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We wanted to gone being pandemic the of likelihood ago. “Even with a miracle vaccine, the when the division post was started 10 years that the held also Wilson, who Chair hSBD Regina would said things like,” what look know didn’t we because virtual be to going was it that a to event the format. virtual moving meant that in- to person stop events a because of putting the pandemic, ACBA the with along gatherings, social on limits and recommendations distancing physical said. hughes Elizabeth President ACBA option,” an Prayer Jr. King Program. and Breakfast luther Doctor martin Reverend the event, annual uncertainty about holding its hallmark some the created 2021, pandemic in coronavirus year anniversary 10th its to ahead looked (hSBD) Division vol. 23 No. 1 No. vol. 23 Allegheny County Bar Association event. year’s this of upside one out Diversity and Gender Equality, pointing said Alysia Keating, ACBA Director of ACBA.org. 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ACBA visited most the is Board Job the publication. this of time the at available data recent most the November, to march from Board Education at the Duquesne university professor. legal Clinical for of Center tribone director the adjunct past a an is lewis mcCants now is she university,where Duquesne at law of servedas a tenured associate professor Pens.the by and Expungement Penguins Slate Clinic Clean that was a a co-hosted present at and game Night Black hockey a Girls facilitate helped has lewis for future. the in jobs and now both provides residents, District hill it that assuring are and development the businesses in participating women-owned and minority- sure making involves that Plan. implementation Community Collaboration the with compliance in on the site of the former Civic Arena is development proposed the sure make DistricthillRedevelopment executive projectto the on management committee for the lower serves She 2019. in Resources human of Director and Counsel General Deputy as Penguins work Dr.of work King.” the her embodies how Dr. and tracey of and legacy King the community honor the to bring together to want “We year,”said. 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Keating advance racial justice in and out of the Committee. the ACBA’s ad hoc Police use of Force of co-chair as serving and protesters including marching in the streets with justice,” social to dedication “serious said. lewis mcCants award and join the list of past recipients,” lewis. marcelius son, involvement, 24-year-old a of mother the also is she community from Aside and years. work two and past the times for Committee few Bench-Bar the on a served event mlK breakfast the emceed Division, hSB the Arena. Food Bank distributions at PPG Paints Community Pittsburgh Greater with summer and spring last volunteered she COviD-19, Despite community.” African-American the for asset great a and city the for asset great “a is said human she which Center, Wilson August the of Director Co. PeoplesGas at Resources as served the law school’s pro bono program. bono pro school’s law the unemployment coordinated and and Clinic Compensation Clinic Civil the Rights taught She law. of School “We were very grateful to be able be to grateful very were “We “traceyis an absolutely to phenomenal much so done has “tracey lewis’ mcCants lauds hughes this receive to honored very am “i chaired formerly lewis mcCants for chair board incoming the is She recently also lewis mcCants n Continued on page 2 page on Continued January 1, 2021 1, January JOBS.ACBA.ORG Page 2 / January 1, 2021 l a w y e r s THE FULL TEXT AND HEADNOTES FOR THE CASES BELOW APPEAR IN J o u r n a l THE ONLINE, SEARCHABLE PLJ OPINIONS LOCATED AT WWW.ACBA.ORG. the Lawyers Journal is published Commonwealth of Pennsylvania v. David Rainelli, mariani, J...... Page 1 fortnightly by the Criminal Appeal—Comonwealth Appeal—Assault—Incident at VA Hospital—“Federal Enclave” Allegheny County Bar Association Pennsylvania lacks jurisdiction over this assault case because it occurred on federal property; federal government has exclusive jurisdiction over the property. 400 Koppers Building 436 Seventh Avenue Pittsburgh, PA 15219-1818 Commonwealth of Pennsylvania v. Sheila Wagner, Borkowski, J...... Page 3 www.ACBA.org Criminal Appeal—Homicide—PCRA—Ineffective Assistance of Counsel—Waiver—Guilty Plea—Negotiated Plea—Vague Claims Advertising inquiries: 412-402-6620 / Defendant claims ineffective assistance of counsel for failing to assert flawed self-defense theory and claims that her attorney [email protected] forced her to enter into a guilty plea.
Address Changes: 412-402-6612 / [email protected]
Circulation 5,240 ACBA JOB BOARD Even during the pandemic, the • Search the resume database and continued from front page ACBA“ Job Board has remained one contact qualified candidates proactively. © Allegheny County Bar Association 2021 said Pulice. “We did see a slowdown in • Benefit from social media hiring in the Pittsburgh legal market of the first places legal professionals marketing: Once an employer posts a Editor-in-Chief: Erin Lucas Hamilton, Esq. in April and may of 2020 during the job on the ACBA Job Board, ACBA Supervising Editor: David A. Blaner first stay-at-home order, however, visit when they are looking for careers staff also publicizes that position on Editor: Jennifer A. Pulice, Esq. judging from subsequent postings on in the Pittsburgh legal community. the ACBA’s social media channels. Graphic Artist Supervisor: the jobs board, hiring in Pittsburgh is ” the association is currently offering rebounding.” a special to all employers who are Jessica Wysocki Valesky – Jennifer Pulice, ACBA Director Pulice pointed out that one thing looking to hire. Enter the code JOB30 PLJ Opinions/Proofreader: Sharon Antill that makes the ACBA Job Board so of Legal Employment Services and receive 30 percent off any of the attractive to candidates seeking jobs first three job posting packages n the LJ editorial policy can be found is that the ACBA Job Board is a public • Receive an alert every time a job offered on the job board: the “30 online at www.ACBA.org. jobs board that anyone can view. becomes available that matches their Day” package, “First Seen” package, n information published in the LJ may Candidates searching for a job can personal profile, skills, interests, and and “Job Flash” package. this coupon view all of the jobs that are posted on preferred location(s). code is valid until Feb. 1. not be republished, resold, recorded, or the ACBA Job Board without having to The ACBA Job Board allows Additionally, the ACBA offers used in any manner, in whole or in part, first log in and/or pay a subscription to employers to: career counseling assistance for job without the permission of the publishers. view them. • Post their job at an affordable seekers and direct candidate placement The ACBA Job Board allows job rate and ensure their job posting will for firms and employers; the latter is a seekers to: be seen by an audience who is fee-based service. Gender Bias Duty Officers • Search and apply to attorney and looking for legal job openings in the members who have additional if you (attorneys or law students) have legal support jobs. Pittsburgh region. questions about the ACBA Job Board, observed or experienced any form of gender • upload their anonymous resume • Promote their jobs directly to job career counseling or direct candidate bias in your role as an attorney or law into a resume bank that is viewable by seekers who have registered to placement are welcome to contact Pulice student intern, you may contact any one of n the following members of the Gender Bias prospective employers. receive the weekly Job Flash email. at [email protected] or 412-402-6623. Subcommittee of the Women in the law Division on a daily basis. the duty officers will keep your report confidential and will discuss with you actions available through the subcommittee.
Kimberly Brown...... 412-394-7995 [email protected] Jeanine DeBor ...... 412-396-5215 [email protected] Rhoda Neft ...... 412-606-8387 [email protected]
Ethics Hotline the ACBA Professional Ethics Committee “Ethics hotline” makes available Committee members to answer ethical questions by telephone on a daily basis.
January Christine Long ...... 412-766-8660 Jana Pail ...... 412-400-3833
February John F. Becker ...... 412-921-1605 Dawn Gull ...... 412-440-5718 Matthew McHale ...... 412-644-3500
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A message from the Federal Court Section Chair
By Paige Forster District Court, the Bankruptcy Court, online – one on alternative dispute and the third Circuit. We are grateful resolution and one on the basics of the year just ended was unlike any to the members of the federal bench third Circuit appeals. Our roster of other. When the world as we all knew for their interest and involvement, online ClE offerings continues to it changed on a dime in march 2020, which was more important than ever grow, as you can read about in this the federal courts had to assess and during the pandemic. in addition, we special issue. upcoming ClEs will substantially revise a variety of have over 300 members and a twenty- cover federal-court basics for criminal proceedings, both civil and criminal. person Council providing active and civil practice, as well as important under the CARES Act, a variety of leadership. All of these individuals – third Circuit and Supreme Court cases. criminal proceedings that had always bench and bar – have worked together you’ll take away key information that been conducted in person were over the long haul to build a Section will allow you to litigate your case like permitted to take place via videocon- that was ready and able to rise to the a seasoned federal-court practitioner. ference, including initial appearances, occasion in an extraordinary moment. Federal courts and federal-court preliminary hearings, plea hearings, i am proud of the Federal Court practitioners are an important part of and sentencing hearings. For civil Section and honored to serve as its Allegheny County’s legal community. proceedings, too, videoconferencing chair. With the commissioning of Judge suddenly became the best way to Paige Forster you, too, are invited to join the Scott hardy and Judge Christy conduct necessary business to keep Federal Court Section or take Criswell Wiegand in 2020, the Western cases moving forward. Of course, Federal Court Section Chair advantage of our program offerings. District had a full complement of active neither the CARES Act nor the courts’ the Section isn’t just for federal-court judges for the first time since 2013. in past practices set out exactly how the third Circuit also found itself regulars. if you practice mostly in addition, with the commissioning of these new-style proceedings should go. navigating uncharted waters. in- state court, but occasionally find Judge David Porter in 2018 and Judge in the Western District of Pennsylvania, person oral argument, the lifeblood of yourself on the other end of Grant Peter Phipps in 2019, four third intensive collaboration – led by the the Court’s decision-making process, Street or in the third Circuit, Circuit judges now have their bench, clerks of the courts, and court was no longer possible. After a few membership in the Section is a chambers in Pittsburgh. the Federal staff, and joined by members of the sittings conducted by teleconference, tremendous value-add. Early in the Court Section provides you with a way bar – enabled the Court to pivot. the third Circuit was able to move to pandemic, we shifted from traditional to stay plugged into this key part of members of the Allegheny County videoconference oral arguments. ClE formats to live webinar ClEs. our community. Join the Section or Bar Association Federal Court Section members of the Federal Court Section two spring programs that were sign up for a ClE. We look forward to stayed informed at every step of the stayed abreast of changes on this front already in the works were delivered partnering with you in 2021! n way. in the first half of 2020, we held as well. Pittsburgh’s third Circuit two town hall-style videoconference judges attended our monthly Council meetings with Chief Judge mark hornak meetings and advised us about of the u.S. District Court for the Western updates in the Court’s operations. Office Depot, OfficeMax discounts District of Pennsylvania. there, members While the circumstances of 2020 learned about new procedures in were unique, the Federal Court Through the ACBA’s partnership with Office Depot and OfficeMax, individual real time. in addition, they had the Section’s historical strengths were members and entire firms can enjoy discounts of up to 55 percent on the opportunity to provide feedback, what positioned it to respond purchase of office supplies and discounts of up to 70 percent on printing effectively. First and foremost, we which the Court took into account as it and copying services. Firms that spend $6,000 or more on office supplies continued to develop policies in have long enjoyed exceptional and response to the rapidly-changing supportive relationships with annually are eligible for additional discounts. For more informationor to environment we all found ourselves in. Pittsburgh’s federal judges on the enroll, see ACBA.org/OfficeDepot.
