Several years ago, I was representing an herbicide manufacturer against a toxic tort lawsuit. The claim was that our product caused substantial damage to the crop, instead of the underlying target foliage. The Complaint named my client and several other co-defendants, each of which played some role in the manufacturing, purchase and/or application of the herbicide. Although my client was the target, I knew we were not the at-fault party and I knew we could prove it. I knew the real tortfeasor was one of the co-defendants and I was ready to announce it to anyone who would listen. It was then that my client pulled me aside and said that we would not be announcing any such thing and that we would take the lead on coordinating and funding a comprehensive settlement. I responded, “Why? But we didn’t do it!” And I was told, “Because that company is one of our most faithful, best clients and we will not sabotage the long term viability of that relationship to win this case.”
Often times, my client is your customer. Other times, my client is your client who has customers. Although each case may be defensible and the battle winnable, the long term consequences of a single victory may cost your client the war.
We must always be mindful of the big picture for each client in each case. Is this case the one in which to draw the line and fight to the bitter end? Is this a case that we can win, but to do so would cause harm to a valued partner? Will potential future relationships be damaged because of how we approach this one case?
I think my client’s admonition in every case I have handled since. It is imperative that I know what my client is hoping to achieve. For me to know, the client must know. Early, frequent, honest conversations about the long term goal and the short term approach allow me to best achieve for you, my client, the case-specific result while preserving the business-specific objective.
When a new case first comes in from one of my clients, there are certain pieces of information that facilitate my initial investigation. Of course, when a lawsuit is the first notice of loss, everyone is starting the defense with little to no information to pass along. However, in most instances, the client has received some essential information before the claim becomes a lawsuit and finds its way to my desk. Here is what I am looking for right away:
1) Accurate contact information for the named insured and the tortfeasor, if different. This would include at least a phone number and a physical address. Most files come to me with the name and address of the named insured, but being able to pick up the phone, call the tortfeasor and explain the process and our respective roles in it is invaluable. And if the tortfeasor is not the named insured, I need the contact information for both. I need to speak with the actual tortfeasor first, but it is always good to have the contact for the named insured in case the tortfeasor is less than responsive.
2) Plaintiff’s demand letter, if available. The entire demand package will be useful eventually, but seeing Plaintiff’s narrative explanation of how this incident allegedly occurred and the nature, duration and extent of the claimed injuries allows me to quickly get a feel for the case and what Plaintiff’s theme is or may become. I do not form any final opinions from Plaintiff’s demand letter, but this early snapshot of what Plaintiff’s counsel thinks is important is always enlightening.
3) The Police Report/Incident Reports. This is the first recorded accounting of the event that leads to the lawsuit. You can learn a lot from the police officer’s narrative, the description of speed, injuries, distractions, vehicle damage, citations, etc. Incident reports likewise provide valuable information about the initial injuries, statements about the event and key witnesses. The Police Report/Incident Reports will assist in the initial telephone conversation with the tortfeasor.
As a general rule, the more information the better, but on day one, if I have these three pieces of information, I know I can hit the ground running when a new suit arrives. This will assist in early case evaluations, overall case efficiency and intelligent communication with the carrier about a case strategy.
The new minimum salary level for exempt employees under the Fair Labor Standards Act (FLSA) will be $913 per week, or $47,476 per year, under final regulations that will be released on Wednesday, May 18, 2016, by the U.S. Department of Labor (DOL). This new salary threshold—which will become effective on December 1, 2016—more than doubles the current minimum salary level of $455 per week, or $23,660 per year, and will have a dramatic impact on employers. The DOL expects the new rule to extend the right to overtime protections to 4.2 million more employees.
The federal right to overtime dates back to the Fair Labor Standards Act, passed in 1938. The basic rule is that workers must be paid time-and-a-half for any hours worked over 40 hours in a week. In general, all hourly employees must be paid overtime. The same rules apply to salaried employees unless they: earn more than the “salary basis” and primarily perform defined executive, administrative or professional duties. (There are other exceptions for certain occupations (including teachers, doctors and lawyers) and other limited, special provisions.)
In essence, this means that employees who are not paid at or above the new salary threshold will be entitled to overtime for all hours worked over 40 in a workweek, regardless of the duties they perform for the employer, with few exceptions.
Other highlights of the Final Rule include the following:
- Raising the highly compensated employee ("HCE") threshold—from $100,000 to $134,004. This figure is the equivalent of the 90th percentile of full-time salaried workers nationally. Once employees are paid at this threshold, only a minimal showing is required for the employee to be exempt from overtime.
