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MacElree Harvey Team Shines in “Bet-the-Company” Corporate Litigation

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A high-stakes lawsuit that threatens the continued existence of a business enterprise is often referred to in legal circles as “Bet the Company” litigation. Because the company’s survival depends on the outcome of the case, it is critical that the matter is entrusted to legal counsel with the skills and experience to deliver a successful result in these complex, “must win” cases.

MacElree Harvey’s litigation team, led by J. Charles Gerbron, Jr. and Robert A. Burke, recently achieved a highly favorable result in complex, multi-jurisdictional, “Bet-the-Company” litigation involving multimillion-dollar claims for alleged violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), breach of fiduciary duty, minority shareholder oppression, and related claims.

After securing dismissal of the RICO and related common-law claims brought derivatively by minority members of a limited liability company, the MacElree team guided its clients through extensive e-discovery, exhaustive depositions, and the litigation of multiple hard-fought discovery motions before ultimately achieving a remarkably favorable resolution for the clients. 

“Our clients were focused on total victory from day one and demonstrated incredible perseverance and determination throughout the litigation,” Gerbron said. “Representing clients in matters that are not only important to them but are critical to their business’ survival is both thrilling and humbling. We appreciate the confidence that our clients place in us.”

Gerbron credits the individual talents that each of the members of the MacElree team brought to the case. “Bob Burke is an unshakable, seasoned litigator who adroitly navigates all aspects of litigation in federal court, and Stephanie Donlevie was indispensable in her mastery of the surfeit of e-discovery that was involved in the case,” Gerbron said. “We are fortunate to have such a talented and dedicated team eager to achieve results for our clients.”

Subject to Review – Your Monthly Dose of Real Criminal Law: April 2024 Edition

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Did You Know? Did you know that there are increased penalties if a person charged with DUI refuses to submit to Blood Alcohol Content (BAC) testing? If the police arrest a person for DUI and take them to get a breath test, refusing to participate results in a mandatory minimum 72 hour sentence in jail. Essentially, if a person refuses to give a breath sample, the law treats the DUI as if they had the highest level BAC (0.16%+).

However, if a person is taken to the hospital for a blood test, rather than a breath test, there is no mandatory minimum jail sentence unless police have a valid search warrant.

The reason there is no mandatory 72 hour sentence for a blood test refusal is because the Supreme Court found blood tests to be so intrusive that police would need a warrant before adding a criminal penalty (i.e. more jail time) for refusing a blood test. If police have a warrant and the driver still refuses, then they are subject to the 72 hour mandatory minimum.

Criminal penalties aside, a refusal of either breath or blood results in a 12 month driving suspension through PennDOT. Penalties through PennDOT are not considered criminal penalties, but rather civil penalties. The rationale is that driving is a privilege, not a right. If a driver disputes that they refused testing, they can file a license suspension appeal through the civil court.

Case Law Update: The Pennsylvania Supreme Court decided 5 criminal appeals in February and March, and the Superior Court kept up the pace with 22 criminal appeals. Here is what I think is most important to know:

  • Refusing to hand over your license in a traffic stop for more than 25 minutes is a traffic offense, and a person who refuses to cooperate does not get to use the exception created for people who merely forget their license at home.
  • Police do not need a warrant to access GPS location data for a person who agreed to  wear a GPS ankle monitor as an alternative to incarceration.
  • A person on parole and residing at a community corrections center is still technically an “inmate” and any drugs possessed by them is considered “contraband.”

National News: Police can no longer request Ring camera footage from individuals through the Neighbors app after Ring announced it would be taking away the Request for Assistance tool. The Request for Assistance tool allowed police to request doorbell camera footage from people directly through the app regardless of its purpose and without a warrant.

Now police can either request Ring footage contacting individuals outside of the Neighbors app or by getting a warrant based on probable cause. This change followed a 5.8 million dollar settlement to the FTC related to allegations that Ring failed to implement safeguards to protect employees and third-party contractors from accessing customer videos.

Removing this feature adds a layer of protection to personal privacy, and if the police need footage and you do not want to offer it to them, they can apply for a search warrant.

