Articles, Alerts & Perspectives

The Legal Intelligencer 

(by Molly Meacham)

One of the key questions for any dispute is forum. Most parties are limited to selecting from the available court or courts provided by state and federal law as a function of jurisdiction and venue. Some contracting parties choose the courts of a particular forum in advance as part of their agreements. Other businesses and individuals take it a step farther and choose to opt out of the courts entirely by agreeing to resolve some or all of their disputes through arbitration.

There are aspects of arbitration that may be advantages or disadvantages, depending upon your viewpoint: privacy, typically faster resolution and streamlined discovery, lack of a jury’s emotion in the verdict and limited appellate rights. In addition, arbitration can have significantly higher up-front forum costs in the thousands of dollars, as compared to the relatively low forum cost in the hundreds of dollars to file a complaint in the courts.

Given the higher forum costs, some plaintiffs—particularly those with smaller claims—may seek to bring their arbitrations as class claims. In recent years the U.S. Supreme Court has addressed several questions relating to arbitrability of class claims. In Stolt-Nielsen v. AnimalFeeds International, 559 U.S. 662 (2010), the Supreme Court prohibited class arbitration where the agreement is silent on whether the parties agreed to classwide arbitration. On April 24, the Supreme Court released its opinion in Lamps Plus v. Varela, No. 17-988, __ U.S. __ (2019), extending the holding of Stolt-Nielsen to also bar class claims where the agreement is ambiguous on whether the parties agreed to classwide arbitration.

In 2016, a malicious hacker used a phishing and social engineering scheme to convince one of the employees of Lamps Plus to send that hacker the W-2 forms of over 1,000 of the company’s employees. …

Smart Business

(by Jayne Gest with Kevin Wills)

Founders should understand that choosing a business entity isn’t one size fits all. That’s why founders should consult with legal and tax advisers to make sure that they choose the entity that works best for their circumstances.

“A big issue is that clients don’t always consult legal and tax advisers. They Google ‘start a company’ and go with one of the first links they find,” says Kevin T. Wills, shareholder at Babst Calland.

People also will call and say, ‘I want to start a company. Everyone says I should be a Delaware corporation,’ he says. That may be the case, but it’s important to talk it through first. A different structure may be better for your business.

Smart Business spoke with Wills about legal structures for startups.

What are some potential entity types?

When starting a business, most founders tend to consider three options.

• C corporation (C-corp). A traditional corporation that is run by a board of directors, owned by stockholders and subject to federal income taxation.
• Limited liability company (LLC). More of a contractual arrangement that is governed by an operating agreement and offers pass-through taxation.
• S corporation (S-corp). This is a corporation, but the company’s revenue passes directly through and is only taxed at the shareholder distribution level.

What about limited partnerships (LPs)?

LPs are still prevalent in certain industries, but LLCs have limited the utility of LPs. Generally, you can structure an LLC to operate like an LP, where a board of managers runs the company and members are passive investors who get distributions. …

The Legal Intelligencer

(by Blaine Lucas and Alyssa Golfieri)

Defenses or claims based in equity have long been recognized by Pennsylvania courts in zoning and other land use matters. There are three main equitable theories, all of which bar a municipality from enforcing its land use regulations and permit property owners to continue a use or activity in violation of applicable ordinances—equitable estoppel, vested rights and variance by estoppel. Pennsylvania courts consider all three theories unusual remedies that should only be granted in the most extraordinary of circumstances, as in Lamar Advantage GP v. Zoning Hearing Board of Adjustment, 997 A.2d 423 (Pa. Commw. Ct. 2010). These three theories are closely related and the elements of each vary only subtly.

Equitable Estoppel

The doctrine of equitable estoppel applies when:

• The municipality intentionally or negligently misrepresented a material fact;

• The municipality knew or had reason to know that the property owner would justifiably rely on the misrepresentation; and

• The misrepresentation induced the property owner to act to his detriment because of his justifiable reliance, as in Cicchiello v. Bloomsburg Zoning Hearing Board, 617 A.2d 835, 837 (1992).

