Articles, Alerts & Perspectives

Pittsburgh, PA

The Legal Intelligencer

(by Alex Farone)

On April 23, 2024, the Federal Trade Commission (FTC) voted 3-2 to publish its proposed final rule banning most noncompetition agreements, or “non-competes.” The final rule was published on May 7, 2024, in the Federal Register and therefore becomes effective 120 days later, on September 4, 2024, but legal challenges to the FTC’s authority to issue this ban will likely result in a stay in enforcement of the ban until litigation is resolved.

As of the effective date, the final rule would ban new non-competes with employees, independent contractors, and volunteers nationwide, on the basis that non-competes are an unfair method of competition and therefore a violation of Section 5 of the FTC Act, with one exception. The ban will not apply to a non-compete that is entered into pursuant to the bona fide sale of a business, the persona’s ownership interest in a business entity, or all (or substantially all) of a business entity’s operating assets.

The final rule will also void pre-existing non-competes, with two exceptions. First, existing non-competes for senior executives will remain enforceable after the effective date of the final rule. A “senior executive” is defined as a worker earning more than $151,164 annually who is in a policy-making position, meaning a company president, chief executive officer or equivalent, or any other person who has final authority to make policy decisions that control significant aspects of a business entity. Second, the ban will not apply to an existing non-compete that has been breached and where a cause of action accrued prior to the effective date.

The final rule will also require employers to provide “clear and conspicuous notice” to all workers, other than senior executives, with existing non-competes by the effective date stating that the non-compete will not be, and cannot legally be, enforced. …

Pittsburgh, PA

TEQ Hub

(by Alex Farone)

On April 23, 2024, the Federal Trade Commission (FTC) voted 3-2 to publish its proposed final rule banning most noncompetition agreements, or “non-competes.” The final rule was published on May 7, 2024 in the Federal Register and becomes effective on September 4, 2024, but legal challenges to the FTC’s authority to issue this ban will likely result in a stay in enforcement of the ban until litigation is resolved.

As of the effective date, the final rule would ban new non-competes with employees, independent contractors, and volunteers nationwide, on the basis that non-competes are an unfair method of competition and therefore a violation of Section 5 of the FTC Act, with one exception. The ban will not apply to a non-compete that is entered into pursuant to a bona fide sale of a business entity, the persona’s ownership interest in a business entity, or all or substantially all of a business entity’s operating assets.

The final rule will also void pre-existing non-competes, with two exceptions. First, existing non-competes for senior executives will remain enforceable after the effective date of the final rule. A “senior executive” is defined as a worker earning more than $151,164 annually who is in a policy-making position, meaning a company president, chief executive officer or equivalent, or any other person who has final authority to make policy decisions that control significant aspects of a business entity. Second, the ban will not apply where an existing non-compete has been breached and a cause of action accrued prior to the effective date.

The final rule will additionally require employers to provide “clear and conspicuous notice” to all workers, other than senior executives, with existing non-competes by the effective date stating that the non-compete will not be, and cannot legally be, enforced. …

Pittsburgh, PA

TRIBLive

(by Justin Vellucci)

For Tim Novosel, Brazilian jiu jitsu is more about control than contact.

The Pittsburgh police commander — who launched a jiu jitsu training program for city cops about two years ago — talked about the importance the martial art places on focus instead of force. Nearby, a dozen officers grappled nearby on an ocean of blue mats in Pittsburgh police’s North Side training academy.

The officers’ limbs — each cloaked in a navy-blue gi, a robe-style top that’s part of jiu-jitsu’s uniform — furled around each other trying to gain an upper hand. Trainers in black gi leaned in periodically to help officers with dominant positions or demonstrate how to master moves like the Triangle Choke.

“It’s like human chess, it’s such a thinking man’s sport,” said Novosel, 51, a North Side native who took over leadership in February of Pittsburgh’s Zone 2 station, which covers Downtown. “You’re always examining the body and seeing how you can fit.”

“I’m passionate about it because it you came and told me, ‘Patrol over there,’ I’d rather go out without my gun than without my jiu jitsu,” he added. “It’s another tool on your belt.”

A couple of generations ago — long before Novosel joined the Pittsburgh force in 2007 — cops trained by boxing, the commander told TribLive.

Today, he said, Pittsburgh police integrate Brazilian jiu jitsu into teaching recruits the bureau’s defensive tactics — and keeping more tenured officers fit and focused.

About 120 officers — three of them women — have taken part in the bureau’s voluntary jiu jitsu training, with 50 coming to sessions regularly. …

Harrisburg, PA

The Legal Intelligencer

(by Casey Alan Coyle and Michael Libuser)

Online gaming is a booming industry.  In fiscal year 2022–23, the Pennsylvania Lottery’s iLottery program generated $872.5 million in eInstant sales, while online gambling revenues topped $2 billion in Pennsylvania last year according to published reports.  But behind the scenes, a dispute has arisen that pits the Pennsylvania Lottery against privately owned casinos.  The fight is over legislation that prohibits the Pennsylvania Department of Revenue (the “Department”), the administrator of the Lottery, from offering products that “simulate casino-style lottery games” as part of the iLottery program.  The Pennsylvania Supreme Court recently construed the meaning of that phrase in Greenwood Gaming & Entertainment, Inc. v. Department of Revenue, 306 A.3d 319 (Pa. 2023), and remanded the case to the Commonwealth Court with instructions to apply a corresponding standard.  The question now is whether, and to what extent, the Commonwealth Court will be able to establish a boundary between iLottery games and the online products offered by casinos.

