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Best Lawyers in America & US News – Best Lawyers Best Law Firms Overview

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Founded in 1981, Best Lawyers is one of the original lawyer rankings. Learn more about Best Lawyers in America and U.S. News – Best Lawyers Best Law Firms and why you should apply (and why you shouldn’t). | Elite Lawyer Management Legal Marketing Blog

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Four MBM Law attorneys were selected by peers for inclusion in the best lawyers in America.

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Pittsburgh, PA (August 18, 2022): Maiello Brungo & Maiello (MBM), a client-oriented, practical focused law firm, is pleased to announce that the following partners have been recognized in the 2023 U.S. edition of Best Lawyers.

Best Lawyers is one of the longest-running peer review publications among legal professionals and is universally recognized as a comprehensive guide to the nation's top attorneys.

Lawrence Maiello leads MBM's Real Estate Law practice, having specialized in the industry for over three decades. He possesses substantial experience with commercial, residential, and mixed-use real estate developments. Maiello is consistently recognized for his extensive Real Estate Law accomplishments by both clients and peers.

Michael Brungo, a partner with MBM, represents school districts, municipalities, and municipal authorities on issues including student rights and constitutional and civil rights issues. He also represents both public and private entities regarding employment matters including hiring and discipline and defending discrimination claims. Brungo also has extensive experience and success in collective bargaining.

John Prorok's legal expertise encompasses three decades of commercial real estate transactions, including construction loans and the sale and lease of mixed-use, office, and retail properties. Prorok received this distinction last year and has also been previously honored as a Pennsylvania Super Lawyer in the areas of business/corporate law.

David Raves specializes in construction law and is a registered architect in the Commonwealth of Pennsylvania. By integrating his architectural experience with his legal practice Raves' unique insight into the construction process affords his client's stellar legal representation. He is recognized by both peers and clients for his exceptional results in Construction Litigation, including being a Pennsylvania Super Lawyer every year since 2010.

ABOUT MAIELLO BRUNGO & MAIELLO, LLP

Maiello, Brungo & Maiello is a full-service law firm comprised of a team of diverse and experienced lawyers specializing in:

MBM is highly regarded for our collaborative, hands-on approach when working with clients to find tailored and comprehensive legal solutions. In every aspect of our engagement, we will consistently demonstrate a firm commitment to you.

Contact: Greta Kelly, Marketing Director
gsk@mbm-law.net
412-242-4400

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The Best Lawyers in America© - Maiello Brungo & Maiello

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Pittsburgh, PA (August 18, 2022): Maiello Brungo & Maiello (MBM), a client-oriented, practical focused law firm, is pleased to announce that the following partners have been recognized in the 2023 U.S. edition of Best Lawyers. Best Lawyers is one of the longest-running peer review publications among legal professionals and is universally recognized as a comprehensive guide to the nation's top attorneys.

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How Technology Affects Car Accident Cases

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How Technology Affects Car Accident Cases

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Technology has a tremendous impact on the way that we drive. Some technology has been created and implemented to help reduce the amount of collisions and accidents on the road. Therefore, many new car manufacturers are gradually increasing the amount of technology in their vehicles to make them even safer than previous models. However, not all technology has been helpful in reducing these issues. Many pieces of technology actually serve to distract drivers even more, and as handheld or portable technology becomes more prominent, the problem will get worse.

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Technology has a tremendous impact on the way that we drive. Some technology has been created and implemented to help reduce the amount of collisions and accidents on the road. Therefore, many new car manufacturers are gradually increasing the amount of technology in their vehicles to make them even safer than previous models. However, not all technology has been helpful in reducing these issues. Many pieces of technology actually serve to distract drivers even more, and as handheld or portable technology becomes more prominent, the problem will get worse.

How can Technology Prevent Car Accidents?

Lane Departure Warnings: In some car models, cameras are built into the vehicle in order to determine where a lane begins and ends. If the driver begins to drift out of the lane, the car uses a warning system to alert the driver to the deviation.

Steering Assist: Some vehicles also have a steering assist option. This means that when the car senses a deviation from a lane, the car will again use cameras to help guide the vehicle back into the correct lane.

Adaptive Cruise Control: Similar to standard cruise control, this version uses sensors to determine the speed of the vehicle in front of itself, matching the speed instead of continuing at the same speed as set on the cruise control.

Electronic Stability Systems: These have existed in many vehicles for a long time, but improvements to traction control help prevent vehicles from skidding or losing control on ice or other slippery surfaces.

Parking Assist: These describe a variety of different options, from rear-view and forward-facing cameras that assist the driver when pulling into spaces, to some systems that will identify a parking space and park the vehicle without the driver even having to touch the wheel.

Adaptive Headlights: These are swivel mounted headlights that move with the road, helping to see around corners before the vehicle goes around them.

Blind Spot Detectors: Typically mounted on the side-mirrors, these allow drivers to receive warnings from the vehicle if it detects another vehicle in their blind spots.

What Technology Contributes to Distracted Driving?

Cell Phones: Cell phones are probably one of the items most likely to cause a car accident. According to studies done by the National Safety Council, cell phones are responsible for roughly 26% of accidents due to texting, talking, or app usage.

Infotainment Systems: Because using these systems often requires the driver to take their eyes off the road, infotainment systems are also a major distractor in a vehicle that can lead to an accident.

How Can Technology Affect the Outcome of a Car Accident Case?

There are many ways that technology can impact the outcome of a car accident case. For example, all vehicles built after 2014 are required to have a 'black box' installed. This black box, known as an Event Data Recorder (EDR), can monitor and record various conditions that often lead to an accident, helping to prove the circumstances of the accident. It can record vehicle speeds, braking patterns, quick changes in velocity, throttle usage, airbag deployment, and whether the driver and passengers were using seat belts. Some EDR's even record the weight of the driver, which can help prove who was driving. Additionally, dash cameras have become very popular as well. These can be mounted in both the front and rear of a vehicle, and recorded to an SD card that can then be uploaded to a computer. This can help with disputes about who was at fault and whether the drivers were behaving abnormally when the accident occurred. Additionally, some insurance companies now use installable telematics devices or sensors to determine a person's driving habits before insuring them, giving them a better idea about whether the driver is responsible or not. Often, these pieces of technology can help resolve issues with insurance companies or civil suits regarding an accident.

How is Technology Changing the Car Insurance Industry?

All of this technology in modern vehicles allows the way we drive to be transformed into usable data. This can help insurance agents by providing them with data that tells them what kind of driver they may be insuring, and thus offering rates that are highly dependent on whether they are a responsible driver or not. Additionally, our increasingly networked way of life allows these agents to quickly look up whether these drivers have been a part of past claims and their overall driving history. As previously mentioned, telematic devices that are installed by the driver can then transmit data about the potential customer's driving style, which the agent can then base their decisions on which policies to offer the driver. Insurance agencies can also adjust their rates in response to the technology available within the car, discussed earlier in this article.

Technology continues to play a more important role in car accident cases. Stuart Carpey has over 30 years of experience as a top-rated personal injury attorney in Philadelphia and the surrounding areas. Contact Carpey Law if you were in an accident. We are here to help.

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How Technology Affects Car Accidents - Carpey Law

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Technology has a tremendous impact on the way that we drive. Some technology has been created and implemented to help reduce the amount of collisions and accidents on the road. Therefore, many new car manufacturers are gradually increasing the amount of technology in their vehicles to make them even safer than previous models.

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Understanding the Rising Car Accident Risks Caused by New Technology

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Understanding the Rising Car Accident Risks Caused by New Technology

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In some important ways, new technology has helped to bring down the rate of deaths caused by auto accidents. Features like automatic braking, reverse-view cameras and blind spot detectors, anti-lock brakes, and advances in airbags have helped to contribute to a decades-long decline in the number of people dying in auto accidents. Unfortunately, though, technology is a mixed blessing. While features like these make people safer, other types of tech like smartphones and in-vehicle entertainment systems have been a major contributing factor to making the roads more dangerous.

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In some important ways, new technology has helped to bring down the rate of deaths caused by auto accidents. Features like automatic braking, reverse-view cameras and blind spot detectors, anti-lock brakes, and advances in airbags have helped to contribute to a decades-long decline in the number of people dying in auto accidents. Unfortunately, though, technology is a mixed blessing. While features like these make people safer, other types of tech like smartphones and in-vehicle entertainment systems have been a major contributing factor to making the roads more dangerous.

According to New York Times, there was a big increase in car accident deaths from 2015 to 2016, after years of steady declines in the number of people killed in car crashes. During the first half of 2016, 17,775 people died in motor vehicle collisions on roads in the United States. This was 10.4 percent more people than had died in car accidents during the first half of 2015. The increase in the death rate was the biggest year-to-year increase in 50 years.

The New York Times attributes this rise to mobile technology, and so do many safety experts. Obviously, cell phones are a big issue, as motorists continue to use their phone in the car despite the known dangers. And as the National Safety Council (NSC) indicates, about 26 percent of all auto accidents now involve someone on their phone. Of course, phones have been around for a long time now, so phones alone cannot explain the big jump in death rates...although PC World does indicate 68 percent of adults now have smartphones, up from 35 percent just four short years ago.

One possible explanation for why death rates are jumping so much is the increased use of infotainment systems. These systems are being installed in more and more new cars as standard features, and they allow motorists to talk to their car, telling it to make phone calls, change the radio station, or enter data into a GPS device to get directions. Because more people are buying cars with infotainment systems, more people are using them-even as they drive. And in spite of warnings to drivers built into some infotainment systems not to use them while driving.

While infotainment systems are marketed as making distracted driving less of a problem, this might not be true. Yes, motorists can just talk without holding or looking at their phone, but they still have to devote brain power to talking to their car, or to a person on the other end of the line.

This means brain power and concentration isn't focused on driving and motorists can miss important information. The fact the NSC warns us that we miss around 50 percent of what's going on around you when you're talking is a big red flag, showing why people using infotainment systems may be contributing to the rising rate of auto accident deaths. If a motorist is distracted, by an infotainment system or otherwise, the motorist must be held accountable for any damages occurring as a result of an accident he caused.

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How Technology is Increasing Car Accident Risks : Coplan & Crane

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In some important ways, new technology has helped to bring down the rate of deaths caused by auto accidents. Features like automatic braking, reverse-view cameras and blind spot detectors, anti-lock brakes, and advances in airbags have helped to contribute to a decades-long decline in the number of people dying in auto accidents.

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Technology Causing Distracted Driving Accidents

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Technology Causing Distracted Driving Accidents

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Technology has become a part of our lives. It seems to be unavoidable. Keeping in touch with family, friends, co-workers, and others in a variety of places is a habit for most of us. Also, having the latest technology is a priority for many people purchasing new vehicles.
The National Highway Traffic Safety Administration (NHTSA) reports that within the last year, technology has contributed to more than 6 thousand deaths and 500 thousand injuries.

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Technology Causing Distracted Driving Accidents

February 17, 2021 | Category: Automobile Accidents | Share

Technology has become a part of our lives. It seems to be unavoidable. Keeping in touch with family, friends, co-workers, and others in a variety of places is a habit for most of us. Also, having the latest technology is a priority for many people purchasing new vehicles.

A Fort Myers car accident attorney says that newer vehicles come with a lot of technology, such as mapping, rearview cameras, early warning systems, and driver-assistance technologies for self-driving vehicles. Much of the technology is intended to prevent accidents.

The National Highway Traffic Safety Administration (NHTSA) reports that within the last year, technology has contributed to more than 6 thousand deaths and 500 thousand injuries.

The National Library of Medical says, "The evolution of computing, communication, and sensor technology is likely to affect young drivers more than others. The distraction potential of infotainment technology stresses the same vulnerabilities that already lead young drivers to crash more frequently than other drivers."

All of this technology is vying for a driver's attention. The attention should be on the act of driving.

The National Security Council (NSC) conducted a survey in which 67 percent of those surveyed said they felt they were at risk because another driver was distracted by technology. Yet, only 25 percent said their distraction from technology was putting others at risk. In part, this 'not me' attitude remains prevalent because people believe they are better drivers than those around them."

InsideScience.org says safety technology in new cars could be a problem when drivers do not understand or know how to respond to it. Automatic emergency braking and systems that keep vehicles from straying out of lanes may cause driver confusion and lead to accidents. Drivers need to learn how new technology works in their vehicles. This is especially true when drivers use rental vehicles.