What We’re Listening To: Caroline and Pete have been busy in the podcast studio! Four new episodes of the podcast Subject to Cross were released since the last Subject to Review update: 

  • Episode 42: The Full Force of the 2nd Amendment discusses the United States Supreme Court decision which ruled that in order to uphold any restriction related to firearms, the government must affirmatively prove that its firearms regulation is consistent with historical traditions that restrict a person’s right to keep and bear arms. Caroline and Pete review how this decision has impacted our practice, and some of the practical and political issues that have come up as a result.
  • Episode 43: Confirmation Bias in American Nightmare unpacks the Netflix series American Nightmare covering a 2015 home invasion and kidnapping in Vallejo, California. The Netflix series covers an area of true crime deserving of more attention: wrongful accusations and the traumatizing impact of police investigations.
  • Episode 44: Mental Health and Criminal Justice Caroline and Pete discuss a recent news article revealing that Dauphin County inmates in solitary confinement spent two weeks in November with no electricity.
  • Episode 45: “Free Meek” Pete and Caroline review upcoming changes to probation in Pennsylvania where courts are required to take an individualized approach to determining probation conditions, creating a presumption against confinement for minor technical violations, and requiring mandatory review conferences to allow for early termination of probation. 

What’s Next? If you have a topic that you want to see covered on Subject to Review, email Criminal Defense Attorney Mary Lawrence at [email protected].

New to Subject to Review and want to learn more about what it is and how it started? Check out the First Edition of Subject to Review.

School Daze – When Divorced Parents Cannot Agree on Schools for their Children

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Navigating the tumultuous waters of divorce does not, unfortunately, always end with the divorce decree. Because selecting a school is often one of the most challenging decisions that a parent must make for a child, disputes over a child’s education can add a layer of complexity and emotional strain to divorced parents.

When divorced parents are unable to agree on the best school for their children, the courts are often forced to determine in which school the children should enroll. A divorced parent advocating for certain public school districts over others, disagreements over which private independent or parochial school is best for their child, or whether both parents should contribute to the cost of tuition are, among others, the specific types of clashes often resolved by the courts.

Upon what criteria, clients often ask, do courts resolve these disputes? In Pennsylvania, the court acting as arbiter of educational disagreement will decide the issue based on the best interests of the child. To make that determination, the court will consider, on a case-by-case basis, all factors which legitimately have an effect upon the child’s physical, intellectual, moral, and spiritual well-being, including, without limitation:

  • quality of the schools under consideration, including reputation and academic performance;
  • extracurricular opportunities, including the availability of special programs;
  • educational needs of the child and the school’s ability to provide a good “fit”;
  • social needs and adjustment of the child;
  • proximity of the schools under consideration to the child’s primary residence;
  • continuity in an educational environment; and
  • preferences of the child.

As with any litigation, the parties must present evidence to the court in support of their position. Anecdotal references or supposition is, not surprisingly, insufficient. A persuasive presentation that will convince the court that a divorced parent’s preferred school is in the best interest of the child will therefore require convincing evidentiary support, articulate argument, intense preparation, and the right legal counsel to lead the way.

Should you be at an impasse with your former spouse regarding the critical matter of your child’s education, please contact MacElree Harvey attorneys J. Charles Gerbron, Jr. and Brian J. Forgue to discuss how to achieve your goals.

J. Charles Gerbron, Jr. is an experienced litigator who achieves favorable results for schools, individuals, and business in a variety of litigation and land use matters. Charlie can be reached at 610-840-0265 or [email protected].

Brian J. Forgue is a talented family law practitioner who represents clients in a variety of divorce, custody, and support matters. Brian can be reached at 610-840-0221 or [email protected].

Employment Law Update March 2024

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In March 2024, the employment law world saw several cutting-edge decisions by federal courts in the areas of transgender litigation and challenges to DEI initiatives.  Find out about the latest developments below.