The Commonwealth Court has consistently held that the theory of equitable estoppel cannot be relied upon to provide relief when the property owner asserting it “knew or should have known that the alleged promisor was without authority to effectuate the alleged promise,” as in DiSanto v. Board of Commissioners, 172 A.3d 139 (Pa. Commw. Ct. 2017). For example, a property owner cannot reasonably rely on the statement of an appointed official when the property owner knew, or should have known, that the official does not have the authority to bind the municipality with his statements.  …

WASHINGTON, DC, April 15, 2019 – Babst Calland announced that Arija Flowers has joined the Firm as an attorney in the Mobility, Transport and Safety Group in the Firm’s Washington, D.C. office.
Ms. Flowers, a former NHTSA attorney well-known in the industry, served as a Senior Trial Attorney with the NHTSA Office of Chief Counsel.  There, she was the lead U.S. federal enforcement attorney for a number of matters addressing some of the most significant issues in the industry. Ms. Flowers’ joining the Firm continues to enhance its best-in-class capabilities to meet the developing needs of mobility and transport clients and other companies with emerging technologies. The practice provides strategic leadership with business and legal advice for manufacturers, suppliers, start-ups, technology companies and government entities in the full-spectrum of transportation regulatory, safety, product quality, and automation matters, including automated/autonomous driving systems.
“Arija Flowers’ joining our team represents a consolidation at Babst Calland of several recent former NHTSA and DOT senior staff and leadership with the freshest and deepest understanding of NHTSA/DOT’s current decision-makers and technical analysis approach,” said Babst Calland’s Managing Shareholder Donald C. Bluedorn II.  “The continued outreach to us for services from companies – even those who are well represented at present – has really spoken to the success of our vision,” he added.
Ms. Flowers will join Will Godfrey, Babst Calland’s Director, Mobility, Automation and Safety, and a former General Motors engineer and senior NHTSA regulatory chief, and Tim Goodman, the leader of Babst Calland’s Mobility, Transport and Safety Group, and former NHTSA chief legal officer for enforcement and U.S. federal senior executive.
Ms. Flowers will help companies navigate the full-spectrum of mobility, vehicle safety and related regulatory matters, including self-certification of standards, homologation, regulatory compliance, automated/autonomous driving systems, innovative mobility and safety approaches, best practices and emerging trends, standards enforcement, defects investigations, government inquiries and enforcement proceedings, and recall implementation. …

The Legal Intelligencer
(by Alana Fortna)
The Clean Water Act regulates the discharge of pollutants into “waters of the United States” pursuant to National Pollutant Discharge Elimination System (NPDES) permits issued by the U.S. Environmental Protection Agency (EPA) or an authorized state agency. This is not a new concept. However, what has come to be known as “the groundwater conduit theory” is disrupting the long-standing understanding of what is and what isn’t covered by the Clean Water Act. This new theory also creates questions for companies and attorneys dealing with Superfund sites and waste management units regulated under RCRA. This article discusses the circuit split on this theory and what I view as potential implications for Superfund sites and waste management units depending on how the U.S. Supreme Court rules.
Several federal cases have addressed the issue of the indirect discharge of pollutants into jurisdictional waters via groundwater transport, and the Supreme Court may weigh in on this question soon. This is an important issue with far-reaching ramifications because it is generally understood that all groundwater that is not otherwise removed (i.e., pumped for drinking water supply) will eventually discharge to a surface water. The Clean Water Act prohibits discharges of pollutants from a “point source” without a NPDES permit, 33 U.S.C. Section 1342. A “point source” is defined as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” Based on this definition, discharges into and through groundwater have not been considered point source discharges because they are not the typical “end of the pipe” discharges. Recent case law out of the U.S. …

Law360

(by Cara Salvatore)

Babst Calland has hired a former National Highway Traffic Safety Administration lawyer who played a lead role in the agency’s work on the Takata air bag probe and other high-profile matters, the firm said Wednesday, the third former NHTSA staffer to join the firm’s transportation practice in recent years.

