The Legal Intelligencer Blog

Fresh Ink: Inside Today's Legal

Welcome to your Thursday 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 state Superior Court restoring a $180,000 verdict against a Philadelphia judge whom a jury found to have defrauded a former law client in the settlement of her personal injury claim. As reporter Amaris Elliott-Engel writes, the punitives damages award against Philadelphia Court of Common Pleas Judge Willis W. Berry Jr. had been remitted to $20,000, but was restored by a divided Superior Court.

Also above the fold on Page 1, reporter Saranac Hale Spencer writes that the Third Circuit has narrowed the circumstances under which plaintiffs may add new claims that relate back to the original complaint after the statute of limitations has run out.

Below the fold on Page 1, reporter Zack Needles writes that the state Supreme Court has agreed to hear arguments on whether or not communications between an attorney and his expert witness are discoverable.

In more Regional News on Page 3, Jeff Mordock writes that a federal judge has ruled the Delaware Court of Chancery’s arbitration program unconstitutional.

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 an Immigration Law column on Page 5, Elise A. Fialkowski writes thate Pennsylvania has joined the growing number of states mandating E-Verify for state public works contractors.

In this week’s Young Lawyer column on Page 7, Taffie N. Jones writes about keeping clients by diversifying your practice.

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 Thursday 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 Pennsylvania voter identification law withstanding a constitutional attack by being upheld at the preliminary injunction stage by Commonwealth Court Judge Robert Simpson. As reporter Amaris Elliott-Engel writes, Simpson said the law is valid under a standard of review that is more deferential to state legislators.

Below the fold on Page 1, reporter Saranac Hale Spencer writes that an uphill fight is expected for challengers to the Hazleton ordinance barring employers and landlords from hiring or renting to illegal immigrants. The Third Circuit heard arguments Wednesday on the ordinance on remand from the Supreme Court.

In more Regional News on Page 3, reporter Gina Passarella writes that the Commonwealth Court ruled a Right-to-Know Law request for emails between a county government and four different agencies was not specific enough because it did not include a time frame for the request or specific email addresses and included subject terms that were “incredibly broad.”

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 this week’s Young Lawyer column on Page 5, Kimberly Alford Rice writes about kickstarting the marketing journey as a young associate.

In the Paralegals Page, Vivian Luckiewicz writes about developing your brand.

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.

The Practical Effect of the Arizona v. United States Decision

By Priscilla E. Jimenez
Special to the Legal

The Supreme Court’s recent decision on Arizona’s immigration law, SB 1070, otherwise known as the “Support Our Law Enforcement and Safe Neighborhoods Act,” has done little to quell the attention and conversation that has been prevalent over the past two years since the law was passed. Critics of the legislation say it encourages racial profiling, while supporters say it is intended to reduce the number of illegal aliens in the state.

A divided Supreme Court, in a majority opinion written by Justice Anthony M. Kennedy, determined that three out of four provisions of the law were unconstitutional and pre-empted by federal law – and, in accordance with this holding, upheld an injunction against these three provisions of the law. However, with respect to a fourth challenge against Section 2(b) of the law, a unanimous court upheld what most people have viewed to be the most contentious provision of the law: the “show me your papers” provision. Although the court has upheld this provision by determining that an injunction based on pre-emption was premature, they left the door open to future challenges once this section has been implemented. According to the court, if the practical effect of enforcement conflicts with federal immigration law and its goals, then this fourth provision may be struck down as well.

This upheld provision requires police to detain an individual when they make an arrest for any suspected violation of any law – if they believe that person is an undocumented immigrant – so they can check the legality of his or her presence in this country. This is true regardless of the reason for the arrest – whether it be for a parking ticket or an assault. One must wonder how the Arizona government is going to successfully implement this portion of the law in such a way that abstains from violating the civil rights of the individual in question. According to the court, if the law is applied in a way that violates civil rights, the law will be enjoined by the lower court, and the aggrieved individuals will be able to sue for damages under federal law. Stay tuned, because implementation of Section 2(b) promises to be a challenge for both Arizona law enforcement and, obviously, Hispanic residents of the state.