Federal Circuit Court allows Transgender Harassment Lawsuit to Proceed

The Eleventh Circuit has resurrected a lawsuit alleging a hostile work environment filed by Tyler Copeland, a transgender correctional officer in Georgia who transitioned from female to male. U.S. Circuit Judge Jill Pryor stated that Copeland faced significant “misgendering” harassment, overturning a previous ruling that deemed the harassment not “severe or pervasive” enough. Copeland’s lawsuit against the Georgia Department of Corrections (GDOC) will proceed under a single count of Civil Rights Act Title VII violation. The court found that the harassment Copeland endured, including being repeatedly referred to as “ma’am” and “baby girl”, and subjected to sexually explicit derogatory comments, was substantial enough to impact Copland’s job performance and work environment.  Despite GDOC’s argument that the harassment wasn’t severe, Judge Pryor emphasized the frequency and impact of the mistreatment, highlighting the dangerous nature of Copeland’s workplace.  The decision could mark a significant development in addressing alleged discrimination against transgender individuals in the workplace.

The case is Tyler Copeland v. Georgia Department of Corrections, case number 22-13073, in the U.S. Court of Appeals for the Eleventh Circuit.

Federal Judge grants Injunction to Christian Business Group against Mandated Coverage for Gender Transition Treatment

A North Dakota federal judge has ruled in favor of a Christian business group by granting them exemption from providing coverage for gender transition treatment due to religious beliefs. U.S. District Judge Daniel M. Traynor supported the Christian Employers Alliance (CEA), issuing a permanent injunction against the Equal Employment Opportunity Commission (EEOC) and the Department of Health and Human Services (HHS) from enforcing mandates conflicting with religious convictions. This follows Traynor’s previous preliminary injunction, which the government appealed but later dropped. The judge emphasized that the government failed to prove its policies as the only means to protect transgender patients’ rights. Despite government arguments, the judge acknowledged CEA’s standing and recognized the harm members would face if forced to choose between compliance and religious beliefs. The ruling seems to reinforce the organization’s stance in safeguarding religious liberties within healthcare practices and business operations.

The case is Christian Employers Alliance v. U.S. Equal Employment Opportunity Commission et al., case number 1:21-cv-00195, in the U.S. District Court for the District of North Dakota.

Caucasian Colorado Worker’s 10th Circ. Loss in DEI Harassment Claim May Aid Future DEI Challenges

The Tenth Circuit recently dismissed a lawsuit brought by a former Colorado Department of Corrections officer, Joshua Young, who claimed racial harassment due to a mandatory diversity, equity, and inclusion (DEI) seminar. Although the court upheld the dismissal, commentators have stated that the decision outlines a roadmap for future challenges to DEI training programs. Management-side employment attorneys note that the court didn’t shut down the possibility of such claims, and actually set clear guidelines for potential future successes. The court expressed concerns about the content of Colorado’s DEI initiative, suggesting that ongoing commitment to similar programs could lead to plausible claims of hostile workplace environments. U.S. Circuit Judge Timothy Tymkovich emphasized that “race-based rhetoric” in such training sessions might foster racial discrimination and stereotypes. Additionally, Judge Tymkovich warned that requiring employees to endorse specific race-based ideological platforms could result in legal challenges. Although the decision may seem like a win for DEI advocates, the decision arguably provides a roadmap for potential future challenges to DEI training rather than being a rejection of such initiatives.

The case is Young v. Colorado Department of Corrections et al., case number 23-1063, in the U.S. Court of Appeals for the Tenth Circuit.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.

Can I Rebut the Child Support Formula?

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Probably not. This is because the Melson Formula acts as a rebuttable presumption. The result of the Melson Formula will be entered as the child support order absent a compelling reason to the contrary. Rebuttal cases are necessarily outliers. They often involve unusual fact-patterns or involve litigants with unusual incomes.

The most common types of rebuttal cases are high income cases. The Melson Formula assumes that as a parent’s income rises, the more money will be spent on the child’s standard of living. At some point, an increase in child support does not advance a child’s standard of living but merely transfers wealth from one parent to another. In those cases, the Family Court will conduct an enhanced needs analysis to award child support to enable the child to share in the more affluent parent’s standard of living but not to effectuate a wealth transfer. These cases are rare. The Melson Formula has been modified to adjust for incomes over $200,000 annually. Thus, unless a parent’s income is unusually high, the Melson Formula will likely apply.

If you have a question about the Melson Formula and whether it would apply to your case, Attorney Patrick Boyer can help. Patrick has litigated high income child support cases and can explain whether the Melson Formula would likely apply to your case. If the Melson Formula may not apply, Patrick can explain how an enhanced needs analysis may work. Patrick can be reached at 302-654-4454.