Act 42

On March 15, 1972, the Pennsylvania Lottery sold its first ticket for a weekly drawing.  The Lottery, then only a year into its existence, operated without competition and continued to do so for decades.  Over the years, with the rising popularity of Lottery games, including now-ubiquitous “scratch-offs,” came a tide of competition and technology that shepherded in a new legislative era for Pennsylvania gambling rules.  First came the Race Horse Development and Gaming Act (the “Gaming Act”), which authorized slot machines.  Six years later, the Legislature expanded the Gaming Act to include table games.  Then, in 2014, the General Assembly amended the State Lottery Law (the “Lottery Law”) to prohibit the Department from offering “[i]nternet instant game[s]” and “simulated casino-style lottery game[s]” through the Lottery, absent further legislative authorization. …

Pittsburgh, PA and Washington, DC

PIOGA Press

(By Kevin Garber and Jessica Deyoe)

On March 13, 2024, Governor Shapiro’s office announced the Pennsylvania Climate Emissions Reduction Initiative (PACER) and the Pennsylvania Reliable Energy Sustainability Standard (PRESS) legislative proposals. Together, these two initiatives seek to lower greenhouse gas emissions and promote the use of alternative energy for the electric energy grid in Pennsylvania. We note that first, as of the date of this article, the language of the bills has not been made publicly available and second, these initiatives are not mutually exclusive, so it is possible the legislature may pass only one of them.

Pennsylvania Climate Emissions Reduction Initiative (PACER)

PACER is a Pennsylvania-specific-cap-and-invest program that, if passed, would set a declining cap on carbon emissions from Pennsylvania’s fossil fuel-fired power plants and require them to purchase credits from the Commonwealth to offset emissions. It would also remove Pennsylvania from the Regional Greenhouse Gas Initiative (RGGI). PACER Credits would be tradeable emission credits, similar to RGGI credits; however, non-profit entities will not be allowed to purchase PACER credits to remove them from the market. This program would direct DEP to conduct a Pennsylvania-run auction similar to the RGGI program. DEP could be allowed to delegate the implementation of the auction to an agent but retain enforcement authority. If passed, DEP will be required to review the Pennsylvania Base Budget established under the currently enjoined RGGI regulation within 120 days to determine whether a new Base Budge should be established. The new regulation, if needed, would be promulgated by the streamlined Final Omit regulatory process.

Revenue from the sale of CO2 allowances under the PACER Program would fund the following recipients and programs: (1) consumers as an on-bill rebate by the Public Utility Commission; …

Pittsburgh, PA

The Legal Intelligencer

(by Harley Stone, Anna Jewart and Alex Farone)

In August of 2023, we discussed the ongoing trend of recent cases to blur the line between public officials’ “public” and “private” digital communications and social media, focusing primarily on two 2023 Pennsylvania Commonwealth Court cases – Penncrest School District v. Cagle and Wyoming Borough v. Boyer.  In these cases the courts were called upon to decide when a public official’s own social media posts are “public” and therefore subject to disclosure under the Pennsylvania Right-to-Know Law (RTKL).  While release of messages or comments intended to be kept private can be embarrassing, on March 15, 2024, the U.S. Supreme Court weighed in on an issue that more directly impacts the legal interests of public officials: when does a public official’s social media activity on a personal account constitute state action under 42 U.S.C. §1983, subjecting the public official to liability?

Section 1983 provides a cause of action against “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage of any State” deprives someone of a civil right granted under the U.S. constitutional or federal statute.  It protects against acts attributable to a State (interpreted to include local government agencies), not those of a private person.  When a person associated with a State or local government agency acts in a manner that allegedly deprives someone of a federal constitutional or statutory right, the question therefore arises as to whether that act rose to the level of “state action” that triggers potential §1983 liability or was merely the private conduct of that individual.  The line between private conduct and state action can be hard to draw, and the age of social media has only made such distinctions more difficult.  …

Pittsburgh, PA

Pittsburgh Business Times

(By James Chen)

The transportation industry is in “the midst of a revolution,” changing the paradigm of how we transport people and goods on the nation’s public roads, said James Chen. Chen, who heads the Transportation Technology and Energy practice at Babst Calland, speaks about trends and developments in new transportation and energy technologies.

“For the first time in 100 years, we’re shifting that technology completely to a whole new powertrain structure that uses stored energy in the form of electricity and motors to power vehicles,” Chen said.

Evolving from the dominant technology of internal combustion engines – gas and diesel-powered vehicles – the industry has seen incremental improvement, moving from leaded to unleaded gas, the use of catalytic converters and on-board diagnostic systems.

Now, the concept of a robust battery pack of stored energy that moves electric vehicles through harsh changes in weather, vibration and more is serving as a platform for new methods for stable, stationary environments outside the transportation realm, as in connectivity, data and data sharing.

The electric vehicle is also providing a platform in the area of autonomy – vehicles that almost drive themselves, recognizing lines on the road, pedestrians, other vehicles and roads signs.

“What you’re basically talking about is machine learning,” he said. “And machine learning, at the end of the day, is artificial intelligence.”

These new technologies are also relevant, Chen adds, because battery stored energy can help with demand across energy sectors as the focus moves from primarily fossil fuel burning to additional types of energy generation like wind, solar, hydro-power and nuclear. All are necessary to satisfy increasing demands for energy in the United States and abroad. …