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By Zandy Dudiak Senator Bob Casey, said in a joint it took only two years before u.S. campaign, dismissing its challenges statement issued on behalf of Casey District Judge Robert J. Colville was to Pennsylvania’s poll-watching law Since 2018, eight new u.S. District and Sen. Pat toomey. commissioned on Dec. 31, 2019 to fill and its efforts to limit how mail-in judges – comprising 80 percent of the Casey and toomey have worked the seat vacated by Arthur J. Schwab, ballots can be collected and which of seats on the bench – have been together since 2011 to vet, recommend who moved to Senior District Judge them can be counted. appointed to the u.S. District Court for and confirm 29 federal District Court status on Jan. 1, 2018. Nearly two years hornak said the newer judges have the Western District of Pennsylvania. judges for Pennsylvania, according to passed between the time David S. Cercone energized the court. the latest appointment of u.S. District Adams. Only two states – New york took senior status on Nov. 17, 2017 and “there is no exact mold,” hornak Judge Christy Criswell Wiegand on and texas – had more District Court he was succeeded by u.S. District said. “Each of them has brought September 11, 2020 filled the 10- judges confirmed to their federal Judge Stephanie lou haines in the deep, rich, varied experience to the member bench for the first time since benches during this time, she said. Johnstown Chambers on Sept. 30, 2019. court.” 2013. She replaced Peter Joseph to assist the senators in their vetting u.S. District Judge William Scott hornak praised the court’s senior Phipps, who was appointed as a judge and recommendations, bipartisan judicial hardy was commissioned on July 31, judges with helping to keep cases for the u.S. Court of Appeals for the advisory panels are established in each 2020 to fill the seat vacated by Nora moving while the bench had third Circuit on July 22, 2019. district in Pennsylvania with leading Barry Fischer on June 13, 2019, when vacancies. he credits Cercone with the longest gap for appointments members of the bar and other respected she took senior judge status. Only making more than 60 trips to Erie to was more than five years after the two members of the community. Once about eight months passed between pick up the criminal docket during the of those vacancies occurred. Senators Casey and toomey solicit the time Joy Flowers Conti moved to long vacancy for the district judge u.S. District Judge Gary lancaster applications for federal district judgeships, senior judge status on Dec. 6, 2018 seat there. Other senior judges carried died on April 24, 2013 and his successor, the panels then interview and recommend and her replacement, u.S. District full caseloads in Pittsburgh and also u.S. District Judge marilyn Jean qualified applicants to the senators. Judge William Shaw Stickman iv, was picked up civil cases when needed in horan, was commissioned on Sept. 19, “After receiving these recommen- commissioned on Aug. 5, 2019. Erie before Baxter’s appointment, 2018 to serve in the Pittsburgh dations, Senators Casey and toomey three of the recent appointees are he said. Chambers. u.S. District Court Chief jointly submit names to the White in their early-to-mid 40s, another the pandemic has not slowed the Judge Sean J. mclaughlin resigned on house for potential nomination to an three in their late 40s-to-mid 50s and pace of the court schedule, although Aug. 16, 2013 and his replacement, Susan empty seat,” Adams said. “the senators the remaining two in their mid-60s. civil and criminal case jury selections Paradise Baxter, was commissioned as are proud that this process has their ages take on significance and civil and criminal case jury trials a u.S. District Judge on Sept. 10, 2018 ensured they are putting forth because, according to Article iii of the scheduled to begin before February 8, to serve in the Erie Chambers. candidates with the necessary u.S. Constitution, these judges “hold 2021 have been continued pending Candidates must first be agreed intellect, experience, character and their office during good behavior,” further court order. in fact, the upon by Pennsylvania’s two senators, temperament for a lifetime appointment which means they have a lifetime number of indictments is the highest nominated by the president and then on the federal bench.” appointment except under very in the history of the Western District, confirmed by the u.S. Senate following in the last few years, the nominations limited circumstances. Article iii according to hornak. hearings by the Senate Judiciary have moved more quickly, hornak judges can be removed from office “the civil docket did not miss a Committee. said. he noted that while the number of only through impeachment by the beat,” he said, crediting lawyers, “Pennsylvania has a long history of open seats was significant, there were house of Representatives and conviction judges and information technology cooperation between its two u.S. also many vacancies in the 1990s as well. by the Senate. staff with a smooth transition to virtual senators to recommend to the White Kim R. Gibson moved to u.S. Senior Although all the new judges were proceedings. “Our lawyers have been house on a bipartisan basis qualified, District Judge status on June 3, 2016, nominated by President Donald J. tremendously busy.” n mainstream nominees for federal but more than three years passed trump, there is no guarantee that they district court vacancies in the before her replacement, u.S. District will agree with the positions of the Commonwealth,” Natalie C. Adams, Judge J. Nicholas Ranjan, was White house. Recently, Ranjan threw Visit us today at ACBA.org. Pennsylvania press secretary for u.S. commissioned on July 12, 2019. out a lawsuit filed by trump’s
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LAW PRACTICE MANAGEMENT microsoft teams – how to smartly use a powerful collaboration tool
By Brett Creasy and Find this page helpful? Want more communication sources similar to, Collection information and resources to help for example, Outlook email, where John unice automated deletion cycles can be Since microsoft teams is part of you run your practice? Check out the implemented for the inbox and folder the m365 suite of tools, the data is Since the world’s shift to remote ACBA’s Law Practice Management Center environments. Special consideration stored in the same format as data in work, the use of workplace collaboration at ACBA.org/PracticeManagement. must be given, however, to account for m365 email (sender, recipient, date tools – which enable members of an legal holds. and time, subject (which is left organization to share information, if a custodian who is subject to, for blank) and contents of the message). work on documents, and communicate example, a m365 litigation hold, eDiscovery searching is performed in globally – has exploded. microsoft teams, Retention Settings departs the company and therefore an eDiscovery portal that can be set an instant messaging and information By default, the messaging and has his/her account disabled, the up to search for all of the communications sharing platform integrated into the attachment data in teams chats are user’s teams data are converted into for a user or group. microsoft 365 (m365) suite of tools, is stored in the cloud indefinitely. this an inactive mailbox and retained Date range, keywords and other data one such (very popular) platform. can increase the risk of potentially indefinitely, unless the user is culling filters can be administered While the commercial benefits of compromising or damaging information removed from the hold/retention while searching within m365. however, these tools can’t be questioned, the being stored beyond an organization’s policy before disabling the mailbox when searching for key terms to robust nature of teams also brings retention policies that otherwise apply (in which case the user’s teams respond to discovery or other legal with it various risks: data volumes in to corporate records, and of course data is deleted upon the account’s demands, it is advisable to collect the teams can be voluminous; files of all can increase costs for data extraction, deactivation). So, care must be given subject user’s entire m365 account. types can be stored in the platform; processing, review, and production. to monitor legal hold responses and And, while date filtering can be and chats (by default) are stored Automated deletion policies for teams attorneys should work with it/hR applied within m365 when collecting indefinitely. these characteristics can should be considered, in addition to departments to enable notifications custodial data, it can often be more have major implications whenever teams policies across other platforms for the when custodians subject to a legal efficient, cost effective, and defensible data are needed for civil discovery or organization. Should automated deletion hold change roles or depart the to search using parameters in tools other legal demands. Fortunately, policies be implemented, the organization organization. Finally, consideration outside of m365, particularly where lawyers can add value to their must also be mindful to consider the should be given to the various forms key terms may be modified as the clients/organizations by helping them need to collect data relevant to legal holds of “holds” available within m365. the investigation or litigation unfolds. proactively plan for teams’ inherent or otherwise disable the autodelete standard “litigation hold” prevents a risks. Before an organization rolls out feature, once a hold is issued. custodian from deleting any content, this tool, attorneys should consider Teams Groups Even though teams chats and whatsoever, including documents working with the relevant stakeholders channel messages (targeted messages clearly not relevant to the subject teams Groups can be created by (usually it or information security using @) are stored in m365 hold. this will lead to over- any m365 user. using m365’s departments) to discuss the particulars Exchange, retention settings for these preservation and, ultimately, administrative console, all groups to of retention settings, data collection data sources can be configured increased e-discovery costs. Other which a user belongs can be identified and user groups. separately from user or group retention policies in m365 permit the and the entire group’s data can be mailboxes. Consider establishing user to delete data clearly not subject Visit us today at ACBA.org. corporate policies that treat such to one’s hold obligations. Continued on page 11
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Clerk’s Office keeps u.S. District Court for the Western District of PA running smoothly
By meghan Swartz translation or sign language interpre- court virtually as well as allow all of tation, the Clerk’s Office arranges it. the participants – litigants, the public, When people think of the Clerk’s Accommodations also are available the judges and even court reporters Office, public records and case filings for nursing mothers, people with and interpreters – to all be able to are among the first things that come visual impairments or visitors in need connect to these services virtually and to mind. of wheelchair access. conduct a proceeding just as they But that’s just the tip of the iceberg the Clerk’s Office also serves as an would in person,” said it manager for the Clerk’s Office of the u.S. important access point for pro se filers, Shaun Nocera. District Court for the Western District who can use its online program to “Security is always a top priority of Pennsylvania. build the documents they intend to file for the federal courts,” Nocera said. “it’s like a mini municipal government,” with the court. “We have many teams that watch over said Colleen Willison, Chief Deputy Clerk. “Some of our pro se litigants are the network to ensure that there’s no “We’re the ones who are doing a lot of prisoners who are seeking civil rights malicious activity or traffic and we’re the behind-the-scenes work to make sure or other relief and don’t have access to constantly making adjustments, patching that everything gets done on time – counsel, so they’ll file their civil rights out systems and implementing new accurately, efficiently and professionally.” actions themselves pro se,” lewis said. security controls.” the Clerk’s Office is like the nerve Joshua C. Lewis the Clerk’s Office helps to connect technology was playing a growing center of the court’s operations across some pro se litigants with pro bono role in the courtroom well before the its Pittsburgh, Erie and Johnstown representation if counsel is requested pandemic. All courtrooms feature fully locations. it also oversees facilities, procurement, as their case progresses. Attorneys integrated, high-definition systems, its 70-member team supports 175 contracting, finance and operations, interested in serving the court in this including document cameras, big- judges and chamber staff members and received and disbursed $17 million capacity can contact the Clerk’s Office about screen tvs for evidence projection with space, human resources and a in fees, fines and restitution payments adding their name to the contact list. and video conferencing capabilities. secure information technology (it) during fiscal year 2019. in a nutshell, the Clerk’s Office “We’re trying to make everything infrastructure. the office also serves And of course, the Clerk’s Office ensures the court runs like a well- as paperless as possible ... so attorneys countless lawyers, litigants, jurors serves as the official custodian of oiled machine. While its it system has can plug into our system and display and members of the public. in fiscal public records. always greased the wheels, technology anything on any of the monitors for year 2019, for example, it summoned “the dedicated professionals that i took on a new dimension with the the jury and the judges to be able to 9,700 prospective jurors and facilitated get to work with … go above and onset of COviD-19. view,” Nocera said. “A lot of the judges swearing-in ceremonies for 486 beyond every day to make sure the Since march – when administrative are telling attorneys to use the attorneys. judges have what they need to make orders from Chief Judge mark R. courtroom technology, because it the Clerk’s Office sets the stage for sure that everyone has access to justice hornak postponed most jury trials speeds up trials.” each of the court’s proceedings – which in the federal system,” said Joshua C. and allowed video and telephone Some courtrooms are piloting iPads amounted to over 3,000 case filings in lewis, who has been Clerk of Court since conferencing for certain proceedings that jurors can use to view evidence, fiscal year 2019 – from processing fees 2017 and a member of the Allegheny – the Clerk’s Office has facilitated and the it team is experimenting with to coordinating courtroom technology County Bar Association since 2002. over 1,850 video conferences. touch screen features. and training for judges, chamber staff his office also ensures the courtroom “Basically within a few weeks, we and lawyers. itself is accessible. if a litigant needs had to figure out how to conduct Continued on page 11 January 1, 2021 / Page 7
United States v. Borden: Why imposing mandatory minimums under the ACCA for reckless crimes offends due process