Cell phones are a major technological contributor to accidents. The NSC reported the use of cell phones while driving leads to 1.6 million crashes every year. Close to 390 thousand injuries occur every year from texting while driving accidents.

The NSC reports that technology exists that can prevent many of the accidents caused by cell phone use while driving. There are blocking apps and devices that can help drivers focus more on their driving than on their cell phones. These apps and devices prevent drivers from making or accepting calls, texting, or accessing the internet.

NSC says, "Cell phone blocking technology is most often an app for Smartphones and is available from wireless services and companies that specialize in these apps. The most basic technologies prohibit calls or texts while a vehicle is in motion. More advanced systems are capable of blocking audio features and tracking speed and sudden stops. Many send a text or email notifications, providing helpful information for parents of teen drivers."

"If you or a loved one is injured in an accident because of the negligence of another, please contact the Fort Myers car accident legal team at Spivey Law Firm, Personal Injury Attorneys, P.A. after seeking medical attention. We represent people involved in numerous types of personal injury and wrongful death accidents throughout the state of Florida. All of our clients have unique personal injury cases. Our firm provides personal contact and communication along with aggressive representation. Please see our client Testimonials. There are no costs or attorney fees until we receive a monetary recovery for you, and we are available 24/7 to assist you," said Fort Myers Car Accident Attorney Randall Spivey.
Fort Myers Car Accident Attorney Randall L. Spivey is a Board Certified Trial Attorney - the highest recognition for competence bestowed by the Florida Bar and a distinction earned by just one percent (1%) of Florida attorneys. He has handled over 2,000 personal injury and wrongful death cases throughout Florida. For a free and confidential consultation to discuss your legal rights, contact Spivey Law Firm, Personal Injury Attorneys, P.A., in Lee County at 239.337.7483 or toll-free at 1.888.477.4839, or by email to Randall@SpiveyLaw.com. Visit SpiveyLaw.com for more information. You can Spivey Law Firm, Personal Injury Attorneys, P.A. in Charlotte County at 941.764.7748 and in Collier County at 239.793.7748.

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Distracted Driving Accidents Caused by Technology - Spivey Law

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February 17, 2021 | Category: Automobile Accidents | Share Technology has become a part of our lives. It seems to be unavoidable. Keeping in touch with family, friends, co-workers, and others in a variety of places is a habit for most of us. Also, having the latest technology is a priority for many people purchasing new vehicles.

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The Upstate Landlord's Guide to the NY Tenant Protection Act

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The Upstate Landlord's Guide to the NY Tenant Protection Act

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The Upstate Landlord's Guide to the NY Tenant Protection Act

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The Upstate Landlord's Guide to the NY Tenant Protection Act of 2019

On June 14, 2019, Governor Andrew Cuomo signed into law a sweeping package of New York statewide rent regulations known as the "Housing Stability and Tenant Protection Act of 2019" (bill S6458), bringing about the largest swath of changes to Landlord-Tenant law in NY in nearly a century.  New York State has long been known to be unfriendly toward business owners and investors, but this new package of laws has managed to make it even more difficult and costly for Landlords and property managers throughout the state to comply with its laundry-list of regulations, further driving up administrative costs, halting investment in lower-income housing, and making it harder, not easier, for low-income tenants to obtain housing throughout the state.

As property managers in the Capital Region, we fully understand that there are abusive and exploitative Landlords out there, and agree they must be stopped and laws in place to protect tenants.  We, like many other property managers and Landlords, pride ourselves in having great tenant relationships and being fair and honest, and our Google reviews from tenants reflect that; however, this new set of regulations has removed much of a Landlord's AND tenant's ability to be flexible regarding negotiated lease terms and approval criteria, which will only make it harder for tenants to qualify for housing, especially those with lower-income or poor credit.  As a result, we've already seen an uptick in vacancy rates as property managers and Landlords tighten their screening criteria, reduce capital budgets, and decline applicants that could have been approved in the past.

Breaking Down the Law, Clause by Clause

Since the law was passed in June, I've read dozens of articles summarizing certain parts of the law or providing various opinions on its efficacy, but none that broke it down in operational detail for Landlords in lay-terms, and even our attorneys weren't (and still aren't to a degree...) prepared to provide much guidance due to the sheer volume of clauses to interpret.  However, we were getting daily questions from panicked agents and clients about the law and needed to begin our company's compliance journey ourselves, so I decided to read the entire 74 page bill, break down the key components, and share my findings in this post.

This article breaks down the nitty-gritty details of these new laws clause-by-clause, and provides a guide for Landlords, property managers, real estate agents, and investors in Upstate New York for navigating this sea of new rules and regulations.  For each clause, I've included the actual excerpts from the law in italics, followed by the page number and line number where the clause is referenced from the bill's 74 page PDF document for your reference.  These are in order as they appear in the bill and following each excerpt, I've provided my own interpretation and opinion of the change which is NOT legal advice, just my thoughts as an Albany Capital Region property manager and investor.

Note: There were also a slew of regulations passed in this bill regarding mobile home parks, condo conversions, and NYC-specific items, but I'll not cover those in this article.

DISCLAIMER: I'm not a lawyer, and this article is NOT legal advice in any way.  I'm just a licensed property manager and investor in New York State, and below are word-for-word excerpts from the law, and my interpretations and opinions of them.  Please consult with your attorney before taking any action as a result of reading this article!

Here goes:

1. Non-Retaliation

New law: In an action or proceeding instituted against a tenant of premises or a unit to which this section is applicable, a rebuttable presumption that the landlord is acting in retaliation shall be created if the tenant establishes that the landlord served a notice to quit, or instituted an action or proceeding to recover possession, or attempted to substantially alter the terms of the tenancy, within one year after [...] a good faith complaint was made, by or in behalf of the tenant, to the landlord, the landlord's agent or a governmental authority of the landlord's violation of any health or safety law, regulation, code, or ordinance, the warranty of habitability under section 235b of this article, the duty to repair [...] or section 174 of the multiple residence law.  (P43 L20)

What it means: In the past, if a tenant lodged a maintenance or habitability complaint with a governmental authority and the Landlord non-renewed or evicted the tenant within the following 6 months, it was to be presumed that the Landlord was retaliating and the tenant could recover possession of the premises.  Under the new law, this has been extended to complaints lodged with not only with governmental authorities but with Landlords and/or property managers themselves, and the timing to be considered retaliation extended to 12 months.

Thoughts: This one mostly makes sense and protects a tenant from retaliation by slumlords that don't repair their properties, which I'm all for.  The only issue I see is that a Landlord that had already planned to lawfully alter lease terms or evict could run into issues if their property happened to develop a habitability violation during that time period and could be misconstrued as "retalitation".

2. Notice of Non-Renewal or Rent Increase

New law: Whenever a landlord intends to offer to renew the tenancy of an occupant in a residential dwelling unit with a rent increase equal to or greater than 5% above the current rent, or the landlord does not intend to renew the tenancy, the landlord shall provide written notice as required in subdivision two of this section. If the landlord fails to provide timely notice, the occupant's lawful tenancy shall continue under the existing terms of the tenancy from the date on which the landlord gave actual written notice until the notice period has expired, notwithstanding any provision of a lease or other tenancy agreement to the contrary.  a) If the tenant has occupied the unit for less than one year and does not have a lease term of at least one year, the landlord shall provide at least thirty days' notice.  b) If the tenant has occupied the unit for more than one year but less than two years, or has a lease term of at least one year but less than two years, the landlord shall provide at least sixty days' notice.  c) If the tenant has occupied the unit for more than two years or has a lease term of at least two years, the landlord shall provide at least ninety days' notice.  (P44 L24)

What it means: In the past, tenants and Landlords were both required to provide 30 days notice of non-renewal of lease.  Effective October 12, 2019, tenants are still only required to provide 30 days notice of non-renewal regardless of length of occupancy, but tenants who are being non-renewed or receiving a rent increase of greater than 5% must be notified in advance as follows:

Occupied less than 1 year: 30 days notice

Occupied 1-2 years: 60 days notice

Occupied more than 2 years: 90 days notice

Thoughts: A couple operational challenges here...The first is that in the past, going month-to-month with a tenant was a fair way to give both the tenant and Landlord flexibility to non-renew a lease at any time, and doing so was mostly in the tenant's favor so they could move out any time without breaking the lease.  Under this new law, since 2 year occupants still require 90 days notice of non-renewal, there's little reason for a Landlord to offer a month-to-month lease when they're still obligated to provide a 90 day notice of non-renewal anyway, so this will force tenants to choose to either lock in to a 12 month lease renewal or non-renew altogether.

This one is also a bit of an administrative headache in that a Landlord now needs to keep track of not only who is due for a rent increase, but also when they need to be notified.

3. Landlord Duty to Mitigate Damages

New law: In any lease or rental agreement, [...] if a tenant vacates a premises in violation of the terms of the lease, the landlord shall, in good faith and according to the landlord's resources and abilities, take reasonable and customary actions to rent the premises at fair market value or at the rate agreed to during the term of the tenancy, whichever is lower.  (P44 L46)

What it means: If a tenant breaks a lease, a landlord is only allowed to recover lost rent during the vacant period if the unit was re-rented at fair market value or the past tenant's rent amount, whichever is lower.  If the Landlord chooses to increase rents at this time, the Landlord forfeits any right to recover lost rents during the vacancy period.

Thoughts: This clause is reasonable and seems to be intended to discourage Landlords from testing the waters for unreasonably high rents following a lease-break since the past tenant is responsible to pay for the vacant period anyhow.

4. No Screening for Evictions

New law: No landlord of a residential premises shall refuse to rent or offer a lease to a potential tenant on the basis that the potential tenant was involved in a past or pending landlord-tenant action or summary proceeding under article seven of the real property actions and proceedings law. There shall be a rebuttable presumption that a person is in violation of this section if it is established that the person requested information from a tenant screening bureau relating to a potential tenant or otherwise inspected court records relating to a potential tenant and the person subsequently refuses to rent or offer a lease to the potential tenant.  (P45 L9)

What it means: It is now illegal for a Landlord to screen for prior evictions.  If a Landlord denies an applicant for any reason and it is found that they had screened for and found evidence of prior evictions, it will be presumed that the Landlord denied the applicant on that basis and will have violated NYS law.  Evictions will now be sealed and not made public.  This is effective as of July 14, 2019.

Thoughts: Totally outrageous.  Its well-known among property managers that prior evictions are highly predictive of future evictions, so that's one of the most common screening criteria used among property managers, and protects Landlords from renting to bad credit risks.  This is the rental equivalent of telling auto lenders that they can't screen for prior repossessions, or telling insurance carriers that they can't screen for prior accidents.

5. No Recovery of Attorney's Fees In Default Judgment

New law: A landlord may not recover attorneys' fees upon a default judgment.  (P46 L15)

What it means: Pretty self-explanatory, if a tenant fails to appear in court for eviction and a default judgment is made in the Landlord's favor, the Landlord may not attempt to recover any attorney's fees.

Thoughts: While not earth-shattering, its arbitrary and unfair for a Landlord to relinquish their right to recover damages incurred to them caused by a tenant failing to uphold their contractual obligations merely because that tenant fails to show up for their court date.

6. Receipts Must Be Provided For Rent

New law: Upon the receipt of the payment of rent for residential premises in the form of cash, or any instrument other than the personal check of the lessee, it shall be the duty of the lessor, or any agent of the lessor authorized to receive rent, to provide the lessee with a written receipt containing the following: 1. The date; 2. The amount; 3. The identity of the premises and period for which paid; and 4. The signature and title of the person receiving the rent.  A lessee may request, in writing, that a lessor provide a receipt for rent paid by personal check.

What it means: Landlords must provide written receipts for all cash payments of rent, and provide receipts if requested in writing by a tenant for personal checks.

Thoughts:  No issue here, this one is common sense and should already be a best practice by competent Landlords.

7. Late Rent Notices to be Sent By Certified Mail

New law: If a lessor, or an agent of a lessor authorized to receive rent, fails to receive payment for rent within five days of the date specified in a lease agreement, such lessor or agent shall send the lessee, by certified mail, a written notice stating the failure to receive such rent payment.  (P46 L45)

What it means: You must now mail a certified letter to a tenant notifying them that rent is late after 5 days, emails or texts are not sufficient even if acknowledged by the tenant.