This issue has become a hot topic in the political arena as well. President Obama stands firm in his stance that Section 2(b) of the Arizona law is worrisome. He said, “I remain concerned about the practical impact of the remaining provision of the Arizona law that requires local law enforcement officials to check the immigration status of anyone they even suspect to be here illegally … we must ensure that Arizona law enforcement officials do not enforce this law in a manner that undermines the civil rights of Americans.” On the other end of the spectrum, presumptive Republican nominee Mitt Romney has expressed his disappointment with the Supreme Court’s ruling and has stated he would have “preferred to see the Supreme Court give more latitude to the states, not less” and has repeatedly declared he would drop lawsuits against Arizona and other states with similar immigration legislation on “Day One” of his presidency.

Both candidates have called for Congress to take action. The decision by the court was largely based on its interpretation of the federal immigration law, but if Congress clarifies its intent with regard to pre-emption, the situation could drastically change. The existing Congress may not take action, but the balance of power in a new Congress taking office in January 2013 would likely impact its response.

Keeping abreast of the stance of the presidential and congressional candidates on these issues is imperative, as their promises to either enforce or attack such legislation will undoubtedly have a significant impact on Latinos and the economy. The short-term effect of the Arizona decision is pretty clear: Arizona is going to attempt the near impossible by trying to implement Section 2(b) in a way that protects individuals’ rights. The long-term effect of the decision, however, is unknown, as the November elections can result in a dramatic shift in congressional or presidential action with regard to immigration.

Priscilla E. Jimenez is an associate at the Locks Law Firm in Philadelphia and works on personal injury, pharmaceutical litigation, products liability and medical negligence and malpractice cases. She can be reached at 215-893-3420 or [email protected].

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.)

The top story this morning is a federal judge dismissing the second amended complaint filed by a nationwide class that claimed it suffered economic damages from the recall of medicine, including Tylenol, manufactured in a now-closed Fort Washington, Pa., plant operated by a subsidiary of Johnson & Johnson. As reporter Saranac Hale Spencer writes, none of the 24 named plaintiffs alleged sufficient facts.

Also above the fold on Page 1, reporter Gina Passarella writes that suspended Supreme Court Justice Joan Orie Melvin has lost her bid for recusal of the entire Allegheny County Court of Common Pleas bench in the criminal case against her.

Below the fold on Page 1, reporter Zack Needles writes that the Superior Court has ruled that Nasdaq can’t sue to collect disciplinary fines.

In more Regional News on Page 3, Gina Passarella writes that former U.S. Solicitor General Paul Clement gave his annual review of the U.S. Supreme Court’s term, noting that the court is often consistent on the topic of First Amendment cases involving free speech.

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 an Immigration Law column on Page 5, H. Ronald Klasko writes about the EB-5 immigrant investor program.

This week’s GC Mid-Atlantic column is on Page 7, as Robert L. Pratter and Maria R. Granholm write about the Insurance Holding Company Act amendments that were recently passed.

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.)

The top story this morning is an Eastern District judge certifying a class of third-party purchasers who allege that GlaxoSmithKline filed “sham” citizen petitions with the Food and Drug Administration that kept generic versions of its nasal spray Flonase off the market for two years. As reporter Saranac Hale Spencer writes, the class was narrowed to only those who purchased the generic equivalent after it became available and those who purchased Flonase in one of four states.

Below the fold on Page 1, reporter Amaris Elliott-Engel writes that Obermayer Rebmann is arguing in support of its cross-claims against former partner Jeffrey B. Rotwitt regarding the legal malpractice lawsuit over a new family courthouse. The firm says that Rotwitt acted outside of his written partnership agreement.

In more Regional News on Page 3, Saranac Hale Spencer writes that an instruction to a federal jury to consider “mixed motivations” in the beating death of a Hispanic man was proper, the Third Circuit has ruled.

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 an Immigration Law column on Page 5, William A. Stock writes about whether ensuring compliance is also discouraging international students.

This week’s GC Mid-Atlantic is on Page 7, discussing why advertisements may be dangerous to your company’s wealth.