By Danielle Bruno year prison sentence (with a possible §25(b) (use of a minor to commit a mcDermott maximum sentence of life imprison- crime of violence); 18 u.S.C. ment) under the ACCA, which was §3663A(c)(1)(a)(i) (mandatory restitution the Armed Career Criminal Act, 18 created to penalize violent, repeat for victims of crimes of violence); and u.S.C. §924(e), imposes a mandatory armed criminals. in defining the term 18 u.S.C. §924(c)(1)(A)(i) (which minimum sentence of 15 years in “violent felony,” the ACCA’s “force imposes a mandatory minimum five prison when a person who has three clause” employs the phrase “the use ... years’ imprisonment for a person who prior convictions for a “violent of physical force against the person of uses or carries a firearm during and in felony” or a “serious drug offense” is another.” this is essentially the same relation to any “crime of violence”). subsequently convicted of possessing language that the Supreme Court mandatory sentencing provisions a firearm under 18 u.S.C. § 922(g). if analyzed in Leocal v. Ashcroft, 543 permit little discretion, and the history the ACCA does not apply, a person u.S. 1 (2004), where the Court held that of criminal sentencing legislation and convicted of unlawful possession of a 18 u.S.C. §16(a) excludes offenses jurisprudence instructs that such firearm faces a maximum penalty of committed negligently. Even if Leocal provisions must be constructed with 10 years’ imprisonment (with no should apply, there remains a question an exacting certainty of potential mandatory minimum). (The language of whether crimes committed recklessly outcomes. While there is room for of the ACCA also implies an increased were intended to qualify as “violent disagreement on what underlying maximum sentence of life imprison- Danielle Bruno McDermott felonies” that would warrant the crimes should justify the harsh ment – “such person shall be fined imposition of such severe penalties. punishment mandated by §924(e), the under this title and imprisoned not the potential effects of the question is whether the statute clearly less than fifteen years[.]” 18 U.S.C. serious injury to another. in Borden, Supreme Court’s decision Borden are provides that crimes committed reck- §924(e).) 18 u.S.C. §922(g). the defendant was convicted of reckless vast, and the potential for a ripple lessly – and not with intentional, knowing under the ACCA, a defendant aggravated assault in violation of effect should be of significant concern or willful conduct – were intended to convicted of §922(g) who has three tenn. Code Ann. §39-13-102(a)(1)(B), to the Court and practitioners alike. be punished under this provision. in prior convictions for violent felonies is which the Sixth Circuit has held the term “crime of violence” appears Morissette v. United States, Supreme subject to enhanced penalties under qualifies as a crime of violence under in a wide variety of federal statutes, Court Justice Robert Jackson – a §924(e) – however, courts are in uSSG §4B1.2(a). See Davis v. United including title 18. Section 373 makes former u.S. Attorney General and disagreement as to whether crimes of States, 900 F.3d 733, 736 (6th Cir. it a felony to solicit or persuade another special prosecutor during the Nuremberg recklessness should qualify as “violent 2018). Should that conviction of person to commit a crime of violence. trials – wrote the following: felonies” under the ACCA. reckless aggravated assault qualify as 18 u.S.C. §373(a) (incorporating the the contention that an injury can On Nov. 3, 2020, the united States a “violent felony” under the ACCA, same force clause). Section 931 makes amount to a crime only when inflicted Supreme Court heard oral argument the defendant will be subject to a it a felony for any person to purchase, by intention is no provincial or in the case of Borden v. United States mandatory minimum sentence of 15 own, or possess body armor if they transient notion. it is as universal and to determine that very question. Of years in prison. have been convicted of a crime of persistent in mature systems of law as particular import to the Justices were the heart of the issue in Borden is violence. 18 u.S.C. §931(a). Section belief in freedom of the human will various scenarios where reckless acts whether individuals who have been 1959(a) prohibits threatening to and a consequent ability and duty of could hypothetically fall under the convicted of acting recklessly – as commit a “crime of violence” in aid of the normal individual to choose provisions of the ACCA, such as drunk opposed to intentionally, knowingly or racketeering. 18 u.S.C. §1952(a). the between good and evil. driving; texting while driving; and willfully – should be subject to the phrase is also used in various sentencing swinging a bat recklessly resulting in harsh punishment of a mandatory 15 enhancements, including 18 u.S.C. Continued on page 11
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Wiegand becomes newest judge for the u.S. District Court for the Western District of Pennsylvania
By Zandy Dudiak cases, she gained a deeper interest in that said, she is looking forward to the federal courts. the day she can see litigants in the u.S. District Judge Christy Criswell As a lawyer, she said she always courtroom. Wiegand might be the newest judge on considered how the “other side” viewed A 2019 Pew survey found that the bench for the u.S. District Court issues and how criminal investigations Americans have a declining trust in for the Western District of Pennsylvania, developed. in her work with crime government but that 84% think that but she has significant experience in victims, she also considered the decline can be turned around and dealings with the federal court. impact criminal charges had on a improve the level of confidence people For 16 years, Wiegand served as an defendant and whether their Constitu- have in government. When asked about Assistant u.S. Attorney for the Western tional rights were being protected. how the federal courts could help District in both the civil and criminal “When i think about my role as a change that trend, Wiegand said it divisions. She represented the federal federal judge, it is to be fair and could be done one case at a time with government and its agencies in a wide impartial,” she said. “my mission, as i judges showing fairness and respect. array of civil litigation in federal court see it, has not changed. i am committed “i do think each individual federal and served as Deputy Chief of the to law and justice.” judge can improve confidence,” she Civil Division. the Pittsburgh native has been in said, by making the process then, in 2018, Wiegand moved to Christy Criswell Wiegand public service for most of her career. understandable, especially in civil the Criminal Division of the u.S. After graduation from Cornell, Wiegand cases when litigants don’t have Attorney’s Office, where she prosecuted practiced antitrust law at Arnold & attorneys representing them. a variety of crimes, including large- bench, which has seen a number of Porter in Washington, D.C. for two if judges explain their decisions scale drug trafficking, child exploitation, vacancies in recent years. years. Prior to becoming a u.S. District and follow the law in case after case, illegal firearm possession and fraud. “i’m so honored to be able to serve Attorney, she served as a law clerk to that trust can be rebuilt because the She also served for two years on the as a judge in my home city,” Wiegand then-Judge, now Chief Judge D. public will know they will receive fair Project Safe Child task Force, which said. Brooks Smith of the u.S. Court of treatment. enhances the ability of the u.S. Wiegand’s interest in the law was Appeals for the third Circuit. Wiegand has been active in professional Attorney’s Office to quickly identify piqued as a high school student when Wiegand joined the Western District organizations, including the ACBA and investigate those individuals who she became interested in the Federalist Court at a time when the courts are Federal Court Section. She has also been prey on children. Papers. As an undergraduate student mostly “virtual” because of the COviD- involved in the community, previously “those experiences built in me a at Princeton university, she studied 19 pandemic. Because she had been doing serving on the boards of the Pittsburgh deep love and respect for our federal Constitutional interpretation and had video proceedings as a practitioner Parks Conservancy, the three Rivers court,” Wiegand said. “Being a federal her first thoughts about becoming a prior to her appointment as judge, the Rowing Association and the Princeton district court judge has been a dream federal judge someday. transition has been relatively smooth. university Rowing Association. of mine for a long time.” As she was pursuing her degree “i have been very lucky since i “Pittsburgh has really amazing that dream came true on Sept. 11, from Cornell law School, where she have been practicing in (federal) court parks and the rivers are wide,” 2020 when Wiegand received her served as an articles editor for the for several years and i’m generally Wiegand said, noting that she and her commission. her appointment, recom- Cornell law Review, she was a judicial familiar with how it operates,” she family like to stay active and take mended by both of Pennsylvania’s intern for Western District Court said. “i have friends and colleagues in advantage of what the city has to offer. u.S. senators, Bob Casey and Pat Judge Donald E. Ziegler. As she the courthouse that i’ve known and “it’s a nice way to get outside and toomey, filled the final opening on the experienced trials and saw federal can turn to.” enjoy the city.” n
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FCA remains an important tool for deterring and remedying fraud against the government
By Darth m. Newman to bring a qui tam claim, a relator false healthcare charges) quickly must file a complaint under seal. balloons. in addition to treble damages, $4 trillion dollars, lamborghinis, maintenance of the seal is of utmost defendants are liable for a per-offense Ferraris and fraud. the federal importance. During the seal, no papers civil penalty of between $11,181 and government has spent nearly as much are served on the defendants who $22,363, an amount indexed to inflation. money on COviD relief as the entirety remain “in the dark” as to the existence Defendants must also pay a successful of federal spending in fiscal year of the case and the allegations of relator’s reasonable expenses, attorneys’ 2019. it is reasonable to expect addi- fraud. During the seal, the government fees and costs. Relators may be tional billions or trillions of dollars of will interview the relator and undertake awarded 15%-30% of the proceeds of federal COviD relief spending in the an investigation of the alleged fraud. the action depending on various coming months. this deluge of money the case remains sealed for an initial factors including chiefly whether or is a tempting target for fraudsters. period of only 60 days, but the govern- not the government intervened. Already multiple people have been ment may (and often does) request Being a whistleblower is notoriously caught buying “lambos” or Ferraris extensions of the seal in order to difficult and they remain unfortunately with their ill-gotten gains. complete its investigation. the seal rare. the FCA protects whistleblowers Fortunately, the government, the Darth M. Newman preserves the government’s ability to by prohibiting retaliation and creating public, and the bar are well armed to conduct a thorough and complete a cause of action for employees, deal with these and other cheats that making or using false documents to investigation and violations of the seal contractors and agents to vindicate would steal taxpayer money. Center support a false claim, and withholding have been severely punished by the their rights. the protection is reasonably stage in that fight is the False Claims the payment of monies due to the Courts. broad and covers being “discharged, Act (FCA), 31 u.S.C. §§3729 - 3733. government are all violations of the At the conclusion of its investigation, demoted, suspended, threatened, Widely heralded as the government’s FCA. in addition, conspiring to violate the government will intervene and harassed, or in any other manner best tool to combat fraud, the FCA was the FCA is itself a separate explicit take over prosecution of the case or discriminated against in the terms signed into law by President lincoln violation of the FCA. decline to intervene. Either way, the and conditions of employment”. An in 1863 and was originally targeted at One of the most powerful components case is unsealed. Should the government individual need not actually file a stemming the tide of war profiteers of the FCA is the fact that the law decline to intervene, the relator may whistleblower complaint to gain the selling the union Army defective empowers whistleblowers, called proceed to litigate against the protection of the law. “[E]fforts to stop material. the modern FCA remains an relators, to bring cases in the name of defendant(s) on behalf of the government. 1 or more violations” are sufficient. important tool for deterring and rem- the government, participate in the Still, the government remains the the relief awarded to aggrieved whistle- edying all manner of fraud against the prosecution of an action, and share in injured party, will be involved in any blowers “shall include” reinstatement, government. Although the law is now any recovery. in fiscal year 2019 resolution, and may seek to intervene double their backpay plus interest, most often brought to bear to address alone, the government recovered more at a later date. in fiscal year 2019, the and an award of litigation costs and healthcare fraud, the FCA remains than $3 billion through FCA cases. Of government recovered more than reasonable attorneys’ fees. broad. that total, more than $2.1 billion came $293 million from declined cases. many states have mini-FCAs of With the exception of tax fraud, from qui tam cases brought by the damages available under the their own and most are modeled after which is statutorily carved out, the whistleblowers. in fact, since 1987, more FCA are substantial. the total effective the federal law. Some, including New FCA reaches almost all manner of fraud than two-thirds of FCA recoveries damages liability imposed for repeat york and California, have statutes that against the government. Submitting or have come from whistleblower-initiated small dollar frauds (think a large causing the submission of false claims, cases. quantity of individually small but Continued on page 11
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Officer’s use of force must be “objectively reasonable”