Thoughts: A needless administrative headache and expense for Landlords.  For example, 100% of the tenants we manage owe rent on the 1st and pay online or with cash at any CVS location, and receive instant receipts.  Is it really necessary to remind them rent is past due by certified mail?

8. Limitation on Application Fees

New law: A landlord, lessor, sub-lessor or grantor may charge a fee or fees to reimburse costs associated with conducting a background check and credit check, provided the cumulative fee or fees for such checks is no more than the actual cost of the background check and credit check or twenty dollars, whichever is less. (P47 L16)

What it means: Simply put, you can't charge a tenant more than $20 or 5% per application, whichever is less.

Thoughts: Arbitrary and totally disconnected with the economic reality of processing applications.  This is an expensive problem for Landlords since the vast majority of major screening companies charge between $25 and $40 per screening, not to mention the additional soft costs incurred with processing each application, such as the time it takes to read and interpret each app, filing and storing the applications for multiple years, ensuring fair housing compliance, calling landlord references, verifying employment, and sending out Adverse Action notices to each declined applicant.  With application fees capped at $20, even the most efficient Landlords and property managers will take a loss on each application submitted, which will put a particular strain on Landlords of lower-income properties that have far lower application acceptance rates.

9. Limitation on Late Fees

New law: No landlord, lessor, sub-lessor or grantor may demand any payment, fee, or charge for the late payment of rent unless the payment of rent has not been made within five days of the date it was due, and such payment, fee, or charge shall not exceed fifty dollars or five percent of the monthly rent, whichever is less. (P47 L28)

What it means: Self-explanatory.

Thoughts: I can understand imposing a late fee limit to prevent unethical Landlords from charging usurious late fees, but to impose an absolute maximum limit of $50 without regard to how long rent has been late or the past due amount is arbitrary and disproportionately benefits those renting the most expensive properties, without providing much benefit to those in lower income properties.  Not to mention, once a tenant has maxed out their late fee, there is little reason for urgency on the tenant's part to pay up.

10. Only Base Rent May be Sought in Eviction Proceedings

New law: In a proceeding relating to a residential dwelling or housing accommodation, the term "rent" shall mean the monthly or weekly amount charged in consideration for the use and occupation of a dwelling pursuant to a written or oral rental agreement. No fees, charges or penalties other than rent may be sought in a summary proceeding pursuant to this article, notwithstanding any language to the contrary in any lease or rental agreement.  (P47 L37)

What it means: A Landlord can no longer seek to recoup any fees or charges that a tenant is due in an eviction proceeding; the landlord may only seek to recover the base rent amount.

Thoughts: Charges like late fees exist as an incentive for tenants to pay on time, and if a Landlord does not have any firepower to collect on those fees, their only option for penalizing a tenant for refusing to pay those fees will be to non-renew their lease and take the fees from their deposit or take them to small claims court, driving up vacancy, costs, and further exacerbating the affordable housing problem.

11.  Pay-Or-Quit Notice Time Extended

New law: A special proceeding may be maintained under this article upon the following grounds: The tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held, and a written demand of the rent has been made with at least fourteen days' notice requiring, in the alternative, the payment of the rent, or the possession of the premises, has been served upon him.  (P47 L56)

What it means: In the past, the first step of the eviction process was to formally deliver a notice to a tenant that rent was late in the form of a 3-Day Notice, notifying the tenant in writing that they had 3 days to either pay in full or vacate the premises, or the Landlord would proceed with the eviction process.  This notice has now been increased to 14 days.

Thoughts: One of the best, most well-known practices a Landlord can implement to minimize risk of evictions is to have policies in place that ensure tenants are heavily incentivized to never fall more than 1 week behind in rent.  That may sound callous and counter intuitive, but when a tenant is allowed several weeks of non-payment before encountering any consequence (as is now required by law), there is slim to no chance that the tenant will ever be able to catch up in rent again, and eviction will be highly likely in their future.  Conversely, when tenants are swiftly reminded of their rental obligations and consequences are imposed within one week, tenants are far more likely to have the means to catch up and never fall under threat of eviction.

12.  Rent Paid in Full During Eviction Nullifies Eviction

New law: In an action premised on a tenant defaulting in the payment of rent, payment to the landlord of the full amount of rent due, when such payment is made at any time prior to the hearing on the petition, shall be accepted by the landlord and renders moot the grounds on which the special proceeding was commenced. (P48, L26)

What it means: In the past, if a tenant still failed to pay rent after their grace period and 3-day notice had been delivered and expired, the eviction process was under way and the Landlord was not obligated to accept rent and could continue with eviction even if the tenant offered to pay rent in full during the eviction process.  Under the new law, regardless of the time and expense incurred by the landlord throughout the eviction process and the length of time the eviction has been drawn out, if a tenant provides payment in full of rent proceeds at any time during the eviction process, the eviction is thrown out and the landlord's expenses throughout the eviction are irrecoverable.

Thoughts: Evictions are a Landlord's method of last resort when a tenant has refused all other reasonable means to pay rent or vacate the premises voluntarily, and given the length of time an eviction can now be drawn out by the courts, can easily cost Landlords thousands in legal fees and lost rent.  By the time months have passed and thousands spent due to a tenants failure to pay, it is unreasonable to think that a Landlord should be forced to accept this tenants payment, only to risk having to repeat the process over again, and again, and again with the same tenant at zero expense incurred by the tenant.

13.  Tenant Response Time to Petition Extended

New law: The notice of petition shall be returnable before the clerk, and shall be made returnable within ten days after its service.  (P48 L34)

What it means: The time a tenant has to respond to notice of petition during an eviction proceeding has been increased from 5 to 10 days.

Thoughts: Further delaying eviction proceedings.  See thoughts, #11.

14.  Delivery of Warrant Response Time Extended

New law: The officer to whom the warrant is directed and delivered shall give at least fourteen days' notice, in writing and in the manner prescribed in this article for the service of a notice of petition, to the person or persons to be evicted or dispossessed and shall execute the warrant on a business day between the hours of sunrise and sunset.  (P52 L12)

What it means: The officer delivering a warrant during an eviction proceeding must now provide a 14-day notice to the tenant, which has been increased from 72 hours.  The warrant must also now be served on a business day.

Thoughts: Delaying evictions even further, see thoughts #11 and #13.  Between the certified letter for late rent after 5 days, followed by 14 day pay-or-quit notice, followed by 10 days to respond, followed by another 14 days of sheriff notice, not to mention weekends and holidays, I don't see how it would be possible to evict in New York in less than 60 days, and 90 would not be unlikely.  For many accidental Landlords holding mortgages on a single rental home as is common with some of our military clients, it would be possible for foreclosure proceedings to be held due to the Landlord's inability to pay the mortgage on their rental before the tenant could legally be evicted to recover the premises.

15.  Evictions Can Be Delayed Up to 12 Months

New law: In a proceeding to recover the possession of premises [...],the court, on application of the occupant, may stay the issuance of a warrant and also stay any execution to collect the costs of the proceeding for a period of not more than one year, if it appears that the premises are used for dwelling purposes; that the application is made in good faith; that the applicant cannot within the neighborhood secure suitable premises similar to those occupied by the applicant and that the applicant made due and reasonable efforts to secure such other premises, or that by reason of other facts it would occasion extreme hardship to the applicant or the applicant's family if the stay were not granted.  In determining whether refusal to grant a stay would occasion extreme hardship, the court shall consider serious ill health, significant exacerbation of an ongoing condition, a child's enrollment in a local school, and any other extenuating life circumstances affecting the ability of the applicant or the applicant's family to relocate and maintain quality of life. The court shall consider any substantial hardship the stay may impose on the landlord in determining whether to grant the stay or in setting the length or other terms of the stay. (P53 L7)

What it means: In short, a court may stay (delay) an eviction for up to 12 months if a tenant can prove "extreme hardship", which may be considered as having a child enrolled in school, or if the relocation could affect the tenant's "quality of life."  The Landlord is allowed to make their own case for hardship that the stay could cause the Landlord.

Thoughts: This is the big one that is justifiably causing Landlords and investors to rethink their investment in New York real estate altogether.  The thought of a tenant being legally allowed to remain in a property for a full year without paying rent to maintain "quality of life" isn't just unreasonable, it's legalized theft of a Landlord's property.  I will be very interested to see how this particular clause is challenged in the courts.

16.  No Collection of Double Deposit or Last Month's Rent

New law: No deposit or advance shall exceed the amount of one month's rent under such contract.  (P55 L55)

What it means: Security deposits are now limited to a max of 1 month's rent, and Landlords are no longer allowed to require last month's rent upfront.

Thoughts: Although this is intended as a tenant-protection measure, this clause effectively limits the rights of applicants with limited credit or income levels to provide additional security to the Landlord to secure an approval when minimum screening criteria are not met.  Since applicants can no longer provide additional security to Landlords, this will likely lead to significantly lower applicant approval levels and increased vacancy, particularly on lower-income housing.

17.  Tenant May Require Landlord to Conduct Multiple Move-In/Out Inspections

New law: After initial lease signing but before the tenant begins occupancy, the landlord shall offer the tenant the opportunity to inspect the premises with the landlord or the landlord's agent to determine the condition of the property. If the tenant requests such inspection, the parties shall execute a written agreement before the tenant begins occupancy of the unit attesting to the condition of the property and specifically noting any existing defects or damages.  (P56 L13)

Within a reasonable time after notification of either party's intention to terminate the tenancy, unless the tenant terminates the tenancy with less than two weeks' notice, the landlord shall notify the tenant in writing of the tenant's right to request an inspection before vacating the premises and of the tenant's right to be present at the inspection. If the tenant requests such an inspection, the inspection shall be made no earlier than two weeks and no later than one week before the end of the tenancy. The landlord shall provide at least forty-eight hours written notice of the date and time of the inspection.  After the inspection, the landlord shall provide the tenant with an itemized statement specifying repairs or cleaning that are proposed to be the basis of any deductions from the tenant's deposit. The tenant shall have the opportunity to cure any such condition before the end of the tenancy.  (P56 L22)

What it means: Landlord's must now offer tenants the opportunity for an in-person inspection with the Landlord after signing the lease but prior to move-in, and after notification of non-renewal but before vacating.  Tenant must have an opportunity to fix any issues before moving out.

Thoughts: Most quality property managers today utilize digital photo inspection platforms that are timestamped, GPS-stamped, and can be digitally acknowledged by a tenant on a mobile device at move-in and move-out, specifically for the purposes of accurately documenting property condition for the protection of all parties, and for streamlining the process and reducing the number of trips required for a unit turn.  Despite the use of all those technologies, this clause may now require 2 additional trips to a property during a turn which will further drive up Landlord costs, which will almost surely be passed on to tenants in the form of steeper rent.

18.  Deposits Must Be Returned Within 14 Days

New law: Within fourteen days after the tenant has vacated the premises, the landlord shall provide the tenant with an itemized statement indicating the basis for the amount of the deposit retained, if any, and shall return any remaining portion of the deposit to the tenant. If a landlord fails to provide the tenant with the statement and deposit within fourteen days, the landlord shall forfeit any right to retain any portion of the deposit.  (P56 L38)

What it means: In the past, a security deposit had to be returned within a "reasonable amount of time" following a tenant vacating.  Now, the security deposit and disposition form must be returned to the tenant within 14 days.

Thoughts: More administrative headache that is disconnected with the reality and challenges of handling deposit dispositions.  Following a vacancy with damages, Landlords must contact repair vendors, prepare scope of work documents, procure repair estimates at the property, prepare the deposit disposition form, and physically refund the deposit, which is nearly impossible in 2 weeks time.  If this time frame can't be met, this requirement encourages a Landlord to guess at a safe repair charge to withhold from a deposit prior to getting a quote, likely resulting in higher than normal deposit deductions to be taken from tenants.

In addition, the "burden of proof" for withholding security deposits for damages is now on the Landlord, so it is critically important to conduct detailed photo inspections during move-in and move-out, documenting and acknowledging condition throughout the property.

