The latest motion in the legal battle over Ezekiel Elliotts suspension has been decided. The Fifth U.S. Circuit Court of Appeals cleared the way for the NFL to enforce a six-game suspension on Dallas Cowboys star Ezekiel Elliott over domestic violence accusations, siding with the league in the most recent high-profile fight over its ability to penalize players for off-field behavior. Specifically, the Fifth Circuit, in a 2-1 opinion, granted a stay for the injunction that was postponing Elliotts six-game suspension. The majority ruled that…

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Late in the evening of October 12, 2017, word leaked that the Trump Administration planned to finally carry out its threat to stop the Cost-Sharing Reduction Payments (CSRs) under the Affordable Care Act (ACA). The Administration confirmed the decision to cease the CSRs and published a memorandum from the Office of the Attorney General to the Secretaries of Treasury and Health and Human Services setting out the legal and policy underpinnings of that decision. Brief Background The ACA establishes two mechanisms to help defray the costs of health insurance premiums in the Healthcare Marketplace (Marketplace) for lower income individuals: (1)…

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President Trumps Executive Order titled Promoting Healthcare Choice and Competition Across the United States seeks to reform certain aspects of the Affordable Care Act (ACA or Obamacare) by Executive Agency action rather than Congressional legislation. It takes specific aim at three areas: 1). Expanding small employer access to association health plans; 2). Extending the availability and duration of Short-Term Limited Duration Insurance coverage; and 3). Removing the current bar on employees using employers Health Reimbursement Arrangements to purchase individual health insurance. Note that any such change requires action by various federal agencies, either by rulemaking or written guidance or both.…

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On October 10, 2017, baseball agent Bartolo Hernandez and sports trainer Julio Estrada requested a Florida federal judge give light sentences instead of the governments request for harsher sentences for their convictions for smuggling Cuban baseball players into the United States. In March, a Miami jury convicted Hernandez and Estrada for their roles in a scheme that coerced vulnerable baseball players, obtained false documents, and assisted in fraudulent and outright illegal entry into the U.S. Hernandez faces 3 to 15 years in prison…

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Quattlebaum, Grooms & Tull PLLC was recently recognized in the 2018 edition of Benchmark Litigation as one of only three “highly recommended firms” for litigation in Arkansas. Steven W. Quattlebaum, John E. Tull III, E. B. (Chip) Chiles IV, and Michael N. Shannon were highlighted as Litigation Stars and Brandon B. Cate, Joseph R. Falasco,... Read More The post QG&T Highly Recommended By Benchmark Litigation appeared first on Quattlebaum, Grooms and Tull.

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The NFLs New York suit seeking to enforce the six-game suspension on Dallas Cowboys Ezekiel Elliott was halted on October 11, 2017 until the Fifth Circuit Court of Appeals makes a decision. Manhattan federal courts District Judge Katherine Polk Failla said she would not issue a formal stay of the injunction the injunction currently preventing Elliotts suspension from taking immediate effect but that she would halt the New York litigation. Elliott has played, so far, in all five Cowboys games this season. The…

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LB 148 amended various sections of the Securities Act of Nebraska (the "Act").  Some of the most substantive changes were to 8-1111.  Generally, offers and sales of securities in the State of Nebraska must be registered unless an exemption is available, and 8-1111 provides transactional exemptions from registration under the Act. This article highlights recent changes to the most commonly utilized transactional exemptions.   New Types of Entities under the Accredited Investor Definition.  Historically, the self-executing exemption for accredited investors was limited to institutional investors (i.e. banks, trust companies, other financial institutions) and individual accredited investors. See, 8-1111(8). Although the…

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Whether your passion is rock climbing, camping, skiing, yoga or scuba diving, starting a company that combines your passion with the opportunity to pay your bills can be exciting and overwhelming. Perhaps the scariest part of any such endeavor is that we simply cannot know what we dont know. One place where entrepreneurs struggle to … Continue reading "Making Your Passion Your Paycheck: Legal Issues for Entrepreneurs" The post Making Your Passion Your Paycheck: Legal Issues for Entrepreneurs appeared first on The Sports & Outdoor Recreation Blog.

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Contributed by Steven Jados, October 11, 2017 Addressing an employment issue of interest in an increasingly digital world, the Seventh Circuit Court of Appeals (which has jurisdiction over lower federal courts in Illinois, Indiana, and Wisconsin) recently upheld a prior ruling that the City of Chicago was not liable for paying wages for certain employees […]

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The Obama era Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) would have said, YES. Yesterday, the Trump Administrations DOJ answered that question with a NO, reversing the federal governments stance regarding whether gender identity is a protected class under Title VII of the Civil Rights Act of 1964 (Title VII). Attorney General Jeff Sessions communicated in a letter to all U.S. Attorneys on October 4, 2017 that Title VII does not cover bias based on transgender status. The letter reverses a position taken by former Attorney General Eric Holder in December 2014. Attorney General Sessions wrote, This…

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Quattlebaum, Grooms & Tull PLLC is pleased to welcome Christoph Keller to the firms Little Rock office. Mr. Keller is an Associate with the firm and his primary area of practice is litigation. Prior to joining the law firm, Mr. Keller served as a law clerk for the Honorable Kristine G. Baker of the United... Read More The post QG&T Welcomes Christoph Keller to Little Rock Office appeared first on Quattlebaum, Grooms and Tull.

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Are you free to register the trademark SWAP SEALED WITH A PRAYER when someone else has an existing registration for the mark SWAP, and both are directed to clothing goods That is a question the Trademark Trial and Appeal Board (the Board) sought to answer in the matter of In re Beda Alan Tirol.In particular, … Continue reading "Tips in Choosing Your Trademark: Watch Out for Acronyms!" The post Tips in Choosing Your Trademark: Watch Out for Acronyms! appeared first on The Fashion Intellectual Property Blog.

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By: Linda E. Klamm, Partner This article is written in response to the wildfires in Napa, Mendocino & Sonoma Counties. I lost my home in the 1991 Oakland Firestorm. As such, my heart goes out to the residents of Napa, Mendocino and Sonoma counties whose homes were damaged or destroyed, to the firefighters and first responders who have risked and are risking their lives, as well as to the community, which will also experience the aftermath of such devastating fires. I am also an attorney who specializes in handling insurance claims for policyholders and had the stress and challenge of…

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U.S. Customs and Border Protection (CBP) recently announced that it will block imports of goods that were produced with North Korean labor even though North Korean workers were employed outside of North Korea. The announcement was made after reports that Chinese-processed seafood Americans buy at Walmart, ALDI, and other stores has been produced with North … Continue reading "CBP to Ban Imports Made by North Korean Workers Regardless of Location" The post CBP to Ban Imports Made by North Korean Workers Regardless of Location appeared first on The Sports & Outdoor Recreation Blog.

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Making a referral is most often understood as a recommendation as to the quality of that professionals services or products. In turn, there are different tort theories that are recognized in many states for negligence in doing so, and potential liability for the actions of a referred professional. What is far less common is to allow liability to flow through several parties even absent independent conduct or a theory of agency.