By Jonathan Fodi application of such factors is not Criminal Division Matters/Prior sufficient, and, in every case where Approvals, Jm §9-2.031. in an instant, a police officer excessive force is alleged, “we must While dual prosecutions are not decides to use force, sometimes deadly, still slosh our way through the fact- barred, they are disfavored. Accordingly, in the line of duty. today, that decision bound morass of ‘reasonableness.’” from the very moment an officer’s use has the potential to garner vast Scott v. Harris, 550 u.S. 372, 383 (2007). of force is brought into question, state attention, with the media, politicians, Further confounding excessive-force and federal authorities must either and communities alike analyzing each inquiries is the mens rea component work together and decide who will millisecond of an encounter between inherent in all criminal prosecutions. take the lead or run the risk of stepping law enforcement and a civilian. At the For example, deprivation of rights on one another’s investigations. Who same time, investigators and prosecutors under color of law must be proved by ultimately brings a prosecution might are conducting a similar, but more a showing that the officer in question depend on the relevant statutes at consequential, inquiry – Was the force acted “willfully.” 18 u.S.C. §242. But play, the potential consequences of justified or excessive? has there been what does “willfully” mean in this conviction, available resources, or a violation of state or federal law? And, context? must it be proven that the act simple prosecutorial discretion. if so, who is going to bring charges? (the use of force) was intentional, or indeed, even in Allegheny County over At the state level, a police officer’s Jonathan Fodi that the deprivation of a civil right the past several years, we have seen use of excessive force might result in was intentional? While courts are split instances of use of force cases brought charges of official oppression, assault, on this issue, the third Circuit is only in state court (Commonwealth v. or, potentially, criminal homicide. united States Supreme Court cases currently settled on defining willfulness, Michael Rosfeld), cases brought only Federally, 42 u.S.C. §1983 affords decided in the 1980s. in Tennessee v. in this context, as a “reckless disregard in federal court (United States v. citizens an avenue to sue officers and Garner, the Court held that use of for a constitutional or federal right.” Nicole Murphy), and cases brought in public officials for civil rights violations. deadly force is a “seizure” and, United States v. Johnstone, 107 F.3d both jurisdictions (United States v. And, where the Department of Justice pursuant to the Fourth Amendment, 200 (3rd Cir. 1997). Stephen Matakovich – federal charges believes criminal conduct can be all seizures must be “reasonable.” the authorities charged with the filed after state charges dismissed by proven, 18 u.S.C. §242 provides for Tennessee v. Garner, 471 u.S. 1, 6 (1985). duty to investigate excessive use of Pittsburgh District magistrate). criminal sanctions for deprivation of Several years later, in Graham v. force claims, thus, have a difficult job. Without question, an officer’s use rights under the color of law. Connor, the Court extended the Amidst loud cries for swift action, of force in the line of duty is under No matter the venue or statute at Garner analysis to uses of non-deadly federal law enforcement officials greater scrutiny than ever before – issue, an officer’s use of force must be force and laid guideposts for assessing must first believe that the “admissible especially with a camera in every “objectively reasonable.” this does reasonableness. Graham v. Connor, evidence probably will be sufficient to pocket and on nearly every street corner. not mean that an officer must use the 490 u.S. 386 (1989). the Court pointed obtain and sustain a conviction” before Often there is a rush to judgment, least amount of force available to him, to factors such as (i) the severity of bringing a case against an officer. whether it be to demand immediate nor does the law permit the officer’s the crime at issue, (ii) whether the Principles of Federal Prosecution, prosecution or defend the reasonableness action to be viewed with the benefit of suspect posed an immediate threat to Justice manual, §9-27.220. And, where of the action. But above the cacophony 20/20 hindsight. instead, “objective the safety of the officers or others, and the Commonwealth might also pursue of voices, investigators and prosecutors reasonableness” asks whether, under (iii) whether the suspect was actively state charges based upon the same must “slosh their way through the the totality of circumstances as resisting arrest or attempting to evade conduct, federal prosecutors face factbound morass” of these vital viewed by the officer on the scene, a arrest by flight, as ways to assess the additional hurdles based in law and pol- inquiries with care, always mindful reasonable officer would have used objective reasonableness of the force icy that limit dual and successive that their decisions must be firmly similar force. used by an officer during a stop or an prosecutions. See Rinaldi v. United grounded in the law. n the “objective reasonableness” arrest. Id. at 396. As Justice Scalia States, 434 u.S. 22, 27, (1977) and standard flows, primarily, from two opined decades later, though, rigid Authority of the U.S. Attorney in Continued on page 11
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Brett Creasy is President & Director of harm will result from imposing a them, set up myriad procedural pitfalls LAW PRACTICE MANAGEMENT mandatory minimum sentence of 15 and best practices. As always, it is continued from page 5 Digital Forensics, bit-x-bit, LLC. John Unice is Executive Vice President & years in prison for defendants that best to consult an experienced qui tam searched in the same manner that an General Counsel, bit-x-bit, LLC. lack a culpable state of mind. moreover, practitioner before filing. Beginning individual user’s account is searched. imposing such severe penalties in the later this year, the Federal Court Section Private groups are not discoverable to absence of a culpable state of mind is producing a short series of ClEs regular non-admin users; however, offends the notions of fairness and due discussing the practical side of the m365 eDiscovery Administrators can CLERK’S OFFICE process upon which our criminal FCA. Dates and times to be search across private groups. Consider continued from page 6 justice system is based. these principles announced. n establishing permission parameters instruct that we must closely evaluate Nocera encourages attorne ys to Darth M. Newman represents whistle- around who can (and cannot) create whether innocent acts were meant to contact the courtroom dep uty about blowers and litigates complex commercial groups. be made criminal, and if so, we must arranging a test run with the technology. disputes across the country. He can be his team also offers periodic training require such provisions to be spelled Key Takeaways out clearly in the law. n reached at [email protected] or sessions for attorneys, including some 412-436-3443. for ClE credit. Danielle Bruno McDermott is an associate 1. Consider implementing auto- most documents can be filed at the Pittsburgh office of Schnader mated deletion policies for teams, in electronically, and the Clerk’s Office addition to policies across other Harrison Segal & Lewis LLP, where she also maintains 15 years of digital court focuses on criminal defense, white collar OFFICER’S USE OF FORCE platforms for the organization. Also records, which attorneys and members continued from page 10 explore setting size quotas within a defense, commercial litigation, and of the public can access at the court- internal investigations. user’s teams environment, to the house or by applying for a PACER Jonathan Fodi is Counsel with Flannery extent permitted by the organization’s login to use the system remotely. Georgalis, LLC in Pittsburgh, and focuses m365 license. the specialties and services of the his practice on complex criminal and 2. if auto-delete settings are enabled, Clerk’s Office could fill a book. But it FCA REMAINS AN IMPORTANT TOOL regulatory defense matters. He has more organizations must also be mindful to all boils down to creating an efficient, continued from page 9 than a decade of prosecutorial experience, consider the need to collect data relevant accessible platform for the important are meaningfully broader than the both as an Assistant District Attorney in to legal holds or otherwise disable to work of the court. federal FCA. For example, the New Allegheny County and a Special Assistant the autodelete feature, once a hold “Our goal is to provide outstanding york law permits whistleblowers to United States Attorney in the Western is issued. customer service,” Willison said. “the bring forward most claims of tax- District of Pennsylvania. He has defense 3. Consider implementation of only way we can do that is if we have fraud. Pennsylvania does not have a experience in state and federal criminal corporate policies that categorize feedback. So please, let us know how false claims act, but Allegheny and investigations, internal investigations, teams communications as ephemeral/ we’re doing, let us know what we’re Philadelphia Counties do. and administrative actions, and takes temporary (similar to Outlook email). doing well and let us know if there is the FCA, mini-FCAs, and the pride in guiding clients through high- 4. it, legal, hR and business unit something we can improve upon.” n caselaw that has grown up around stakes, sensitive matters. personnel should coordinate to moni- tor scenarios where custodians under legal hold change jobs or leave the organization. UNITED STATES V. BORDEN continued from page 7 5. Aside from date-term restrictions, consider conducting key term searching 342 u.S. 246, 250 (1952). While our for teams content outside of the society has decided that some For more on the ACBA microsoft environment. crimes can be committed recklessly 6. Consider the different retention or negligently, it is clear that a person settings available within m365 (litigation who commits such an act is deemed Federal Court Section visit hold vs. retention policies), rather far less culpable than a person who than solely defaulting to the litigation commits an intentional act with the hold option. n purpose of harming another. irreparable ACBA.org/Federal-Court-Section.
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Daubert gate-keeping in bench trials: make sure your expert fits the bill
By James C. martin and u.S. Supreme Court decisions: of logic, elements of subjectivity, and Devin m. misour Daubert v. Merrell Dow even speculation.” id. at 835. Pharmaceuticals, Inc., 507 Central to the court’s reasoning on in complex litigation in federal u.S. 579 (1993), General both accounts was the conclusion that court, when technical concepts abound, Electric Co. v. Joiner, 522 Rule 702 does, in fact, apply in the parties will often need testifying u.S. 136 (1997), and Kumho bench trial context, and that trial expert witnesses to address the issues Tire Co. v. Carmichael 526 courts are not free to abandon their the jury will consider. Experts, of u.S. 137 (1999). these gatekeeping role merely because an course, bring to mind a Daubert cases sent a clear and expert will testify before the court, hearing with the briefing and argument indelible message that the rather than a jury. id. at 832-33. that goes with it. same rigors governing ultimately, while the court recognized in that paradigm, trial courts exercise scientific analysis outside James C. Martin Devin M. Misour a trial court’s “leeway” in admitting their gate-keeping duties to make sure of the courtroom ought to expert testimony, it reiterated that the that only reliable testimony from apply inside it. the trial court abused its discretion by qualified witnesses that fits the facts Supreme Court decisions find their Sunbury involved consolidated “abandon[ing] the gatekeeping of the case will be admitted and counterparts in an established line of pipeline condemnations under the function” and by “sidestepping Rule ultimately reach the jury. the reason third Circuit decisions which provide Natural Gas Act, in which two 702 altogether and declining to perform for this rigor is well-documented. the ground rules for determining landowners offered testimony from an any assessment of Shearer’s testimony Jurors are not equipped to decide admissibility as well. An exhaustive expert, Don Paul Shearer, to establish before trial.” id. at 833. highly technical issues without expert analysis of the third Circuit decisions the value of the easements across So what does Sunbury tell us? First assistance and testimony from experts is for another day but a few highlights their respective properties. 949 F.3d at and foremost, that a well-prepared can be particularly persuasive. can help set the stage here. 830. that testimony, which UGI expert relying on a proper foundation therefore, to reach a considered First, the third Circuit insists that challenged by pretrial motion in for his or her opinion is just as resolution of the technical issues in the district court, as the gate-keeper, limine, consisted of Shearer’s necessary in a bench trial as it is in a dispute, jurors need expert testimony must look at three specific issues: admittedly subjective opinion that case tried to a jury. Next, Sunbury grounded in “good science.” that qualifications, reliability, and fit; and, the property encumbered by the makes clear that a party who is grounding, in turn, provides the in a proper Daubert ruling, the court pipeline lost value because it became resisting the admission of expert requisite support for the jury’s fact- must make findings on each one. in re “damaged goods” – not unlike testimony in a bench trial should protect finding mission. Paoli R.R. Yard PCB Litig., 35 F.3d appliances at a “scratch and dent” the record the same way as he or she yet, while the need for gate-keeping 717, 741-43 (3d Cir. 1994). the first, sale. id. at 834. would in a jury trial. make a motion in when a jury is the trier-of-fact is well- qualifications, is self-evident. Does the trial court admitted the testimony limine before the trial starts. Ask for a documented in Daubert and its progeny, the witness have the needed expertise, in bench trials in both cases, but the hearing where a Daubert analysis can what about when the case involves a by background or experience, to testify third Circuit reversed that decision be presented. Press the issue again bench trial and a judge is the trier of on the technical issues involved? See on appeal, finding that Shearer’s post-trial if the testimony is allowed. fact? the governing Federal Rule of Schneider ex rel. Estate of Schneider testimony failed both the reliability And lastly, for both parties, Sunbury Evidence incorporating the court’s v. Fried, 320 F.3d 396, 404 (3d Cir. and fit components under Daubert. id. reiterates that there is no substitute gate-keeping charge, 702, makes no 2003); Elcock v. Kmart Corp., 233 F.3d at 834-36. As for reliability, the court for a well-prepared expert who can distinction for judges or juries, 734, 741 (3d Cir. 2000). As for reliability, concluded that Shearer’s reports speak with an adequate foundation to referring only to the trier-of-fact. But the issue at a high level is whether the failed to indicate that his speculative the issues where his or her testimony it also is conventional wisdom that witness’s opinion is the product of a “damaged goods” theory had ever is needed. evidentiary principles are relaxed in proper methodology grounded in the been used in the land valuation A qualified witness is not enough. bench trials because judges presump- type of studies, data or publications context. id. at 834-35. As for fit, the the witness must bring the requisite tively know the rules of evidence and that an expert in the field would reply court similarly found that Shearer’s qualifications but also apply them to can separate fact from speculation on. See Karlo v. Pittsburgh Glass theory had never been used to show a the particular case with a grounding more readily than lay jurors. Works, LLC, 849 F.3d 61, 80-81 (3d Cir. reduction in property value as a result in relevant data and facts. the third So the question arises, should 2017); in re TMI Litig., 193 F.3d 613, of the presence of an underground Circuit expects reliability and fit, not bench trials be exempted from a 703-04 (3d Cir. 1999). And as for fit, natural gas pipeline. id. at 835-36. to speculation and conjecture. this will threshold expert opinion admissibility there the question is whether the the contrary, the court concluded that be true whether the trier of fact is a analysis, with the court left to simply expert’s opinion is properly aligned Shearer’s assumption reflected “leaps jury or a judge. n sort things out on the backend after with the facts in the case. Karlo, 849 hearing the opposing experts testify? F.3d at 80-81. the failure to meet any Or, does the gate-keeping requirement one of these prongs should lead to the intercede to prevent unfounded exclusion of the testimony, particularly expert opinion from being introduced where the opinion is unduly speculative at trial at all, just as it would be in a or lacks the appropriate foundation TBWF ! UJNF ; case headed for a jury? for a specific case. Oddi v. Ford Motor the third Circuit addressed this Co., 234 F.3d 136, 145-46 (3d Cir. 2001) UZQF!ZPVS!PXO!MFHBM!BE question in its recent decision in UGI (“the test of admissibility is not Sunbury LLC v. A Permanent Easement whether a particular scientific opinion for 1.7575 Acres, 949 F.3d 825 (3d Cir. has the best foundation or whether it Tvcnjttjpo!pg!nptu!mfhbm!opujdft!gps! 2020). the answer, unanimously, is that is demonstrably correct. Rather, the Daubert’s gate-keeping principles do test is whether the particular opinion qvcmjdbujpo!jo!uif!Qjuutcvshi indeed apply in bench trials and the is based on valid reasoning and reliable failure to adhere to them can bring methodology.”) (internal quotation Mfhbm!Kpvsobm!dbo!cf!epof!uispvhi!pvs about reversible error. marks omitted); see in re Diet Drugs Before getting to Sunbury, a bit of (Phentermine/Fenfluramine/Dexfen- pomjof!tztufn-!xijdi!dbo!cf!bddfttfe!bu background is helpful. the court’s fluramine) Prods Liab. Litig., 706 F.3d gate-keeping role with respect to 217, 225 n.7 (3d Cir. 2013). these were xxx/qjuutcvshimfhbmkpvsobm/psh0uzqf/ expert testimony, now reflected in the working principles that took stage Rule 702, grows out of three seminal center in Sunbury.
