphy created a website to discuss issues of having one set of rules for everyone.

Murphy said he has "absolutely" no regrets about his push to abolish Don't Ask, Don't Tell - an effort, he said, that some say may have cost him his congressional seat.

Gina Passarella is the senior reporter for The Legal. She can be contacted by e-mailing [email protected] or calling 215-557-2494. Follow her on Twitter at @GPassarellaTLI.

Fresh Ink: Inside Today's Legal

By Jaime Bochet
Of the Legal Staff

Happy Friday! Welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage. (Some stories may require registration or a paid subscription.)

Senior reporter Gina Passarella has today's top story: The tech lure of the West Coast has proven too strong to resist for some Philadelphia attorneys, and the Silicon Valley has exerted its magnetism yet again with Hewlett Packard's hire of Drinker Biddle & Reath marketing partner Gregg Melinson.

Below the fold, reporter Amaris Elliott-Engel has an interesting case out of the Commonwealth Court, which will consider a case of first impression in which The Philadelphia Inquirer was denied access to the calendars of Philadelphia Mayor Michael A. Nutter and the 17 members of the Philadelphia City Council. A judga has ruled such calendars are not public records.

Amaris also has our Page 3 Regional News story, in which Philadelphia Municipal Court Judge Bradley K. Moss has identified a conflict between a state law and a local court procedural rule on how much time Philadelphia litigants challenging money judgments in landlord-tenant cases have to appeal to the Philadelphia Common Pleas Court. 

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.

Our Friday contributed articles begin in Page 5 with our "Bankruptcy Update" by Francis J. Lawall of Pepper Hamilton. The 2nd Circuit's decision to broadly interpret the safe harbor provisions under the Bankruptcy Code follows a trend developing across the country. As a result, numerous transactions, including those involving leveraged buyouts of closely held companies, may be protected from subsequent reversal by the bankruptcy courts.

And finally, on Page 7, check out the "White-Collar Law" column by Steve G. Bazil and William Brady of Bazil McNulty, who write of the newly complicated world of client entertainment, thanks for the recently passed U.K. Bribery Act: "Let's say you are taking potential clients visiting from the United Kingdom to a 'baseball match' in Philadelphia. In order to impress, you hire a limo, book a fancy steak dinner and purchase seats in a luxury suite, and as long as it happened on or before June 30, you should not have much to worry about. However, if the game was postponed until July 1, you can potentially face prosecution for bribery by running afoul of a new U.K. law aimed at combating corruption."

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail [email protected].

Fresh Ink: Inside Today's Legal

By Jaime Bochet
Of the Legal Staff

Welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage. (Some stories may require registration or a paid subscription.)

U.S. Courthouse Correspondent Shannon Duffy shares the top of today's front page: More than 10 years after attorney Nicholas Panarella Jr. pleaded guilty to assisting state Sen. Joseph Loeper in a fraud scheme, a federal judge has vacated Panarella's conviction due to a recent decision from the U.S. Supreme Court that shows the conduct he confessed to was never a crime.

Also topping today’s front page, Charles Toutant from our sister publication, New Jersey Law Journal, writes that the 3rd U.S. Circuit Court of Appeals found Wednesday that doctors challenging President Obama’s health care plan had suffered no injury, and therefore lacked standing to sue.

Inside, on Page 3 in our Regional News section, reporter Amaris Elliott-Engel writes that the state Superior Court has ordered a new trial in a products liability case because a trial judge decided against re-charging jurors when they asked questions about their jury instructions.

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.

Our contributed articles begin with our Intellectual Property column by Paul F. Prestia of Ratner Prestia, who writes that China’s intellectual property regime has come of age.

On our weekly Young Lawyer page, we feature a column by anonymous columnist “The Rodent,” who writes for our Florida affiliate, the Daily Business Review. According to him, the nation’s law schools are producing too many lawyers!

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail [email protected].

 

Creating an Effective FCPA/UKBA Compliance Program

By David A. Anderson
Special to the Legal

Last month I discussed the potential risks that a company faces under the U.S. Foreign Corrupt Practices Act of 1977 (FCPA) and the U.K. Bribery Act of 2010 (UKBA) when conducting business in foreign countries. This month, I'll present the key components of an effective FCPA/UKBA compliance program.

There are seven key components to an effective FCPA/UKBA compliance program. They are the following:

1) Establish standards and procedures to prevent and detect criminal conduct and ensure compliance with government regulations and industry standards.

2) Create a culture of compliance led by the company's senior management. This means that senior management must:

- Be knowledgeable about the content and operation of the compliance program;
- Exercise reasonable oversight of the implementation and ongoing review of the effectiveness of the compliance program;
- Assign specific senior level manager(s) overall and day-to-day operational responsibility for the program; and
- Provide the necessary authority and resources to enable successful implementation and ongoing review of the program.

3) Use reasonable efforts to exclude known violators from activities that could lead to program violations. This also requires that the company exercise due diligence in the screening of current and prospective employees for past illegal or improper conduct.

4) Provide reasonable ongoing communication and training to senior management, employees and third-party agents regarding the standards and procedures of the compliance program.

5) Monitor, audit and evaluate the effectiveness of the compliance program on a regular basis. Included within this component are:

- The establishment of a monitoring/auditing program to verify that the compliance program is being followed, which will necessitate the use of internal audit staff or external forensic auditors;
- Evaluation of the effectiveness of the compliance program at regular intervals, including analysis of monitoring/auditing results as well as use of feedback from senior management, employees, third-party agents and others; and
- The use of hotlines to enable employees, third-party agents and others to anonymously or confidentially report or seek guidance about potential criminal conduct without fear of retaliation. 

6) Establish of appropriate performance incentives and disciplinary measures that are promoted and enforced consistently within the company to support the compliance program.

7) Establish appropriate response to detected criminal conduct, and subsequent reassessment of the compliance program to reduce the risk of the same conduct occurring again. This requires that the company take the appropriate steps to report detected criminal conduct and cooperate with law enforcement. In addition, the company must take reasonable steps to modify, if necessary, its compliance program to prevent similar conduct in the future.

Of course, no program can prevent rogue employees or agents from violating the FCPA or UKBA, but a well-designed and implemented compliance program -- with effective communication and training as well as regular monitoring and evaluation -- can minimize the risk of a company and/or its employees violating the FCPA or UKBA. In addition, the existence of such a program can mitigate punishment of the company in event of violation of either statute.

David A. Anderson, CPA, CFE, is a director in the Valuation & Forensic Services Group of Citrin Cooperman, an accounting, tax and business-consulting firm in Philadelphia. He has more than 30 years combined experience in public accounting and consulting as well as service at the CFO and COO level in private and public companies. Anderson specializes in business valuations, insolvency and reorganization, and litigation support including commercial and matrimonial litigation. He can be reached at [email protected] or 215-545-4800.