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When presented with a witness who speaks English as a Second Language (ESL), it is difficult to predict how they will be perceived by a jury. In a previous post, we examined the challenges of identifying juror bias against foreign witnesses, but that raises a separate, yet related issue as to whether that witness is […] The post Should an ESL Witness Testify Through an Interpreter appeared first on Litigation Insights.

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Contributed by Suzanne Newcomb, October 5, 2017 Technology allowing employers to use biometric data tools to track attendance and maintain worksite security abounds. Purveyors hype the advanced technologys ability to accurately validate time entries, eliminate fraud, and better control access to the workplace or to sensitive areas within the workplace. If these systems are so […]

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After the well-publicized CMS enforcement action against St. Peter's Hospital in Helena, Montana, in October, 2015, there was substantial confusion within the hospital industry about the effect of leasing licensed hospital space to private physicians for the purpose of periodic outreach clinics. In the case of St. Peter's, the hospital sought provider-based status for two clinic locations (one in the same building as the main hospital and another across the street).  The two clinics had been used for dual purposes for some time.  Part of the time, the clinics were staffed by hospital-employed physicians, with the hospital billing a technical…

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On September 15, 2017, the Iowa Board of Medicine published final administrative regulations governing the supervision of physician assistants PAs in Iowa.  Although the new rules are effective September 20, 2017, enforcement of the rule is delayed until January 1, 2018 in order to allow time for education and implementation.  Physicians supervising PAs may be subject to licensee discipline for failing to arrange for written agreements by that date.  Although the substance of the supervisory relationship  between physicians and PAs has not changed, the amended rules, especially 653 IAC 21.4 requiring written supervisory agreements meeting certain requirements, provides greater detail…

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Home health agencies ("HHAs") are struggling to deal with changes from the Centers for Medicare and Medicaid Services ("CMS") on two fronts.  On July 10, 2017, CMS released a final rule delaying the effective date of the changes to the Conditions of Participation ("COPs") for HHAs that was published on January 13, 2017.  This delay will give HHAs an additional six months, until January 13, 2018 (instead of July 13, 2017), to comply with the new COPs.  In granting the delay, CMS noted that many commenters had strongly expressed that HHAs needed a longer period of time to comply with…

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Social media has become a preferred medium for operators to disseminate information and sell their products/services, connect with their customers and strengthen their brand. With this availability and convenience, also comes numerous unforeseen opportunities to run afoul of the law (e.g., violations of gambling prohibitions, FCC/FTC guidelines, necessary official rules provisions and state registration/bonding requirements). … Continue reading "Perils of Using Social Media to Run Promotions" The post Perils of Using Social Media to Run Promotions appeared first on The Sports & Outdoor Recreation Blog.

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Most companies extend unsecured credit to their customers as a routine and often daily part of their business—a supplier ships parts to its customer along with an invoice and, at some point thereafter, the customer submits payment. Life is good.

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For years, designer handbag maker Louis Vuitton has been entrenched in trademark litigation against the Los Angeles based one-woman tote bag maker My Other Bag. My Other Bag sells relatively inexpensive canvas tote bags depicting caricatures of expensive designer handbags on one side with the text My Other Bag on the other. One such bag … Continue reading "Supreme Court decision not to review Louis Vuittons requested appeal against upstart parody tote bag maker My Other Bag allows the bag maker to use Louis Vuittons designs" The post Supreme Court decision not to review Louis Vuittons requested appeal against upstart…

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In a case that involved the competing powers of all three branches of government, the Court of Appeals struck down a plea deal between the prosecutor and the defendant—a Michigan state legislator—that restricted the defendant’s ability to run for public office. In People v. Smith, No. 332288, the appeals court upheld a trial court ruling that a plea deal violated the separation of powers by requiring the legislator to resign his position and abstain from running for office in the future. Further, the court upheld the trial court’s denial of the prosecutor’s request to withdraw the plea agreement and proceed…

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The Michigan Supreme Court has granted mini-oral argument in Merchand v. Carpenter, No. 154622, to consider whether evidence from a defendant doctor's past medical malpractice cases are relevant under MRE 404(b). 

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Last month, Oleg Deripaska filed his response to the Associated Press anti-SLAPP special motion to dismiss. His brief argues that the Court should deny the Associated Press motion for multiple reasons. I discuss each below. First, Deripaska argues that the DC Circuits decision in Abbas v. Foreign Policy Group is binding on the federal district court until it is overruled by the Supreme Court or the DC Circuit sitting en banc. But, as the Associated Press showed in its opening brief, there is recent precedent holding that, where the DC Circuit anticipates how the DC Court of Appeals would rule…

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In Helsinn Healthcare S.A., v. Teva Pharmaceuticals USA, Inc., 855 F.3d 1356 (Fed. Cir. 2017), the Federal Circuit interpreted, for the first time, what constitutes an on-sale bar under 35 U.S.C. 102(a)(1) of the Leahy-Smith America Invents Act (AIA). Under the AIA, a person will not be entitled to a patent if the claimed invention … Continue reading "Interpreting the On-Sale Bar Under the AIA" The post Interpreting the On-Sale Bar Under the AIA appeared first on The Intellectual Property Blog.

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Attention blog readers! We are proud to announce that Professional Liability Matters has made it to the voting round in The Expert Institutes 2017 Best Legal Blog Contest. Over the past month, this contest received thousands of nominations, which were then narrowed to the most exciting, entertaining, and informative legal blogs online today. To vote for this blog, visit The Expert Institutes contest page here and click vote for Professional Liability Matters.

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Contributed by Allison P. Sues, September 27, 2017 Because not all recoveries from medical conditions come in neat twelve-week packages, employers commonly need to address employees requests for additional leave after they have exhausted all leave afforded under the Family Medical Leave Act (FMLA) or company policy. The U.S. Equal Employment Opportunity Commission has long […]

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There are several federal laws with protections for pregnant employees and those employees experiencing complications from birth. Depending on the circumstances, FMLA, ADA and/or the Pregnancy Discrimination Act (PDA) may be triggered. In Hicks v. Tuscaloosa, the Eleventh Circuit ruled on a case involving an employees post-pregnancy lactation and need to nurse her newborn.

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In its recent decision in Aaron Ambulance Med. Transp., Inc. v. Certain Underwriters at Lloyds, 2017 U.S. Dist. LEXIS 149409 (D.N.J. Sept. 14, 2017), the United States District Court for the District of New Jersey had occasion to consider the … Continue reading →

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As we have previously posted, Senator Feinstein has proposed a bill that would clarify a key legal issue that has stirred up controversy among drone-law practitionersnamely the extent to which FAA regulations preempt efforts by local government to regulate drone use. Senator Feinsteins measure would free up local government to regulate drone use so long […]

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When operating a golf cart while playing recreational golf, what standard of care is applied  Specifically, does the ordinary standard of care in simple negligence claims apply, or does the “reckless misconduct” standard in recreational activities apply  The Michigan Supreme Court has granted mini-oral argument to answer this question in Bertin v. Mann, No. 155266. 