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Additional options for removal to Federal Court: tips for practitioners
By Anderson Bailey, John Goetz, Becky Kcehowski and Simone DeJarnett
Every litigator knows that 28 u.S.C. §1441 allows for removal of cases alleging federal claims or involving diverse parties. But recent decisions from the third Circuit and elsewhere highlight additional ways to secure federal jurisdiction over cases filed in state court. Practitioners should be Anderson Bailey John Goetz Becky Kcehowski Simone DeJarnett aware of this developing area of the law when considering the preferred forum to litigate a dispute. allow health care entities to assist 2. Any defendant facing a putative applied the more traditional rule that 1. 28 u.S.C. §1442 allows removal federal healthcare officials who are class action filed in state court should courts cannot presume citizenship of cases filed against any federal statutorily charged with expanding consider the distinct removal provisions based on residency. Hughes v. Nation- “officer (or any person acting under the nationwide use of electronic of the Class Action Fairness Act wide Bank, 387 F. Supp. 3d 612 (W.D. that officer)” relating to actions taken health records, the district court (“CAFA”), 28. u.S.C. §1332(d). Subject Pa. 2019). under this traditional rule, under color of that office. in recent permitted removal under 1442. Doe v. to certain exceptions, CAFA allows Plaintiffs cannot avoid removal by precedential opinions, the third Circuit UPMC, 2020 Wl 4381675 (W.D. Pa. removal if there is “minimal diversity” claiming to represent a single-state has held that private entities can also July 31, 2020). Similarly, other courts in a putative class of more than 100 class comprising only residents of the invoke this statute, which – unlike have allowed Section 1442 removal in people seeking damages in excess of defendant’s home state. Section 1441 – is broadly construed to cases involving large federal programs $5 million. “minimal diversity” is a Defendants considering removal of favor removal. Golden v. N.J. Inst. of like medicare. See, e.g., Escarcega v. low threshold; any one member of the a putative class action must scrutinize Tech., 934 F.3d 302 (3d Cir. 2019); Verdugo Vista Operating Company, putative class who is a “citizen” of a the complaint’s class definition in Papp v. Fore-Kast Sales Co., 842 F.3d LP, 2020 Wl 1703181 (C.D. Cal. April state different from any defendant light of these decisions. And while, as 805 (3d Cir. 2016). 8, 2020). these decisions demonstrate establishes minimal diversity. noted in Hughes, the residence- An important question for 1442 the potential application of 1442 in a question that is still being citizenship question “has yet to be removal is whether the defendant was removal to cases implicating the addressed within the third Circuit, addressed by our Court of Appeals” in assisting federal superiors in carrying operation of a federal program. courts have split on whether allegations the CAFA context, the statute is out their duties. the classic example Section 1442 removal is unique, of residence are sufficient to establish intended to favor removal and is more is a military contractor who follows because a decision to remand can be citizenship. A case from the Eastern liberal in permitting appeals. See federal specifications in manufacturing automatically appealed. See 28 u.S.C. District followed Sixth Circuit precedent Dart Cherokee Basin Operating Co., a plane, as in Papp. But courts have §1447(d). the Supreme Court is in holding that residence creates a LLC v. Owens, 574 u.S. 81 (2014); 28 also applied the statute to government considering now whether this right to presumption of citizenship. Ellis v. u.S.C. §1453(c). Accordingly, defense incentive programs. For example, the appeal permits a defendant also to Montgomery Cnty., 267 F. Supp. 3d 510 counsel seeking to remove a case Western District of Pennsylvania appeal the propriety of removal on (E.D. Pa.) (citing Mason v. Lockwood, under CAFA have a better chance of recently permitted a healthcare system other grounds that ordinarily cannot Andrews & Newnam, P.C., 842 F.3d 383 obtaining appellate review of any to remove state-law claims arising be appealed. B.P. P.L.C. v. Mayor and (6th Cir. 2016)). Other circuits have remand order. from the use of a secure, online City of Baltimore, 2020 Wl 5847132 disagreed, however, and a subsequent patient portal. Because such portals (Oct. 2, 2020). decision from the Western District Continued on page 18 From HARRY M. PARAS Attorney at Law Conflict 428 Boulevard of the Allies Suite 300 to Pittsburgh, PA 15219 Phone: 412-391-8100 Resolution. Fax: 412-391-9972 Carole Katz helps businesses and Email: [email protected] people resolve conflicts in less time, through processes that give parties Website: www.harryparas.com and their lawyers more control over the outcome.
Approved Panels & Rosters: Mediation and Arbitration/ – US District Court for the Western District of PA, Mediator, Early Neutral Evaluator, Arbitrator Civil Litigation – AAA Mediator & Arbitrator – FINRA Mediator & Arbitrator • Resolved over 2,000 cases through Mediation Seasoned Former Executive and Arbitration (UM/UIM) of Fortune 500 Company Over 25 Years as Trial Lawyer • Practicing Civil Trial Lawyer with over 39 years experience and Legal Counselor representing plainti s and defendants (auto, premises, Academy of Trial Lawyers, Allegheny County products liability, medical malpractice, bad faith, workers comp) Mediation • Knowledge of insurance coverage disputes and primary/ Arbitration excess insurance coverages Case Evaluation • Member - Academy of Trial Lawyers of Allegheny County Carole • Approved Mediator - U.S. District Court, Western District of PA Alternative Dispute Resolution • Invited Member - The National Academy of Distinguished Neutrals (NADN) Employment 412.916.4874 Commercial/Business • Six years (2014-2019) Super Lawyers Selection Professional Liability carolekatz.com Energy Page 14 / January 1, 2021
Federal multidistrict litigation: Recent trends and the impact of COviD-19
By Gary F. lynch consider centralization of cases significantly diminish the potential against specific insurers and, on that efficiencies from centralization.”5 the united States Judicial Panel on basis, subsequently granted a motion the foregoing decisions by the multidistrict litigation (JPml) was to centralize cases involving at least JPml, in the context of the various created by Congress in 1968. the one insurer.3 COviD-19 litigation, demonstrate a purpose of the JPml is to address the in other COviD-19 related litigation, willingness by the JPml to deny situation where civil actions pending the JPml similarly denied centralization centralization, even in the face of in different federal district courts of approximately 70 cases alleging common factual questions, whenever involve “one or more common that various lenders across the banking the panel concludes that centralization questions of fact” and to determine industry failed to pay mandated fees will not lead to an efficient and timely whether transfer of such actions to one to agents who assisted small businesses handling of the litigation, or will federal district court for coordinated in applying for loans under the present too great of an administrative or consolidated pretrial proceedings Paycheck Protection Program, a federal burden for the transferee court. As loan program established under the more cases related to the COviD-19 will serve “the convenience of parties Gary F. Lynch and witnesses and will promote the CARES Act. in denying centralization, pandemic continue to be filed in just and efficient conduct of such the JPml indicated that, while the federal courts around the country, it actions.” See 28 u.S.C. §1407. Products liability, Sales Practices, cases “undoubtedly allege similar remains to be seen if the JPml will in addressing the question of Securities, and other miscellaneous policies and practices by the defendant relax or modify this standard in transfer, the JPml seeks to avoid topics. Approximately 120 of the 180 banks, ... [c]ommon factual questions the future. n duplication of discovery, prevent active mDl proceedings involve class are lacking, as the policies and Gary F. Lynch is a founding partner of inconsistent judicial rulings, and action allegations. practices for paying agent fees are Carlson Lynch LLP, a nationally-recognized conserve the resources of the parties, the COviD-19 pandemic does not unique to each lender which differ 4 plaintiffs class and complex litigation their counsel and the court system. appear to have impacted the business significantly across the actions.” firm with offices in Pittsburgh, San the JPml, which consists of seven of the JPml. in its fiscal year 2020 Finally, in another series of cases circuit and district court judges (October 1, 2019 through September involving the Paycheck Protection Diego, Chicago and Los Angeles. Mr. Lynch appointed by the Chief Justice of the 30, 2020), the JPml received 54 Program, the JPml denied several routinely is appointed to lead multidistrict united States, maintains its own motions for centralization, 21 of which motions for defendant-specific cen- litigation on behalf of plaintiffs and was docket and is located in Washington, were granted and 20 of which were tralization of various actions brought recently included on Law.com’s top 30 D.C. the judges on the JPml travel either denied, withdrawn or deemed against lenders administering the list of attorneys with the most MDL throughout the country and the panel to be moot. these numbers are similar Paycheck Protection Program loans appointments for the period 2016-2019. holds hearings up to six times per to fiscal year 2019, where the JPml under the CARES Act. the cases year in various federal courthouses. received 49 motions, granting 20 of alleged that the lenders failed to 1 All statistics are taken from the Proceedings for transfer of cases them. like many courts around the follow federal regulations which official website for the JPml: (centralization) may be initiated by country, the JPml responded to the required the loans to be processed on www.jpml.uscourts.gov. 2 the JPml on its