For the full article, click here.

The PIOGA Press
(by Kevin Garber and Jean Mosites)
The Pennsylvania Environmental Quality Board (EQB) will consider a petition for a cap-and-trade regulation at its April 16 meeting. The Clean Air Council, Widener Commonwealth Law School Environmental Law and Sustain-ability Center, and others submitted the petition on February 28, asking EQB to promulgate a regulation that would create a multi-sector cap-and-trade system to reduce greenhouse gas (GHG) emissions to achieve carbon neutrality in Pennsylvania by 2052.
The petitioners initially submitted the petition to EQB on November 27, 2018. Under EQB’s Petition Policy (25 Pa. Code Chapter 23), the Department of Environmental Protection is to notify EQB and the petitioner within 30 days of DEP’s receipt of the petition whether the petition meets the policy’s eligibility criteria. DEP advised the petitioners on December 26 that the petition met the criteria and would be submitted to EQB for consideration at the first meeting of 2019.
However, DEP did not notify EQB members until, apparently, early February. Upon learning of the petition, Representative Daryl Metcalfe, chairman of the House Environmental Resources and Energy Committee, requested DEP on February 19 to have the petitioners resubmit their petition. The petitioners resubmitted the petition on February 28 with minor changes and additional signatories. DEP notified petitioners and the EQB on March 1 that DEP would review the petition to ensure it still meets the eligibility criteria. DEP has now done that and EQB scheduled the matter for consideration at its April 16 meeting.
The petition
The petition includes a fully drafted regulation that establishes a cap on covered GHG emissions, based on a 2016 base year, and reduces GHG emissions to carbon neutrality by 2052. The regulation borrows heavily from California’s cap-and-trade regulation, which is a multi-sector program that includes Ontario and Quebec. …

The Legal Intelligencer

(by Lindsay Howard and Matthew Wood)

In a press conference on Feb. 14, 2019, the U.S. Environmental Protection Agency (EPA) announced its multifaceted “action plan” outlining steps the agency is taking to protect public health and the environment from per- and polyfluoroalkyl substances (PFAS). PFAS are a group of synthetic chemicals that have been in use since around the 1940s and have numerous commercial and consumer applications. They have been used in nonstick coatings for cookware and food containers, waterproofing for fabrics and textiles, the manufacture of plastics and resins, and the formulation of firefighting foams. Their widespread use and the discovery of PFAS chemicals in various environmental media across the United States has raised interest and concerns about their potential effects on human health and the environment.

PFAS in the Environment 

PFAS chemicals have been found in, among other things, groundwater (which may be used for drinking water), surface water and sediments, as well as in wildlife and human blood. Human exposure may occur through ingestion of contaminated drinking water and consumption of animals and plants in which PFAS have bioaccumulated (or that have been exposed to PFAS in the course of preparing or cooking food for consumption). Studies have shown that exposure to PFAS chemicals may have negative health consequences, which has driven the EPA and other stakeholders to better understand the chemicals, the extent of their presence in the environment, their potential health effects and the best methods for containment and cleanup.

EPA’s Action Plan

To develop its action plan, the EPA requested comments, visited with leadership and citizens of PFAS-affected communities, and hosted a PFAS National Leadership Summit in Washington, D.C. …

Smart Business

(by Jayne Gest with Christian Farmakis)

It’s not always easy for business owners to find financing. Most business owners will, at some point, turn to conventional bank lending to help finance their business or fund growth, like acquisitions. There are, however, many different types of financing products available in the commercial lending market. But whatever type of financing you settle on, it’s critical to know exactly what you’re risking.

“Business owners often focus more on ‘getting the loan’ than on the specific terms and covenants of the loan, which in many instances can hinder the ongoing operations of the business,” says Christian A. Farmakis, shareholder and chairman of the board at Babst Calland.