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Here in California, 2017 has been a very quiet legislative session with regard to drone law. Prior years have seen many attemptsmany unsuccessfulto regulate drone use in a variety of ways. The current legislative session ended on September 15 with only a single drone-related bill passed by the legislature. AB 527 (Caballero) will make modest […]

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We once had a client come to us with an expert witness who needed some serious prep work. He was a great guy, very approachable, and extremely knowledgeable about his industry. As it turned out, however, he hadmajorproblems with short-term memory and would buckle under cross because he couldnt remember basic details related to the […] The post How to Make Sure Your Expert Witness Isn’t a Lemon appeared first on Litigation Insights.

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The Origin & Cause In 2010, a California jury returned a $671 million verdict in a class action alleging "violation of the rights of residents" under the California Health and Safety Code[1] arising from alleged understaffing at senior care facilities. Before the jury determined whether to award punitive damages, the Lavender, et. al. v.Skilled Healthcare Group, Inc.[2]lawsuit settled. Subsequently, the lead plaintiffs attorneys in Lavender systematically sued all of the larger for-profit Nursing Home providers in the State of California seeking class action certification and substantial damages. All of these cases have now settled. These same plaintiffs counsel, and now…

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What happens when you want to register a word mark, and someone else has an existing trademark for a stylized mark containing similar words Are you in the clear because they have a large logo in their mark that you do not use That is the case examined by the Trademark Trial and Appeal Board … Continue reading "Tips in Choosing Your Trademark; the Trademark Case of a “Crazy Dog” Wearing Sunglasses" The post Tips in Choosing Your Trademark; the Trademark Case of a “Crazy Dog” Wearing Sunglasses appeared first on The Fashion Intellectual Property Blog.

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Last week, the U.S. Department of Transportation (DOT) and the National Highway Traffic Safety Administration (NHTSA) released new policy guidelines for autonomous and connected vehicles. Titled “Automated Driving Systems: A Vision for Safety 2.0,” the policy guidelines update and replace the Federal Automated Vehicle Policy promulgated almost exactly one year ago by DOT and NHTSA under the Obama administration. The guidelines also come less than a week after the U.S. House of Representatives overwhelmingly passed the SELF DRIVE Act, groundbreaking proposed legislation that would offer the industry long-desired clarity regarding safety standards for connected and autonomous vehicles (CAVs).

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In a remarkable development around the contentious Dakota Access Pipeline (DAPL), the developer of the project, Energy Transfer Equity and Energy Transfer Partners, sued the environmental groups that opposed DAPL. Energy Transfer sued Greenpeace International, Greenpeace Inc., Greenpeace Fund, Inc., BankTrack, and Earth First! alleging that the: group of co-conspirators (the “Enterprise”) manufactured and disseminated … Continue reading "DAPL Developer Sues Environmental Groups" The post DAPL Developer Sues Environmental Groups appeared first on The Energy & Natural Resources Blog.

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On September 7, 2017, Equifax announced that it had experienced a cybersecurity breach impacting approximately 143 million people.  It appears that the unauthorized access occurred mid-May through July 2017. If a credit report was run on you prior to, or during the breach, then your information was probably exposed by the incident.  Equifax has reported that names, Social Security numbers, birth dates and addresses and potentially driver's license numbers were accessed.  In addition, if you have ever disputed credit information, then the personally identifiable information you submitted could have been accessed.  Finally, if you paid for Equifax services by credit…

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With the legalization of cannabis in California, cannabis businesses will need to address their real estate needs. As not many businesses can afford to buy a building outright, leases will need to be negotiated and executed. However, cannabis related real estate leases will need to be handled more carefully than a normal commercial lease.

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Have you ever read a brochure for a resort, college, or apartment complex and expected everything it said to be completely and totally accurate without any caveats In the Commonwealth of Pennsylvania, a chain skilled nursing facility is under attack for representations it made in its marketing materials. In July of 2015, the Commonwealth of Pennsylvania, by its Office of Attorney General (OAG), filed a Petition for Injunctive Relief against Golden Gate National Senior Care, LLCs Pennsylvania facilities (Golden Gate). The OAG asserted a claim under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 Pa C.S.A. …

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In 1966, California voters decriminalized the medical use of marijuana by approving the California Compassionate Use Act. In 2015, the voters approved the Medical Cannabis Regulation and Safety Act ("MCRSA"), to regulate the medical marijuana industry. In 2016, California voters approved the Adult Use of Marijuana Act ("AUMA"), allowing (1) individual adults to possess, use, purchase, transport, or give away up to 28.5 grams of marijuana or 8 grams of concentrated marijuana; (2) them to grow up to 6 plants and possess the marijuana produced by the plants; and, (3) legally possess marijuana accessories.

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Benefit corporation legislation created a new kind of corporation that is required to pursue a social and environmental mission in addition to creating economic benefits for its shareholders. California pioneered the model benefit corporation legislation with its passage in 2011, and Delaware passed its own form of benefit corporation legislation in 2013. A benefit corporation differs from traditional corporations in its purpose, which includes a public purpose in addition to making profit, along with accountability and transparency requirements. Every benefit corporation must include a purpose statement in its articles to provide a general public benefit. However, specific requirements for assessing…

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To say that America has a complicated relationship withforeignnesswould no doubt be anunderstatement.After all,the vast majority of us have relatives or ancestors who immigrated to the United States atsomepoint in time (I, myself, am a first-generation citizen). Yet, there remains a great deal of political controversy and social tension between Americans and the foreignborn (or […] The post Are Jurors Biased Against Foreign Witnesses appeared first on Litigation Insights.

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E-Verify just released a re-designed participation poster that consolidates prior English and Spanish posters into one poster. As stated in the E-Verify User Manual, employers must replace their participation posters when updates are provided by the U.S. Department of Homeland Security. The new posters can be downloaded when you log into E-Verify and the prior version should be replaced as soon as possible.   Employers may also display any of 16 foreign language versions of the poster, to the extent appropriate and helpful, but continue to be required to display the Immigrant and Employee Rights (IER) Right to Work posters in…

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On Tuesday, September 5, 2017, the Trump Administration announced the rescission of the Deferred Action for Childhood Arrivals (DACA), a program established by Executive Order during the Obama Administration that provided deportation relief and work authorization to certain undocumented immigrants brought to the United States as children.  The rescission will go into effect in stages over the next six months, with impacts covering the next few years.   DACA employees with current valid employment authorization documents (EADs) will retain their period of deferred action and their EADs will remain valid until the current expiration date (generally two years from the…

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On August 29, 2017, the Office of Management and Budget (OMB) halted the new EEO-1 pay disclosure requirements required by the Equal Employment Opportunity Commission (EEOC), pending OMB review. The Paperwork Reduction Act (PRA) gives the OMB's Director the right to determine whether collections of information (like the EEO-1) meet the standards of the PRA.  In this context, pursuant to the PRA, the OMB may review an "already approved" collection of information if the OMB determines that the relevant circumstances related to the collection have changed, and/or that the burden estimates provided by EEOC at the time of initial submission…

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Earlier this year, Ford Motor Company successfully defeated a patent owned by non-practicing entity Paice, LLC. The patent, directed to hybrid vehicles, was canceled following an “inter partes review” at the patent office. Later this year or early next year, however, the Supreme Court will hear arguments that broadly challenge the authority of the patent office to cancel issued patents. For anyone involved in innovation, the impact of the Supreme Court’s decision is potentially massive. 

