The Legal Intelligencer Blog

Bankruptcy Attorney Margery Reed Dies at 59

By Gina Passarella
Of the Legal Staff

Margery Reed, a prominent bankruptcy attorney at Duane Morris, has died at 59 after a long illness that started with thyroid cancer four years ago.

Reed died Monday. She remained active in her practice until November of this year, the firm said.

“Margie faced her illness in an upbeat and matter-of-fact way, that was so very characteristic of her as both a person and a lawyer,” Duane Morris Chairman and CEO John Soroko said in a statement to the firm. “Even while at home, she continued to work on client and firm-related matters into and through last month, until she started a period of hospice care just a few days ago.”

Reed started her career as a lawyer as a summer associate with Duane Morris. She began as an associate with the firm in 1982 and became a partner in the firm in 1990. She served for many years as a member of Duane Morris’ partners board. She practiced her entire career in the firm’s bankruptcy and business reorganization group.

“Margie was an outstanding lawyer. She was consistently rated as one of the very top bankruptcy and business reorganization lawyers in the U.S., and was elected a fellow of the American College of Bankruptcy,” Soroko said.

Reed was chair of the Eastern District of Pennsylvania Bankruptcy Conference.

“She had an expertise in insurance companies that led to her being appointed as a director of the Attorneys’ Liability Assurance Society (ALAS), the preeminent legal attorney liability insurance co-operative providing coverage to the firm and many other leading firms around the U.S. within the Am Law 200,” Soroko said. “Margie served in that role with distinction and with her typical dedication, and I often heard from other directors of ALAS about how Margie stood out even in a group of some of the most accomplished lawyers in the U.S.”

Soroko said Reed always put her colleagues and the firm first and focused at the end of her active practice on ensuring a smooth transition of all her matters.

“She was the embodiment of the true lawyer who, in all things, asks only, ‘What is best for the client?’ And she was the embodiment of the true partner who, in all things, asks only, ‘What is best for the firm?’” Soroko said.

Rudolph “Skip” Di Massa Jr., head of the Duane Morris’ business reorganization and financial restructuring practice group, called Reed “a terrific partner, a wonderful friend, and one of the best mentors we have. She really took an interest in our young associates and, although she was demanding, she took the time to nurture and teach.”

Judge Marjorie Rendell of the U.S. Court of Appeals for the Third Circuit said of Reed: “To say that Margie had a positive attitude in everything she did—in sickness and in health—would be an understatement. I can only picture her—whether working on cases at the firm or more recently chatting over dinner—with a smile on her face and laughter about something bizarre that had happened. I will remember her always as the consummate professional and friend. She was a mentor to many and an inspiration to all. As difficult as her illness was, she never complained and, when you were with her, it was never about her.”

Reed represented Fortune 100 clients and others, including financial institutions, insurance companies and other creditors in bankruptcy cases, debt restructurings and secured transactions.

She was a 1982 graduate of Villanova University School of Law and a 1976 graduate of Vassar College.

Funeral services are scheduled for 2 p.m. Thursday at Beth David Reform Congregation, 1130 Vaughan Lane, Gladwyne, Pa., 19035. Interment is set for Haym Salomon Memorial Park. Shiva is set to be observed at 7 p.m. Thursday and Saturday at the Reed residence. Contributions in her memory can be made to the Thyroid Cancer Research Fund (Perelman School of Medicine) at Penn Medicine or to Beth David Reform Congregation.

 

The Legal’s Most-Read Stories of 2013

By Ben Seal
Of the Legal Staff

It’s been an incredibly busy year for Pennsylvania legal news, from key opinions to major mergers, and trials and scandals that captivated practitioners and the general public alike. Thank you for reading us throughout the year, and we’ll be back for all of the news, both big and small, in 2014. In the meantime, here are the 10 most-read stories we published this year, with links and a brief passage from each, beginning with an impassioned essay from our Young Lawyer Editorial Board.

10. A Call to Action to Prevent Law School Student Suicides

We cannot pretend that suicide presents easy questions with simple answers. When a community grapples with this kind of loss, the sentiment is often expressed that if something could have been done, we would have done it. If signs were visible, we would have seen them and intervened. If a cry for help was made, we would have answered the call. In the absence of warning signs or pleas for help, we attempt to comfort ourselves with the resolution that such a loss could not have been prevented, thus relieving ourselves of our own feelings of confusion, anger or even guilt. Whether and how we as individuals move on, however, there is at least one professional institution that should not escape this conversation so easily or so quietly: our law schools.

