ADVERTISEMENT ADVERTISEMENT Inside the Firm Best Lawyers has named H. Bruce Shreves as the “New Orleans Best Lawyers Also In This Issue Alternative Dispute Resolution Lawyer of the Year” for 2011. • Choosing a Mediator • Assignments of Accounts Receivable We are proud to announce that Simon, Peragine Smith & Redfearn was named • Inside the Firm in U.S. News & World Report as one of the “Best Law Firms”.
The Louisiana Super Lawyers 2011 list includes H. Bruce Shreves in the overall top 10. Denise C. Puente is listed in the top 25 Louisiana women attorneys and Jay H. Kern is listed under New Orleans Construction/ Surety April, 2011 lawyers. The Louisiana Supreme Court recently denied writs in Susan Henderson Mont- NOLA VII Artist-Activist Retreat Worker’s Compensation Insurance – A Necessity gomery versus Administrators of the Tulane Educational Fund, thereby con- firming the closure of the H. Sophie Memorial Newcomb College. It was an and benefit concert By Susan F. Clade honor and a privilege for our firm to represent Mrs. Montgomery, and all those Susan F. Clade, who serves on the board In economic times such as these, many Employers operating in Louisiana interested in preserving Newcomb College, in this case. Renovations at the firm of the non-profit group Sweet Home New employers find their need for workers must obtain worker’s compensation in a state of flux. As a result, employers The firm recently completed a major renovation of its office space. Although the renovations extended throughout the firm, the Orleans, recently attended the NOLA VII insurance or State certification of Artist-Activist Retreat and benefit concert. sometimes resort to hiring temporary primary focus was on the reception area pictured here. Go to www.spsr-law.com for more renovation photos. their self-insured status. Failure to do The retreat was hosted by two national non- and/or out-of-state workers who may profit organizations serving the music com- or may not have the requisite training, so can adversely affect the employer’s LAW NOTES is published for the clients of Simon, Peragine, Smith & Redfearn, L.L.P. and other interested persons and may be munity: Air Traffic Control (“ATC”), a resource skills and experience. Under Louisiana financial condition, good will and considered legal advertising. It is not intended to, nor does it constitute, legal advice. Legal questions should be directed to an for managers and musicians interested law, it is essential that employers have reputation, and its very ability to worker’s compensation insurance in attorney at Simon, Peragine, Smith & Redfearn, L.L.P. in creating social change collaborations continue to conduct business. Editor: John F. Shreves, Esq. Publisher: Courtney Peterson Design/Layout: Matt King, I Design LLC between and among themselves and other place to cover any job-related injuries www.spsr-law.com organizations; and Future of Music Coalition or illnesses suffered by their workers, (“FMC”), an education, research and advo- whether permanent or temporary, er’s compensation insurance – regard- cacy organization that identifies, examines full-time or part-time. In Louisiana an less of the reason – “shall be liable” for and explains the challenging issues at the employer may purchase such insurance a civil penalty up to $250 per employee intersection of music, law, technology and from an insurer or it may be self-insured, for a first offense and up to $500 per policy for musicians and citizens. which requires proof of the employer’s worker for a subsequent offense. [La. financial ability to pay benefits as well ATC and FMC brought together musicians R.S. 23:1170(A)]. Such an employer as state certification. Without worker’s and music business persons and represen- may also be investigated by the OWC, compensation insurance, an employer tatives of various donors and foundations which could result in the discovery of can be sued by an injured employee in from around the nation for a three-day additional violations. The OWC may tort for damages which can significantly retreat in February. The purpose of the 2011 also seek injunctive relief against an exceed the amounts the worker would retreat was to inform the attendees about employer with prior offenses to prohibit be entitled to in worker’s compensa- the vital work that Sweet Home does in it from continuing to operate until proof tion benefits. Worker’s compensation providing services to New Orleans’ music of insurance is provided and all fines insurance limits an injured employee’s
and cultural communities and the efforts of are paid in full. La. R.S. 23:1171.1. An