own initiative, or by COviD-19 pandemic by switching to a “first-come, first-served” basis. the In Re: COVID-19 Business Interruption motion of a party in any action in remotely conducted hearings via JPml again focused on the lack of Protection Insurance Litigation, mDl No. 2942. which centralization is being sought. Zoom, rather than in person. efficiencies to be gained from 3 While the COviD-19 pandemic, centralization. For example, in In Re: Society Insurance Company Since its inception, the JPml has COVID-19 Business Interruption Protection considered motions for centralization government shutdown orders, and denying centralization of the cases Insurance Litigation, mDl No. 2964. on more than 2,750 occasions, resulting related CARES Act relief programs have brought against JPmorgan Chase, the 4 In Re: Paycheck Protection Program in the transfer and centralization of spawned several waves of federal JPml indicated that “the individualized Agent Fees Litigation, mDl No. 2950. over 950,000 civil actions.1 Of these court litigation on behalf of consumers, factual issues concerning the circum- 5 In Re: JPMorgan Chase Paycheck actions, approximately 325,000 actions employees and businesses, much of stances of each loan application will Protection Program Litigation, mDl 2944. remain pending in their transferee this litigation so far has been denied courts, approximately 609,000 have centralization by the JPml. been resolved while in the transferee For instance, in the wake of hundreds court, and approximately 17,000 of federal lawsuits filed by various actions have been remanded back to businesses claiming insurance coverage their original transferor courts for for business interruption losses trial. As of September 30, 2020, the resulting from the pandemic and/or united States District Court for the government shutdown orders, the JPml Western District of Pennsylvania has denied industry-wide centralization of received, and resolved, 21 multidistrict this litigation, noting that, while several litigation (mDl) proceedings from factual questions raised in each case the JPml, and is currently handling share “a superficial commonality,” one active mDl proceeding. Nationally, industry-wide centralization of all as of November 16, 2020, there were cases against all insurers would not 180 active mDl proceedings pending serve the convenience of the parties in 45 different federal district courts, and witnesses or further the just end involving 150 different district court and efficient conduct of this litigation judges. the types of cases which have and, to the contrary, would raise been transferred and centralized by “significant managerial and efficiency the JPml include: Antitrust, Common concerns.”2 in denying the motion for Disasters, Contract, Employment industry-wide centralization, the JPml Practices, intellectual Property, did, however, indicate a willingness to
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A primer on admiralty and maritime actions and the federal courts
By Frederick B. Goldsmith Claims and Asset Forfeiture Actions, if a defendant is not found and Eric A. iamurri within the federal district, a creditor may file a verified Seamen’s Claims complaint in federal court against the debtor’s vessel to attach and A seaman is typically a member of garnish it to both obtain jurisdiction a crew of a commercial vessel, or a and satisfy or secure a judgment. commonly-owned fleet of vessels, in under Supplemental Rule C, a navigation, who contributes to the claimant or other creditor with a function of the vessel or the accom- maritime lien against a vessel, may plishment of its mission. When file a verified complaint against the injured, the seaman typically brings vessel and have the u.S. marshal three claims: (i) a federal statutory arrest it. Rule B and C actions may negligence claim against his employer only be brought in federal court. under the Jones Act, (ii) a general Frederick B. Goldsmith Eric A. Iamurri maritime law (“Gml”), or federal Strategy Considerations of Filing common law, unseaworthiness claim law,” and so designate the claims as its owner has the right under the in State Versus Federal Court against the owner or operator of the admiralty claims under Fed.R.Civ.P. vessel Owners’ limitation of liability vessel, and (iii) a Gml maintenance 9(h), and thereby proceed non-jury. Act to file a complaint in federal court Counsel for a Jones Act seaman and cure claim against his employer. under its non-jury admiralty jurisdiction. may prefer to file suit in federal court the first two claims require the Marine Insurance, Maritime in a “limitation Action,” the vessel to draw a jurist who may be more seaman to prove fault or liability; the Commercial and Property owner asks the court to limit its liability familiar with admiralty and maritime third is no-fault. A featherweight Damage Claims to the post-casualty value of the vessel actions. in federal court, they will be causation standard applies to a Jones and pending freight (sums due the able to depose opposing experts and Act negligence claim. the seaman marine insurers typically bring vessel for the voyage in question). easily issue and serve nationwide prevails if the negligence of the declaratory judgment actions in the vessel owner’s liability Fed.R.Civ.P. 45 document and witness employer played a part, “no matter federal court “in admiralty,” meaning becomes uncapped, however, if it or subpoenas. Whereas in state court, how small,” in causing the injury. An non-jury. they may ask the court to its senior management personnel had such as in the Allegheny County Court unseaworthy vessel is one which is not deny coverage based upon a policy “privity or knowledge,” i.e., they knew of Common Pleas, while the court may reasonably fit for its intended purpose exclusion, or void a policy from inception or should have known of the acts, be less familiar with admiralty (e.g., defective equipment or condition, due an insured’s misrepresentations omissions, events, or conditions which actions, counsel is unlikely to be under undermanned or improperly trained in the application or claim process, caused the casualty. When the vessel the time constraints of a scheduling crew). this is a strict liability claim; which may constitute a violation of the is a total loss, the limitation fund may order, which may be preferable if, for proof of negligence is not required. A Gml duty of uberrimae fidei, or be zero, or, as in the case of the titanic, example, the client has an injury or traditional substantial factor proximate utmost good faith, which requires the composed only of the value of its medical condition which is still evolving. cause standard applies to the insured to affirmatively disclose to the lifeboats. As in a bankruptcy filing, a the Pittsburgh Division of the u.S. unseaworthiness claim. maintenance insurer, without request, all conditions limitation Act filing acts as a concursus, District Court for the Western District is a sum to compensate the seaman for which may materially affect the risk and the vessel owner is entitled to a of Pennsylvania draws jurors from 13 his or her reasonable food and lodging undertaken. stay of all other state and federal counties, most of which are considered expenses until reaching maximum Parties may also bring maritime actions against it, and all claimants politically conservative in contrast to medical improvement (mmi). Cure commercial and property damage against the vessel owner arising from the typical Pittsburgh-weighted encompasses medical, pharmaceutical, claims in federal court, typically in the casualty must file an answer to the venire in Allegheny County. n and associated health care, and medical admiralty on the basis of a maritime owner’s complaint and a claim in the Frederick B. Goldsmith is a 1990 graduate transportation expenses, also payable tort or maritime contract. When such federal limitation Action. of Tulane Law School, former federal until mmi has been achieved. if the claims are brought “at law” in state in certain situations, such as when judicial law clerk and tugboat company seaman’s employer willfully denies or court, they are, under the Saving to there is a single claimant against the terminates maintenance and cure, it Suitors Clause of 28 u.S.C. §1333(1), vessel owner, such as a seaman with general counsel, Proctor Member of the becomes liable for actual and punitive non-removable, absent a separate personal injury claims, the seaman is Maritime Law Association of the United damages and attorney’s fees. Seamen and independent basis for federal entitled to file or resume his or her States and vice-chair of its Marine Torts have long been considered wards of jurisdiction, such as diversity under suit in state court against the vessel, & Casualties Committee, is admitted in the court, because of their typically 28 u.S.C. §1332. provided he or she files stipulations PA, WV, and OH. He is the co-founder of modest means and a history of being protective of the federal court’s exclusive Goldsmith & Ogrodowski, LLC taken advantage of by unscrupulous The Vessel Owners’ Limitation of right under the limitation Act to later (www.golawllc.com) and focuses his marine employers. Liability Act determine (i) the privity and knowledge nationwide practice on representing these three seaman’s injury-related issue and (ii) the value of the limitation commercial vessel crewmembers in claims may be brought in state or When a vessel, which can range in fund. death and career-ending injury claims. federal court, the seaman is entitled to size and value from a Ski-Doo® to a Eric A. Iamurri is a 2020 combined a jury trial in either, and, if brought in towboat, is involved in a maritime Rule B Attachments and Rule C JD/MBA graduate of Tulane University’s state court, the case is non-removable. casualty, under an anachronistic federal Arrests law and business schools, where he was A seaman may also bring these claims statute passed in 1851 to encourage a member of the Tulane Maritime Law in federal court under the court’s American shipbuilding, and before under Rule B of the Supplemental Journal, is a law clerk for Goldsmith & admiralty jurisdiction, versus “at marine insurance was commonplace, Rules for Admiralty or maritime Ogrodowski.