9. Sources: Justice McCaffery Contacted FJD About Cases

According to several knowledgeable sources in the Philadelphia court system, Pennsylvania Supreme Court Justice Seamus P. McCaffery contacted a high-level Philadelphia Court of Common Pleas leader about civil cases in 2012. Two of the cases, sources said, involved a law firm that had previously paid a referral fee to McCaffery's spouse. One source who is knowledgeable of the court system also said the Philadelphia-based justice has contacted court leadership regarding filling jobs and filling judicial leadership roles.

8. Jury Awards $42.9 Mil. in Premature Birth Case

A Philadelphia jury has handed up a $42.9 million award in a medical malpractice case stemming from the premature birth of a child who suffered multiple physical and cognitive impairments as a result.

7. What Happened to Independent Foreclosure Review?

The Office of the Comptroller of the Currency (OCC) abruptly announced January 7 that it was ending the Independent Foreclosure Review of the mortgage servicing practices of 11 of the largest mortgage servicing companies in favor of an $8.5 billion settlement.

6. Pa. Superior Court Overturns Lynn’s Conviction

A unanimous three-judge Superior Court panel in Commonwealth v. Lynn reversed the conviction and discharged [Monsignor William J.] Lynn. Lynn's lawyers had argued following his conviction that the trial judge had refused to address the defense argument that a pre-amended version of Pennsylvania's law criminalizing endangerment of the welfare of children did not apply in the case.

5. Attorney Gets 30-Month Suspension for Luring Away Clients

A Philadelphia personal injury attorney who admitted to diverting clients away from law firms with misleading information about cases and law firm status, mishandling settlement funds from suits, forging checks and engaging in frivolous litigation was given a 30-month suspension by the state Supreme Court.

4. Firms Recalculating Compensation Models

Firm leaders and consultants who spoke to The Legal pointed to a decided shift away from a focus on origination credit, though no one predicted bringing in business would become irrelevant when firms dole out attorney compensation.

3. ‘Upskirt’ Corporate Counsel Gets Six-Month Suspension

In what the Disciplinary Board of the state Supreme Court called a case of first impression, a Montgomery County attorney was suspended for six months after being convicted of invasion of privacy for covertly filming up the skirts of two females, one of whom was a minor, in a public place.

2. Firms Struggling With High-Maintenance Rainmakers

For a number of reasons, firms might start to put their foot down when it comes to rainmakers who threaten to leave unless their salary is increased. These partners might not be shown the door in an era where capturing revenue is key, but the firms won’t block the exit—that is, if the circumstances are right.

1. Culture Shift, Technology Lead to Staff Cuts

In the wake of recent support-staff reductions at Duane Morris, K&L Gates and other large firms, consultants and recruiters said more of these types of cuts are expected as firms seek to increase profits and shifts in technology gradually phase out the need for traditional clerical functions.

DLA Piper Phila. Partners Take on New Leadership Roles

By Gina Passarella
Of the Legal Staff

The elevation of Carl Hittinger in DLA Piper’s Philadelphia office to a national leadership role in the firm has resulted in his partner Carl Buchholz taking on more duties in the Philadelphia office.

Hittinger was recently named as co-chairman of DLA Piper’s U.S. antitrust and trade regulation group. That left open the position Hittinger formerly held, chairman of the firm’s Philadelphia litigation group, which Buchholz will now fill.

Buchholz joined DLA Piper in late 2012 from Blank Rome, where he served as managing partner and CEO from 2006 to 2010. Since joining DLA Piper, Buchholz has concentrated his practice on complex litigation, including insurance insolvency, bankruptcy and commercial disputes. Hittinger joined the firm in 2006, and has concentrated his practice on complex litigation, with an emphasis on antitrust and unfair competition matters.

“These developments speak volumes about the contributions, past and expected of these two partners. Both have substantially contributed to the profile of the firm’s litigation group and Philadelphia office while admirably developing relationships, serving clients and mentoring our professionals,” Jim Brogan, managing partner of DLA Piper’s Philadelphia office, said in a statement. “We expect they will continue to grow our practice, while working collaboratively with the immensely talented lawyers throughout the firm.”