Employment Law Update February 2024

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February 2024 was full of significant legal developments nationally and in Pennsylvania.  Labor advocates saw a victory in the national forum with student-athletes getting the right to unionize, a labor loss locally with the Pennsylvania Supreme Court reigning in the application of the Pennsylvania Prevailing Wage Act for a college construction project, and a notable ruling rejected protections under the Americans with Disabilities Act for medical marijuana patients. Read about it below.

National Labor Relations Board (NLRB) deems Players on Dartmouth College’s Men’s Basketball Team as Employees, Granting Them the Right to Unionize

In a significant development for college athletics, the National Labor Relations Board (NLRB) has deemed players on Dartmouth College’s men’s basketball team as employees, granting them the right to unionize. NLRB Boston office director Laura Sacks clarified that this decision aligns with a 2016 ruling acknowledging graduate student assistants’ unionization rights, asserting that the players’ activities benefit the institution and are compensated in non-traditional forms like admission aids and gear.

This ruling, subject to Dartmouth’s potential appeal, reopens the debate over whether college student-athletes qualify as employees under the National Labor Relations Act (NLRA), a question left unanswered since 2015. The filing of a union petition by the Service Employees International Union Local 560 signals a resurgence of interest in athletes’ labor rights, echoing past efforts at Northwestern University in 2014.

Sacks emphasized the athletes’ significant contribution to Dartmouth’s reputation and their adherence to institutional control, further solidifying their classification as employees. While the ruling doesn’t specify an election date, it sets a precedent for the evolving landscape of collegiate sports labor relations.

The case is Dartmouth College/Dartmouth College Board of Trustees and Service Employees International Union Local 560, case number 01-RC-325633, before the National Labor Relations Board Region 1.

PA Supreme Court Rules that Union-Friendly Prevailing Wage Act Rules Do Not Apply To Ursinus Bonds

In a landmark ruling, the Supreme Court of Pennsylvania has determined that bonds arranged by a government-created authority for the expansion of Ursinus College, a private institution in Pennsylvania, do not constitute “public funds.” The decision, authored by Justice P. Kevin Brobson, reinforces that the project financed by these bonds, despite the authority’s involvement, does not fall under the purview of the state’s Prevailing Wage Act (PWA).

The court emphasized that the funds used for the project were private in nature and were to be repaid by a private entity, precluding the application of prevailing wage rules. This ruling underscores the distinction between public and private financing, highlighting that the involvement of a government entity in facilitating financing does not automatically subject a project to prevailing wage requirements.

The decision marks a victory for Ursinus College and sets a precedent clarifying the interpretation of the PWA in similar contexts, providing clarity for future projects financed through similar arrangements.

The case is Ursinus College v. Prevailing Wage Appeals Board, case number 18 MAP 2023, in the Supreme Court of Pennsylvania.

Federal Court Rules that ADA Does Not Protect Medical Pot Use

In a recent ruling, U.S. District Judge Geoffrey W. Crawford addressed the complex intersection of state legalization of medical marijuana and federal employment law, particularly concerning the Americans with Disabilities Act (ADA). The case involved Ivo Skoric, a transit worker terminated for testing positive for marijuana despite having a medical prescription.

Judge Crawford’s decision underscored a crucial point: while states like Vermont have legalized medical marijuana, federal law, which classifies marijuana as a Schedule I substance, prevails. This classification, denoting “no currently accepted medical use,” effectively limits the ADA’s protection for individuals using medical marijuana.

The judge dismissed Skoric’s civil rights lawsuit against his employer, Marble Valley Regional Transit District, citing the ADA’s inability to support claims of discrimination in such cases. Additionally, claims against the Vermont Department of Labor were dismissed, with jurisdictional considerations playing a pivotal role.

Skoric’s case exemplifies the complexities individuals face when navigating conflicting state and federal laws regarding medical marijuana use and employment rights. This ruling highlights the pressing need for legislative clarity and underscores the ongoing legal challenges in this evolving landscape.

The case is Skoric v. Marble Valley Regional Transit District et al., case number 2:23-cv-00064, in the U.S. District Court for the District of Vermont.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.

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