Smart Business spoke with Farmakis about the lending environment and legal risks to keep an eye on.

What are loan options for small and mid-sized business owners?

Since the Great Recession, traditional bank lending has competed with other forms of lending. For instance, business owners are increasingly turning to private equity funding and family office lending rather than traditional, asset-based lending. These options may require sacrificing significant ownership and control over the business.

Other loan types include U.S. Small Business Administration loans backed by the federal government but underwritten by banks, small business loans for real estate financing and equipment loans.

Credit unions and regional and community banks sometimes offer different and more flexible terms and do smaller loans because they service the loan in their portfolio, where a larger bank might have stricter underwriting requirements.

What legal issues could crop up in the term sheet and loan documents?

Loans can include affirmative and negative covenants, but it’s usually the negative ones that trip people up. …

Institute for Energy Law Oil & Gas E-Report

(by Adam Speer)

Anyone dealing with land and title issues in West Virginia quickly learns the importance of real property assessments. The relative ease in which an interest in land, including mineral rights, can be lost in a tax sale means that landmen and title practitioners who fail to examine a property’s tax assessment history do so at their peril. Those histories are found in the volumes of “landbooks” maintained by each county assessor’s office. A relatively common and beguiling problem arises when the title examiner discovers that a property has been double assessed. Such duplicate assessments are rarely obvious, as assessed interests are often described by brief and vague notations and sometimes assessed in the name of a long-gone predecessor in title.

Recently, in Haynes v. Antero Resources Corporation, Hill v. Lone Pine Operating Company and L&D Investments Inc. v. Mike Ross, Inc., the Supreme Court of Appeals of West Virginia considered the validity of several tax deeds that stemmed from the duplicate assessment of certain oil and gas interests created by the Harrison County Assessor’s Office. In each of the cases, the court reaffirmed its long-standing precedent that holds that in the case of two assessments of the same land under the same claim of title, the state can only require one payment of taxes under either assessment. The cases highlight the potential consequences of duplicate tax assessments of severed mineral interests in West Virginia and the need to have interests properly assessed. The Haynes, Lone Pine and L&D Investment decisions should be maintained in any title practitioner’s toolkit for analyzing interests conveyed by a tax sale and determining the likelihood of a successful challenge to set aside a tax deed. …

The Legal Intelligencer

(by John McCreary)

The February 2017, issue of Pennsylvania Law Weekly published this author’s comments on the employment law issues created by the then-recently enacted Medical Marijuana Act (MMA). I identified some of the practical and legal problems presented by the continued illegality of marijuana under federal law, the conflict between statutory employment protections for medical marijuana patients and common employer policies prohibiting illegal drug use. I predicted that the “imprecision of the MMA’s statutory language” would “inject needless uncertainty into the employer-employee relationship” that “likely would not be resolved absent litigation.” Although to date there have been no cases reported under Pennsylvania’s MMA, several courts in other jurisdictions have considered employment issues arising under similar medical marijuana statutes. The uncertainty is lessening; the smoke is beginning to clear.

The 2017 article conjectured that the federal Drug Free Workplace Act (DFWA), which requires recipients of federal funds to maintain a drug-free workplace as described, see 41 U.S.C. Section 8102, might serve as a defense to a claim brought by a medical marijuana patient. Noffsinger v. SSC Niantic, 338 F.Supp.3d 78 (D.Ct. 2018), a case arising under Connecticut’s Palliative Use of Marijuana Act (PUMA), Conn. Gen. Stat. Sec. 21a-408 et seq.says otherwise. There, medical marijuana patient Noffsinger accepted a position as activities manager at the defendant’s health and rehabilitation facility. The plaintiff informed her prospective employer about her medical marijuana prescription. PUMA Section 21a-408p(b)(3) provides that “no employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient” under PUMA. When Noffsinger’s pre-employment drug screen returned positive for marijuana the job offer was rescinded. …