Allocatur Sought in Pharma Case Alleging Birth Defects

By P.J. D’Annunzio
Of the Legal Staff

A petition for allocatur has been filed in the case of a woman who claimed that her use of an antidepressant during pregnancy caused birth defects necessitating an abortion.

The petition for allowance of appeal before the state Supreme Court in Thomas v. GSK was filed Thursday. The petition challenges the Nov. 27 Superior Court ruling that GlaxoSmithKline (GSK) did not fraudulently conceal information about the U.S. Food and Drug Administration birth-defect risk classification of its drug Paxil from plaintiff Joanne Thomas. Given there was no fraudulent concealment to toll the statute of limitations, the Superior Court ruled the case was time-barred.

Additionally, the court ruled that since Thomas' unborn baby did not reach the fetal gestational age of 23-24 weeks, it was not considered "viable" in terms of a wrongful death/survival claim.

The petition for allowance of appeal said that “although wrongful-death claims accrue at the time of death, the doctrine of fraudulent concealment prevents a defendant from invoking the statute of limitations when its actions mislead Thomas or cause her to relax her vigilance in looking into the cause of death.”

Thomas, who said this case is one of first impression, is seeking to appeal on two main issues: whether the court’s prior rulings on what constitutes a viable fetus should be reconsidered and whether the statute of limitations should be tolled in this case or “is a defendant shielded from liability, when a defendant fraudulently conceals information from the general public and the plaintiff that is necessary for a plaintiff to determine that a cause of action exists against the defendant generally or under the Wrongful Death Act,” Thomas said in the petition.

GSK’s attorney, Joseph O’Neil of Lavin, O'Neil, Ricci, Cedrone & DiSipio, and Mary Anne Rhyne, director of U.S. external communications at GSK, did not immediately return calls seeking comment. Havertown-based Daniel J. Siegel is appellate counsel for Thomas.

Judge Paula Francisco Ott wrote in the court's unpublished memorandum that GSK did not take affirmative measures to conceal from Thomas specifically any potential risk of birth defects related to taking Paxil during pregnancy.

"This court has emphasized that the alleged act must have caused the plaintiff 'to deviate from the right of inquiry' as to the matter upon which [s]he has commenced suit," Ott said. "The trial court determined that ... GSK's conduct did not amount to fraudulent concealment. Based on our review, we find no error. The trial court's decision is sound."

In a separate concurring memorandum, Senior Judge Eugene B. Strassburger III said that while the court's ultimate decision was correct, he took issue with its reasoning on the issue of alleged fraudulent concealment.

On April 26, 2001, Thomas voluntarily chose to have a therapeutic abortion after a pediatric cardiologist informed her that her unborn son, Ryan Swindle, at the estimated fetal age of 22-and-a-half weeks, had congenital heart defects, according to Ott.

Thomas alleged that during a phone call to a GSK consumer line March 8, 2007, nearly six years later, a GSK representative incorrectly told Thomas that Paxil was a "Category C" drug in relation to the FDA's fetal injury risk categories. According to Ott, the representative later confirmed that Paxil was a "Category D" drug, or one that presents a greater risk of fetal injury than "Category C."

According to Ott, Thomas claimed that the state's fraudulent concealment doctrine tolled her claims until December 2005, when GSK changed its warnings on Paxil.

In terms of the statute of limitations, Ott cited the trial court's opinion, in which now-retired Judge Sandra Mazer Moss wrote, "There are exceptions that act to toll the running of a statute of limitations. The discovery rule and the doctrine of fraudulent concealment are such exceptions," however, "in order for fraudulent concealment to toll the statute of limitations, the defendant must have committed some affirmative independent act of concealment upon which the plaintiff justifiably relied."

P.J. D'Annunzio can be contacted at 215-557-2315 or [email protected]. Follow him on Twitter @PJDAnnunzioTLI.

Making Sense of Life Insurance Carrier Ratings

By David B. Bruckman and David Pilaitis
Special to the Legal

Business owners looking for life insurance coverage face myriad factors to consider. We often review the financial strength of life insurance companies where our clients own policies or are contemplating applying for insurance. Ratings also may be relevant if a client has an existing contract that is sold to or otherwise acquired by a new carrier.