Conclusion

In typical New York State fashion, the legislature has passed this set of new laws with little regard to the unintended effects it will have on exactly the demographic they purport to protect, which is the lower-income tenant.  By making it more difficult to evict and to collect reasonable fees, Landlord's will be forced to heighten their application approval criteria to avoid taking on the risk of renting to lower-income tenants.  Developers will continue building more luxury, class-A apartments, and not take on the risk of building much-needed workforce and lower-income housing throughout the state.  The additional administrative costs resulting from additional regulation, as with any business, will be surely be passed on to the tenant in the form of increased rents to cover the Landlord's shortfall.

The Tenant Protection Act of 2019 doesn't protect tenants, it merely attempts to pass the burden, expense, and responsibility of providing subsidized housing from the State to Landlords.

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The Upstate Landlord’s Guide to the NY Tenant Protection Act of 2019

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On June 14, 2019, Governor Andrew Cuomo signed into law a sweeping package of New York statewide rent regulations known as the

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Rethinking the Landlord/Tenant Relationship in Retail

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Rethinking the Landlord/Tenant Relationship in Retail

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As a result of the COVID-19 pandemic, landlords/owners have frequently been forced to renegotiate leases with, or take back space from, restaurant, gym, movie theater and other retail tenants that have little to no credit and that built out their space at the landlord's cost.

As an alternative to either granting significant rent abatement to a nonperforming tenant or terminating the lease and living with dark space while attempting to relet the premises, some have been successful in introducing a management structure. Under that scenario, the owner identifies a qualified user such as a chef, an experienced restaurant operator, movie theater operator or gym operator who can take over the space as is and operate the facility for the owner under a "Management Agreement" that is similar to the structure of a hotel operating agreement. If appropriate, the user could be the nonperforming tenant, in which case it would be necessary to memorialize the tenant's transfer to the owner of its furniture, fixtures and equipment (FF&E) rights on the premises. Under this structure, the owner provides the space and funds required for the build-out process, and the manager hires personnel, orders equipment/food/inventory and operates the business. The manager and the owner split the "profits" based on a formula that allocates returns to each party. Typically, the manager gets a larger percentage of profits as profits increase. If the manager fails to achieve specified minimum returns, the owner can terminate the agreement or readjust the economics of the transaction.

When structured properly, one benefit of a management agreement is that it is a personal services contract that does not transfer a real property interest to the manager and, therefore, it can typically be terminated by owner without an eviction proceeding. Think of the Management Agreement as a cross between a lease and a joint venture agreement - it typically addresses the owner's commitment to fund certain startup costs, manager's reimbursement of such costs, use and ownership of personal and intellectual property (including the name of the business), and the quality and pricing of the products sold.

Holland & Knight attorneys have used this structure with restaurants, gyms and theater operations. Rather than allowing a retail space to remain dark, such a structure can provide an owner with the opportunity to operate the space at little cost or risk and potentially develop a profitable operation that benefits the entire project.

In some cases, Management Agreements are being used in lieu of leases at project inception, especially in connection with mixed-use projects where there are very few credit-worthy users capable of funding the build-out of restaurants or entertainment venues that are critical to the success of the project. Under this structure, the owner would be responsible for delivery of a turnkey facility to the selected operator. Holland & Knight recently structured such a deal for an entertainment venue in Washington, D.C. The key to that agreement was strict control by the owner over build-out costs and the operation of the facility, coupled with financial incentives for successful operation and the ability to quickly terminate the agreement in the event of poor performance.

Of course, there is no one size fits all, and each Management Agreement must be carefully crafted to address the particular situation and jurisdiction, but this structure can provide distinctive opportunities and benefits to retail owners.

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holland & knight retail and commercial development and leasing blog

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retail and commercial development and leasing blog

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Rethinking the Landlord/Tenant Relationship in Retail | Insights | Holland & Knight

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As a result of the COVID-19 pandemic, landlords/owners have frequently been forced to renegotiate leases with, or take back space from, restaurant, gym, movie theater and other retail tenants that have little to no credit and that built out their space at the landlord's cost.

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Major events in the past two years, e.g., the pandemic and the Ukraine war, have impacted the entire global marketplace and disrupted supply chains everywhere. No industry was immune to these events, and the commercial real estate market was especially hard hit.

Developing Pittsburgh (Spring 2022)

Attorneys Lawrence J. Maiello and Jason Kelley of Maiello, Brungo & Maiello, LLP address the issues landlords and tenants are facing in this "new normal" for an article published in the Spring 2022 edition of Developing Pittsburgh.

Read the Landlord/Tenant Legal Article

The Tall Timber Group provides this link if you wish to read the entire Spring 2022 issue.

Click here to read the article written by MBM Law's Real Estate Lawyers on pages 63 and 64 of the Developing Pittsburgh publication.

Additional Real Estate Advice

Our real estate attorneys want to answer your questions. If you need legal advice, please contact MBM Law today.

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Developing Pittsburgh: Delivery of Tenant Premises | MBM Law

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Major events in the past two years, e.g., the pandemic and the Ukraine war, have impacted the entire global marketplace and disrupted supply chains everywhere. No industry was immune to these events, and the commercial real estate market was especially hard hit. Attorneys Lawrence J.

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Employment law trends that employers need to watch in 2022

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Employment law trends that employers need to watch in 2022

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As we move further into 2022, employers and employees are going to be facing ongoing and new challenges in dealing with legal restrictions and rules around employment

In the coming year, challenges around legal restrictions and rules involving employment will be impacted by several factors. For example, companies’ continued response to the global COVID-19 pandemic will bring more questions about vaccine mandates, reasonable accommodations, and remote working issues that outside labor lawyers and in-house legal counsel will need to address and understand.

Further, employers are also going to have to be mindful of new employee policies pertaining to booster shots, OSHA guidance and rulings, and certain leave policies, as the pandemic continues and COVID-19 cases increase.

Here are some key issues to watch:

Religious & medical accommodations — A religious or medical accommodation is often times requested by an employee when a conflict arises between a specific task or position that the employee cannot fulfill due to a medical or religious reason. Today, this means that the vaccine requirement may create a need for an accommodation where an employee cannot fulfill that requirement due to medical or religious reasons.

On December 15, 2021, New York City released guidance on its private employer vaccine mandate that began on December 27. This mandate requires workers in New York City who perform in-person work or interact with the public to show proof they have received at least one dose of a COVID-19 vaccine. Consequently, for a lot of in-house attorneys this means putting together guidance for their companies’ Human Resources departments on how to start surveying the employee population to determine who is unvaccinated and may need a medical or religious accommodation. Obviously, this will start an interactive dialogue process; and since every accommodation is unique and fact-specific, employers will have to ask questions narrowly tailored to each situation.

When engaging in this interactive dialogue process, it is important to ask how the employee’s medical condition or nature of the employee’s religious belief precludes the employee from receiving the vaccine. This may require a deep dive into questioning someone’s beliefs, especially if they do not seem credible or sincerely held. Local and state jurisdictions may also provide additional clarification. In Texas, for example, an employee may decline vaccination based on a previous COVID-19 infection; and in Alabama, employers must also exempt employees from vaccine mandates if an employee presents evidence of COVID-19 antibodies or a past diagnosis of COVID-19.

Privacy & productivity concerns with remoting working — As return-to-work and hybrid scheduling continues into 2022, considerations for how employers monitor productivity without breaching privacy and confidentiality issues will become a bigger issue.

Employers that want to implement certain surveillance tools may be breaching privacy boundaries for employees; however, there are certain legal circles that advocate for certain surveillance tools that are legal.

Paid family leave laws — Paid family leave laws and coverage increased over the past few years in addition to a push for a federal mandate for paid family leave. Paid family leave provides eligible employees job-protected, paid time off to bond with children (newborn, fostered, or adopted), care for ill family members, and assist loved ones for care during military deployments. Paid family leave may also be available in some situations when an employee or their minor, dependent child is under an order of quarantine or isolation due to COVID-19.

The expectation among many state and federal legislators is that attention to paid family leave will only increase. In 2016, for example, New York state enacted the nation’s strongest and most comprehensive paid family leave policy specifically for working families. In November 2021, Governor Kathy Hochul signed legislation to further expand paid family leave to cover siblings, which goes into effective January 1, 2023.

Also, California introduced SB 83 in 2021, and Governor Gavin Newsom pushed to extend the maximum duration of paid family leave from six weeks to eight weeks, also allowing birth mothers to take an additional six to eight weeks to recover from childbirth under the state’s disability insurance program. SB 83 is expected to expand even more to six months of bonding time in 2022.

OSHA, vaccine mandates & the Supreme Court — The Biden administration’s vaccine mandate, the lawsuits against it, and the Supreme Court’s pending decision on the emergency mandate signed into law late last year is another issue watch. (Currently, the Court is hearing argument on the emergency mandate ordered by the Occupational Safety and Health Administration (OSHA) that required employers with 100 or more employees ensure those employees were vaccinated or have them provide a weekly negative COVID-19 test. The Court is expected to issue a ruling in the case in early February.)

For employers and in-house lawyers, if this mandate continues to stand, it will be the employer that needs to facilitate, fund, and coordinate all aspects of the COVID-19 testing for employees. In-house lawyers should be on top of the accommodation process as well as keeping track of keeping their companies in compliance with the mandate.

Mental health days — Many companies in 2021 started offering mental health days for employees. This was in large part due to the stressful effects of the pandemic and a continued trend of remote working. Questions now are arising however about how these days will be counted — for example, are employers compensating workers for these days? How many days should employees be given and for how long? Again, for in-house lawyers, this means working with their companies’ HR department to make sure employee policy handbooks are updated to reflect any changes to state law in 2022.

As much uncertainty continues going into 2022, in-house counsel and HR professionals need to closely monitor all updates and policy changes that pertain to any employment laws and workplace processes. Indeed, it’s crucial for both in-house counsel and HR professionals to work together to better create fluid operational and business plans for employers and incorporate these impending changes in 2022.

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Employment law trends that employers need to watch in 2022 - Thomson Reuters Institute

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In 2022, employers and employees are going to be facing ongoing and new challenges in dealing with legal restrictions and rules around employment.

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Labor and Employment Law: What’s New in 2022

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Labor and Employment Law: What’s New in 2022

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Thursday, December 30, 2021

Although the first of January is ultimately just another day in the grand scheme of things, many of us attach a special significance to it. It is a day where we symbolically leave our problems behind and press forward to see what the new year may bring. However, for better or worse, the law sees January 1, 2022, as just another day, and many of the developments employment law saw in 2021 will follow us into the new year. With that in mind, let’s take a look at some of the highlights in employment law that we have our eyes on as we begin the new year.

The Biden Administration’s OSHA Vaccine Mandate

On November 4, 2021, the Biden administration, through OSHA, instituted an emergency mandate requiring employers with 100 or more employees to either require each of their employees be vaccinated or provide a weekly negative COVID-19 test. Predictably, the legality of the mandate was immediately met with numerous lawsuits in courts across the country. The Biden administration decided not to attempt to enforce the mandate until the courts decided its lawfulness, but they will soon have a definitive answer as to whether they can move forward with enforcing the mandate.

In a rare move, the Supreme Court has significantly expedited the process for a case to appear before the Court and will hear oral argument on the legality of the OSHA mandate on January 7, 2022. What the Supreme Court decides will determine the fate of the mandate and, consequently, whether employers will ultimately need to ensure they are compliant with its requirements. Whatever the Court decides will be a huge development and will be a matter worth paying close attention to for both employers and employees alike.

New Requirements for Federal Contractors

Federal contractors know that keeping up with developments in employment laws, regulations, and best practices is a job in itself, and that looks to again be the case heading into 2022. The Office of Federal Contractor Compliance Programs (OFCCP) has long required contractors to create Affirmative Action Plans (AAP), but to date the only tool the OFCCP had to verify that federal contractors were creating, and following, AAPs was subjecting contractors to random audits. This looks to change dramatically in 2022, once the OFCCP opens its “AAP-VI” online reporting system. Although the date the new AAP-VI reporting system will go online is uncertain, what is almost certain is that all federal contractors will likely have to submit yearly AAPs to the system. Historically, when federal contractors are subjected to an audit, not having a written AAP on file is among the most common violations. However, that is likely to change under an AAP-VI reporting system that places reporting burden on every federal contractor rather than the unlucky few that are audited.