recovery and, therefore, protects both the Gulf Restoration Network, based in New employer who “wilfully” – i.e., inten- ADVERTISEMENT the employer and the employee. Orleans, to inform and guide the recovery tionally or through gross negligence – and restoration of the Gulf of Mexico, Loui- The failure of an employer to provide fails to provide insurance is subject to siana’s fragile coast and all Gulf Coast com- such insurance is punishable by civil criminal penalties, including a fine of munities in the wake of the 2010 BP drilling and/or criminal penalties, including $250 per day and/or imprisonment for disaster. Emphasis was placed on informing fines and/or imprisonment up to one up to one year, or both. the attendees of the enormous volunteer, year. The penalties may be imposed Any “person” who “knowingly” makes financial and other needs of both organiza- by the Office of Worker’s Compensa- false or misleading statements or tions in assisting New Orleans and the Gulf tion (“OWC”) on employers and on omits/conceals material information
Coast communities in recovery from the individuals who aid and abet employ- “for the purpose of” obtaining compen-
New Orleans, LA 70163 LA Orleans, New twin disasters of Hurricane Katrina and the ers who wilfully misrepresent that they sation coverage or avoiding or delaying
Suite 3000 Suite BP oil spill, and restoring them to stronger are in compliance with the statute. An 1100 Poydras St Poydras 1100 and more sustainable positions than ever employer “who fails to secure” work- Continued on page 3 before. Continued on page 3 Simon, Peragine, Smith & Redfearn, L.L.P. Law Notes • April 2011 ADVERTISEMENT ADVERTISEMENT Six Factors to Consider When Choosing A Mediator Assignment of Accounts Receivable – Trap for the Unwary
By Shannon H. Huber to be more persuasive. It is important to some sugges- By Steven A. Jacobson ing company. Continued payments to still must pay the know if the mediator is versed in issues tions for a media- the assignee do not relieve the account face amount of the to be presented, i.e., construction, medi- tor, information debtor from its obligation to pay the fac- receivable to the fac- 1 Let the Other Side Choose cal or appellate issues that may arise. A learned at trade Most businesses are familiar with toring company. toring company if it Although it sounds like a concession mediator who is aware and knowledge- meetings, indus- the mechanics of an assignment of has signed a waiver. accounts receivable. A party seeking It is not uncommon for a notice of assign- before even starting the mediation, able of such issues can only be an asset try conferences ment of accounts receivable to contain In many cases, this allowing the adverse party to choose the in obtaining a resolution of the case. and even from capital assigns its accounts receivable will result in a party to a financing or factoring company seemingly innocuous and boilerplate lan- mediator starts the mediation process off competitors can guage along the following lines: paying twice – once in the right direction. lead to names of which advances that party a stipulated to the factoring 3 Flexibility Shannon Huber Steven Jacobson mediators known percentage of the face amount of the Please make the proper notations on company and once First, it shows that you are willing to com- While it is true that many mediators receivables. The factoring company, in your ledger and acknowledge this let- promise and are truly interested in obtain- by others in a spe- to have, for example, have a specific formula for the mediation cific field. It is important to keep your turn, sends a notice of assignment of ter and that invoices are not subject shoddy workmanship repaired or defec- ing a settlement. Second, when the schedule, it is important that a mediator accounts receivable to the party obli- to any claims or defenses you may mediator is discussing your position with ears open at all times and ask others tive goods replaced. Despite the harsh be open and flexible with regards to how of favorable experiences they might gated to pay the factoring company’s have against the assignee. result caused by an oftentimes inad- the other side and, hopefully, attempt- mediations can best be handled on a case- assignee, i.e. the account debtor. While ing to persuade them in your favor, the have had with certain mediators. Typically, the notice of assignment of vertent waiver agreement, the Uniform by-case basis. A mediator who is open to fairly straightforward, this three party accounts receivable is directed to an Commercial Code validates these provi- mediator already has credibility with the suggestions and is willing to listen to the arrangement has one potential trap for adverse party because they chose him or 6 Respect accounting department and is signed, sions with limited exception. Accordingly, parties with regards to waiving opening account debtors. acknowledged and returned to the fac- some procedures should be put in place her as their mediator. Finally, while the presentations or even placement or loca- Finally, the most important factor to purpose of mediation is to settle the case, Most account debtors know that once toring company without consideration