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 a federal judge greenlighting an $11 billion whistleblower suit alleging that Pittsburgh-based Education Management Corp. defrauded the government of federal student aid. As reporter Saranac Hale Spencer writes, the suit alleges the company violated the terms of the Higher Education Act, which bars the distribution of incentives to college recruiters based on the number of students they draw.

Also above the fold on Page 1, Saranac Hale Spencer writes that a legal malpractice claim is being allowed to proceed in a wrongful firing case in which the lawyer, James E. Ellison of Rhoads & Sinon, advised the Harrisburg School District on its decision to fire three top administrators.

Below the fold on Page 1, reporter Amaris Elliott-Engel writes that medical malpractice reform, 10 years in, is being credited for a lighter caseload in Pennsylvania.

In more Regional News on Page 3, reporter Zack Needles writes that a suit against Citizens Savings Bank Inc. alleging that it cashed 86 forged checks is being allowed to proceed by a Lackawanna County judge.

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 this week’s GC Mid-Atlantic column on Page 5, Hayes Hunt and Jonathan R. Cavalier write about three key uses of social media for corporate counsel.

In an Immigration Law column on Page 7, Matthew T. Galati writes that the USCIS has implemented a new policy involving transgendered persons.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to email 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.)

The top story in today’s Legal is a Berks County trial judge issuing what is believed to be the first order in Pennsylvania suppressing evidence from a Global Positioning System based on the U.S. Supreme Court’s recent ruling in United States v. Jones. As reporter Zack Needles writes, the high court barred evidence obtained through a mobile tracking device used to monitor a suspect’s vehicle in that case, because authorities failed to adhere to the terms of a search warrant. In the case of Commonwealth v. Burgos, Berks County Common Pleas Court Judge Paul M. Yatron reversed “with extreme reluctance” his prior order denying a defendant’s motion to suppress evidence.

Below the fold on Page 1, reporter Saranac Hale Spencer writes that U.S. Steel’s failure to provide a copy of a letter sent to a special master to the Equal Employment Opportunity Commission does not void the master’s recommendation, a Western District judge has ruled. The EEOC has been engaged in a lengthy dispute with the employer.

In more Regional News on Page 3, reporter Amaris Elliott-Engel writes that the state Supreme Court has rejected a new trial for a defendant on death row because a police interview that was not turned over to the defense before trial did not exculpate him.

Also on Page 3, Dan McCormick writes that noted white-collar litigator Donald J. Goldberg has died at 81.

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 an Immigration Law column on Page 5, Suzanne B. Seltzer writes that a federal judge has reminded the U.S. Citizenship and Immigration Services to play by the rules.

In a Family Law column on Page 7, Michael E. Bertin writes that the Superior Court has ruled declaratory judgment in a divorce action is unappealable.

Today’s lead story in PLW is a look at the upcoming state Supreme Court oral arguments to be held in Pittsburgh this week. As reporter Ben Present writes, the case attracting the most attention is the $18.5 million verdict being appealed by Genuardi’s in a case that involves a long list of appellate lawyer heavyweights filing amicus briefs.

Below the fold on Page 1, Ben Present writes that the state Supreme Court has denied the extraordinary jurisdiction petition of an attorney who has accused a Washington County judge of tampering with the transcripts of the underlying murder trial he defended.

On Page 3, Zack Needles writes that the state Superior Court has ruled a sheriff’s sale cannot be set aside for a late bidder.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he discusses privileged information in joint defenses; Matthew T. Mangino’s Criminal Practice column, in which he writes that the Supreme Court has opened the door to ineffective plea-bargaining claims; the Superior Court saying that a jury may decide an injured worker’s employment status; a religious school ruled not exempt from paying unemployment compensation benefits; and David Mandelbaum’s Environmental Law column on the high court and pre-enforcement review under the Clean Water Act.

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.

 

Phila. Bar Association Opposes Immigration Bills

By Amaris Elliott-Engel
Of the Legal Staff

The Philadelphia Bar Association has submitted testimony opposing 14 immigration bills pending in Pennsylvania's House of Representatives' State Government Committee.