Most folks know the names of some of the major ratings agencies, such as Moody’s or Fitch. We, however, generally focus on a carrier’s Comdex score.

The Comdex is a composite index based on the ratings received by an insurance company from the individual ratings agencies. It is expressed as the average percentile ranking for all of the ratings received by an insurance carrier. The Comdex score is not, in and of itself, a rating, but is rather an independent scale to compare companies, with a score of 100 being the best.

We focus on the Comdex because individual ratings can be complicated. Rating agencies do not use a universal scale, because each tries to differentiate itself. That makes it hard for a consumer to compare apples to apples. For example, an A-plus rating from one service will mean something quite different than an A-plus from another service.

See, for example, a report for a representative carrier, which sets forth the following ratings and Comdex scores:

• A.M. Best Company (Best's Rating, 15 ratings) A-plus
• Standard & Poor's (Financial Strength, 20 ratings) AA-minus
• Moody's (Financial Strength, 21 ratings) A1
• Fitch Ratings (Financial Strength, 21 ratings) A-plus
• Comdex Ranking (Percentile in Rated Companies) 91

We generally recommend carriers with a Comdex of 90 or higher. That said, there may be valid reasons to use a carrier with a lower Comdex rating. Such reasons include getting an underwriting concession, or the need or desire for a specific product not offered by a carrier with stronger ratings.

If you own a policy that is sold to or acquired by a new carrier, you should research the new carrier’s strength. Usually, it will not make sense to seek out new insurance, especially if it is permanent coverage, even if the Comdex of the new carrier is lower than normally desired.

David B. Bruckman is managing director of Citrin Cooperman Wealth Management, a registered investment advisory group that provides personal financial planning, investment management and insurance design and brokerage. He can be reached at [email protected].

 

 

David Pilaitis is a director and chief compliance officer with the firm. A certified financial planner, he provides comprehensive financial planning and investment advisory services to the firm’s clients, including high-net-worth individuals, corporate executives, trusts and small pension plans. He can be reached at [email protected].

New Year Brings New Privacy Requirements for Businesses

By Ashley Kenney Shea
Special to the Legal

Businesses need to examine their privacy practices as we head into the new year. California, which has emerged over the years as a leader when it comes to online privacy, recently enacted new legislation that applies to all businesses that collect any personally identifiable information (PII) about California residents on the Web and/or by mobile app. Practically speaking, this means that the law applies to any U.S. business that operates a commercial website or app and collects as little as first and last names.

The new law, which is an amendment to the California Online Privacy Protection Act (CalOPPA), requires that privacy policies now include whether and how a business’ website responds to a Web browser’s do-not-track signal and whether the business allows third parties to collect PII about users over time and across different websites. The enactment is set to become effective Jan. 1, 2014, with fines of up to $2,500 for those businesses that fail to comply. Each download of a mobile app will constitute a violation, according to the California attorney general. Before any fine is imposed, however, businesses will be warned and given 30 days to become compliant.

CalOPPA already obligates a business that collects PII to conspicuously post a privacy policy describing the categories of PII that it collects, with whom it shares that information, and how it will notify consumers of changes to the policy.

Commentators on the new amendment have said that the impetus dates back to 2011, when Mozilla offered the do-not-track feature for Firefox, enabling users to indicate that they did not want websites tracking their Internet surfing in order to serve targeted advertising. Other providers like Google and Apple adopted the feature, but all along there has been no requirement that websites honor such requests under the law, nor is there any requirement that websites let users know that they do not honor such requests. The amendment falls short of requiring websites to honor do-not-track requests, but it does put pressure on websites to do so since their policy must now be announced to users. Further, websites that claim to honor do-not-track requests, and then do not, may be penalized by the Federal Trade Commission.

Before the start of 2014, businesses would be well advised to verify what, if any, tracking services they use and how they respond to do-not-track settings. They should also determine whether third parties, such as advertisers on their site, track users through the use of cookies or other functionality. Finally, the privacy policy should be updated to clearly communicate these elements to visitors of the site.

For more information, please contact Dina Leytes ([email protected] or 215-732-3924), Kathryn Goldstein Legge ([email protected] or 215-618-3722) or Ashley Kenney Shea ([email protected] or215-501-7843).

