The Legal Intelligencer has presented Duane Morris partner Robert L. Byer with a 2018 Lifetime Achievement Award, which recognizes those who have left an imprint on the legal history of Pennsylvania during their career.
Please visit the Duane Morris website to read a profile of Rob originally published in The Legal Intelligencer.
The manner in which small businesses can easily solicit orders and sell merchandise over the internet may soon end. In its place, the Supreme Court may require a more regimented and costly scheme that may force many small businesses to go out of business or limit their sales to certain states. It all depends on the outcome of a recent case in the Supreme Court called South Dakota v. Wayfair, Inc. While Wayfair itself is not a small business, a decision in this case could adversely impact many small businesses that argue, like Wayfair, that they should have some presence in the state (and thus be a user of state services) before a state can impose a tax or tax collection duty on them. On the other hand, many larger businesses, local nonweb businesses and the states believe all businesses, whether in a state or not, should collect sales/use tax to even the playing field, and if some small businesses can’t hack it or handle the administrative or financial cost, so be it. This is the background on the issues at play in Wayfair.
Read the full Alert on the Duane Morris LLP website.
Momentum continues to build behind the expansion of protections because of “sex” under Title VII of the Civil Rights Act of 1964. Less than two weeks after the en banc U.S. Court of Appeals for the Second Circuit issued its opinion in Zarda v. Altitude Express, Inc., holding that Title VII prohibits sexual orientation discrimination, the Court of Appeals for the Sixth Circuit (with jurisdiction over Kentucky, Michigan, Ohio and Tennessee) held in Equal Employment Opportunity Commission v. R.G. &. G.R. Harris Funeral Homes, Inc. that Title VII prohibits employers from discriminating on the basis of transgender and gender transitioning statuses.
At present, federal courts in Connecticut, Illinois, Indiana, Kentucky, Michigan, New York, Ohio, Tennessee, Vermont and Wisconsin recognize expanded protections because of “sex” under Title VII. In contrast, federal courts in Alabama, Florida and Georgia do not recognize such protections. This split of authority likely will remain, and may even deepen if other circuit courts address these issues, until the Supreme Court resolves the matter.
To read the full text of this Duane Morris Alert, please visit the firm website.
A fundamental tenet of appellate practice is that the rights of the litigants are to be determined solely on the basis of materials contained between the covers of the record on appeal. With some rare exceptions discussed below, it is a serious breach of appellate decorum to refer to matters outside the record. Counsel who do so run the risk of being reprimanded by the court during oral argument and in a subsequent published opinion.
References in briefs to material not contained in the record may be stricken on motion made by the opposing party and, if granted, this may blemish the offending counsel’s reputation for integrity and reliability before the panel that will decide the appeal. The court may also deny costs to a prevailing party whose brief contained references to matters outside the record. Topal v. Pace University, 167 A.D.2d 387 (2d Dept. 1990) (“since the appendix to the defendant’s brief contains documents dehors the record, the defendant is denied costs on appeal”). This may amount to a significant loss for the prevailing party, far in excess of the $250 statutory costs (CPLR §8203[a]), because the party awarded costs is also entitled to recover its taxable disbursements, including the reasonable cost of printing the record on appeal and briefs. CPLR §8301(a)(6),
It is also improper to annex to a brief affidavits or exhibits that were not presented to the trial court and properly made part of the record on appeal. In City of New York v. Grosfeld Realty Co., 173 A.D.2d 436 (2d Dept. 1991), the court “note[d] with disfavor the attempt on the part of the appellant’s attorneys to submit on this appeal an affidavit specifically rejected by the Supreme Court and, therefore, not properly part of the record on this matter.” The First and Second Departments expressly prohibit the attachment of unauthorized materials to an appellate brief. Rule 600.10(d)(1)(iii) of the First Department provides that “[u]nless authorized by the court, briefs to which are added or appended any matter, other than specifically authorized by this rule, shall not be accepted for filing.” The rule permits an addendum containing “statutes, rules, regulations, etc.” Rule 600.10(d)(1)(i). In the Second Department, Rule 670.10.3(h) similarly provides what materials may be included in an addendum to the brief, e.g., decisions, statutes, cases, etc., cited in the brief that are not published or otherwise readily available, and states that “[u]nless otherwise authorized by order of the court, briefs may not contain maps, photographs, or other addenda.”
To read the full text of this article by Duane Morris partner Thomas R. Newman and Steven J. Ahmuty, Jr., originally published in the New York Law Journal, please visit the Duane Morris website.