Among other proposals, the bills proposed a requirement that law enforcement officers who stop anyone "who is or should reasonably be suspected of being unlawfully present in the United States" must produce a government-issued identification card; a requirement that employers must screen applicants in a database; and a requirement that all adult applicants for public benefits must produce photo identification.

The written testimony by Philadelphia Bar Association Chancellor Rudolph Garcia argues that the bills would impair the rights of people who are citizens or lawful residents of the United States, not just illegal immigrants. The solution is to pressure the federal government to act to secure the country's borders, not to enact "a patchwork of inconsistent state laws," Garcia wrote.

"We believe the best approach to a sensible immigration policy is comprehensive regulation and enforcement at the federal level," Garcia wrote. "It is far easier to control immigration at our borders than to sift through our entire population to determine which of us are rightfully here. The latter approach is like adding salt to your food, then trying to remove it again one grain at a time. Yet that is the method proposed by the current package of legislation."

Garcia also wrote that the Philadelphia Bar Association does not condone unlawful immigration.

State Rep. Daryl D. Metcalfe, R-Butler, is the primary sponsor of the bills. Metcalfe says on his website that the legislation is modeled after Arizona legislation and would "provide our law enforcement with full authority to apprehend illegal aliens for deportation; to punish employers who knowingly hire illegal aliens; and to eliminate public benefits, welfare, education, and all other economic attractions for illegal aliens."

The full testimony is available here.

Amaris Elliott-Engel is a reporter for The Legal. She can be contacted at 215-557-2354 or [email protected]. Follow her on Twitter: @AmarisTLI.

Fresh Ink: Inside Today's Legal (and DLW)

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.)

Just as Tuesdays always include our Pennsylvania Law Weekly section, Wednesday is the unofficial "Day of Delaware," when we roll out the fresh ink from our First State to the south. That includes the Delaware Law Weekly, available online at www.delawarelawweekly.com, as well as our newest product, the Delaware Business Court Insider, an online newsletter that definitely warrants a look.

But more about Delaware in a bit … let's get to today's Legal.

Topping the front page is a decision from the Eastern District of Pennsylvania by U.S. Courthouse Correspondent Shannon P. Duffy: In a pair of hefty opinions, a federal judge has certified class action antitrust claims against pharmaceutical giant GlaxoSmithKline, maker of the wildly popular antidepressant drug Wellbutrin XL, for allegedly using sham patent suits to delay generic versions of the drug from making their way to the market.

Also sharing top billing on the front, reporter Amaris Elliott-Engel writes that when former Philadelphia Housing Authority Chairman John F. Street said on a local news program that former PHA Executive Director Carl Greene "'lied about everything,'" Street did not defame Greene, a Philadelphia judge said earlier this month.

Below the fold, senior reporter Gina Passarella has news of Pittsburgh-based Thorp Reed opening an office in Wilmington, Del.

Today's Page 3 story is also by Amaris, who writes that a Philadelphia judge has ruled that a convicted murderer should get a new trial because one of two main witnesses against him said that he was pressured by a police detective to give false testimony as a child.

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

Today's contributed columns are "Immigration Law" by H. Ronald Klasko of Klasko Rulon Stock & Seltzer, and our weekly "GC Mid-Atlantic" page.

As we move south in our weekly coverage to Delaware, we'll stop first at the Delaware Law Weekly, where reporter Jeff Mordock has the top stories. Please note: all of our Delaware coverage is for paid subscribers, but you can register for a free 30-day trial by clicking here.

In the top slot, Jeff writes that the controversy continues at Widener University School of Law: Several law professors throughout the country have blasted Widener Law and Dean Linda J. Ammons after the school ordered a one-year suspension without pay and a psychiatric evaluation for university professor Lawrence J. Connell after a university panel cleared him of all but one of the charges levied against him by two former students. 

Jeff also reports that the Delaware Attorney General's Office filed a motion in New York Supreme Court last week seeking to enjoin the proposed $8.5 billion settlement between Bank of America and Bank of New York Mellon, which could end their legal dispute over residential mortgage securitization trusts.