of to require a review of any notice of assign- tion of the parties throughout an office is consider when choosing a mediator is they receive a notice of assignment of the waiver of defenses languages. ment of accounts receivable to make sure it is important to remember that if you do important and could in fact be the differ- that all sides have some level of respect not like the position taken by the mediator accounts receivable, they are obligated Even though a party may have a valid that an account debtor preserves its rights ence which leads to a successful mediation. for the mediator. For example, if there to commence payments to the factor- and defenses. during the mediation, you do not have to is a member of the judiciary who retires defense to payment to its assignee, it settle the case. Mediation is not binding 4 Follow Through and becomes a mediator, and you did and there is no requirement to settle on not respect him while he was on the the date of the mediation. If the media- Many mediations do not settle their bench, it is unlikely that you will be tor chosen by the other side is unsuc- cases on their assigned mediation date. open to his powers of persuasion when Worker’s Compensation Insurance – A Necessity NOLA VII Artist-Activist Retreat cessful, other attempts, perhaps with a It is important to know, and to take into he is discussing your case. If, however, Continued from page 1 different mediator, may prove fruitful. account, how often the mediator settles Continued from page 1 the mediator has been suggested On the evening of the final day of the cases in the weeks or months after the ini- by one of your respected peers, and payment of compensation premi- attorney’s fees and retreat, the musician attendees together tial mediation. Mediators who continue to 2 Mediator’s Background comes with a good referral, (or better ums may also be subjected to the costs. with some of New Orleans’ finest local call (and/or badger) both parties after the yet a few good referrals) mediation is statutory criminal penalties. La. R.S. Thus, an employer musicians performed at the Blue Nile, with Although it is customary to obtain CV’s mediation date are usually very effective. more likely to be successful. 23:1172.2. operating in Loui- the proceeds going to Sweet Home and and other biographical information of These mediators show that they genuinely siana must obtain the Gulf Restoration Network. A great time experts at trial, parties often times fail care about their success rate as mediators Lastly, a “knowing” failure to pro- worker’s compen- was had by all and the culture, the spirit to obtain the same information on the and do not believe their job only exists on vide insurance together with a failure sation insurance or and, most of all, the music of New Orleans mediator. Depending on the type of case the mediation date. (It should be noted to pay an OWC “final judgment” for State certification acquired new devotees, who will carry the that it is to be mediated, it is important that some mediators do not bill for these compensation benefits allows the of its self-insured story of this City and the Gulf Coast wher- to obtain any information the mediator post-mediation calls, but if the length and employee to sue the employer in tort Susan Clade status. Failure to ever they go in the world. might have regarding his technical exper- amount of post-mediation follow-through for “legal damages.” La. R.S. 23:1032.1. do so can result in an employer’s being tise and/or experience with the complexi- is substantial, extra charges could apply). If the employee obtains a judgment If you would like more information on ties of your case. It is also useful to know in the tort suit as well, he may col- subjected to a tort suit and/or adversely Sweet Home New Orleans, Gulf Res- if the mediator previously practiced or is lect only one of the judgments but is affect the employer’s financial - condi toration Network, Air Traffic Control or 5 Referrals, Referrals, Referrals still practicing as a plaintiff and/or defense entitled to choose the greater of the tion, good will and reputation, and Future of Music Coalition, please contact attorney and in which jurisdictions he Referrals are a vital part of networking. two. Although the employer does its very ability to continue to conduct Susan Clade at [email protected] or she primarily practices. Knowledge Word of mouth is an excellent way to not have to pay double damages, a business. or the organizations via their websites: of the jurisdiction and the personalities obtain suggestions for mediators who are second legal action could result in www.sweethomeneworleans.org; involved, including the potential jury most suited to a specific case. While the the employer’s incurring substantial www.healthygulf.org; www.atctower.net; pool and judges, enables the mediator attorney handling the case might have and www.futureofmusic.org.