Also of consequence to federal contractors is the implementation date of Executive Order 14026, which raises the minimum wage for all federal contractor workers to $15 per hour. Beginning January 30, 2022, all new contracts, renewals of contracts, and extensions of existing contracts must comply with the $15 minimum wage requirement. Federal contractors should note that although the scope of who qualifies as a worker who must receive the $15 per hour wage is very broad, it is not absolute. There are a number of nuanced exceptions that may exempt either a worker or the type of work the worker is performing from being entitled to the $15 minimum wage.  Federal contractors will have to take adequate steps to ensure that they are aware of the new federal contractor minimum wage and which of their employees are entitled to receive it.

Return to an Employee-Friendly NLRB

When up against an ongoing pandemic and possible vaccine mandates, some potentially important developments can garner minimum attention. One such development may prove to be the shift from the employer-friendly NLRB of the Trump administration to the Biden administration’s NLRB, which has vocalized the intent to be more employee friendly and early returns show that to be true. In Biden’s first year in office the acting general counsel for the NLRB announced a return to “vigorous enforcement” of employee rights under the NLRA. Biden also announced a “White House Task Force on Worker Organizing and Empowerment” that is dedicated to “mobilizing the federal government’s policies, programs, and practices to empower workers to organize and successfully bargain with their employers.” While it remains to be seen how, and if, the Biden administration will take steps to further advocate for employees, the renewed discourse on organizing and unions is something to monitor in 2022. Likewise, many of the Trump Board decisions are under scrutiny and face reversal.

Renewed Attention to Employment Discrimination Legislation

Responding to the pandemic in 2020 required an all-hands-on-deck approach from Congress and state legislatures. And while 2021 did not bring about the end of the pandemic, it did see legislatures return to taking an interest in labor and employment legislation unrelated to COVID-19. On the federal level, the Senate is currently waiting to vote on the Pregnant Workers Fairness Act (PWFA), which would strengthen protections for pregnant workers by making it unlawful for employers to deny a pregnant person a reasonable accommodation (and not just those experiencing “difficult” pregnancies), just as it is unlawful to deny a reasonable accommodation to a disabled person under the ADA. Although the 50-50 gridlocked Senate is currently famous for not voting on bills that come before it, the PWFA has been championed as a bipartisan bill and support from both sides of the aisle may be enough to get the bill on President Biden’s desk.

There has also been a renewed interest in combating discrimination at the state and municipal level. California has made it unlawful to require employees to sign settlement or non-disparagement agreements relating to discrimination. Illinois has made it unlawful to discriminate against an employee for associating with a disabled person. In Montana, employers may no longer discriminate against an employee for the lawful use of marijuana while they are off work. In parts of North Carolina, the definition of protected class has been expanded to include sexual orientation, gender identity, gender expression and natural hairstyle. While non-exhaustive, this list demonstrates that the desire to legislate against workplace discrimination is on the docket for various local legislatures, across geographic and political spectrums. It will be interesting to find out both if this trend continues in 2022, as well as if it inspires similar legislation at the federal level.

© 2022 Bradley Arant Boult Cummings LLP National Law Review, Volume XI, Number 364

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Labor and Employment Law: What's New in 2022

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Many of the developments employment law saw in 2021 will follow us into the new year. With that in mind, let's take a look at some of the highlights in employment law that we have our eyes on as we begin the new year.

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WORKPLACE AND EMPLOYMENT LAW TRENDS FOR 2022

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WORKPLACE AND EMPLOYMENT LAW TRENDS FOR 2022

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As 2021 ends, Covd-19 and mandatory vaccines are still a major concern for employers and employees alike. This blog explores employment law trends for 2022.

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What is the Status of Mandatory Covid Vaccines for Employees in the New Year?

Federal guidelines and laws implemented this year spell out which specific industries and businesses will need to comply with COVID-19 vaccine mandates moving into the new year. The biggest piece of employment law that will affect businesses is the United States OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard. This law requires that employers who have 100 or more employees implement a mandatory vaccination policy, or that they also adopt a policy that requires employees to submit to regular COVID-19 testing and to wear a face covering instead of being vaccinated.

Another employment law on the books is the White House’s executive order 14042. This executive order targets federal contractors to ensure they are also adhering to COVID safety guidelines and protocols. Federal employees are already required to be vaccinated, but contractors were not required to be vaccinated previously. This executive order ensures that government contractors and subcontractors are either vaccinated or also submitting to regular tests and safety protocols.

Additionally, the COVID-19 Health Care Staff Vaccination Interim Final Rule requires workers in the healthcare industry to receive at least their first dose of the COVID-19 vaccine by the 5th of December of 2021, and that staff must be fully vaccinated by January 4th, 2022. However, there are exemptions for certain employees based on medical issues or religious exemptions. In addition, some states have implemented employment laws that require exemptions for religious reasons or to require additional sick leave for employees who have contracted COVID-19.

Are There Any Employment Law Issues Stemming From Employees Working Remotely?

First and foremost, the location where employees are working from can affect their pay. Different states have different laws addressing what the minimum pay rate is for workers, as well as the type of benefits they may receive. If you do have minimum wage workers working remotely, ensuring that you are meeting the required pay rate for their work is important.

Another major issue is tracking overtime and other timekeeping issues. Under federal employment laws, employers are required to pay one and a half times the employee’s regular rate of pay for hours worked past the standard 40-hour work week. This can be extremely difficult to keep track of for employees working remotely. Utilizing electronic timekeeping software can help by requiring employees to log all their worked hours and ensure that breaks are being taken regularly.

Additionally, discrimination issues are also still relevant in the remote workplace. Even when the workers are remote, it is important to ensure that employees are not facing issues based on their sex, race, color, religion, or any disability. In addition, some employers may face issues with workers’ compensation laws. Although work may be remote, that does not mean that employees cannot be injured on the job. This means that your business may be legally responsible, so ensuring compliance with these laws is a must.

What has Happened in 2021 Regarding the NLRB and What can We Expect in 2022?

Previously, the Trump-era National Labor Relations Board reversed an Obama-era employment law decision that held that multiple employers could claim joint-employment over an employee if they had a contractual right to control any condition of their employment. In 2021, the new administration reversed the Trump-era board decision. While this does not mean immediate changes to day-to-day operations, over the next year there will be efforts by the NLRB to revise these rules, which will likely result in rules that have significant implications for businesses that participate in joint employment.

What New Employment Laws Take Effect in PA and NJ in the New Year?

There is one new employment law taking effect in New Jersey in 2022, titled New Jersey AB 5892 (SB 3922), addressing employee misclassification. It ensures that companies that misclassify employees to avoid paying insurance premiums will be violating the Insurance Fraud Protection Act and will pay $5,000 for the first violation and additional fines for other violations.

In Pennsylvania, there is one new employment law taking effect in 2022, Philadelphia Bill Number 200625. This law prohibits employers from requiring potential new hires from undergoing drug testing for the presence of marijuana as a condition of their employment. However, it does not apply to public safety workers, federal contractors, caregivers, and commercial drivers.

Contact Zeff Law Firm If These Issues Will Affect you in the Workplace in the New Year

As we enter into the New Year, we anticipate that there will continue to be numerous employment law questions about workplace safety, mandatory vaccines, and other COVID-related precautions that employers must take. Zeff Law Firm is here to help you answer these questions and have a thorough understanding of your rights. Contact us today to discuss any of these issues you may be having in your workplace.

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Workplace and Employment Law Trends for 2022 - Zeff Law Firm

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As 2021 ends, Covd-19 and mandatory vaccines are still a major concern for employers and employees alike. This blog explores employment law trends for 2022.

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By Andrew Ling U.S. Supreme Court Justice Stephen G. Breyer’s retirement announcement last month puts the focus on his replacement, but it also requires looking back at the justice’s record.

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U.S. Supreme Court Justice Stephen G. Breyer 's retirement announcement last month puts the focus on his replacement, but it also requires looking back at the justice's record. Serving more than two decades on the Court, he has made important contributions to U.S. jurisprudence on arbitration, in both domestic and international contexts.

Breyer officially retired on Jan. 27, just ahead of the Court's winter recess. It returns this week, with an opinion expected soon on the one arbitration case argued so far this year, Badgerow v. Walters, No. 20-1143 (see Russ Bleemer, "Supreme Court Hears Badgerow, and Leans to Allowing Federal Courts to Broadly Decide on Arbitration Awards and Challenges," (Nov. 2)), and four more arbitration arguments slated for next month. See Russ Bleemer, "The Supreme Court's Six‐Pack Is Set to Refine Arbitration Practice," 40 Alternatives 17 (February 2022) (available on open access at https://bit.ly/3GDEJEK).

In 1995, in his second year on the bench, Breyer drafted two frequently cited Federal Arbitration Act opinions. In the first, Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265 (1995) (available at https://bit.ly/3uUcJu5), Breyer wrote that the FAA applies to all transactions involving interstate commerce, even if the parties did not contemplate an interstate commerce connection.

The holding endorsed a broad FAA reading-specifically on 9 U. S. C. § 2, which "makes enforceable a written arbitration provision in "a contract evidencing a transaction involving commerce."

In First Options of Chicago Inc. v. Kaplan, 514 U.S. 938 (1995) (available at http://bit.ly/2WEXGnF), Breyer set up the general principle that courts, not arbitrators, should decide whether a dispute is subject to arbitration, phrased as the "question of arbitrability."

To submit questions of arbitrability to arbitration, there must be clear and unmistakable evidence indicating such intent from the parties. As Columbia Law Prof. George Bermann commented, First Options recognizes "the fundamental importance of consent to arbitrate," and guarantees parties' rights to an independent judicial determination. See George A. Bermann, "After First Options: Delegation Run Amok," American Review of International Arbitration (Sep. 2021) (available at https://bit.ly/3oV54bb).

By contrast, when an issue does not raise a question of arbitrability, it should be presumptively decided by an arbitrator. In Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002) (available at https://bit.ly/2yiejeh), Justice Breyer wrote that a FINRA time-limit rule for submission to arbitration is a procedural issue that an arbitral tribunal should decide. This approach achieves a balance between respecting arbitrators' authority and parties' consent to arbitrate.

Justice Breyer is recognized as an international arbitration authority. As he argued in his 2015 book, "The Court and The World: American Law and the New Global Realities" (Penguin Random House), the Court must look at foreign and international laws in today's increasingly interdependent world.

Breyer put his philosophy to use in the investment treaty case of BG Group PLC v. Argentina, 572 U.S. 25 (2014) (available at https://bit.ly/3LIfLb8). The matter dealt with an enforcement action of a foreign investment arbitral award. Breyer, writing for the 6-2 Court, held that a treaty precondition to arbitration is a procedural issue that usually leaves the arbitral tribunal to decide, and the court should defer to the tribunal's decision on that matter.

But the view was expansive. Breyer cited multiple international authorities and wrote that a bilateral investment treaty should not be treated differently from a contract.

Washington, D.C.-based Paul Hastings partner Igor Timofeyev praised the opinion for bringing predictability to the enforcement of investment arbitral awards in the U.S. See Caroline Simson, "Justice Breyer Set Many Standards for Arbitration Community," Law 360 (Jan. 27) (available at https://bit.ly/3oSQoJO).

Justice Breyer's arbitration opinions also reflect his often-noted pragmatic streak. He drafted majority opinions on class arbitration, such as Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003) (available at https://bit.ly/33putSQ) (designating that the decision on the contract in the case about the applicability of class arbitration was for the arbitrators, not the court), and Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 (2019) (available at https://bit.ly/3696Cb2) (finding that "Like silence, ambiguity does not provide a sufficient basis to conclude that parties to an arbitration agreement agreed to 'sacrifice[ ] the principal advantage of arbitration,'" and reaffirming that "courts may not infer consent to participate in class arbitration absent an affirmative 'contractual basis for concluding that the party agreed to do so.'")

