Tag Archives: Pennsylvania

ILN Today Post

NAVIGATING TROUBLED WATERS: THE CHALLENGES FACED BY LENDERS AND BORROWERS DURING THE COVID-19 CRISIS

The COVID-19 pandemic has and will continue to disrupt “business as usual” for most businesses in the United States and around the world. Even the most well-capitalized companies are likely to see constrained liquidity, and for those which lack significant cash reserves, lease and loan defaults are of primary concern. Additionally, these obligations often include personal guarantees for the businesses’ principals and compound an already difficult situation. In the current environment, all industries are feeling the heat, particularly in the retail, restaurant, travel, hospitality, entertainment and manufacturing sectors. Simply put, with large numbers of consumers, customers and employees “sheltering in place,” cash flow shortages are everywhere and have both lenders and borrowers wondering what to do to protect themselves and scrambling to review financial covenants and other loan document provisions regarding rights and remedies. Read more…

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New Wage and Hour Opinion Letters on Nondiscretionary Bonuses, the Highly Compensated Employee Exemption, and Rounding Practices

After a brief, two-month hiatus, the Wage and Hour Division of the U.S. Department of Labor (“WHD”) has issued another round of opinion letters answering various questions submitted by the public.  Specifically, these opinion letters address the calculation of overtime pay for nondiscretionary bonuses, the application of the highly compensated employee exemption to paralegals, and rounding hours worked under the Service Contract Act (“SCA”).  This guidance marks the first issued by the new Wage and Hour Administrator Cheryl Stanton, who has been in the seat since April.

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Pennsylvania District Court Concludes Ex Parte Communications between Defense Counsel and Putative Class Members Are Improper

In putative class action lawsuits, it is not uncommon for counsel for the employer to interview putative class members about the claims in the lawsuit. A new decision from the United States District Court for the Eastern District of Pennsylvania has concluded that such communications could be improper, at least in that state.

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The Third Circuit Defines the Requirements for Orders Certifying Wage Hour Class Actions

The obligations of a district court to analyze conflicting evidence regarding class and collective action certification was recently addressed by the Third Circuit Court of Appeals in Reinig v. RBS Citizens N.A., 912 F.3d 115, (3d Cir. 2018) (“Citizens”). In that case, the Third Circuit opined that Fed.R.Civ.P. 23 class certification orders (i) must explicitly define the classes and claims that are the subject of a certification order and (ii) provide an analysis of how the court reconciled any conflicting evidence supporting class certification.

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Which States Are Likely to Enact Laws Restricting Non-Compete Agreements in 2018?

Several states in recent years have enacted laws that have been designed, in varying degrees, to limit non-competes, including California, Illinois, and Nevada. Which states and cities are most likely to do the same in 2018?

The New Hampshire and New York City legislatures have introduced bills that seek to prohibit the use of non-compete agreements with regard to low-wage employees. Under New Hampshire’s Bill (SB 423), a “low-wage employee” is defined as one who earns $15.00 per hour or less.  The New Hampshire Bill was introduced on January 24, 2018 and is scheduled for a hearing in February. 

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Balancing State and Federal Informed Consent Law

The passage of the 21st Century Cures Act (“Cures Act”) and revisions to the Common Rule (45 CFR Part 46) (“Common Rule”) in the last year mandated significant changes to informed consent laws.  As a result of these changes, sponsors of research (“Sponsors”), institutions conducting research (“Institutions”), and the institutional review boards (“IRBs”) approving research will need to review policies and practices involving informed consent.  As explained below, a recently published FDA guidance document makes a first step toward implementing some of these changes by permitting waiver of certain consent requirements for low risk research involving human subjects. Additionally, a recent ruling by the Pennsylvania Supreme Court discussed below reminds investigators, Institutions, and Sponsors performing clinical research in Pennsylvania that state informed consent laws and common law must also be considered before conducting clinical research involving human subjects.  The following brief discussion provides some insight into how Sponsors, Institutions, and IRBs should take into account varying sources of law when determining when to require consent for research involving human subjects.

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ILN Today Post

Pennsylvania: Fight to block soda tax goes to the state Supreme Court

Last December, a trial court dismissed a lawsuit that a group of stakeholders filed against the city of Philadelphia and the Department of Revenue, as we described at the time. In their complaint, the plaintiffs alleged that the so-called beverage tax, the imposition and collection of which began on Jan. 1, 2017, unlawfully duplicated the already-existing sales and use tax on soft drinks in violation of the Pennsylvania Sterling Act; that it unlawfully circumvents the state taxing power; and that it violates the state constitution’s uniformity clause. The uniformity clause provides that “[a]ll taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.”

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Defendants’ Timing Defense to DTSA Claims Faces Mixed Results

shapiroWith the law’s first anniversary in the rear view mirror, defendants have established a viable defense to claims arising under the Defend Trade Secrets Act (“DTSA”) – a plaintiff may be precluded from bringing a claim under DTSA if it only alleges facts that show acts of misappropriation occurring prior to May 11, 2016 (the date of DTSA’s enactment).   In the last few months, four different courts have tackled this “timing defense,” and defendants raising it in motions to dismiss DTSA claims have encountered mixed results.

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Year-End Reviews Highlight Antitrust Enforcement in, And Guidance Relevant to, Health Care Industry; Aggressive Enforcement is Likely to Continue in 2017

The Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“Antitrust Division”) released their respective year-end reviews highlighted by aggressive enforcement in the health care industry. The FTC, in particular, indicated that 47% of its enforcement actions during calendar year 2016 took place in the health care industry (including pharmaceuticals and medical devices). Of note were successful challenges to hospital mergers in Pennsylvania (Penn State Hershey Medical Center and Pinnacle Health System), and Illinois (Advocate Health Care Network and North Shore University Health System). In both actions, the FTC was able to convince the court that the merger would likely substantially lessen competition for the provision of general acute-care hospital services in relevant areas in violation of section 7 of the Clayton Act. See FTC v. Penn State Hershey Med. Center, 838 F. 3d 327 (3d Cir. 2016); and FTC v. Advocate Health Care Network et al No. 1:15-cv-11473, 2017 U. S. Dist. LEXIS 37707 (N.D. Ill.Mar. 16, 2017)

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No Signed Writing vs. Expired Physician Contracts: New Court Ruling on What Constitutes “Collection of Documents” to Satisfy Stark’s Writing Requirement

On March 15, 2017, the United States District Court for the Western District of Pennsylvania issued an opinion that sheds insight on how courts view the “writing” requirement of various exceptions under the federal physician self-referral law (or “Stark Law”). The ruling involved the FCA qui tam case, United States ex rel. Emanuele v. Medicor Assocs., No. 1:10-cv-245, 2017 U.S. Dist. LEXIS 36593 (W.D. Pa. Mar. 15, 2017), involving a cardiology practice (Medicor Associates, Inc.) and the Hamot Medical Center. The Court’s detailed discussion of the Stark Law in its summary judgment opinion provides guidance as to what may or may not constitute a “collection of documents” for purposes of satisfying a Stark Law exception.

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