2 Simon, Peragine, Smith & Redfearn, L.L.P. Law Notes • April 2011 www.spsr-law.com www.spsr-law.com Simon, Peragine, Smith & Redfearn, L.L.P. Law Notes • April 2011 3 ADVERTISEMENT ADVERTISEMENT Inside the Firm Best Lawyers has named H. Bruce Shreves as the “New Orleans Best Lawyers Also In This Issue Alternative Dispute Resolution Lawyer of the Year” for 2011. • Choosing a Mediator • Assignments of Accounts Receivable We are proud to announce that Simon, Peragine Smith & Redfearn was named • Inside the Firm in U.S. News & World Report as one of the “Best Law Firms”.
The Louisiana Super Lawyers 2011 list includes H. Bruce Shreves in the overall top 10. Denise C. Puente is listed in the top 25 Louisiana women attorneys and Jay H. Kern is listed under New Orleans Construction/ Surety April, 2011 lawyers. The Louisiana Supreme Court recently denied writs in Susan Henderson Mont- NOLA VII Artist-Activist Retreat Worker’s Compensation Insurance – A Necessity gomery versus Administrators of the Tulane Educational Fund, thereby con- firming the closure of the H. Sophie Memorial Newcomb College. It was an and benefit concert By Susan F. Clade honor and a privilege for our firm to represent Mrs. Montgomery, and all those Susan F. Clade, who serves on the board In economic times such as these, many Employers operating in Louisiana interested in preserving Newcomb College, in this case. Renovations at the firm of the non-profit group Sweet Home New employers find their need for workers must obtain worker’s compensation in a state of flux. As a result, employers The firm recently completed a major renovation of its office space. Although the renovations extended throughout the firm, the Orleans, recently attended the NOLA VII insurance or State certification of Artist-Activist Retreat and benefit concert. sometimes resort to hiring temporary primary focus was on the reception area pictured here. Go to www.spsr-law.com for more renovation photos. their self-insured status. Failure to do The retreat was hosted by two national non- and/or out-of-state workers who may profit organizations serving the music com- or may not have the requisite training, so can adversely affect the employer’s LAW NOTES is published for the clients of Simon, Peragine, Smith & Redfearn, L.L.P. and other interested persons and may be munity: Air Traffic Control (“ATC”), a resource skills and experience. Under Louisiana financial condition, good will and considered legal advertising. It is not intended to, nor does it constitute, legal advice. Legal questions should be directed to an for managers and musicians interested law, it is essential that employers have reputation, and its very ability to worker’s compensation insurance in attorney at Simon, Peragine, Smith & Redfearn, L.L.P. in creating social change collaborations continue to conduct business. Editor: John F. Shreves, Esq. Publisher: Courtney Peterson Design/Layout: Matt King, I Design LLC between and among themselves and other place to cover any job-related injuries www.spsr-law.com organizations; and Future of Music Coalition or illnesses suffered by their workers, (“FMC”), an education, research and advo- whether permanent or temporary, er’s compensation insurance – regard- cacy organization that identifies, examines full-time or part-time. In Louisiana an less of the reason – “shall be liable” for and explains the challenging issues at the employer may purchase such insurance a civil penalty up to $250 per employee intersection of music, law, technology and from an insurer or it may be self-insured, for a first offense and up to $500 per policy for musicians and citizens. which requires proof of the employer’s worker for a subsequent offense. [La. financial ability to pay benefits as well ATC and FMC brought together musicians R.S. 23:1170(A)]. Such an employer as state certification. Without worker’s and music business persons and represen- may also be investigated by the OWC, compensation insurance, an employer tatives of various donors and foundations which could result in the discovery of can be sued by an injured employee in from around the nation for a three-day additional violations. The OWC may tort for damages which can significantly retreat in February. The purpose of the 2011 also seek injunctive relief against an exceed the amounts the worker would retreat was to inform the attendees about employer with prior offenses to prohibit be entitled to in worker’s compensa- the vital work that Sweet Home does in it from continuing to operate until proof tion benefits. Worker’s compensation providing services to New Orleans’ music of insurance is provided and all fines insurance limits an injured employee’s
and cultural communities and the efforts of are paid in full. La. R.S. 23:1171.1. An