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In a decision that opens the door for Superfund claims against the United States on Forest Service and BLM lands, the Tenth Circuit Court of Appeals recently ruled that the United States federal government may be liable for clean-up costs at former mining sites located on federal land. In Chevron Mining, Inc. v. United States, … Continue reading "United States May Be Liable as an Owner, but not as an Arranger, at Former Mining Sites on Federal Property" The post United States May Be Liable as an Owner, but not as an Arranger, at Former Mining Sites on Federal Property…

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On January 1, 2017, the Nebraska Model Business Corporation Act ("Act") went into effect.  Its adoption provides numerous changes for the formation and operation of Nebraska corporations.  This article will highlight three of the changes from the Act that any corporation should consider adopting and incorporating into their governing documents.    I.  Meetings By Teleconference  Section 21-261 of the new Act provides shareholders may now participate in meetings by remote communication, so long as the board of directors authorizes such participation.  A shareholder that does participate via remote communication will be deemed present and may vote, just as if they…

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There is no blue without yellow and without orange. — Vincent Van Gogh (June 1888). It is extremely difficult to secure trademark rights to a single color. Success stories are few and far between. Recently, General Mills, maker of Cheerios, sought trademark protection for the color yellow as the predominant uniform background color on product … Continue reading "Can You Trademark the Color Yellow for Cheerios" The post Can You Trademark the Color Yellow for Cheerios appeared first on The Intellectual Property Blog.

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In its recent decision in Benjamin v. State Farm Ins. Co., 2017 U.S. Dist. LEXIS 131078 (D.N.J. Aug. 17, 2017), the United States District Court for the District of New Jersey had occasion to consider the scope of the pollution … Continue reading →

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On Monday, August 21, 2017, a total solar eclipse will sweep across the continental United States from Oregon to South Carolina. A solar eclipse occurs when the moon moves between the Earth and the sun, thereby obscuring the sun from Earths view and creating a shadow on Earths surface below. While a partial solar eclipse … Continue reading "The Eclipse Will Test Utilities Solar Grid Integration" The post The Eclipse Will Test Utilities Solar Grid Integration appeared first on The Energy & Natural Resources Blog.

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Last Tuesday, the U.S. Court of Appeals for the Ninth Circuit revived a California man’s lawsuit accusing Spokeo, Inc. of violating the Fair Credit Reporting Act (FCRA). The FCRA regulates any consumer reporting agency that furnishes a consumer report, and those terms are broadly defined to include operators such as Spokeo. The lawsuit arose when … Continue reading "Court Breathes Life Into Lawsuit Over Inaccurate Online Data" The post Court Breathes Life Into Lawsuit Over Inaccurate Online Data appeared first on The Intellectual Property Blog.

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Quattlebaum, Grooms & Tull PLLC is pleased to announce that 16 lawyers have been included in the 2018 Edition of The Best Lawyers in America,universally regarded as the definitive guide to legal excellence. Lawyers on The Best Lawyers in Americalist are reviewed by their peers on the basis of professional expertise and divided by geographic... Read More The post 16 QG&T Attorneys Named to 2018 Best Lawyers List appeared first on Quattlebaum, Grooms and Tull.

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In its recent decision in Farbstein v. Westport Ins. Corp., 2017 U.S. Dist. LEXIS 125990 (S.D. Fla. Aug. 9, 2017), the United States District Court for the District of Florida had occasion to consider the application of a prior knowledge … Continue reading →

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Last June, I wrote about the non-party subpoena served on the Competitive Enterprise Institute, and the anti-SLAPP motion to dismiss the CEI filed in response. In that post, I mentioned an earlier case where subpoenas were served on two non-parties in the District of Columbia; they responded by filing anti-SLAPP motions to dismiss; the Superior Court denied those motions; and the movants appealed the denial to the Court of Appeals, which stayed the case until resolution of the then-pending Mann appeal. The Court of Appeals has now disposed of that appeal. First, a quick summary. In June 2014, two DC-based…

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This is the second of a three-part overview of the new partnership audit rules codified in the Bipartisan Budget Act of 2015 (the "Act") that will take effect January 1, 2018.  In Part 1, we provided an overview of the new partnership audit rules. In this Part, we describe the mechanics of the single most important change imposed by the new partnership audit rulesthe ability of the IRS to assess and collect tax at the entity level rather than at the partner level.  We also describe a special election that the partnership can make to "push out" tax liability to…

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A multi-unit franchise owner can structure its operations in a number of ways, but one approach in particular often makes a lot of sense: a developer entity that acts as the parent company for the individual franchise locations. First some background. Many franchisors seek out franchisees who want to open three or more units. One approach is to sign a development agreement in which the developer commits to open an agreed-upon number of franchise units in a defined territory over a specified period. In exchange, the franchisor agrees not to open a company-owned unit or to grant a franchise to…

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Walt Disney (Disney) suffered a loss last week in an adverse employment action based on its use of information in consumer reports as part of its employment screening process. The plaintiffs have alleged that they were injured when inaccurate credit reporting information, which they had no opportunity to challenge or correct, became a factor in … Continue reading Los Angeles Judge Elects Generalized Common Issue to Justify Class Certification →

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Texas governor Greg Abbott recently signed legislation designed to curb the states recent spate of hail litigation against homeowners insurers. The new legislation, House Bill 1774 (and its counterpart Senate Bill 10), will require Texas insureds to provide their property … Continue reading →

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In January, I wrote about the DC Court of Appeals then-recent Mann decision, and specifically about the Courts response to the DC Circuits Abbas decision, which held that the DC anti-SLAPP statute could not apply in a federal court diversity case: According to the Mann court, part of the Abbas courts reasoning was that the burden imposed by the DC anti-SLAPP statute was materially different from the burden imposed by Fed. R. Civ. P. 56. The Mann court now expressly holds that the burdens are the same, and then states that [t]his courts interpretation of the standard applicable to the…

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News over the weekend that a South Carolina prisoner who recently escaped from jail (and was just recaptured) managed his escape by way of a drone. Convicted kidnapper James Causey arranged for delivery of the tools he needed for his escape via drone–including guns, wirecutters, fake ID, and cash. The California legislature has twice tried […]

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On June 28, 2017, the U.S. House of Representatives passed the Protecting Access to Care Act of 2017 (Act). The purpose is essentially to engage in federal tort reform to lower recoveries against health care providers. The Act applies to liability claims about diagnosis, assessment, prevention or treatments for disease or impairment rendered by health care providers and provided, in whole or in part, through federal programs, subsidies or tax benefits. The Act places no limits on the economic recovery (monetary losses) and limits noneconomic damages (pain, suffering, anguish, disfigurement, etc.) to $250,000, regardless of the number of parties or…