- The minimum salary level will be adjusted every three years to track the 40th percentile of the lowest wage census region, whether that is the Southeast (currently the lowest wage region) or one of the other four Census Regions. Based on projections of wage growth, the DOL expects the salary basis to rise to more than $51,000 with the first update on January 1, 2020.
- For the first time, employers will be able to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level, as long as those payments are made on a quarterly or more frequent basis.
- Finally, the Final Rule makes no changes to the duties tests; the duties an employee must perform in order to be exempt from overtime as an executive, professional or administrative employee are unchanged.
Employers now have a date certain on which they will need to be in compliance with a Rule we have been anticipating for some time now. In order to prepare, employers will have to identify the employees who will not qualify for the exemption and decide if they want to increase the employee’s salary to the new minimum, or determine an appropriate hourly wage, or restrict hours to 40 per week. Employers are free to adjust the wage so that the annual compensation, based on past projections of overtime hours worked, remains relatively constant.
For more information from the Department of Labor, please visit the website: www.dol.gov/featured/overtime. If you have any questions regarding how the Final Rule will impact your workplace, please feel free to contact Samantha Otero: firstname.lastname@example.org
Actions in litigation ought to be, and these days are, regularly tested by insurers, TPAs and direct hire corporate clients under a cost/benefit analysis. A proposed action or tactic must justify itself to be client approved. Not all pleas, motions or expert hires turn out as hoped, but there must be some prospect of substantive return on the lawyer, client and witness/consultant investment to warrant going forward. I recently observed an attorney in a protracted civil litigation matter take actions which neither I, nor any of my clients, would have approved. No beneficial result was achieved by the actions, except only an increase in attorney work for all involved in the case. As the behavior progressed over the life of the suit, I couldn’t help but speculate that the affected party, a large, otherwise sophisticated national corporation, must be inattentive or utterly gullible, or both, where counsel’s tactical recommendations were concerned. The only other explanation - knowing corporate approval of expensive and futile litigation tactics - runs counter to modern experience with corporations in non-existential litigation. Third parties acquainted with counsel’s actions recognized the behavior and labeled it as rank file churning.
A few examples of what I experienced will make the point. At the beginning of the matter, counsel answered the plaintiff’s Complaint with a counterclaim demanding sanctions under Virginia Code 8.01-272.1 for “bad faith” filing of the case. These allegations were repeated in a demurrer. Although the “bad faith” allegations were also repeated in subsequent pleadings, the sanctions motion was never brought to hearing. Apart from the dirty-tricks aspect of injecting and repeating sanctions demands in a case where none were warranted, the motion achieved nothing.
As for the demurrer, when it was scheduled for hearing, counsel tendered a consent order overruling every point to avoid a hearing. Counsel also removed the case to federal court, a rule-of-thumb action of defendants where available. In this case, however, diversity removal was not available because the removing defendant was sued in its home state, an elementary and obvious bar to removal on diversity grounds. After numerous pleadings, the matter was remanded to state court by consent order, again, to avoid a hearing.
A plea in bar is a narrow, but powerful, defense tool when founded on a provable, dispositive fact that concludes all or part of a case. Its success hinges, however, on the movant’s ability under Virginia discovery and evidentiary rules to prove a dispositive fact to carry the motion. Where an issue of fact exists as to the dispositive point, the motion is handily defeated by the opposing party’s request for a jury on that point. Where a jury demand is already present, the plea effectively vanishes and becomes just another point at trial on motion to strike. This sequence is well recognized and renders a plea in bar toothless where the dispositive fact is in dispute. In the case under discussion, counsel filed and briefed a plea in bar, notwithstanding extensive detailed discovery from the other side demonstrating a solid issue of fact as to the dispositive fact. Indeed, it was filed with full awareness of the detailed evidence establishing the issue of fact. As expected, the issue of fact was raised, a jury demanded, and the plea in bar accomplished nothing. Opposing counsel’s feigned surprise was incredible.
Hopefully these examples will serve as a reminder to parties that there remain counsel whose litigation advice requires particularly close cost/benefit analysis, and that active and knowledgeable involvement in your cases has its rewards in both sense for the case and avoidance of expensive tactics that achieve nothing.