But Justice Breyer also sometimes found himself in the minority. In the seminal consumer arbitration case, AT&T Mobility LLC v. Concepcion, 563 U.S. 133 (2011) (available at https://bit.ly/3LEpkHV), the Court ruled that the Federal Arbitration Act preempted California arbitration law, which barred class arbitration. While Breyer drafted a dissenting opinion in the case, he upheld and applied Concepcion in his majority decision in DIRECTV Inc. v. Imburgia, 577 U.S. 47 (2015) (available at https://bit.ly/3gS8DKQ). He wrote,

No one denies that lower courts must follow this Court's holding in Concepcion. The fact that Concepcion was a closely divided case, resulting in a decision from which four Justices dissented, has no bearing on that undisputed obligation. Lower court judges are certainly free to note their disagreement with a decision of this Court. But the "Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source." . . . The Federal Arbitration Act is a law of the United States, and Concepcion is an authoritative interpretation of that Act. Consequently, the judges of every State must follow it.

For Justice Breyer, "it's the court's job to help make government work for real people," according to a former law clerk. See Richard Wolf, "After 20 Years, Breyer Is High Court's Raging Pragmatist," USA Today (Aug. 7, 2014) (available at https://bit.ly/3GTfu1m).

In Breyer's view, by following judicial precedents, the Court contributes to social stability and allows people to plan their lives. He said, "The law might not be perfect but if you're changing it all the time people won't know what to do, and the more you change it the more people will ask to have it changed, and the more the court hears that, the more they'll change it." Andrew Chung, "U.S. Justice Breyer Touts Compromise, Democracy, Adherence to Precedent," Reuters (May 28, 2021) (available at https://reut.rs/3Ju4Wr4).
* * * The author, a third-year law student at the University of Texas School of Law, in Austin, Texas, is a CPR 2022 Spring Intern.
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By Andrew Ling U.S. Supreme Court Justice Stephen G. Breyer's retirement announcement last month puts the focus on his replacement, but it also requires looking back at the justice's record. Serving more than two decades on the Court, he has made important contributions to U.S. jurisprudence on arbitration, in both domestic and international contexts.

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Looking Back: Spotlight on Justice Breyer’s Employment Law Legacy

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Looking Back: Spotlight on Justice Breyer’s Employment Law Legacy

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Justice Stephen Breyer formally announced his retirement from the nine-member U.S. Supreme Court, effective at the start of the 2022
summer recess.In his nearly three decades on the bench, Justice Breyer became known as a pragmatic justice who sought compromise.

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Looking Back: Spotlight on Justice Breyer’s Employment Law Legacy

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&nbsp; On the bench 1994&ndash;2022 (28 years) Appointed by President Bill Clinton Authored the seminal decision establishing the legal standard for retaliation claims under T

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As Justice Stephen Breyer retires from the US Supreme Court, Zeff Law Firm takes a look back at his employment law legacy.

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Justice Breyer announced his intention to retire from the Supreme Court bench this summer. Though every Justice who serves on the Supreme Court leaves some sort of legacy on our legal system and the interpretation of the laws of our nation, there is no denying that Justice Breyer's contributions dramatically changed employment law. In this article, we take a look at the impact Justice Breyer had on employment law.

How did the Definition of "Retaliation" Change Under Title VII?

In 2006, Justice Breyer issued the opinion in the case Burlington N. & Santa Fe Ry. Co. v. White. In that case, a woman reported the harassment to her employer, and shortly thereafter, was demoted to a less desirable position and suspended without pay. The woman sued her employer claiming retaliatory discrimination under Title VII. In his opinion, Justice Breyer created the standard by which we analyze retaliation in employment law by writing that in order to prevail on a claim of retaliatory discrimination, a plaintiff must show the employer's actions "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." In other words, this opinion expanded the scope of retaliation under Title VII to include employer actions that are likely to deter discrimination victims from complaining or reporting harassment.

How did the Definition of "Complaint" Change Regarding FLSA Law?

Four years later, Justice Breyer issued another opinion changing the state of employment law in Kasten v. Saint-Gobain Performance Plastics Corp. This case dealt with retaliatory termination under the Fair Labor Standards Act, or FLSA. An employee was fired after raising numerous verbal complaints about the location of the time clocks in the facility he worked in. His employer argued that FLSA's anti-retaliation provision did not include verbal complaints. Justice Breyer and five other Justices disagreed. Consequently, Justice Breyer's opinion expanded the scope of FLSA's anti-retaliation law by expanding the definition of a complaint to include even informal, verbal complaints.

What was the Decision on Retaliation Based on Race in 1981?

In CBOCS W., Inc. v. Humphries, the Supreme Court faced the question of whether an employee can sue an employer for retaliation under the Civil Rights Act. In this case, Humphries was terminated from his job, and filed suit under the Civil Rights Act, claiming that his employer had wrongfully retaliated against him due to his race. Before this case was heard by the Supreme Court, the Civil Rights Act was understood to prevent discrimination on the basis of race - it was not necessarily interpreted to prevent employment retaliation on the basis of race. Analyzing the history of the Civil Rights Act and the historical interpretation of the statute, Justice Breyer concluded that retaliation on the basis of race was prohibited by the Civil Rights Act, and once again changed the landscape of employment law in the US.

What did the Court Rule About Perceived, Rather than Actual Engagement in Protected Political Activity in 2016?

In the case Heffernan v. City of Paterson, a police officer sued the City after he was demoted. The basis of his demotion was that he was seen by another officer picking up a mayoral campaign sign, which the employer argued was overt involvement in political activities. The officer denied that he was involved in such activities and he merely picked up a sign for his mother. Thus, the Court was faced with the question of whether the First Amendment provides a right of action for employees for retaliation when the government takes a negative employment action against that employee based on perceived political activity. Justice Breyer held that it does - even if the employee had not engaged in a constitutionally protected activity. According to employment law, an employee is still entitled to file his or her claim with the court under the First Amendment.

What other Important Employment Law Cases has Justice Breyer Heard?

While these are some of the more monumental cases that Justice Breyer wrote opinions for, yet there are several more employment law cases that he has heard during the course of his 30 years on the Supreme Court Bench. For example:

In Doe v. Mills, Justice Breyer denied an application for injunctive relief that sought to prevent Maine from enforcing a COVID-19 vaccine mandate for healthcare workers without a religious exemption.

In E. Associated Coal Corp. v. Mine Workers, Justice Breyer upheld the arbitrator's ability to determine an appropriate award in an employment dispute.

In US Airways, Inc. v. Barnett, Justice Breyer held in a close 5-4 decision that any request for an accommodation under the Americans with Disabilities Act that conflicts with an employer's seniority system is, by definition, unreasonable.

What does the employment law community expect from Ketanji Brown Jackson, if confirmed to the Supreme Court?

Throughout his time on the Supreme Court Bench, Justice Breyer worked hard to continue to expand the employment law rights of employees to protect them from unjust retaliation. As a judge with a professional background with significant public service, we are hopeful that if Ketanji Brown Jackson is confirmed, she will continue the positive trajectory for employees that Justice Breyer has set into motion.

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Justice Breyer's Employment Law Legacy - Zeff Law Firm

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Justice Breyer announced his intention to retire from the Supreme Court bench this summer. Though every Justice who serves on the Supreme Court leaves some sort of legacy on our legal system and the interpretation of the laws of our nation, there is no denying that Justice Breyer's contributions dramatically changed employment law.

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WHAT IS THE TRADEMARK MODERNIZATION ACT AND HOW DOES IT AFFECT YOU?

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WHAT IS THE TRADEMARK MODERNIZATION ACT AND HOW DOES IT AFFECT YOU?

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The Trademark Modernization Act of 2020 ("TMA") was signed into law on December 27, 2020, and went into effect on December 27, 2021. The TMA amends the U.S. Trademark Act (Lanham Act) in three (3) key ways. First, it institutes new tools to remove USPTO trademark filings that are based on inaccurate or false claims of use in U.S. commerce. Second, the TMA provides Trademark Examining Attorneys with the discretionary authority to shorten response times to respond to office actions. Third, it restores the rebuttable presumption of irreparable harm in jurisdictions that have dismissed it.

Tools to Remove Inaccurate Claims of Use

One of the biggest reasons for the TMA is the increase in suspicious submissions, which range from inaccurate to fraudulent, many of which originate from foreign applicants and registrants. This new tool is intended to clear and de-clutter the USPTO Trademark Register of trademarks that are not in use and make way for others. Finding an available trademark has frequently been frustrating for trademark owners, and options for canceling or challenging fraudulent and/or non-used trademarks have been limited. Now, with the TMA implementation, trademark owners have a more cost-effective and time-efficient option to challenge third-party marks instead of relying on cancellation or litigation proceedings.

The TMA provides two (2) new options for challenging a registration based on non-use of a trademark: (1) Reexamination; and (2) Expungement. The filing requirements and considerations for each option follow.

What is a Petition for Expungement?

A Petition for Expungement is a document filed with the USPTO where any party may request cancellation of some or all of the goods or services in a registration by claiming that the registrant never used the trademark in commerce with those goods or services.

How to Initiate: the complaining party must supply evidence of reasonable investigation showing that the registered mark was never used for the goods/services identified in the petition.

Timing: a petition for expungement can be filed between the THIRD and TENTH anniversaries of the registration.

Result: a successful challenge will result in the removal of any goods/services not in use under the trademark.

Foreign Registrants: Section 44 and 66 registrants (usually foreign trademark owners that rely on home-country registrations to secure U.S. trademarks instead of relying on use) can establish excusable non-use for the first five (5) years of registration.

What is a Petition for Reexamination?

A Petition for Reexamination is a document filed with the USPTO where any party may request cancellation of some or all of the goods or services in a registration on the basis that the trademark was not in use in commerce with those goods or services on or before the application or statement of use filing date.

How to Initiate: the complaining party must supply evidence of reasonable investigation showing that the registered mark was not in use for the goods/services identified in the petition at the time the use-based application was filed or at the time the amendment to allege use was filed.

Timing: a petition for reexamination must be filed before the FIFTH anniversary of the registration.

Result: a successful challenge will result in the removal of any goods/services not in use under the trademark.

USPTO can institute a re-examination on its own.

Establishing Reasonable Investigation

A petition must include a verified statement that a reasonable investigation was conducted to determine the trademark has not been used. The statement must describe the sources searched, how and when the searches were conducted, and what information and evidence, if any, the searches produced.

The investigation should establish that a search for use in relevant channels of trade or advertising for the identified goods/services did not reveal use. A search of a single Internet search engine will not likely be considered sufficient.

Responding to an Expungement or Re-Examination Proceeding

If the petition establishes a sufficient claim of nonuse, the USPTO will initiate either an Expungement or Reexamination proceeding. Once a proceeding is initiated, such determination is final and non-reviewable and ends the petitioner's involvement.

Next, the USPTO Trademark Examining Attorney will issue an office action that notifies the registrant about the proceeding. In response, the registrant must provide evidence of use for the goods or services in question for the relevant time period. A registrant will have three (3) months to respond by either (i) providing appropriate evidence; or (ii) deleting some or all of the goods or services at issue from the registration.

A registrant can provide the following evidence to the USPTO in response to the Petition:

Images showing use of the mark on goods/services at issue,

Images showing use of the mark on containers or packaging for the goods at issue,

Images showing use of the mark on labels or tags affixed to the goods at issue,

Images showing use of the mark on a display associated with the good at issue (in-store display) in a point-of-sale nature,

Advertisements showing use of the mark in connection with the services at issue.

Such evidence must be accompanied by a verified statement setting forth in numbered paragraphs factual information about the images provided. If no response is filed by the due date, the proceeding will be terminated and the registration will be canceled in whole or part, as appropriate. If a response is filed by the due date, the USPTO Trademark Examining Attorney will consider all the evidence and decide whether the registration should be canceled as to some or all of the challenged goods or services.

If a registrant is unhappy with the outcome and would like to appeal or request a reconsideration of the decision, they will have three (3) months to do so. If no request or appeal is filed, the USPTO will issue a notice of termination of the proceeding that specifies the final determination regarding the goods or services at issue, and the registration will be canceled in whole or in part.

Additional Information

Filing fees of $400 per class; professional fees separately charged

Discretionary Shortened Office Action Deadlines

Under the USPTO's current rules, applicants must respond to USPTO Office Actions within six (6) months from the issuance date to avoid the abandonment of an application. Due to rising concerns relating to applications and registrations on the USPTO Trademark Register not in use in U.S. commerce, the TMA now gives Trademark Examining Attorneys the ability to set a shorter response period depending on the issues involved in the Office Action.