Our Health Care Power of Attorney and Living Will documents are available on the ACBA website for free at ACBA.org/POA-Living-Will. Page 16 / January 1, 2021 u.S. District Court for the Western District of Pa. continues to serve the citizens of Western Pennsylvania
By Chief District Judge ADR Neutrals and counsel and clients who have used technology to conduct mark R. hornak and Chief those proceedings virtually with rates magistrate Judge Cynthia of success consistent with pre- Reed Eddy pandemic times. the Court has been supported by thank you to the Allegheny County the resources of the Administrative Bar Association for dedicating this issue Office of the u.S. Courts, and we have of the Lawyers Journal to practice in appreciated collaborating with the our federal courts. For more than 200 Allegheny and Erie County Bar years, our Court has served the people Associations in “town hall” meetings of Western Pennsylvania, spanning 25 to further two-way communication counties and 3 million of our fellow with the practicing Bar. We have Mark R. Hornak Cynthia Reed Eddy citizens. Each year, nearly 3,000 civil benefitted from the leadership of cases and more than 500 felony criminal Chief Circuit Judge Brooks Smith and cases are filed in our Court. through great tradition of our Court. We than 2,300 video proceedings have Circuit Executive margaret Wiegand, the efforts and energy of our staff and acknowledge and appreciate the been held, including bench trials, initial and the wise counsel of chief district colleagues, our Court has developed efforts of Senators Bob Casey and Pat criminal proceedings, evidentiary judges of other courts inside and innovative approaches to providing toomey in working together to fill each hearings, oral arguments, change of outside of our Circuit, as we confront just, timely and economical resolutions of the vacancies that had arisen in our plea hearings and criminal sentencings. common challenges. We have forged to those disputes. Court. For many years, the Court the lawyers who practice in our Court renewed relationships with the state With courthouses in Pittsburgh, Erie operated with a vacancy rate of up to have adapted quickly and effectively courts in our District, and with their and Johnstown, our Court is comprised 80%, and their collaborative efforts have and have combined dedication to President Judges, who have been the of ten active and seven senior District advanced the sound administration of the cause of their clients with an source of sound judgment and many Judges and six magistrate Judges. justice in our District. unprecedented level of flexibility to good ideas. the Court’s work is furthered by the the Court is fortunate to have the accomplish their work. For more than two centuries, work of Clerk of Court Joshua C. continued service of our Senior District During the pandemic, the Court has through times of war and of peace, lewis and his team. With dedicated Judges, who each carries a significant welcomed the advice of public health and during times of economic, social and professional staff on duty in each caseload and brings their considerable professionals in guiding how we and public health challenges, the federal Division, that office is responsible for experience to the work of the Court. would continue to conduct the public’s courts have been a constant in our the safe and secure processing of tens We are also grateful for the thoughtful business. the Court has remained national life. Often called upon to of thousands of case filings, and often and dedicated work of our Court open and in operation in each Division. resolve some of our Nation’s most handling more than $50 million in Executives. the teams that they have While jury trials and most in-person difficult and complex legal questions entrusted funds each year. As a public assembled and lead support the work proceedings have been on hold due to and disputes, the federal courts have institution, we strive to perform our work of the Court in many important ways. public health concerns, grand juries relied on the confidence of our fellow with transparency, precision and care. this year, we, too, have confronted the have been in session, urgent natural- citizens in our dedication to the rule the past two years have been a COviD-19 pandemic. it has significantly ization ceremonies have been held in of law. By virtue of the judicial time of great change and challenge in impacted the lives of all who interact a “socially distant” fashion, our independence granted to the federal the Western District. We have had the with the Court. in the blink of an eye, “specialty courts” have convened, and courts by our Nation’s Founders, we pleasure of welcoming new colleagues we were required to turn our operations the Court’s civil docket, which is strive each day to apply the sacred to our Court, including District Judges on a dime and move to the “virtual recognized for its timeliness and principles of our Constitution to marilyn horan, J. Nicholas Ranjan, world.” thanks to our information efficiency, has remained current. the resolving the matters before us. in William Stickman, Robert Colville, Scott technology team, and collaboration Court continues to work closely with times of great challenge, those hardy and Christy Criswell Wiegand with our colleagues in the united counsel to address the complex and principles can take on added signifi- in Pittsburgh, Susan Paradise Baxter States Attorney’s Office, the Federal difficult challenges the pandemic has cance, and the work of the federal in Erie and Stephanie haines in Public Defender, the Criminal Justice generated for cases on the Court’s courts, including ours, may become Johnstown, along with magistrate Act (“CJA”) lawyers panel, and the criminal docket. more visible and urgent. We in the Judges Patricia Dodge in Pittsburgh Probation and u.S. marshal’s Offices Our Court has long been a national Western District of Pennsylvania are and Richard lanzillo in Erie. their broad, for our District, we have fully leader in using Alternative Dispute grateful for the privilege of serving profound and varied professional and implemented the provisions of the Resolution or “ADR” processes to the residents of our District and of the personal experiences have added CARES Act authorizing federal courts facilitate the timely disposition of civil Nation and look forward to continuing that much to the Court, and their collegiality to conduct certain proceedings by cases. that has continued apace, thanks service with fidelity to those historic and commitment have been in the video or telephone conference. more to the creative work of our dedicated principles for many years to come. n
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Child exploitation investigations rise during pandemic
By David Shrager and the united States Sentencing Commission. lyle Dresbold the base level for most child pornog- raphy offenses is 18, which translates As the pandemic has forced many to a guideline sentence of 27-33 to spend more time at home and like- months, before a slight decrease for wise online, the number of Cybertips acceptance of responsibility and involving child pornography and child assuming no prior record. however, exploitation are spiking. meanwhile, there are several specific offense federal law enforcement is investing characteristics that can greatly resources into investigating these increase that calculation. cases and seeking lengthy prison many of the enhancements were sentences, despite no recent guidance David Shrager Lyle Dresbold created at a time when internet use from Congress. was less ubiquitous. Guidelines that were Federal law prohibits the possession, Steve Dish of the Allegheny County Once a tip is confirmed as containing intended to apply only in atypical or receipt, and distribution of files and Police and a member of both task images of child pornography, agents aggravated cases, are now common. videos containing intimate images of forces believes that the marked work to confirm the identity of the Guidelines will be enhanced if the children under eighteen. internet increase in Cybertips is directly user. this often requires issuing defendant used a computer, if there service providers such as Comcast and related to people being at home and subpoenas and search warrants to were more than ten images, or if the verizon and internet companies such on their devices more. With less out- internet service providers and social images depicted prepubescent minors, as Google and Facebook are required of-home activities and less physical media companies. Once they determine or sadistic or masochistic content. the by law to take steps to prevent the contact with other people, those the account holder’s address they will enhancements involving pre-pubescent online exploitation of children. When already predisposed to viewing child apply for and execute a search minors, use of computers, and number suspected child pornography is identified pornography are spiraling deeper into warrant of the residence for any of images, each apply in over 96% of on their platforms, the companies their addiction. devices capable of holding or receiving cases. Due to the enhancements, many must provide a Cybertip report to the the disruption in normalcy presents the images. An arrest is not usually defendants, including those with no National Center for missing and a second problem as children are made immediately unless they prior criminal records, have guideline Exploited Children, including a visual spending more time at home with discover evidence of a hands-on ranges at or near the statutory maximum. description with geographic and other their potential abusers. Because of offense. Once the devices are Because most of the enhancement information known to the company. changing dynamics in the home, a searched, a decision is made, often provisions apply to typical defendants, these tips, once received, are potential predator may have more based on the number of images and the guidelines do a poor job of distributed to the appropriate region. access to the child. Abusers also may what they contain, whether to pursue distinguishing among defendants in most tips received in Western Penn- have a greater and often uninterrupted the case at the federal or state level. terms of their relative culpability and sylvania are sent to the internet opportunity to groom children, or if the case is prosecuted in state dangerousness. this results in Crimes Against Children task Force lower their resistance using manip- court it can often be resolved with significant sentencing disparities as and the Pittsburgh Child Exploitation ulation. Predators use child probation or a short jail sentence sentencing judges often do not and human trafficking task Force. pornography in grooming and then followed by sexual offender treatment sentence defendants within the these teams are comprised of often produce files of their own to and intense supervision. if the case is recommended guideline range. members of the FBi, Allegheny share or swap with others. As there prosecuted in federal court, it almost in 2012, the Sentencing Commission County Police, Pennsylvania State are no teachers or other mandated always results in significant prison issued a report to Congress, urging Police, and local police forces. in 2019 reporters interacting with the children time. them to address the problems with the Western Pennsylvania received 302 or speaking to them, there is less At sentencing, a federal court starts guidelines and the need to adapt to Cybertips, this year we are on pace to opportunity to intervene or even spot its analysis by looking at the advisory open 375. signs of abuse. guideline provisions promulgated by Continued on page 18
WHEN IT’S TIME TO MAKE A FEDERAL CASE OUT OF IT. Our team has been raising the level of discussion, debate and change towards justice in this country for more than thirty years.
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Federal Court Section announces 2021 ClE programs
By Ron Cichowicz “the third Circuit Review is an annual ClE program during which a With a new year comes new panel of distinguished third Circuit opportunities for attorneys to increase judges discuss the most significant their knowledge, particularly in third Circuit decisions from the past specialty areas. With that in mind, the year,” said Devin misour, program ACBA Federal Court Section continues planner and an associate at Reed to develop an attractive schedule of Smith. “the program provides great ClE offerings for 2021, while still insights for anyone who practices acknowledging the ongoing impact of in federal courts within the third disruptions caused by COviD-19. Circuit.” “When the pandemic hit, Pennsyl- June 24: U.S. Supreme Court Case vania’ ClE Board wisely – and Review graciously – extended the deadlines According to program planner for 2020 ClE compliance,” said Paige Kezia taylor, Assistant united States Forster, law clerk to Judge D. michael Attorney in the u.S. Attorney’s Fisher in the u.S. Court of Appeals for Office for the Western District of the third Circuit and Chair of the Pennsylvania, this ClE session will be ACBA Federal Court Section. “While moderated by third Circuit Judge we all figured out how our practices thomas hardiman. Panelists will would look in the new normal, the include former Supreme Court easiest thing to do was to hit the pause mary-Jo Rebelo, a partner at Burns Spring (date TBD): Federal Court clerks leo deJulius and Dean Amy button on attending ClEs. White who is planning this program, Basics, a 3- to 4-hour ClE on how to Wildermuth. “But now, things are different. the explained that the session ties to the handle a criminal case in the Western “the program will discuss recent ClE Board has lifted the cap for book, “The Steel Bar: Pittsburgh District from start to finish. (if Supreme Court decisions and their distance learning credits for both Lawyers and the Making of America.” conducted via Zoom, the presentation impact on lower courts and the 2020 and 2021, everyone has figured “the focus of the program is to may be divided into two 2-hour practice of law as well,” taylor said. out videoconferencing and all systems cover the remarkable story of how two segments.) “the former clerks will provide a are go for a great slate of programs in Pittsburgh lawyers came to argue the “this will be a program designed behind-the-scenes perspective in the the new year. Whether Allegheny Supreme Court case that sustained the for practitioners both new to federal innerworkings of the court and the County lawyers are interested in local National labor Relations Board as the court or experienced ones looking for decision-making process. legal history, want to build their arbiter of collective labor activity in an update,” said program planner “this program will be of great District Court practice skills, or need the united States,” Rebelo said. “this John Schwab, a partner at Pietragallo value because we are living in a time updates on key third Circuit and case came against the backdrop of an Gordon Alfano Bosick and Raspanti. where even laypersons are tuning in Supreme Court decisions, the Federal economic depression, intense labor “it covers the full breadth of a federal and weighing in on the composition of Court Section has them covered.” strife and a president’s threat to pack criminal case – from the grand jury the court and the cases pending before the ClE Programs currently the Court. investigation and indictment to the the court and the opportunity to have scheduled are: “it will be an hour filled with a most presentence report and sentencing. an appellate judge and former January 28: Labor and the Steel interesting historical presentation the speakers include judges, Supreme Court clerks discuss judicial Bar: Pittsburgh Lawyers and the Fate followed by a moderated discussion prosecutors, defense counsel and independence and the interpretation of the NLRB, with attorney presenters by two noted Pittsburgh labor lawyers – probation officers.” of law is rare.” Ron Schuler, Joseph hornack and Joseph hornack and Joseph quinn – April or May (date TBD): Third For more information in the 2021 Joseph quinn. about the future of the NlRB.” Circuit Review schedule, visit ACBA.org. n
ADDITIONAL OPTIONS FOR REMOVAL continued from page 13 3. Finally, counsel should be aware of the federal courts’ increasing acceptance of “snap removals.” Section 1441, which permits removal in diversity cases, does not apply where any of the parties “properly joined and served as defendants is a citizen of the State in which” the action is brought. 28 u.S.C. §1441(b)(2) (emphasis added). Earlier this year, the Fifth Circuit joined two other Circuits – including the third Circuit – in interpreting this language to permit removal before the forum defendant is served. Tex. Brine Co., L.L.C. v. Am. Arbitration Ass’n, 955 F.3d 482 (5th Cir. 2020) (citing Encom- pass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147 (3d Cir. 2018)). Both forum defendants and non-forum defendants can seek to take advantage of this interpretation by seizing the initiative and removing a case quickly after it has been filed and before service of process, even if the case is filed in a defendant’s home state. But beware: not all courts have embraced this interpretation of the statute. See, e.g., Brown v. Teva Pharms., Inc., 414 F. Supp. 3d 738 (E.D. Pa. 2019). this article does not address every possible theory of removal. however, counsel should consider the variety of options for securing federal jurisdiction when analyzing the preferred forum in which to litigate a dispute. n
CHILD EXPLOITATION INVESTIGATIONS continued from page 17 changing times. however, Congress has not acted. With the pandemic and new technology creating an uptick in exploitation, individual task forces, prosecutors, and courts will continue to adapt, without congressional guidance, to try and tackle this problem. n David Shrager is the managing partner at Shrager Defense Attorneys, a law firm focusing on criminal defense and DUI defense. Lyle Dresbold is a senior attorney at the firm. January 1, 2021 / Page 19
CONTINUINGCONTINUING LEGAL EDUCATIONLEGAL EDUCATION from the from the The ACBA is now accredited as a ALLEGHENYALLEGHENY COUNTY COUNTY BAR ASSOCIATION BAR ASSOCIATIONWest Virginia CLE provider.
Earn CLE credits in real-time with our LIVE WEBINAR CLEs virtually via Zoom. Register today at ACBA.org.