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by:Robert Wagner, intellectual property attorney at the Pittsburgh law firm ofPicadio Sneath Miller & Norton, P.C.(Robert Wagner on G+) We are pleased to announce that the Pit IP Tech Blog has been named one of the Top 100 IP blogs … Continue reading →

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Anyone who follows this blog knows that I am an advocate for arbitration agreements because of the benefits they offer parties to a dispute. They can streamline dispute resolution, reduce costs of resolution, make the process more predictable because the parties control the terms, and allow for confidentiality, all while allowing the complainant to have his or her day in court. The availability of arbitration was initially jeopardized by the November 28, 2016 regulations from the Centers for Medicare and Medicaid Services (CMS), with its eleventh hour attempt to pass regulations prohibiting pre-dispute arbitration agreements in the skilled care setting.…

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Posted by: Henry M. Sneath, Esq. – Chair of the Intellectual Property Practice Group at Pittsburgh, Pa. law firm Picadio Sneath Miller & Norton, P.C. (PSMNand PSMNLaw).Mr. Sneath is also anAdjunct Professor of Law at the Duquesne University School of … Continue reading →

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A franchisor selling franchises in the U.S. must disclose its audited financial statements in Item 21 of the franchise disclosure document (FDD). Sometimes, parent company financials are used instead of the franchisors financials. This is easily done when the parent company is a public company that already has audited financials. But most franchisors are not public companies. They are not likely to have parent company audited financials and would prefer not to incur the added expense of auditing a group of companies rather than just the franchisor entity. Audits are expensive. The franchisor may also want to shield its parent…

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On November 11, 2016, the Standing Committee of the National People’s Congress promulgated the “Internet Security Law of the People ‘s Republic of China” commonly referred to as the “Cybersecurity Law of China.” Unlike the EU’s General Data Protection Regulation (GDPR) which gave businesses two years to prepare, the new law becomes implemented June 1, … Continue reading China Enacts Data Privacy Law Under Guise of Cybersecurity →

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On March 17, 2017, the Department of Industrial Relations (DIR) submitted Budget Trailer Bill 502. Budget Trailer Bill 502 would provide changes to the existing contractor registration requirements, as well as changes to the requirement for agencies to provide the DIR with notice of pending public works projects, as initially required by SB 854. SB… Continue Reading The post Budget Trailer Bill 502 would expand DIR fines and agency notice requirements appeared first on Infrastructure Law Blog.

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In recent months,bankruptcy lawyers have begun to bring strikingly similar FCRA lawsuits on behalf of former clients who went through Chapter 13 bankruptcy. This post will discuss these cases and how defendants are responding to them by winning on the merits, then moving for sanctions. The first few paragraphs will set the stage by explaining […]

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According to the 2014 Census data, more than 4.4 million Americans work as drivers. Will autonomous vehicles kill most of these driver required jobs With the growth and advancement in autonomous vehicle technologies, many Americans are in danger of losing their job or taking significant cuts in their income because a new and convenient technology is taking their place. Autonomous vehicles are expected to reduce labor cost, fuel cost and accidents. The potential savings will outweigh the human cost, especially as companies fight for profit margins. While companies plot to save money in the future through using this new tech…

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In McGill v. Citibank, N.A.,No., S224086 (Cal. Apr. 6, 1017), the California Supreme Court recently held that pre-dispute arbitration agreements that purport to waive the remedy of injunctive relief under California consumer statutes that have the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public in any forum, are … Continue reading Court: Arbitration Agreements That Waive Injunctive Relief Under CA Consumer Statutes Are Unenforceable →

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By: Amber L. Reiner, associate at Picadio Sneath Miller and Norton, P.C. When someone mentions Play-Doh, what is the first thing you think ofIs it those flexible yellow containers Perhaps it is the smoothand squishy texture ofthe putty More likely … Continue reading →

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In an earlier post, we discussed the potential ownership models for autonomous vehicles, also known as driverless cars (AVs). Models range from true traditional ownership as we understand it today, to licensed-based models (vehicles owned by someone else but you can use them on an exclusive or non-exclusive basis), to service-based models (you do not own the vehicle, but you can call it when you want it, e.g. cab, Uber). In this post we will explore the data-intensiveness of autonomous vehicles, the impending data land grab, and who will own and control all of the data generated by AVs. An…

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A new bill, AB 851, was introduced in the California legislature on February 16 that would expand the scope of the design-build authority currently available to local agencies. If adopted, AB 851 would amend Public Contract Code sections 22161 to expand the definition of special districts that can utilize the design-build authority under Public Contract… Continue Reading The post New bill would expand design-build authority for local agencies appeared first on Infrastructure Law Blog.

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Support Animals in the Workplace California employers are familiar with service dogs as a reasonable accommodation for employees and applicants with disabilities. But, what about support animals In 2013, the California Fair Employment and Housing Act (FEHA) required California employers to allow assistive animals in the workplace as a reasonable accommodation. Assistive animals include service dogs, but also support animals that provide emotional or other support to a person with a disability, including but not limited to, traumatic brain injuries or mental disabilities, such as major depression.

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One of the toughest challenges an aspiring franchisor may face is selling its first franchise. Who would take the risk of buying a franchise from a franchise company that has no franchisees For a few successful business owners, the idea of franchising may come from one or more customers who love the business concept and initiate the idea of buying a franchise even before the owner has taken the first step to prepare a franchise offering. But this rarely happens. Heres another suggestion: If the aspiring franchisor has a successful business unit (a store or a restaurant, for example) that…

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The coming innovation of autonomous vehicles (i.e. self-driving cars) has been covered pretty widely in the news over the past 18-24 months. Not long ago, the reality of autonomous vehicles was unknown to most Americans. But it is now creeping into the consciousness of more and more Americans. As the certainty of this new technology approaches, it is becoming clearer that it will cause massive disruption in an area of American life that is intensely regulated at every level. If you think about it, the manufacture, distribution, sale, ownership, and operation of cars are all regulated by federal, state and…

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According to the United States Census Bureau, Canada is the USAs second largest trading partner, only slightly behind China, with over $500 billion in two-way trade goods annually. The industrial economies of Canada and the USA are highly integrated, with manufacturing plants in each country sending millions of components back and forth over the boarder […]

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This article by Griff Palmer in the NY Times Business Day section examines three P3 projects in the US, and compares the promises with some of the disappointments. The article provides a good overview of the significant issues that must be considered in order for a P3 to be successful for all concerned. https://www.nytimes.com/2016/12/24/business/dealbook/private-equity-water.htmlemc=edit_ta_20161224&nlid=51116999&ref=cta&_r=0  … Continue Reading The post Are P3s the answer to our infrastructure needs NYT article raises concerns. appeared first on Infrastructure Law Blog.