recovery and, therefore, protects both the Gulf Restoration Network, based in New employer who “wilfully” – i.e., inten- ADVERTISEMENT the employer and the employee. Orleans, to inform and guide the recovery tionally or through gross negligence – and restoration of the Gulf of Mexico, Loui- The failure of an employer to provide fails to provide insurance is subject to siana’s fragile coast and all Gulf Coast com- such insurance is punishable by civil criminal penalties, including a fine of munities in the wake of the 2010 BP drilling and/or criminal penalties, including $250 per day and/or imprisonment for disaster. Emphasis was placed on informing fines and/or imprisonment up to one up to one year, or both. the attendees of the enormous volunteer, year. The penalties may be imposed Any “person” who “knowingly” makes financial and other needs of both organiza- by the Office of Worker’s Compensa- false or misleading statements or tions in assisting New Orleans and the Gulf tion (“OWC”) on employers and on omits/conceals material information
Coast communities in recovery from the individuals who aid and abet employ- “for the purpose of” obtaining compen-
New Orleans, LA 70163 LA Orleans, New twin disasters of Hurricane Katrina and the ers who wilfully misrepresent that they sation coverage or avoiding or delaying
Suite 3000 Suite BP oil spill, and restoring them to stronger are in compliance with the statute. An 1100 Poydras St Poydras 1100 and more sustainable positions than ever employer “who fails to secure” work- Continued on page 3 before. Continued on page 3 Simon, Peragine, Smith & Redfearn, L.L.P. Law Notes • April 2011 ADVERTISEMENT ADVERTISEMENT Six Factors to Consider When Choosing A Mediator Assignment of Accounts Receivable – Trap for the Unwary
By Shannon H. Huber to be more persuasive. It is important to some sugges- By Steven A. Jacobson ing company. Continued payments to still must pay the know if the mediator is versed in issues tions for a media- the assignee do not relieve the account face amount of the to be presented, i.e., construction, medi- tor, information debtor from its obligation to pay the fac- receivable to the fac- 1 Let the Other Side Choose cal or appellate issues that may arise. A learned at trade Most businesses are familiar with toring company. toring company if it Although it sounds like a concession mediator who is aware and knowledge- meetings, indus- the mechanics of an assignment of has signed a waiver. accounts receivable. A party seeking It is not uncommon for a notice of assign- before even starting the mediation, able of such issues can only be an asset try conferences ment of accounts receivable to contain In many cases, this allowing the adverse party to choose the in obtaining a resolution of the case. and even from capital assigns its accounts receivable will result in a party to a financing or factoring company seemingly innocuous and boilerplate lan- mediator starts the mediation process off competitors can guage along the following lines: paying twice – once in the right direction. lead to names of which advances that party a stipulated to the factoring 3 Flexibility Shannon Huber Steven Jacobson mediators known percentage of the face amount of the Please make the proper notations on company and once First, it shows that you are willing to com- While it is true that many mediators receivables. The factoring company, in your ledger and acknowledge this let- promise and are truly interested in obtain- by others in a spe- to have, for example, have a specific formula for the mediation cific field. It is important to keep your turn, sends a notice of assignment of ter and that invoices are not subject shoddy workmanship repaired or defec- ing a settlement. Second, when the schedule, it is important that a mediator accounts receivable to the party obli- to any claims or defenses you may mediator is discussing your position with ears open at all times and ask others tive goods replaced. Despite the harsh be open and flexible with regards to how of favorable experiences they might gated to pay the factoring company’s have against the assignee. result caused by an oftentimes inad- the other side and, hopefully, attempt- mediations can best be handled on a case- assignee, i.e. the account debtor. While ing to persuade them in your favor, the have had with certain mediators. Typically, the notice of assignment of vertent waiver agreement, the Uniform by-case basis. A mediator who is open to fairly straightforward, this three party accounts receivable is directed to an Commercial Code validates these provi- mediator already has credibility with the suggestions and is willing to listen to the arrangement has one potential trap for adverse party because they chose him or 6 Respect accounting department and is signed, sions with limited exception. Accordingly, parties with regards to waiving opening account debtors. acknowledged and returned to the fac- some procedures should be put in place her as their mediator. Finally, while the presentations or even placement or loca- Finally, the most important factor to purpose of mediation is to settle the case, Most account debtors know that once toring company without consideration of to require a review of any notice of assign- tion of