Finally, we'd like you to meet (if you haven't already) the Delaware Business Court Insider. As the name suggests, this is a national product covering the latest news, analysis and cases from the Delaware Chancery Court, Bankruptcy Court and Supreme Court. The accompanying website is www.delbizcourt.com, where you can go to subscribe to this weekly newsletter. You can also follow us on Twitter at @delbizcourt.

Top stories there include:
- A ruling in Delaware Chancery Court that fact witnesses, who are prohibited from receiving compensation for their testimony, may receive payment from a party who will benefit from their testimony, if they perform other services in relation to the case.

- A ruling from Chancellor Leo E. Strine Jr. that a member of an existing Delaware limited liability company can assign its entire interest, including voting rights, to another member and that the member who acquired the shares does not need to be readmitted with each additional interest it acquires, even if the LLC agreement requires consent of all the members upon the admission of a new member. 

- Vice Chancellor Donald F. Parsons Jr. set a late November trial date to decide a request by an affiliate of Starr International to inspect China MediaExpress Holdings' books and records under Section 220 of the Delaware General Corporation Law.

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 and our Delaware coverage!

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

Illegal Aliens’ Eligibility for Workers’ Comp Benefits Still Under Debate

In my last post, I discussed the issue of whether illegal aliens are eligible for unemployment benefits as a general rule. A related yet equally significant issue pertains to whether illegal aliens are similarly eligible for workers’ compensation benefits. At present, there is no cut and dry answer to this question. On one side of the argument are those who say that illegal aliens are not “lawful” employees because they should not have been able to secure employment in the first place and are therefore ineligible to receive workers’ compensation benefits. On the other side of the argument are those individuals who say that illegal aliens, despite the fact that they do not have a valid visa that allows them to lawfully work in the United States, are still entitled to workers’ compensation benefits because disallowing workers’ compensation benefits to illegal aliens would provide incentives to employers to continue to hire illegal aliens and thereby avoid future liability.

Across the country, the law on this issue varies. However, there appears to be a trend among several states toward affording illegal aliens workers’ compensation benefits even though these individuals technically do not have a valid visa that allows them to work legally in the United States. In Pennsylvania for instance, the Commonwealth Court applied the Immigration Reform & Control Act of 1986 to the Pennsylvania Workers’ Compensation Act. In Reinforced Earth Co. v. WCAB, the court held that an illegal alien was not precluded from receiving workers’ compensation benefits solely because of his or her immigration status. The court further concluded that public policy would not be served by denying benefits to an illegal alien merely because of his or her immigration status. Moreover, the court held that allowing employers to deny workers’ compensation benefits to illegal aliens would provide employers with more incentive to hire illegal aliens in the future.

Similarly, in the state of New York, under Section 17 of their workers’ compensation statute, aliens are to be considered in the same light as lawful residents of the United States and should therefore be awarded workers’ compensation benefits when necessary. The awarding of workers’ compensation benefits to aliens should be consistent with the New York workers’ compensation statute awarding such benefits regardless of any question of wrongdoing of any kind. (Testa v. Sorrento Restaurant Inc.)

In the state of Virginia, however, the Supreme Court of Virginia reached a contrary result. In the case of Jose Granados v. Windson Development Corp., the court affirmed the decision of the Workers’ Compensation Commission denying benefits to claimant Jose Ismael Granados because of his illegal immigration status. Because the claimant at his hearing admitted that he had submitted false documents to his employer in order to secure employment, the Workers’ Compensation Commission denied his claim. The Supreme Court of Virginia affirmed this decision. Needless to say, this decision by the Supreme Court stirred significant public debate on the issue, leading the local Virginia Legislature to amend certain sections of its workers’ compensation statute in order to avoid this type of result in the future.

Should illegal aliens be denied workers’ compensation benefits solely because of their immigration status? Should employers be given an incentive to continue hiring illegal aliens by denying these individuals workers’ compensation benefits? It appears that some states are now moving toward awarding such benefits to illegal aliens even though they are not lawfully authorized to work in the United States. It seems that denying workers’ compensation benefits to illegal aliens would appear to be contrary to public policy. Stay tuned for more developments on this issue.

Rob C. Tonogbanua, Esq.
Dickie McCamey & Chilcote, P.C.
www.dmclaw.com