In Virginia, there are certain advantages to defending a case in federal court. First, in Virginia state court, motions for summary judgment may not be based on deposition testimony. For attorneys seeking a case-dispositive ruling prior to trial, the state court evisceration of the summary judgment process thwarts such efforts. Second, the disclosure and qualification process for expert witnesses are far more stringent in federal court. Through robust expert disclosure requirements and the application of Daubert to experts who are properly disclosed, Virginia federal courts place a premium on well thought out and executed expert strategies.
Knowing most defendants would prefer to remove a claim to federal court, plaintiffs frequently attempt to include a non-diverse employee in a premises liability suit to prevent removal. A defendant will often seek removal even with the non-diverse employee, claiming fraudulent joinder of the employee. In those circumstances, what the employee did or did not do, and whether it was an act by omission or an affirmative act of negligence, will determine whether removal to federal court will succeed.
In Beaudoin v. Sites, 886 F. Supp. 1300 (E.D. Va. 1995), the court, in considering a motion to remand, stated: “Under Virginia law, an employee of the owner or operator of the premises in an action based on standard premises liability theories may be held liable only for affirmative acts of negligence, not merely because, in the status of employee of the owner or operator, he or she is guilty of an omission.” If the employee affirmatively acted to create the hazard that allegedly led to the plaintiff’s injury, the employee was potentially individually liable, making the non-diverse employee a proper party and warranting remand. Virginia law permits joint liability for an employer and employee when an employee commits a wrongful act. VanBuren v. Grubb, 284 Va. 584 (2012). If, however, the plaintiff claims an employee is individually liable for failing to act a certain way, nonfeasance as opposed to misfeasance, such omission cannot form the basis for an individual claim against the employee. Therefore, the non-diverse employee is not a proper party, and removal is proper.
While there are nuances to the court’s analysis of the potential liability of an employee, the first question before attempting removal should be: did the employee affirmatively create the hazard or did the employee merely fail to act with regard to the hazard? If the former, removal is likely improper and does little but increase litigation costs. If the latter, timely seek removal, as Virginia federal court can be a far kinder venue for defendants in Virginia.
Compliance Deadline Approaches for Business Associate Agreements
Another HIPAA deadline is approaching. Covered entities and business associates have until Tuesday, September 23, 2014, to bring existing business associate agreements (“BAAs”) into compliance with HIPAA.
This HIPAA deadline may sound familiar. As we noted last year (see article here), the HIPAA Omnibus Final Rule, enacted January 25, 2013, implemented new requirements for complying with HIPAA, including new requirements for BAAs. Most covered entities and their business associates had to comply with the new requirements last year – specifically, by September 23, 2013. However, the Omnibus Final Rule included a transition period in situations where: (i) there was a compliant BAA in place on January 25, 2013 (the date of the Omnibus Final Rule), and (ii) the BAA was not modified between March 26, 2013, and September 23, 2013. That transition period ends on Tuesday, September 23, 2014, meaning that all BAAs must be HIPAA compliant by that date.
Covered entities should make sure that their BAAs have been revised since January 25, 2013, to comply with the Omnibus Final Rule. If you have any BAAs that predate January 25, 2013, you will want to make sure that those are revised to be compliant with the Omnibus Final Rule by September 23.
If you need assistance in evaluating or revising your BAAs, please contact any member of the McCandlish Holton Health Care Team.
Health Care Team Attorneys:
Samuel C. Haisley
Thomas W. McCandlish
Samantha S. Otero
Alana M. Ritenour
It happens all the time. Your clients are planning an international dream vacation or an exciting change of jobs. But their green cards are expiring! Do they have to cancel everything? Probably not, but the laws and procedures that apply in these situations are not as clear as one would hope. This article will empower practitioners with all the information needed to guide clients through this potential morass.
This article is divided into two sections to address two groups of permanent residents: those who have filed to remove the conditions on a “conditional” two-year green card, and those who have a “permanent” 10-year green card.
The Immigration Service (“USCIS”) issues two-year “conditional” green cards to two categories of permanent residents: (1) those who received permanent residence on the basis of marriage to a U.S. citizen, when the marriage occurred less than two years before the green-card approval and (2) those who received permanent residence under the EB-5 “employment creation” program. Each requires a different filing with USCIS: an I-751 for marriage-based conditional residents and an I-829 for “employment creation” conditional residents. USCIS must receive the I-751 or I-829 no earlier than 90 days before the green-card expiration date, and no later than the date the card expires. The failure to file on time results in automatic termination of permanent residence.
Once the I-751 or I-829 has been filed, the processing is anything but instantaneous. In fact, USCIS can take many months to make a decision. During this time, your client’s green card will have expired! Is it panic-button time? No.