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Federal and state laws weave a complicated web of rules governing business calls to customers. The FCC's and FTC's broad interpretations of the Telephone Consumer Protection Act ("TCPA"), along with technological advances in telephone services, have led to increased litigation arising from autodialed calls and texts to wireless phones. The TCPA forbids using an automatic telephone dialing system ("ATDS") to call or text wireless phones unless the called party has given prior written consent. The FCC has adopted a broad definition for ATDS, potentially including any VoIP system or equipment that is connected to a computer. In fact, the FCC's…

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The Defend Trade Secrets Act of 2016 ("DTSA") was signed into law and became effective May 11, 2016. The DTSA grants federal jurisdiction over private civil actions for the misappropriation of trade secrets and allows owners of trade secrets to choose either state courts under Nebraska common law or the Nebraska Trade Secrets Act, or in federal court under the DTSA. The DTSA is not retroactive and only applies to misappropriations that occur on or after May 11, 2016.  In general, in order to qualify as a "trade secret" the owner must have taken reasonable measures to keep such information…

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The United States District Court for the District of New Jersey closed out 2016 with a declaration that the Products and Workmanship exclusions found in a manufacturers Building and Personal Property policy is ambiguous. In National Manufacturing Company v. Citizens … Continue reading →

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What happens when adult children still living at home refuse to leave As the boomer generation ages and look to downsize, check this is a question that more and more parents might have to consider. While it may sound unlikely, prescription this scenario has the potential to cause some headaches for parents in the years […]

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If there is one word that everyone in the residential rental market hates, purchase it is bedbugs. Over the past few years bedbug outbreaks have become more common as the pests are notoriously difficult to fully exterminate. Bedbugs can live for months, even up to a year, without food and they can hide in small […]

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In John Robert Sebo, etc. v. American Home Assurance Company, Inc., Supreme Court case number SC14-897, the Florida Supreme Court reversed a Second District Court opinion which found the efficient proximate cause doctrine applicable to cases involving multiple perils and … Continue reading →

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Last year, we followed the story of ballot efforts on a local level to preclude GMO crops from being grown in certain counties in Hawaii. The ballot initiatives, which banned GMO crops within the borders of the counties, passed by narrow margins, but were immediately struck down in court after a challenge from various agricultural companies. Local organizations filed an appeal to the Ninth Circuit, seeking to overturn the District Court decision stating that the ballot initiatives were preempted by federal and state laws. The…

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On March 30, 2016, Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia stripped MetLife of its designation as a nonbank systemically important financial institution (nonbank SIFI). She held that the designation was arbitrary and capricious as the Financial Stability Oversight Council (FSOC) failed to follow proper administrative procedures during the evaluation process. Just over a week later, FSOC walked down the hall of the U.S. Courthouse at 333 Constitution Avenue, NW and filed its

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On October 20, 2016, the District of Columbia Court of Appeals abandoned the long-used Dyas/Frye test to govern the admissibility of expert testimony in favor of the standards embodied in Rule 702 of the Federal Rules of Evidence. The court issued its decision after the lower court permitted plaintiff expert opinions linking cell phone use to brain tumors under the then-existing Dyas/Frye standard. In the matter of Motorola Inc. v. Henry, plaintiffs in thirteen cases had sued numerous cell phone manufacturers, service providers…

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Ambiguity surrounding the term commencing led a court to deny an insurers motion seeking to dismiss an insureds property damage claim, despite the insureds inability to state when the property damage at issue first occurred. In a question of first impression, a federal district court in Illinois denied an insurers motion for summary judgment earlier this month, ruling that the term commencing during the policy period was ambiguous when applied to the circumstances of the case. Temperature Serv. Co. v.

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The Seventh Circuit recently affirmed a district court decision upholding payment under a life insurance policy purchased by a securities intermediary. The decision first addressed the common laws prohibition on wagering contracts, or stranger-originated life insurance, and the traditional remedy which invalidates any such policy of insurance. However, this case was subject to Wisconsin law, whose legislature places the risk on the insurer for issuing a policy to someone without an insurable interest by refusing to invalidate such contracts. Specifically,

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This month’s post will attempt to establish something that I’ve always vaguely known to be true, but never had occasion to fully research: the FCRA applies toconsumers who are trying to get personal credit, not credit for their business. Most courts treat this as a well-established point. See, e.g., Frydman v. Experian Info. Solutions, Inc., […]

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NancyBors, as administrator of the Estate of Maureen Milliken, brought this action against Imerys Talc America Inc. and Johnson and Johnson for claims in negligence for their design, development, manufacture, testing, packaging, promoting, marketing, distribution, labeling, and/or sale of Johnson and Johnson baby powder Milliken allegedly developed and died from ovarian cancer. Imerys moved to dismiss and argued that the court lacked jurisdiction or in the alternative for failure to state a claim. Specific to its argument, Imerys took the position that it had…

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Article courtesy of the Washington Legal Foundation, by John J. Jablonski The king is dead. Long live the king. European monarchies conveyed the immediate passage of sovereignty from a dead ruler to a new one with this proclamation. It works as well for the amendment of Federal Rules of Civil Procedure 26(b)(1) and 37(e), because in many ways an old governing rule on discovery passed away on December 1, 2015, when the amendments took effectbut the ghost of the old ruler still haunts both…

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The District of New Jersey just resolved twoFCRA cases that, in my view, combine all of the best (or worst) features of FCRA litigation: theyinvolve a confusing issue on a credit report; a threat of sanctions; ajudgethat didn’t get the facts sheneeded when sheneeded them; andparties and lawyers who had better things to do than […]

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Environmental groups recently filed a lawsuitin the United States District Court for the Southern District of Florida, Fort Myers Division, seeking to challenge the National Park Service, Department of the Interior, and others, with respect tothe recent approval of seismic testing. Seismic testing is utilized to identify oil and gas. Specifically, the plaintiffs allege that the testing threatens the Big Cypress national preserve: Big Cypress is an extraordinary and unique national treasure. It is an extension of the Everglades hydrologic system and provides…

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Recently the North Carolina Court of Appeals in In re: Ballard (N.C. Ct. App. COA15-475, March 15, 2016) held that a foreclosing lender in North Carolina was not under any duty to bid the same amountat aresale of foreclosed propertyas it did at the first sale of the same property when the last ... (More)

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It is with great pride and pleasure that Thorndal Armstrong Delk Balkenbush & Eisinger attorneys and staff members recently collected The post Firm Helps Nevada Army National Guard appeared first on Thorndal.

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On May 16, 2016, the U.S. Supreme Court issued its opinion in Husky International Electronic, Inc. v. Ritz. The opinion is a favorable development for creditors because it expands the types of fraudulent conduct that can prevent a debtor from discharging debts in bankruptcy. Specifically, the court... (More)

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ANALYSIS/OPINION: The Little Sisters of the Poor and the government have filed their final briefs in the longstanding tussle over the administrations contraception mandate. The briefs respond to a highly unusual order from theSupreme Court, issued days after the oral arguments, which asks the parties to consider again whether the government can improve access to The post The threadbare case against Little Sisters of the Poor appeared first on Lewis Roca Rothgerber Christie - Religious Liberty Archive & Blog.