Restoration of Presumption of Irreparable Harm

A trademark owner seeking a court order to stop an infringer from using its trademark must first prove that the trademark owner will be "irreparably harmed" if the infringer is not stopped. Before the TMA, courts were split on the standard for injunctive relief in trademark infringement cases. The TMA now clarifies that a nationwide uniform standard of presumption of irreparable harm should be applied in trademark cases. This presumption simplifies the process for obtaining injunctive relief.

Practical Pointers

Hire a lawyer to assist you with filing or responding to Petitions for Expungement or Reconsideration.

Keep updated contact information with your counsel and the USPTO. If you have a change in address or e-mail, notify all relevant parties so that any petitions are directed to you expeditiously.

Trademark owners should consider an audit of their own trademarks and registrations and consider taking proactive steps at the time of registration maintenance or renewal to delete goods and/or services from registrations that are no longer in use to avoid a non-use challenge.

Pay close attention to each response deadline upon receipt of an Office Action, as we may start seeing much shorter response periods than the accustomed 6-month period.

If you have been issued a Petition for Expungement or Reexamination, we at MAVEN® IP are trained and qualified U.S. trademark attorneys and we would love to help you with filing a response. We are transparent about our fees, and our goal is to file responses that will persuade the USPTO to let the registration stand.

We would be happy to schedule a free 15-minute consultation to discuss your legal needs. Please use the contact form on our website, or the consultation links in our attorney's profiles, if you need further assistance.

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WHAT IS THE TRADEMARK MODERNIZATION ACT AND HOW DOES IT AFFECT YOU? - MAVEN IP

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The Trademark Modernization Act of 2020 ("TMA") was signed into law on December 27, 2020, and went into effect on December 27, 2021. The TMA amends the U.S. Trademark Act (Lanham Act) in three (3) key ways. First, it institutes new tools to remove USPTO trademark filings that are based on inaccurate or false claims [...]

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The Trademark Modernization Act: New Procedures, New Deadlines and New Standards

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The Trademark Modernization Act: New Procedures, New Deadlines and New Standards

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On December 18, 2021, the U.S. Patent and Trademark Office (USPTO) rules implementing the Trademark Modernization Act of 2020 (TMA) went into effect. The first major overhaul of the Lanham Act since 1998, the TMA introduced new tools to remove unused trademarks from the Register and expedite the overall registration process. This client alert highlights certain key new procedures, deadlines, and standards under the TMA rules and their impact on brand owners.

Expungement and Reexamination Proceedings

The TMA rules implement two new ex parte mechanisms to cancel trademark registrations in whole or in part on the basis that the marks are not used in U.S. commerce:

1. Expungement. In an expungement proceeding, anyone may petition the USPTO to cancel all or part of the goods or services identified in a registration for a mark that has never been used in commerce. Until December 18, 2023, expungement may be requested for any registration at least three years old. Thereafter, expungement proceedings can be filed between three and ten years after issuance of a registration.

2. Reexamination. In a reexamination proceeding, anyone may petition the USPTO to cancel all or part of the goods or services identified in a registration if the mark was not in use for those goods or services as of the application date (for use-based applications) or the deadline to file a statement of use (for intent-to-use-based applications). Reexamination proceedings may be instituted during the first five years following the registration date. The USPTO Director also has limited discretion to initiate expungement and reexamination proceedings on its own.

To institute an expungement or reexamination proceeding, a petitioner must: (1) submit a verified statement with evidence demonstrating its "reasonable investigation" of the registrant's use of the subject mark; and (2) remit a $400 filing fee per class of goods or services. To satisfy the "reasonable investigation" requirement, a petitioner must undertake "an appropriately comprehensive search ... [of] reasonably accessible sources where evidence concerning use of the mark during the relevant time period on or in connection with the relevant goods and/or services would normally be found." As evidence of an investigation, the USPTO may accept federal and state trademark records, marketing materials, internet websites and online media, private investigation materials and any other reasonably accessible source material.

If the USPTO Director determines there is sufficient evidence to establish a prima facie case of non-use, the Director will institute a proceeding by issuing an office action to the registrant. The registrant will have three months to respond to the office action and can extend the deadline by one month for a $125 fee. The Director must then decide whether the registration should be cancelled in whole or in part. Foreign registrants that obtained their registrations under Sections 44 or 66(a) can assert excusable non-use during the first five years of registration. Registrants may appeal any decision to the Trademark Trial and Appeal Board (TTAB).

These new mechanisms are intended to facilitate efficient removal of dead marks from the Register and clear the way for brand owners to register marks in use. They supplement the USPTO's existing tools, which include cancellation for abandonment and the USPTO's Post Registration Audit Program. Notably, there is no standing requirement to institute either proceeding, nor is it necessary for a petitioner to identify the real party in interest on whose behalf the petition is being filed.

Non-use as Ground for Cancellation Proceedings

In addition to the ex parte mechanisms discussed above, the TMA has created a new non-use ground for TTAB inter partes cancellation proceedings. This ground mirrors the ex parte expungement procedure. To demonstrate non-use, a petitioner must establish that a registration has never been used in commerce on or in connection with some or all of the goods or services recited in the registration. This ground for cancellation is available to interested third parties at any time after three years from the registration date. Unlike the ground of abandonment, for which a petitioner must establish that a mark's use has been discontinued with intent not to resume use, in a non-use cancellation the registrant's intent is irrelevant.

Shorter Office Action Response Period

One of the most discussed changes under the TMA is the new response deadline for trademark office actions. Effective as of December 1, 2022, the window for filing office action responses will be shortened from six to three months. Applicants will have the option to obtain one three-month extension for a $125 fee. Applications filed under Section 66(a) are exempt from the shortened timeframe.

Extensive lag times at the USPTO were the key motivation behind the shortened timeframes. In recent years, the USPTO has experienced record levels of trademark filings, many by non-U.S. applicants. This influx of filings and delays associated with the pandemic have substantially slowed the examination process; typical processing is now 12 to 18 months. The expectation is that shorter response times will expedite the overall registration timeline.

Codified Procedure for Letters of Protest

The TMA has also codified the USPTO's letter of protest procedure. A letter of protest is a vehicle for any third party to submit evidence contesting the registrability of an application prior to or within thirty days following publication. Under the TMA, the USPTO Director must determine within two months after submission whether letter of protest evidence should be included in the application record. This new timing may be beneficial to protesters in their planning of broader enforcement strategies.

Takeaways

It is more important than ever to exercise due diligence on the front end of trademark prosecution, including drafting an accurate description of goods and services, maintaining proper specimens, and ensuring the mark is in use for all goods and services as of the alleged date of first use. Failure to do so could expose brand owners to the new expungement and reexamination procedures.

Non-U.S. applicants filing under Section 44-who may obtain registrations without demonstrating actual use in U.S. commerce-must be particularly attuned to the risks of non-use.

Brand owners that lack standing to bring cancellation actions may have an alternative route to contest third-party registrations using the reexamination or expungement mechanisms.

Trademark owners must ensure proper docketing of all deadlines to account for the TMA's rule changes for office action responses. Your trademark counsel can assist!

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The Trademark Modernization Act: New Procedures, New Deadlines and New Standards | JD Supra

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On December 18, 2021, the U.S. Patent and Trademark Office (USPTO) rules implementing the Trademark Modernization Act of 2020 (TMA) went into effect. The first major overhaul of the Lanham Act since 1998, the TMA introduced new tools to remove unused trademarks from the Register and expedite the overall registration process.

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LANHAM ACT UPDATE: TRADEMARK MODERNIZATION ACT

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LANHAM ACT UPDATE: TRADEMARK MODERNIZATION ACT

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Change to Lanham Trademark Act will have several ramifications. Read about the Trademark summary and appeals process. Contact MBM Law – litigation lawyers – for more information.

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As of December 18, 2021, the Trademark Modernization Act (the "TMA") took effect after having become law in December of 2020. The Lanham Act protects registered marks by clearing away unused ones. This also helps make the trademark registration process more efficient.

Lanham Act Summary

In response to increased trademark application filings (almost 40% over the last five years) and the fact that many of these applications contain overly broad descriptions or are fraudulent in some manner such as having digitally altered specimens, the Lanham Act was amended to create new mechanisms to challenge and cancel marks.

The TMA strengthens a trademark owner's ability to fight infringers and provides new means to challenge pending trademark applications and registrations.

What Does the Lanham Act Protect?

The TMA amends federal trademark law in several ways for trademark owners, including:

Restoring the rebuttable presumption of irreparable harm to obtain injunctive relief for a trademark violation in trademark infringement litigation;

Providing new procedures for canceling fraudulent trademark registrations; and

Formalizing processes in trademark prosecution before the US Patent and Trademark Office (USPTO).

Retroactive Consequences of New Lanham Act Changes

For already-registered marks, the TMA provides new ex parte expungement and reexamination proceeding procedures to cancel and remove trademarks. As ex parte matters, the owner of the trademark does not need to be notified that proceedings have been initiated until receiving a request for information and/or evidence regarding the use of the trademark (the "Office Action").

Expungement proceedings request cancellation based on evidence that a trademark was never used in commerce and may be initiated by the Director or a third-party at any point between three and 10 years from the date of registration. If the petitioner is a third-party, there is no need for there to be any standing. The potential for inappropriate use of expungement proceeding requests by third parties is tempered by the requirement that the Director must review the request and has the discretion to elect to move forward. If the Director elects to proceed, an Office Action is sent to the owner and the owner has three months in which to provide evidence of use of the trademark. This evidence is the same as would be submitted when submitting an initial application for registration.

Reexamination hearings are the same as expungement hearings except that they must be filed within the first five years of registration and the petition must be based on evidence that the mark was not in use with the noted goods and/or services as of the dates of first use listed or the deadline for the filing of the Statement of Use.

The TMA Appeals Process

The TMA also provides new grounds for a petitioner requesting the cancelation of a registered trademark through the Trademark Trial and Appeal Board ("TTAB"). The TTAB is a neutral body that functions like a court for trademark matters within the USPTO and handles appeals involving applications, expungement and reexamination hearings, and trials. The TMA broadened the grounds available for cancelation to include that the trademark was never in use in addition to abandonment and nonuse. The petition can be filed after three years from the date of registration and the TTAB practices and procedures are followed.

For marks that have yet to be registered, letters of protest, which before were merely part of the administrative process, are now statutorily authorized pursuant to the TMA. Letters of protest allow protesters to submit letters, arguments, and up to 10 items of relevant, objective evidence against a trademark application to support a refusal to register. If the USTPO determines sufficient evidence exists, this evidence is provided to the Examining Attorney reviewing the application and he or she must consider the same when acting on the application.

Next, due to a split in the various federal courts, the TMA amended the Lanham Act to add rebuttable presumption of irreparable harm upon a finding of infringement with respect to a permanent injunction or a likelihood of success on the merits for a preliminary injunction. Typically, it had been the case that an owner seeking injunctive relief to stop a defendant from using a trademark was granted a presumption of irreparable harm once he or she showed a likelihood of confusion between the trademarks. However, in 2006, the Supreme Court held that a patent holder must prove irreparable harm to obtain an injunction. Based on this patent case, the federal courts were undecided as to whether the same decision applied to trademarks. Reinstating the presumption for all courts and including it as part of the statute, the TMA makes it easier for owners to obtain injunctions to enforce trademark rights.

Finally, in an effort to streamline the review process and lessen the delay of owners waiting to obtain registrations or responses to post-registration events, the period in which to respond to Office Actions has been shortened from six months to three months. If necessary, owners may request one three-month extension upon request and payment of a fee. Due to upgrades needed to USPTO technology systems, the shortened response time will not go into effect until December 1, 2022.

Contact a Litigation Lawyer For More Information

Trademark owners should consult with their legal counsel to understand how the TMA affects them and the enforcement of their intellectual property rights. Call attorney Jennifer Cerce for solutions to all of your trademark and copyright concerns

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As of December 18, 2021, the Trademark Modernization Act (the "TMA") took effect after having become law in December of 2020. The Lanham Act protects registered marks by clearing away unused ones. This also helps make the trademark registration process more efficient.

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Was Your Long Term Disability Claim Denied or Delayed Due to ERISA?

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Was Your Long Term Disability Claim Denied or Delayed Due to ERISA?