A Look at the Updated ACBA Advance Directive Forms Environmental Law Update – 2020 Year in Review COVID-19's Impacts and Challenges in Education Thursday, January 14 | Noon Tuesday, January 26 | Noon Wednesday, February 10 | 1 p.m. 1 Substantive Distance Learning credit 1 Substantive Distance Learning credit 1 Substantive and 1 Ethics Distance Learning credits Tips for Handling Unpaid Medical Bills and Liens Understanding QDROs and like Orders for Miles for Inches: A History of the Advancement of in Workers’ Compensation Litigation and Mediation Dividing Retirement Plans in Divorce Women and African Americans in the Pittsburgh Bar Thursday, January 14 | 3 p.m. Wednesday, January 27 | Noon Thursday, February 11 | Noon 1 Substantive, 1 Ethics Distance Learning credits 2 Substantive Distance Learning credits 1 Ethics Distance Learning credit | * Free for ACBA Members Tax Planning in the Post-Election World Labor and The Steel Bar: Pittsburgh Lawyers and Ethical Considerations for Lawyers Working Remotely Tuesday, January 19 | Noon Friday, February 12 | Noon 1 Substantive Distance Learning credit the Fate of the NLRB (Then and Now) Thursday, January 28 | Noon 1 Ethics Distance Learning credit Corporate Law for the Non-Corporate Attorney – 1 Substantive Distance Learning credit In the COVID Economy and Beyond Legal Issues Listing and Selling Real Estate Thursday, January 21 | Noon Staying Safe and Sound – Maintaining a Work-Life Involving Oil and Gas 1 Substantive Distance Learning credit Balance in Uncertain Times Tuesday, February 23 | 2 p.m. Thursday, February 4 | Noon 3 Substantive Distance Learning credits Preparing to Examine Vocational Experts in 1 Ethics Distance Learning credit Social Security Hearings Monday, January 25 | Noon 1.5 Substantive Distance Learning credits
The ACBA has nearly 100 previously recorded ONLINE CLEs in dozens of practice areas ready to be viewed 24/7 from anywhere at cle.acba.org. View anytime, anywhere.
#ElderLaw – An Overview of Elder Law Fair Housing Rights and Responsibilities: Reasonable Accommodations Right-to-Know Law for the non-Right-to-Know Law Attorney 1 Substantive, 1 Ethics credits 1 Substantive credit 1 Substantive credit A Behind the Scenes Look at a Residential Real Estate Transaction Financial Planning Strategies for Attorneys Nearing Retirement Shifting Landscapes: Adapting Your Firm to Emerging Liability Threats 2 Substantive credits 1 Substantive credit 1 Ethics credit A Look at the Ethics of Physical Evidence at a Crime Scene Force Majeure and Defenses to Contract Performance in the Supreme Court Update: Cases of Interest to Labor and 1 Ethics credit COVID Landscape Employment Practitioners 1 Substantive credit 1 Substantive credit A Name is an Identity: The Name Change Process and Vulnerable Communities Fraud Prevention, Detection and Control Tax Update: Long-Awaited Final & Proposed Section 163(j) Regulations 1 Substantive credit 1 Ethics, 2 Substantive credits 1 Substantive credit A Primer on COVID19-related Business Interruption Insurance From Old School Bigotry to Implicit Bias – The Science of Technology in Your Practice Coverage in Pa. Racial Disparity 1 Substantive credit 1 Substantive credit 1.5 Substantive credits The ABCs of CBAs in Pro Sports Alcoholic Beverages and Nonpro t Organizations Helping Your Law Practice Thrive During the Pandemic 1 Substantive credit 1 Substantive credit 1 Substantive credit The Biology and Psychology of Decision Making Alimony: Expert Views on Need, Amount and Duration How ‘Our Family Wizard’ Can Bene t the Parties/Court in 1 Ethics credit 2 Substantive credits Custody Litigation 1 Substantive credit The Continued Evolution of Title IX: Highlights of the New Regulations Allegheny County Voir Dire in 2020 1 Substantive credit 1 Substantive, 1 Ethics credits How Patent Infringement May Shape COVID-19 Vaccine Development The Do’s and Don’ts of Family Law Master’s Practice An Introduction to Telemedicine and the Future of Patient Care 1 Substantive credit 2 Substantive credits 1 Substantive credit Impairment in the Legal Profession and What YOU Can Do About It The E ect of the Opioid Crisis on Families and Children An Overview of Trusts 1 Ethics credit in Our Courtrooms 2 Substantive credits In the Squared Circle: 30 Years of Representing WWE 1.5 Ethics credits Are You Lawyering or Laboring 2 Substantive credits The En Banc Process in Superior & Commonwealth Court 1 Substantive credit Jury Selection and Management: An Engineered Group 1 Substantive credit Are Your PC and Data Secure – What Cyber Security Means to Dynamics Approach The Fractured Relationship Between China and the United States Today’s Lawyer 2 Substantive credits 1 Substantive credit 2 Substantive credits LGBT Employment Rights in the United States The Impacts of COVID-19 on the Construction Industry Asylum Law for Non-Immigration Lawyers 1 Substantive credit 3 Substantive credits 2 Substantive credits Landlord-Tenant Mediation and Pro-Bono Training The Impaired Lawyer – A Call for Action Attorney O ce Space – Options and Considerations 4 Substantive credits 1 Ethics credit 1 Substantive credit Law Firm Metrics for Strategic Decision-Making Success The Latest in Accident Investigations, Evidence Gathering and Bankruptcy Basics for the Non-Bankruptcy Practitioner 1 Substantive credit EDR Analysis 2 Substantive credits Leveraging Change Management Principles to Optimize 1 Substantive credit Behind the Mask: How to E ectively Try a Case in a Pandemic Legal Technology The Life of a Labor Contract: Negotiating the Contract 2 Substantive credits 1 Substantive credit 2 Substantive credits Best Practices for Working with Intellectual Property Life and Disability Insurance – Protecting Lawyers’ Families from Debt The Numbers You Need to Know to Double Your Revenue Damages Experts 1 Ethics credit 1 Substantive credit 1 Substantive credit Life Care Plans, Medical Cost Projections & Special Damages Reports The Partnership Track: Everything You Didn’t Learn in Law School Biggest Mistakes Made by Trial Lawyers 1 Substantive credit 1 Substantive credit 1 Substantive credit Life of a Labor Contract: After the Collective Bargaining The Past Present and Future of Amateurism in Division I Client Conversations that Connect Planning & Philanthropy Agreement is Signed College Athletics 1 Substantive credit 2 Substantive credits 1 Substantive credit Constitutional Rights in the Digital Age – Is There an App for That Maintaining a Professional Law Practice While Running The Road Ahead: Our Autonomous Future 2 Substantive credits a Successful Business 1.5 Substantive credits 1 Substantive credit Contract Drafting Overview: Tips & Tricks for Corporate Attorneys The SECURE Act and Retirement Planning 1 Substantive credit Making Government Bene ts Work for You: Understanding 2 Substantive credits Social Security & Medicare Coronavirus and Your Mental Health 1.5 Substantive credits The Tiger King Trial: Murder for Hire, the Prosecution of 1 Ethics credit Joseph Maldonado-Passage Marijuana and Synthetic Cannabinoids: High-lights of the Science 3 Substantive credits COVID in Schools from the Perspective of Pa. Teachers 1 Substantive credit 1 Substantive, 1 Ethics credits The Toxicology of Opioids: What Attorneys Need to Know Mediation in the Time of COVID-19 1 Substantive credit Covid-19 Tax Update 1 Substantive credit 1 Substantive credit Tips and Tools to Tackle Vicarious Trauma Medicare Simpli ed: What Retirees Need to Know about Medicare 1.5 Ethics credits Criminal Law for the Non-Criminal Attorney 1 Substantive credit 1 Substantive credit Top Secrets of Zoom Depositions, Teams Court & Online Meetings Meet You in [Corporate] Hell! 1.5 Ethics credits Crisis Communication: A Guide for Safeguarding Brand Equity 1 Substantive credit Amid COVID-19 Toxicology Pearls for Attorneys 1.5 Substantive credits Motivational Interview Techniques to Encourage E ective Co-Parenting 1 Substantive credit 1 Substantive credit Crisis Communication: A Guide for Safeguarding Brand Equity, Transitioning Your Practice: The Mind, the Money & the Rules Reputation & Bottom Line Navigating Employment Laws and Caregiver Needs in COVID Era 1 Ethics credit 2 Substantive credits 1 Substantive credit U.S. Supreme Court Update Diversity and Inclusion in Probate and Trust Practice Navigating Remote Depositions 1 Substantive credit 1.5 Ethics credits 1 Substantive credit Understanding Allegheny County Environmental Law Divorce Law 101 New Essential Changes to Pa. Guardianship Practice with the ACHD 1 Substantive credit 1 Substantive credit 1 Substantive credit Does Your Brand Have Bandwidth Oil and Gas Insurance Basics Understanding Social Security Bene ts for You and Your Clients 1 Substantive credit 1 Substantive credit 1 Substantive credit Education in the Era of COVID-19 Oil and Gas Well Plugging Liability in Pa. Using Drones for Medical Purposes, Including COVID Response 1 Substantive credit 1 Substantive credit 1.5 Substantive credits E ects of Trauma and Stress on Our Lives Optimizing COVID-19 Readiness & Organizational Response Voting Rights: A History of Disenfranchisement and What 1 Ethics credit Lawyers Can Do 1.5 Substantive credits 1 Substantive credit Electronic Evidence: Collecting, Preserving and Reviewing Pittsburgh Real Estate Market Overview Critical Information 1 Substantive credit Wake up With the Judges Program – Business of the Courts 1 Substantive credit 1 Substantive credit Planning an Exit Strategy for Lawyers of All Ages Water Law Update: 2020 Developments Emeritus Status in Pennsylvania 3 Ethics credits 1 Ethics credit 1 Substantive credit Environmental Site Assessments and the New All Appropriate POWER Act Pro Bono Representation for Survivors of Domestic Violence What to do When You’re Not in the Room Where it Happened Inquiry Rule 1 Ethics credit 1 Ethics credit 1 Substantive credit Preparing and Presenting Demonstrative Evidence What You Need to Know About Allegheny County Property 1 Ethics credit Tax Assessment Appeals Equitable Distribution of Oil, Gas and Mineral Rights in Family Law 1 Substantive credit 1.5 Substantive credits Presenting with Impact: How to Hit Your Points While Keeping Ethical Considerations in Drafting Contracts Them Awake What You Need to Know About FLSA Collective Actions 1 Ethics credit 1 Substantive credit 1 Substantive credit Ethical Considerations in Family Law Custody Litigation Race and College Admissions Where There is a WILL, There is a Way: Be a Steward for Inclusion 2 Ethics credits 2 Substantive credits 1.5 Ethics credits Ethical Considerations When Lawyers Make Lateral Moves Remote Work and Mobile Devices: Is Your Data Safe? Your Honor, You Erred Because...Navigating Rule 1925(b) 1 Ethics credit 1 Substantive credit 1 Substantive credit Page 20 / January 1, 2021
Bar Briefs take a look inside the renovated News and Notes ACBA headquarters John Unice has assumed the position of CEO at bit-x-bit. unice will lead the over- all management, strategic direction, and service offerings for the company, leveraging his Ashley N. Audra E. experience as a Crane Phibbs John litigator and in- Unice house legal advisor intellectual Property Practice Group The new view of the main at multinational, and Phibbs joins the firm as an entrance of the ACBA complex organizations. Associate in the Estates & trusts Offices. The furniture can Practice Group. Both are based in be moved and opened up, People on the Move leech tishman’s Pittsburgh Office. creating space for member networking, meetings leech tishman Fuscaldo & lampl, Strassburger mcKenna Gutnick & and social events. llC (leech tishman) is pleased to Gefsky (SmGG), a full-service law firm, announce the addition of two new is pleased to announce the hiring of associates to the firm, Ashley N. Michael Nicolella as the firm’s newest Crane and Audra E. Phibbs. Crane Associate Attorney. Nicolella’s primary joins the firm as an Associate in the area of focus will be commercial law.
Wonder if your decisions, legal advice or other professional actions are ethical? Members can get consultation on their legal actions and potential actions through The new ACBA Board Room the ACBA Professional Ethics Hotline. features brand new AV equipment. This is now See ACBA.org/OfficerAssignments for details. located right along the Seventh Ave. side of the Koppers Building.
Members can meet and mingle in the member lounge area.
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