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The lawyers are looking at it. That, in so many words, has been the response given by Secretary of State John Kerry and the White House every time they have been pressed on whether the State Department will call the Islamic States war on religious minorities genocide. Kerry faces a congressionally mandated deadline on Thursday The post Call ISIL’s religious war what it is: Genocide appeared first on Lewis Roca Rothgerber Christie - Religious Liberty Archive & Blog.

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Earlier today, the Consumer Financial Protection Bureau ("CFPB") held a field hearing in Albuquerque, New Mexico on mandatory arbitration clauses found in the terms and conditions of several consumer financial products, including credits cards, bank accounts and prepaid cards. The CFPB released its Notice of Proposed Rulemaking ("NPRM" or "Proposed Rule") on Arbitration clauses in advance of the Field Hearing, a copy of which can be found here. An initial review of the Proposed Rule reveals several provisions that will likely have a negative impact on the financial services industry. The Proposed Rule: Prohibits providers from using a pre-dispute arbitration…

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Christians across the Middle East are suffering and dying for their faith, and the United States government has called it a genocide. Here are four ways you, your family, and your church can help. [NOTE: This post originally appeared at the Mystery of Faith Blogand is reprinted here with permission. LRRC attorneys Martin Nussbaum and The post Genocide Against Christians (And How the Church Can Help) appeared first on Lewis Roca Rothgerber Christie - Religious Liberty Archive & Blog.

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In 2008, Congress passed legislation which extended the protection from foreclosure actions for active duty servicemembers up to 9 months after the end of the period of military service. In 2012, Congress extended that time to 12 months after the end of the military service. When the prior legisla... (More)

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After considerable debate, Pennsylvania is one step closer to approving new regulations for hydraulic fracturing. Specifically, on April 21, the Independent Regulatory Review Commission (IRRC)held a lengthy hearing with respect to the new proposed regulations.The IRRCthen approved the new proposed regulations. Among other things, the new regulations (1) ban waste pits for unconventional gas drilling, (2) requires permits and water management plan for certain drillers, (3) requires vandal proofing of tanks, and (4) requires well site restoration within nine months of drilling…

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As of July 1, 2015, the Virginia Condominium Act provides that no condominium association may impose an assessment or charge against a unit owner unless such charge or assessment (a) is expressly authorized by the Condominium Act (see particularly Va. Code Sec. 55-79.83) and/or by the condominium instruments for the community, (b) represents a fee for service provided, or (c) is a fee for a resale certificate, as provided for in the Condominium Act. Va. Code Section 55-79.42:1. The Common Interest Community Board has the authority to assess a monetary penalty and/or issue a cease and desist order against an…

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Thorndal Armstrong Delk Balkenbush & Eisinger is happy to announce it recently completed a denim drive for a charitable recycling program, Blue Jeans Go Green. The drive collected more than 50 pairs of jeans that may have otherwise been sent to a landfill. Blue Jeans Go Green started in 2006 and strives to collects denim... Read more » The post Firm Helps Denim Recycling Charity appeared first on Thorndal.

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Since our last postings on the subject of disclosure packets, the General Assembly has adopted several minor Code changes to clarify existing provisions: Delivery by Overnight Carrier  The Code section providing for cancellation of the purchase agreement within a certain time period after receipt of the resale certificate / disclosure packet previously failed to mention when the purchaser could cancel if the resale certificate / disclosure packet were delivered by overnight delivery service. For both property owners’ associations (“POAs”) and condominium associations, whether self-managed or professionally managed, if the resale certificate / disclosure packet is delivered by commercial overnight delivery…

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Earlier today a Nevada federal judge granted summary judgment in a case against a resort company that sought to hold it liable for alleged negligence of its subsidiary in Aruba. A Canadian citizen traveled to a resort on Aruba owned by a subsidiary. While there she tripped, fell and asserted an injury. Rather than suing... Read more » The post Eisinger & Parks Win Subsidiary Liability Case appeared first on Thorndal.

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An Illinois appellate court has upheld a lower court’s denial of injunctive relief to certain landowners who sought to enjoin Illinois, via its regulatory body, from enforcing newly adopted hydraulic fracturing regulations in the state. Specifically, in Smith v. Dep’t of Resources, NO. 5-14-0583, 2015 Ill. App. LEXIS 536 (Ill. 5th Dist. App. July 10, 2015), Plaintiffs commenced an action against the Illinois Department of Resources, among others, seeking a preliminary injunction tostop the state from implementing the regulations recently adopted by the state.…

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Last month, the United States Supreme Court issued its ruling in Bank of America v. Caulkett a case deciding whether homeowners can avoid underwater second mortgages through Chapter 7 bankruptcy proceedings. The Court ultimately determined that a Chapter 7 debtor may not void a junior mortgage even when the debt owed on a senior mortgage exceeds the present value of the property. Section 506(d) of the Bankruptcy Code allows a debtor to void a lien on estate property to the extent it secures a claim against the debtor that is not "an allowed secured claim." In other words, …

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In another sign that the 2008 financial crisis is fading into memory, the Federal Deposit Insurance Corporation (FDIC) has proposed changes likely to reduce deposit insurance premiums for most community banks. The FDICs proposal would revise the factors used to determine deposit insurance assessments so that banks with less than $10 billion in assets would pay higher premiums if they hold riskier assets than comparable banks. These contemplated improvements would allow assessments to better differentiate riskier banks from safer banks and allocate the costs of maintaining a strong Deposit Insurance Fund (DIF) accordingly, FDIC Chairman Martin Gruenberg said in a…

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Consumers Insurance Company provided underinsured motorist (UIM) coverage to Bradford Charles. Charles was subsequently injured in a motor vehicle accident with Christina Ranum. Charles attorney subsequently made a UIM claim on the Consumers UIM policy. Initially, Consumers denied UIM coverage, but subsequently determined that there may be UIM coverage under its policy. After Consumers initial [...]

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On this blog weve explored the laws related to service animals and how the ADAs regulations extend their use far past traditional notions of seeing eye dogs. In Wisconsin (admit it, you assumed this blog post was going to have an Aussie connection), a woman is treading new territory by seeking legal recognition to use a kangaroo as a therapy animal. The woman, Diana Moyer, owns several kangaroos and also has a doctors note stating that one of the kangaroosJimmyis a therapy animal to assist her in dealing with cancer treatment and depression. In no way would we ever mock…

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When you think of Uber (or similar companies like Lyft and Sidecar) you probably think of a transportation company. You request a ride on the companys app and a driver (in his own vehicle) picks you up. The nature of the companys business is, however, the very thing at issue in a series of lawsuits brought against Uber under the ADA. In lawsuits filed in Arizona, California, and Texas, individuals and disability rights organizations have accused Uber of failing to comply with ADA requirements of offering accommodations for the disabled (including individuals who are visually and mobility impaired) in providing…

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On January 21, 2015, the Federal Motor Carrier Safety Administration (FMCSA) announced through the Federal Register a study that examined (1) whether Police Accident Reports provide sufficient, consistent, and reliable information to support crash weighting determinations, (2) whether a crash weighting determination process would offer an even stronger predictor of carrier crash risk than the [...]