Although the I-751 and I-829 are very different filings, the rules for how permanent residents will be treated after making these filings are almost identical. As long as the I-751 or I-829 was filed on time, their status as permanent residents is automatically extended until USCIS makes a decision on the petition. USCIS will send a receipt informing them that their status has been extended for one year, but this is not the case—their status is extended until they get that final decision. And in the event the I-751 or I-829 is—gasp—denied and they are placed in removal proceedings, they are still considered permanent residents entitled to documentation of their status until a final removal order is entered by an Immigration Judge.
Clients frequently ask whether they can make an international trip after filing. Generally, the answer is “yes.” But they may need to take additional steps depending on timing. The key is when they plan to reenter the U.S.—not when they plan to leave.
If they will be reentering the U.S. within 6 months of the date USCIS receives the I-751 or I-829 filing, they will reenter the U.S. by showing their expired green card and a copy of the I-751 or I-829 receipt notice.
If they will be reentering the U.S. more than 6 months after the date on their I-751 or I-829 receipt, it is risky to rely on the expired green card and the receipt notice. This is true even though the receipt notice claims to authorize travel up to a year after the filing date. To eliminate any reentry risk from these trips, they should get formal proof of their status from their local USCIS office in the form of a “green-card stamp” in their passports. To get one of these stamps, they would make an InfoPass appointment with their local office through the USCIS website (https://infopass.uscis.gov/). They would bring their expired (or expiring) green card, the I-751 or I-829 receipt notice, and proof of their travel plans. They are automatically entitled to the green-card stamp, which will be valid for 12 months. This is the same process they would use to obtain continued proof of their permanent residence if they have been placed in removal proceedings following denial of the I-751 or I-829.
In any event, you must advise clients to avoid any trip outside the U.S. of 6 months or more without obtaining a reentry permit. While not a panacea, the reentry permit will be an important document to defend against charges that your clients may have abandoned their permanent residence due to a long absence. Extended absences also impact naturalization eligibility, so this will be something else to discuss.
What about when your clients ask about their exciting new job offer? Thankfully, they shouldn’t have to put that on hold, either. If the green card has already expired, their best option would be to obtain a temporary green-card stamp from the local USCIS office, as mentioned above. While there is guidance from USCIS indicating that the I-751 or I-829 receipt notice may be acceptable proof of employment authorization, this guidance is not well known and appears to conflict with other regulations.
Unconditional Permanent Residents
Unconditional permanent residents have green cards valid for 10 years at a time. To be clear: the expiration date on the green card is not the expiration date of a particular client’s permanent residence—it is just the expiration date of the proof of that client’s permanent residence. That is because a permanent resident will remain a permanent resident until he or she voluntarily relinquishes the green card, becomes subject to a final order of removal, or becomes a U.S. citizen.
To obtain continuing proof of permanent residence, your clients would apply for a replacement green card by filing a Form I-90 with USCIS. Like I-751s and I-829s, USCIS customarily takes many months to process I-90s. But unlike I-751s and I-829s, the I-90 receipt notice will not serve as proof of their status.
So what does this mean? It means that your clients will need to get a temporary green-card stamp in their passports if they want to travel outside the U.S. or change jobs while USCIS processes their I-90 applications (unless, of course, they can still use the original green card because it has not yet expired). Again, be sure to counsel clients on reentry permits, abandonment, and potential naturalization consequences if they intend to be outside the U.S. for a single period of 6 months or more.
To obtain a temporary green-card stamp, your clients will first need to file an I-90 application (which can be done electronically or on paper). Then they will need to make an InfoPass appointment with their local USCIS office through the USCIS website (https://infopass.uscis.gov/) and bring the expired card and the I-90 receipt to the appointment. They should automatically be issued a stamp valid for 12 months.
Even if there are no plans to change jobs or to travel internationally, there are good reasons to advise clients to file for a replacement green card. First, permanent residents are required by law to carry with them evidence of their permanent-resident status. An expired card may not be sufficient. Secondly, permanent residents cannot apply for naturalization (U.S. citizenship) with an expired card. In fact, they must apply for a replacement card if it will expire less than 6 months before they submit their naturalization application.
As any immigration attorney can commiserate, processes and procedures in our field are almost always more important than the law itself. Dealing with expiring green cards is no exception. Making your clients aware of these processes and procedures will help them to keep calm and carry on, dream vacations and all.
Read the full article in Immigration Daily.
 INA § 216(a)(1) & (g)(1).