Chesco MDJ Tapped for Hearing in Rape Case Against Montco Lawyer

By P.J. D’Annunzio
Of the Legal Staff

A Chester County senior magisterial district judge has been assigned to the preliminary hearing on rape charges against a Montgomery County lawyer and ex-GOP chairman.

Senior District Judge Susann Welsh is set to preside over Friday’s hearing for former Montgomery County GOP Chairman Robert J. Kerns, who is charged with 19 criminal counts including rape and sexual assault.

The charges against Kerns, which stem from an alleged incident on Oct. 25, include rape of an unconscious victim, rape of an impaired person, sexual assault, aggravated indecent assault, possession of a controlled substance, possession with the intent to manufacture or deliver and tampering with/fabricating physical evidence, according to the docket.

Art Heinz, spokesman for the Administrative Office of Pennsylvania Courts, said a request for a senior district judge outside of Montgomery County came to the AOPC from 38th Judicial District President Judge William J. Furber Jr.’s office on Dec. 4 and was approved by state Supreme Court Chief Justice Ronald D. Castille on Dec. 12.

Heinz said the request from the county “was made in light of the countywide nature of Mr. Kern’s prior position.” And that the judge formerly assigned to the hearing, Magisterial District Judge Robert M. Sobeck, recused himself due to a conflict of interest.

Heinz said the AOPC maintains a list of senior district judges who are called upon as needed to hear cases in a region close to the ones where they are requested.

Drexel Law School Drops Mack Name to Pursue Fundraising

By Gina Passarella
Of the Legal Staff

Drexel University Earle Mack School of Law is dropping Earle Mack from its name in an effort to get donations from other benefactors to help the school’s fundraising efforts, the university said.

“We write to inform you that ambassador Earle Mack has graciously stepped aside as naming benefactor of Drexel’s law school,” university President John A. Fry and board of trustees chairman Richard A. Greenawalt said in a joint letter to the Drexel community. “This decision will clear the way for us to seek additional benefactors to further advance the school in what has become a very challenging legal education climate.”

Until a new benefactor is named, the law school will be known as the Drexel University School of Law.

Fry and Greenawalt said Mack helped establish the first law school to be founded by a major research university in more than 30 years when the school opened in 2006. In the six years since Mack made his donation, the school achieved full accreditation.

“That period of rapid growth, however, coincided with the extended global financial crisis and the related downturn in the number of applicants to American law schools,” the two said in the letter. “We are confident that our school, with its unique experiential focus and its innovative faculty and leadership, will continue to thrive in this new environment. The Earle I. Mack Foundation and Drexel jointly concluded that this will require an economic foundation beyond what was established by his gift and the university’s matching funds. The termination of the naming agreement frees Drexel to build that foundation.”

The law school declined to comment beyond the letter.

The law school made a decision in 2010 not to grow its class size over the ensuing five or so years in the face of declining law school applicants and a shrinking job market. As of 2013, the school had 411 full-time students, according to Legal sibling publication PaLaw 2013 magazine. While Duquesne University School of Law and Widener University School of Law’s Harrisburg campus have smaller law school class sizes, the bulk of area schools are in the range of 500 to 700 full-time students, according to the magazine.

In April, Drexel’s law school announced a two-year J.D. program set to start in the summer of 2014. The "Fast Forward" program is a two-year J.D. that costs the same and requires the same amount of credits as its three-year program. The benefit, the school says, is that those in the accelerated program get to join the workforce a year sooner and live off of student loans one less year.

Gina Passarella can be reached at [email protected] or 215-557-2494. Follow her on Twitter @gpassarellaTLI.

Jenkins Confirmed as Superior Court Judge

By Max Mitchell
Of the Legal Staff

Judge Patricia H. Jenkins, of the Delaware County Court of Common Pleas, has been nominated to the state Superior Court, Gov. Tom Corbett announced today.

Jenkins fills a vacancy on the Superior Court created when Correale F. Stevens, then its president judge, was elevated July 3 to a seat on the state Supreme Court. Stevens' term was set to expire in 2016. With the confirmation, the Superior Court will operate with a full complement.

“Judge Jenkins’ record of integrity will make her a great asset to the Superior Court of Pennsylvania,” Corbett said in a statement. “Her vast legal and judicial knowledge will serve all the people of Pennsylvania, and I want to thank the Senate for her confirmation.”