Duane Morris partner Robert M. Palumbos has been appointed co-chair of the Philadelphia Bar Association’s Appellate Courts Committee. Mr. Palumbos’ practice includes appellate and commercial litigation, and his appellate work covers a wide range of legal areas, such as RICO, corporate governance, administrative agency law, real estate and insurance coverage.
Mr. Palumbos is also vice chair of the Pennsylvania Supreme Court’s Appellate Court Procedural Rules Committee.
In one of the first decisions issued this year by the United States Court of Appeals for the First Circuit, the court addressed an issue of first impression. In Mission Products Holdings, Inc. v. Tempnology, LLC, n/k/a Old Cold LLC, the First Circuit held that the omission of trademarks from the definition of “intellectual property” in Section 101(35A) of the Bankruptcy Code, as incorporated by Section 365(n), leaves a trademark licensee with nothing more than a claim for damages upon the rejection of its license under Section 365(a). In so holding, the First Circuit joined the majority of bankruptcy courts that have addressed the issue and rejected the view adopted by the United States Court of Appeals for the Seventh Circuit.
To read the full text of this Alert, please visit the Duane Morris website.
The Supreme Court of the United States has accepted for review the case of South Dakota v. Wayfair, Inc., et al, in which the state of South Dakota has challenged the continued viability of its 1992 Quill Corp. v. North Dakota decision that required some physical presence of a remote seller in a state before a state could impose its sales tax collection obligations on the seller. The Supreme Court in 1992 held it was up to Congress to change the test. In this new case, the South Dakota Supreme Court held that South Dakota’s attempt to legislatively override Quill was in violation of the law. By hearing the case, the U.S. Supreme Court will now decide whether to change the law or continue to allow the physical presence standard to stand, until and unless the Congress decides to change it. This decision could have far-reaching effects on interstate commerce, especially impacting internet sellers.
To read the full text of this Alert, please visit the Duane Morris website.
On December 18, 2017, the Ninth Circuit held in Benjamin v. B&H Education, Inc., F.3d, No. 15-17147, 2017 WL 6460087, that cosmetology students were not employees of their schools. In doing so, the Ninth Circuit joined the Second and Eleventh Circuits in adopting the primary beneficiary test to determine whether students are employees. The Benjamin case was the first to reach a decision from the Ninth Circuit and joined many other jurisdictions that had previously dismissed virtually identical cases (including a recent affirmance of summary judgment by the U.S. Court of Appeals for the Seventh Circuit).
The Benjamin plaintiffs were former students who alleged that under federal, California and Nevada law, they should have been paid wages as employees for the time they spent practicing skills in the schools’ clinic classroom and performing concierge duties (e.g., cleaning, sanitizing, greeting clients, recommending hair products, etc.). U.S. District Judge Vince Chhabria for the Northern District of California granted summary judgment for the school, holding that “Plaintiffs were not employees under federal or state law because Plaintiffs were the primary beneficiaries of the educational program and they had not shown that [the cosmetology school] subordinated the educational function of its clinics to its own profit-making purposes.” [Note: Duane Morris represented B&H Education in this case in the Northern District of California.]
To read the full text of this Alert, please visit the Duane Morris website.
In Roverano v. John Crane, Inc., 2017 PA Super 415 (Dec. 28, 2017), the Pennsylvania Superior Court confirmed that Pennsylvania’s Fair Share Act, which prescribes how liability is allocated among multiple defendants, applies to strict-liability personal injury claims arising from asbestos exposure. [Note: Duane Morris was retained as appellate counsel and briefed and argued the appeal for one of the prevailing parties.] This is an important result for defendants in asbestos and products liability litigation throughout Pennsylvania.
To read the full text of this Alert, please visit the Duane Morris LLP website.
Duane Morris’ San Francisco partner Paul Killion will be speaking October 14, 2017, at the inaugural Appellate Summit organized by the newly reconstituted California State Bar Litigation Section’s Committee on Appellate Courts.
Paul’s panel will address “When Things Go Wrong: Challenges and Strategies for Appeals from Jury Trials.” His co-panelists are California Court of Appeal Justice Kathleen Banke of the First District, Division One, and Syda Cogliati, Senior Appellate Research Attorney for the Sixth District. Paul is an appellate specialist certified by the California Board of Legal Specialization.
Duane Morris is a sponsor of the Appellate Summit.
For more information and to register, visit the California State Bar website.