the parties throughout an office is consider when choosing a mediator is they receive a notice of assignment of the waiver of defenses languages. ment of accounts receivable to make sure it is important to remember that if you do important and could in fact be the differ- that all sides have some level of respect not like the position taken by the mediator accounts receivable, they are obligated Even though a party may have a valid that an account debtor preserves its rights ence which leads to a successful mediation. for the mediator. For example, if there to commence payments to the factor- and defenses. during the mediation, you do not have to is a member of the judiciary who retires defense to payment to its assignee, it settle the case. Mediation is not binding 4 Follow Through and becomes a mediator, and you did and there is no requirement to settle on not respect him while he was on the the date of the mediation. If the media- Many mediations do not settle their bench, it is unlikely that you will be tor chosen by the other side is unsuc- cases on their assigned mediation date. open to his powers of persuasion when Worker’s Compensation Insurance – A Necessity NOLA VII Artist-Activist Retreat cessful, other attempts, perhaps with a It is important to know, and to take into he is discussing your case. If, however, Continued from page 1 different mediator, may prove fruitful. account, how often the mediator settles Continued from page 1 the mediator has been suggested On the evening of the final day of the cases in the weeks or months after the ini- by one of your respected peers, and payment of compensation premi- attorney’s fees and retreat, the musician attendees together tial mediation. Mediators who continue to 2 Mediator’s Background comes with a good referral, (or better ums may also be subjected to the costs. with some of New Orleans’ finest local call (and/or badger) both parties after the yet a few good referrals) mediation is statutory criminal penalties. La. R.S. Thus, an employer musicians performed at the Blue Nile, with Although it is customary to obtain CV’s mediation date are usually very effective. more likely to be successful. 23:1172.2. operating in Loui- the proceeds going to Sweet Home and and other biographical information of These mediators show that they genuinely siana must obtain the Gulf Restoration Network. A great time experts at trial, parties often times fail care about their success rate as mediators Lastly, a “knowing” failure to pro- worker’s compen- was had by all and the culture, the spirit to obtain the same information on the and do not believe their job only exists on vide insurance together with a failure sation insurance or and, most of all, the music of New Orleans mediator. Depending on the type of case the mediation date. (It should be noted to pay an OWC “final judgment” for State certification acquired new devotees, who will carry the that it is to be mediated, it is important that some mediators do not bill for these compensation benefits allows the of its self-insured story of this City and the Gulf Coast wher- to obtain any information the mediator post-mediation calls, but if the length and employee to sue the employer in tort Susan Clade status. Failure to ever they go in the world. might have regarding his technical exper- amount of post-mediation follow-through for “legal damages.” La. R.S. 23:1032.1. do so can result in an employer’s being tise and/or experience with the complexi- is substantial, extra charges could apply). If the employee obtains a judgment If you would like more information on ties of your case. It is also useful to know in the tort suit as well, he may col- subjected to a tort suit and/or adversely Sweet Home New Orleans, Gulf Res- if the mediator previously practiced or is lect only one of the judgments but is affect the employer’s financial - condi toration Network, Air Traffic Control or 5 Referrals, Referrals, Referrals still practicing as a plaintiff and/or defense entitled to choose the greater of the tion, good will and reputation, and Future of Music Coalition, please contact attorney and in which jurisdictions he Referrals are a vital part of networking. two. Although the employer does its very ability to continue to conduct Susan Clade at [email protected] or she primarily practices. Knowledge Word of mouth is an excellent way to not have to pay double damages, a business. or the organizations via their websites: of the jurisdiction and the personalities obtain suggestions for mediators who are second legal action could result in www.sweethomeneworleans.org; involved, including the potential jury most suited to a specific case. While the the employer’s incurring substantial www.healthygulf.org; www.atctower.net; pool and judges, enables the mediator attorney handling the case might have and www.futureofmusic.org.
2 Simon, Peragine, Smith & Redfearn, L.L.P. Law Notes • April 2011 www.spsr-law.com www.spsr-law.com Simon, Peragine, Smith & Redfearn, L.L.P. Law Notes • April 2011 3