Author Archives: Seth L. Laver

Case Study: Is a Broker a Fiduciary?

In a decision addressing the facts necessary to plead a breach of fiduciary duty claim against a broker, a California federal district court considered the difference between an “ordinary” broker-customer relationship, and one which rises to the level of a fiduciary relationship.

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Pitfalls of Facebook Friendship

Friendship has taken on new meaning in the age of social media.  Old acquaintances, former classmates, co-workers, professional contacts, public figures, family, and close companions may all be similarly situated as a “friend” on social media, regardless of the level of personal interaction with each.  Social media users therefore often apply more liberal standard when accepting new network friends than they would in their personal lives.  Professionals, however, may need to be more cautious.

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Break Time is Over

Today’s employees demand flexibility. In turn, many employers are moving towards a “results orientation” business model and getting away from the standard 9-5 schedule. In other words, the employer cares less about when employees get the work done, and only cares that the work gets done effectively. Employment laws are only beginning to catch up to this shift in work hours. Take for example the recent decision where the Third Circuit confirmed that the FLSA requires employers to compensate employees for breaks of 20 minutes or less where the employer allowed employees the flexibility to log off their computers at any time they wished.

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Congress Considering Federal Cyber Breach Laws

Huge cybersecurity breaches at major retailers caught the attention of the public and have made headlines. Now, more recent breach at one of the major credit reporting agencies has the attention of Congress. 48 states and the District of Columbia already have some form of legislation governing security breaches. These statutes typically begin by laying out who is subject to the requirements, such as businesses and information brokers, and what information is considered protected “personal information.” The laws then outline what constitutes a breach, the requirements for providing notice, and exemptions to the law. What's next, Congress?

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Microcaptives Create Headaches for Professionals

Captive insurance companies have long been a popular vehicle for companies that require insurance in areas where it is hard to find coverage. Although the IRS has been somewhat suspicious of captives for some time, it was not until the past several years that microcaptives, or captives for smaller companies, apparently piqued the interest of the IRS. After the Tax Court issued an opinion over the summer, several other similar cases have gone to trial and await opinion. The result of these cases will have a significant effect on professional firms who facilitated the creation of these microcaptives, as the businesses hit with improper deductions and tax penalties will likely look for somewhere else to lay the blame.

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Performance Evaluations: A Lesson on Documentation

Cases turn on the evidence. In the case of an employment discrimination or retaliation claim, the key may lie in the employee file maintained by the employer. One common piece of documentation created and maintained by many employers is performance evaluations. In Walker v. Verizon, a federal district court in Pennsylvania ruled on a case illustrating how important documentation can be in defending these claims.

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Bad Back? You’re Fired.

Employers rely upon employees to get the job done. Usually, the “job” requires the employee’s physical presence at work. But injuries and medical conditions throw a wrench in the works. Most employers are at least generally aware of the implications of various federal and state laws governing treatment of employees with medical conditions and injuries. Yet, there is plenty of gray area where employers may be subject to liability. Take for example the recent decision in Severson v. Heartland Woodcraft, Inc. where the Seventh Circuit decided whether an employer could terminate an employee who requested a multi-month leave of absence from employment.

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Recusal: Use it or Lose it

Attorneys and their clients must make strategic decisions during litigation whether to take certain actions that are available to them. Should you move for dismissal or answer the complaint? Should you seek more specific answers to written discovery, or just save your questions for a deposition? These are common questions that do not necessarily have a “right” answer. However, the Pennsylvania Supreme Court recently ruled that waiting too long to decide on a motion to recuse may result in the request being untimely.

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Guilt by Association

Making a referral is most often understood as a recommendation as to the quality of that professional’s services or products. In turn, there are different tort theories that are recognized in many states for negligence in doing so, and potential liability for the actions of a referred professional. What is far less common is to allow liability to flow through several parties even absent independent conduct or a theory of agency.

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Lactation = Medical Condition under Federal Law

There are several federal laws with protections for pregnant employees and those employees experiencing complications from birth. Depending on the circumstances, FMLA, ADA and/or the Pregnancy Discrimination Act (“PDA”) may be triggered. In Hicks v. Tuscaloosa, the Eleventh Circuit ruled on a case involving an employee’s post-pregnancy lactation and need to nurse her newborn.

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