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Join me, Thursday, Jan. 22 (11:00 am - 12:30 pm ET), for this practical collections guide reviewing key issues and processes involved in pursuing outstanding debts in common interest communities. The real estate market troubles have left many condominium and HOAs in turmoil. With fewer members to carry the financial load, every penny counts.  Explore the debtor protections that exist in specific situations, and make certain the collection efforts are lawful and effective. Topics include: A walk-through of the essential steps of collection procedures; Making certain governing documents support the claim; Finding new ways of legally pursuing the debt owed to the…

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On December 30, 2014, Gov. Quinn signed SB 1342 into law as P.A. 98-1142 (720 ILCS 5/14-1 et seq.); the measure puts new eavesdropping restrictions into place after the Illinois Supreme Court threw out the previous eavesdropping law last March. As a result of the March court ruling, all Illinois residents had absolutely no expectation [...]

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The price of movie tickets could be going up soon. Under new proposed regulations issued by the Department of Justice, movie theaters with digital screens would be required to show films with options for closed captioning (for hearing impaired patrons) and audio descriptions (for visually impaired patrons). Movie theaters would not be required to create their own captioning or assistive aids. Rather, when a movie is available for distribution with closed captioning and audio description, the theater must purchase the version containing these accommodations. In some circumstances, a theater may show films without these accommodations if a compliant version is…

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Thank you to LegalHold Pro for its report on this decision. The original post can be seen here. The patent infringement and trademark case of Phillip M. Adams & Assoc. v. Dell Computer Corp.has been an ongoing saga with actions dating back to the 1990s. In recent years the case had been on hiatus, but that ended on March 18, 2013 when the Federal Circuit announced its ruling on four claims that had been challenged from the earlier District Court opinion. Of particular…

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Nondisclosure agreements (NDAs) are generally straightforward documents and follow a consistent format. People often pull a form off the internet, fill in the blanks and send it off to the other side. Likewise, recipients of NDAs often skim and sign them. In general, thats OK. That being said, there are often subtle differences among form NDAs. Use the simple acronym below to confirm that you have the right kind of NDA and that youre adequately covered by it: M – Is it mutual or does it only protect the information of one party If both parties are swapping information, make…

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The definition of possession, custody, or control under FRCP 34(a) will be construed broadly and a party is not required to have physical possession of the documents to be in control of them. Therefore, companies that use independent agencies should be conscious of the requirements and provisions they place in agency contracts because they can be inferred to give rise to discovery obligations. To read ELLBlog’s analysis of Haskins v. First American Title Insurance Co., Civil No. 10-5044 (D.N.J. 2012)click here.…

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If you have started a company that needs outside investors, then you have run into someone who offered to raise money for you. [ CONTINUE READING → ]

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PPMs (Private Placement Memos for the uninitiated) look pretty complicated. They’re usually thick documents full of run-on sentences, some charts and a few paragraphs in all caps. A client asked me to describe a PPM’s structure. I drew a picture of a simple sandwich. So why are PPMs frequently so complicated Because they’re often based on legal requirements that never apply to private placements. Federal regulations state that if equity (e.g. stock) is sold to people that are so poor they must be incapable of making rational financial decisions (or as they’re known in the securities world, “nonaccredited investors”), then…

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In a landmark decision, the California Supreme Court held today that a plaintiff cannot obtain medical expense damages based on his billed medical charges, because the plaintiff was not damaged in that amount.  Howell v. Hamilton Meats & Provisions, Inc. (Cal. Supreme Court, Aug. 18, 2011).  The Court held that the plaintiff could recover only the amount of medical expenses actually paid on her behalf.  The Court said:  We hold no such recovery is allowed, for the simple reason that the injured plaintiff did not suffer any economic loss in that amount."   Plaintiff Rebecca Howell was seriously injured in…

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In the recent case of Kurach v. Truck Ins. Exchange (C.P. Philadelphia 2017), a Pennsylvania Court held that under Pennsylvania law, insurance companies are required to include general contractor overhead and profits in actual cash value payments for losses...

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To prevail on a strict product liability claim under Pennsylvania law, a plaintiff must prove the product at issue is defective, the defect existed when the product left defendant's hands, and the defect caused the harm. A product may be...

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Cohen v. Maricopa County (Ct. Appeals, Div. One, August 16, 2011)   A man was involuntarily held in a hospital because he was a danger to self due to depression and repeated drug overdose. After inpatient treatment was completed, he was discharged from the hospital to begin court-ordered outpatient treatment with ValueOptions, the company that contracts with the State. While undergoing outpatient treatment, the man was found passed out with the drug Soma in his pocket. The man was medically cleared at the scene, but taken to an urgent care facility run by Meta Services pursuant to a subcontract with…

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The Association of Defense Trial Attorneys (ADTA) has recently selected Don Myles for membership to their organization.Don Myles has been a Partner with Jones, Skelton & Hochuli since 1987, and concentrates his practice on insurance coverage, bad faith and professional liability. He is admitted to practice in all state and federal courts in Arizona as well as the Ninth and Tenth Circuit Courts of Appeal, and the United States Supreme Court.Myles is the past President of the Arizona Association of Defense Counsel (AADC) and the USLAW Network. He is currently Senior Vice President for the Federation of Defense and Corporate…

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Short Answer: Yes, but as with all non-compete provisions, proceed with caution and draft wisely. Like many states, Pennsylvania has long viewed restrictive covenants such as covenants not to compete with disfavor. Despite its preference against them, non-compete agreements are...

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Mark D. Zukowski was recently accepted into the National Academy of Distinguished Neutrals (NADN).  NADN is a national association whose membership consists of mediators and arbitrators distinguished by their hands-on experience in the field of civil and commercial conflict resolution.  Mark is one of only 21 attorneys and former judges who have been recognized as Charter Members of the Arizona Chapter.  Parties can visit the Chapter website at www.NADN.org/arizona to schedule, at no administrative cost, mediations with Mark by having direct access to his availability calendar.

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Jones, Skelton & Hochuli, PLC is pleased to announce Phillip Stanfields selection to the American Board of Trial Advocates (ABOTA). Stanfield is the ninth lawyer from JSH to receive this distinction.Mr. Stanfield joined Jones, Skelton & Hochuli in 1987, and has been a Partner since 2003. His practice is almost exclusively devoted to the defense of transportation clients.The general purposes of the American Board of Trial Advocates is to foster improvement in the ethical and technical standards of practice in the field of advocacy to the end that individual litigants may receive more effective representation and the general public be…

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Fidelity and Deposit Company of Maryland v. Bondwriter Southwest (Ct. Appeals, Div. One, July 28, 2011)   Fidelity sued Bondwriter for breach of contract and negligence, after Bondwriter delivered unapproved bonds to a contractor. An agency agreement authorized Bondwriter to solicit applications for surety bonds on Fidelity's behalf. The agreement limited Bondwriter's authority to those transactions that Fidelity specifically authorized. In one transaction, Bondwriter mistakenly delivered a bond to a contractor before Fidelity had authorized the bond. When Bondwriter employees realized their mistake, they were unable to retrieve the original bond before the contractor made copies of the bond and…

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