Jenkins was appointed to the Delaware County bench in February 1993, and was elected to her first full 10-year term in the fall of that year. During her tenure she presided over the high-profile murder case of John E. du Pont in 1996. Du Pont was convicted of third-degree murder and sentenced to 13 to 30 years in prison for shooting to death Olympic wrestler Dave Schultz.

Before becoming a judge, Jenkins worked as a partner at Kassab Archbold & O'Brien. She also worked as a professor of paralegal studies at both Widener University School of Law and Villanova University School of Law, where she taught litigation specialization and property law.

She was also married to former speaker of the Pennsylvania House of Representatives Matthew J. Ryan, who died in 2003.

"I thank Gov. Corbett for his nomination and look forward, upon confirmation, to the opportunity to serve Pennsylvania as judge for the Superior Court of Pennsylvania," Jenkins said in a statement when her nomination was announced.

Jenkins is expected to serve until the first Monday of January 2016.

Max Mitchell can be contacted at 215-557-2354 or [email protected]. Follow him on Twitter @MMitchellTLI.

Holiday Cards: Electronic or Printed?

By Gina F. Rubel
Special to the Legal

It is that time of year again when the conversation focuses on whether law firms and other businesses should send printed holiday cards, electronic holiday cards or a mix of both.

I started receiving cards at Halloween this year. Yes, it’s true. The first greeting card came on All Hallows’ Eve. I must say that while it certainly was the first, I don’t remember who sent it or what it said because it was generic at best.

I received two more cards at Thanksgiving: one was very nicely branded and four of the law firm partners wrote personal notes to me and signed the card. Another was a card with gold foil lettering, the firm’s logo inside and a very nicely written note to me signed by a law firm partner. Both of those cards are sitting on my desk and were memorable in some way.

During the last several days, I started to receive electronic holiday cards, too. One started out with an envelope that opened to an animated image of a pine branch with snow. A “Happy Holidays” message scrolled across the top and then the firm’s logo popped in. The music was same-ol’, same-ol’. I closed the card, deleted the email and moved on to my next task.

Today, when the mail arrived, I opened a card with an image of the earth that says “Peace on Earth.” It has the company’s logo printed in black on the interior of the card and that’s it. Did I mention that the sender is a vendor and didn’t even take a moment to sign the card, let alone thank us for our business?

A holiday card can do much more for a business than simply convey the best wishes of the season. Proper preparation and planning can transform a business holiday greeting card into a subtle but effective marketing tool that will reap a return on the investment all year long. But it has to be done correctly.

Here are some examples of law firm electronic holiday cards that are branded, targeted and unique:

Baker McKenzie

Feldman Shepherd

Willig, Williams & Davidson

Here are some other cards that I really liked from 2012 that were branded and clearly demonstrate the unique nature of each business:

GPTMC

NFL Films

We find that a mix of both electronic and printed holiday cards is very healthy when they are personalized, branded and unique.

Generic cards won’t leave a lasting impression. For electronic versions, the recipient will open, read and delete them. There is no reason for them to respond, say “thank you,” say “what a great card,” etc. The resulting impression is that the sender is trying to save money and time.

Electronic cards also should be accompanied by printed counterparts. No business has email addresses for 100 percent of its contacts, and everyone should send a special note or signed card to certain individuals, such as clients, referral sources and prospects.

We usually start planning for the holidays months ahead of time, brainstorming card concepts and updating contact lists. With some thought and preparation, a holiday greeting can make a statement that lasts the whole year through, reinforcing your company’s brand and mission to clients, vendors, referral sources, friends and potential clients.

Gina F. Rubel is the owner of Furia Rubel Communications Inc., an integrated marketing and public relations agency with a niche in legal marketing. She and her agency have won national awards for law firm marketing, PR, website and graphic design, social media, strategic planning, corporate philanthropy and leadership. She maintains a blog at www.ThePRLawyer.com and is a contributor toThe Legal Intelligencer Blog, AVVO Lawyernomics and The Huffington Post. Find her on LinkedIn at www.linkedin.com/in/ginafuriarubel or follow her on Twitter at twitter.com/ginarubel. For more information, go to www.FuriaRubel.com.