 Id. § 216A(a)(1) & (f)(1).
 The mechanics and complexities of filing these petitions are beyond the scope of this article.
 But see 8 C.F.R. § 216.5(a); USCIS, Instructions for Pet. Remove Conditions on Residence, http://www.uscis.gov/sites/default/files/files/form/i-751instr.pdf (last visited Apr. 10, 2014) (allowing filing before the 90-day window for marriage-based conditional residents who seek a waiver of the requirement to file the I-751 jointly with the U.S.-citizen spouse).
 Id. § 216.4(a)(6) (failure to file I-751); id. § 216.6(a)(5) (failure to file I-829). There are some exceptions for filing late, but this is definitely a risk avoid if at all possible. See, e.g., id. §§ 216.4(a)(6) & 216.6(a)(5) (allowing a late filing if “good cause” is shown); id. § 216.5(a)(1) (permitting late filing for marriage-based conditional residents who are seeking a waiver of the requirement to file the I-751 jointly with the U.S.-citizen spouse).
 Id. § 216.4(a)(1) (I-751); id. § 216.6(a)(1) (I-829).
 See Questions and Answers: USCIS Field Opers. Directorate—American Immigration Lawyers Ass’n (AILA) Mtg., at 3 (Oct. 25, 2011), available at AILA InfoNet Doc. No. 12011061 (“If the I-829 or I-751 has been denied and an NTA [Notice to Appear] has been issued, but no final order of removal has been entered, then USCIS should follow established procedures for providing a temporary I-551 [green-card] stamp as evidence of the alien’s conditional resident status upon request at a local USCIS Field Office. The alien is eligible for temporary I-551 stamps until an Immigration Judge makes a final decision on the case.”).
 8 C.F.R. § 211.1(a)(5).
 This language on the receipt notice appears to conflict with the regulation at 8 C.F.R. § 211.1(a)(5), which permits reentry with an expired green card “accompanied by a filing receipt issued within the previous 6 months for either a Form I-751 . . . or Form I-829, . . . if seeking admission or readmission after a temporary absence of less than 1 year.”
 See Memorandum from William R. Yates, Acting Assoc. Dir. Opers., BCIS, to Interim Reg. Dirs., at 2 (Dec. 2, 2003), available at AILA InfoNet Doc. No. 03120940.
 See, e.g., 8 C.F.R. § 316.5(c)(1) (addressing how extended absences could break the period of continuous U.S. residence required for naturalization).
 See USCIS, I-9 Central Questions and Answers, http://www.uscis.gov/i-9-central/i-9-central-questions-answers/faq/may-i-accept-expired-document-form-i-9 (last visited Apr. 9, 2014) (“[Y]ou may accept an expired Permanent Resident Card (Form I-551) along with a Form I-797, Notice of Action, that indicates that the card is valid for an additional year, which is an acceptable List C evidence of employment authorization for one year as indicated on Form I-797.”).
 See 8 C.F.R. § 274a.2(b)(1)(vi) (listing the only circumstances when a receipt will be acceptable evidence of employment authorization, which do not include I-751 or I-829 receipts).
 Memorandum from Michael A. Pearson, Exec. Assoc. Comm’r, INS, to Reg Dirs. 2 (Sep. 29, 1999), available at AILA InfoNet Doc. No. 99100640 (“Although lawful permanent resident status is not affected by the expiration of the Form I-551 [green card], individuals will need to replace their cards to have valid evidence of their status and registration.”) [hereinafter Pearson Memo].
 See 8 C.F.R. § 1.1(p).
 USCIS’ current processing times for all applications and petitions are available at https://egov.uscis.gov/cris/processTimesDisplayInit.do.
 Many USCIS Application Support Centers will affix a sticker to an expiring or expired green card when the client attends the I-90 biometrics appointment. This sticker will extend the validity of the green card (typically for a period of 6 months), making it unnecessary to obtain a temporary green-card stamp for as long as the sticker is valid.
 USCIS, I-90, Application to Replace Permanent Resident Card, http://www.uscis.gov/i-90 (last visited Apr. 9, 2014).
 Pearson Memo, supra note 14, at 2-3.
 At the same time, there is a good reason to advise clients not to file a Form I-90 if they have been convicted of certain crimes. That is because I-90 applicants must undergo biometrics (fingerprints and photos) as part of I-90 processing, and this may bring their criminal history to the attention of the immigration authorities.
 INA § 264(e).
 Pearson Memo, supra note 14, at 3.