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Read to know about long term disability claim.

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Insurance policies can be hard to understand. Nevertheless, if you or a family member has recently become disabled, whether related to an accident or not, you may be entitled to Long Term Disability benefits (LTD) through a policy typically purchased on your behalf by your employer. These are typically group plans, just like with your health insurance coverage, and probably controlled by ERISA.

What Are The Types Of Disability Insurance Policies?

Each type of disability policy may have its own unique definition of "total disability." There is not necessarily any uniformity between how disability contracts are written when comparing one company to another. However, most of these types of policies typically have a two-year "own occupation" clause. This type of policy pays long-term disability (LTD) Insurance benefits to you for two years only if you are disabled in the actual occupation in which you were working at the time you became disabled. In other words, whatever job you had on the date of disability, if you can't perform in that specific job, you will only be paid for two years. After that, you will only be entitled to benefits if you Long term disability lawyer cannot perform "any occupation" of any type. This second type of clause, "any occupation," is very favorable to the insurance company.

If you purchased your disability policy privately, i.e., not a group plan, it is possible that the definition of disability may be more favorable to you. A privately purchased LTD policy may or may not have the limiting "any occupation" clause. This does not mean that your disability insurance company will make it easy for you when it comes time to pay your disability claim. Disability policies are generally very restrictive.

What Are The Drawbacks of Long Term Disability Insurance Policies?

We find that folks think they have long-term disability coverage since it was purchased by their employer on their behalf and as part of a group plan. However, they often do not realize that the coverage has limited value. Below are some facts about most long-term disability policies that may surprise you.

Wage loss coverage only goes to age 65

Wage loss coverage only up to 60% of the insured's earnings

LTD insurance company pays only if you cannot perform each and every material duty of your occupation that you claim you can't work at anymore

Denying a claim for "lack of a sufficient record of disability" established in the claim process

Check with your HR department. Ask for a copy of the long-term disability policy, and go through it. Most employers don't really know that they purchased lousy coverage for themselves and their employees. At Carpey law we know how to evaluate these policies and litigate them on behalf of our clients. We can help you understand these kinds of policies. Some policy sections give you rights, and some policy sections take away your rights. It is important to understand how these various sections overlap before you put in a claim for LTD benefits.

What Is ERISA?

ERISA is the Employee Retirement Income Security Act of 1974. This federal law was originally enacted to protect retirement pensions. Over the years it has been extended by the courts to govern every aspect of employee benefits, including health insurance and disability insurance paid for by the employer and not the employee, even if you contributed to the payment of your insurance premiums.

How Does ERISA Affect My Ability To Get My Disability Insurance Benefits Paid?

ERISA has specific timeframes for filing disputes with your insurance company and how the disputes are handled in the court system, as well as appeals of those disputes. Typically, the various rules governing ERISA benefit the insurance company and not the employee seeking disability benefits.

You should be aware that handling the claims process without an attorney puts you at a disadvantage when facing the insurance company. They know the ERISA rules and so do their attorneys. The reason insurance companies are in business is to make a profit for their shareholders. They really do not care about your needs or your family's needs when it comes to paying a disability or health insurance claim.

Choose an Experienced Long Term Disability Lawyer to Fight for You

At Carpey Law, we can help you through the process of making a claim for LTD benefits and winning your case. Contact us today or call us for a free case evaluation.

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Was Your Long Term Disability Claim Denied and Delayed Due to ERISA

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Insurance policies can be hard to understand. Nevertheless, if you or a family member has recently become disabled, whether related to an accident or not, you may be entitled to Long Term Disability benefits (LTD) through a policy typically purchased on your behalf by your employer.

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You’ve just been in a car crash. Do you know the important actions you need to take right now? What about the things you should never do? Read to know more.

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You've just been in a car crash. Do you know the important actions you need to take right now? What about the things you should never do? Most people don't, yet the stakes are high.

Making the wrong moves after an auto accident can ruin your chances of getting what you deserve-or even getting better. In fact, some mistakes can affect your physical health and keep you from making a full recovery. Other errors can prevent you from recovering financially for your medical bills and other losses.

The aftermath of a crash can be chaotic, and it is easy to forget what to do - and what NOT to do. Avoid making these ten biggest mistakes after your accident, and get help for your auto injury claim today.

Here's What NOT to Do When You're Hurt in a Car Accident

After a car accident, many injury victims have the right to recover money damages for their losses, which can be extensive. However, this recovery does not happen automatically, and victims need to do certain things to seek the compensation they deserve. Failing to take certain steps or saying the wrong things can put a car accident claim in jeopardy, often leaving injury victims with less than they deserve or, possibly, with no compensation at all.

If you're in a car crash, here is a list of things you should never do. Click on each warning to find out more.

1 | Never Underestimate Your injuries

Think your injuries from a car crash aren't that bad? A lot of accident victims do-and by the time they realize that they really are hurt, it's too late. Many people think it is "normal" to feel sore, stiff, or disoriented after a car wreck. While you might disregard such sensations, they could be the signs of a serious injury.

For example, soreness or restricted motion can be a sign of a soft tissue sprain or strain. You might expect the discomfort to get better when, in reality, it will only get worse. Before your diagnosis, you can aggravate the injury even more, sometimes requiring more treatment for it to heal.

Similarly, disorientation, confusion, or fogginess following a crash is often assumed to be stress-related. However, it might be a symptom of a concussion, which is a type of traumatic brain injury (TBI). Concussions need medical treatment and can have lasting effects, so it is important not to discount any out-of-the-ordinary feelings following an accident.

Misjudging how severe your injuries are is a common mistake people make after an accident. It's also a very serious one.

Underestimating your injuries after an accident can hurt you in two ways:

1. Making it seem like you're not really hurt, which can lead insurance companies and liable parties to question your injury claims at a later date.

2. Making your recovery more difficult, which can prolong your treatment, missed work, and pain and suffering, as well as lead to possible disputes over which medical bills the liable driver's insurance should cover.

Don't say you're okay. It's natural to want to downplay your injuries, either because you're in shock and aren't sure of the extent of your injuries or because you're too overwhelmed and don't want to deal with it. Some people simply do not like having attention focused on them when they might have injuries. But if you're tempted to say, "I'm fine," after an injury-for whatever reason-don't do it.

Even if your injuries aren't life-threatening and you don't need an ambulance, don't say that you're okay. Instead, declare precisely what you mean: you don't need an ambulance. This does not rule out the possibility of less severe injuries that still need medical attention.

What if you really do think you're fine? It's still not a good idea to say so. Sometimes it takes hours or even days for symptoms to present themselves. You might feel nothing out of the ordinary right now but could develop problems later, and these problems could be severe.

To be on the safe side, our car accident attorneys always discourage victims from saying they're okay. If you're not feeling symptoms right now, just don't say anything. Otherwise, you could wind up unintentionally sabotaging your claim. The insurance company can use these early statements in which you said that you were fine to downplay the severity of your injuries and get out of paying you what you deserve.

Don't neglect to seek medical care. Always let first responders know about whatever symptoms you may be feeling, regardless of how minor these symptoms may seem. A lot of injuries don't seem severe at first, especially when you're in shock. But that initial pain can turn out to be something serious, and it can get worse.

Any type of spinal cord injury, for example, should receive emergency attention. Any movements can potentially worsen the injury, leading to a much worse prognosis. You might feel like you only "tweaked" your neck and that it's not worth mentioning to the EMTs, when in reality, you sustained damage to your spine. If you mention your neck pain, the EMTs can decide whether it's likely caused by an injury to your spinal cord. If so, they might want to immobilize you and transport you to the hospital.

Even if you don't need an ambulance ride, seek a medical evaluation for non-emergency injuries. Failing to seek medical care after an accident can be disastrous to your health, as even minor injuries can quickly lead to complications and lasting symptoms. How can your injuries get better if you never get treatment?

If you have obvious injuries, go to the ER now.

If not, see a doctor as soon as you possibly can upon leaving the accident scene.

When you underestimate your injuries and fail to get treatment, you're making a big mistake. Sure, you may think your injuries are minor enough to resolve on their own. But it's always best to leave that assessment and documentation to a doctor. Your health is too important to risk.

To make matters worse, not getting a timely diagnosis can affect more than your health-it can jeopardize your insurance claim with the liable party. If you wait a few days to see a medical professional and get a diagnosis, the insurance company might claim that your injuries may not be from the car accident. Instead, the adjuster might assert that a subsequent event happened that led to your injuries.

For example, imagine that:

Your car accident happened on Monday, and you did not seek treatment.

You went to work and engaged in your usual activities on Tuesday and Wednesday, even though you were still feeling pain.

You finally went to the doctor on Thursday and received a diagnosis.

The insurance company might claim that something you did on Tuesday or Wednesday caused your injuries, not the crash.

Never put your health or your legal case at risk - instead, always seek a medical exam as soon as you can following a car crash.

2 | Never Wait Too Long to Act

You don't have all the time in the world to take action after you suffer injuries in a car accident. There are deadlines, called statutes of limitations, on your legal rights. The statute of limitations is only one of the reasons you need to act fast.

What exactly does it mean to take action after an accident? Filing a car accident lawsuit may seem a long way off.

But the success of your case hinges on the steps you take right now:

If you wait to get medical care, you're not documenting the full extent of your injuries. Even worse, you're putting your health at greater risk.

If you wait to investigate the accident, crucial pieces of evidence might vanish. Video surveillance footage could get taped over, or witnesses might forget important details.

If you wait to reach out to a lawyer, you may have a hard time finding one to take on your case. An experienced attorney won't want to handle a case if there's not enough time to prepare it successfully.

And if you wait too long to file a lawsuit, you'll miss the deadline completely. You'll have no chance of ever getting compensation for your claim.

Typically, car crash victims have only two years from the date of the accident to file a lawsuit. In some cases, the deadline is even earlier.

We're not saying this to overwhelm you. But the damage you can do just by waiting too long is significant, and, unfortunately, it's an easy mistake to make. You always want to take any action to do with starting your claim sooner rather than later.

Once the statute of limitations passes, you lose the chance to file a claim. Call us today for your free consultation.

We completely understand how overwhelming the days and weeks following a crash can be. You are juggling appointments for medical treatment, you might be missing work due to your injuries, and your injuries might keep you from finishing your usual household tasks. This is a lot to deal with already, and starting a legal case might seem like too much to add to the pile.

The good news is that calling a car accident lawyer doesn't mean adding stress to your plate. Instead, speaking with the right attorney can relieve a lot of financial stress you might have after your accident.

3 | Never Give Too Much Information to the Insurance Company

Trusting the insurance company is another mistake that can ruin your accident claim. Insurance adjusters aren't on your side. It doesn't matter how friendly they seem. Their job is to save the insurance company money. The best way they can do this is by figuring out how to pay you less.

Insurance adjusters know that accident victims are under a lot of stress and vulnerable to their tactics. They tell you that you can trust them, and you might feel tempted to do so. However, trusting what the adjuster says without your own legal representation and counsel can often lead to a much smaller settlement than you deserve.

One reason that adjusters want your trust is that they are seeking information to limit your payment. They want you to open up and talk to them, as you might make a comment or give an answer that can call parts of your claim into question.

Don't give any insurance company representative details they don't need. Don't talk about fault or your injuries right now. Don't give a recorded statement.

Providing this information will not help you. It only helps the insurance company. Once they have certain statements recorded, you can't easily take them back.

Only give the company your basic information. Better yet, refer the insurance company to your car accident lawyer.

When it comes to your auto insurance policy, you do have a contract to honor. That means you have a legal obligation to your insurer. Promptly alert your insurance company about the accident, but say nothing else. The law only requires you to provide the necessary information. Once you have done that, you've met your responsibility.

You don't have this same obligation to the other driver's auto insurer. Don't let this insurance company pressure you into anything. You won't benefit from giving the insurer a statement or signing their paperwork. Ask the driver who hit you for their insurance information and leave it at that.

There's only one way to deal with an insurance company without making a mistake that risks your claim. Hire a lawyer to communicate with the insurance companies on your behalf.

Don't let insurance companies put their profits ahead of your well-being.

4 | Never Fail to Call the Police

Don't let the other driver talk you out of calling 911.

One of the most common things that car accident victims wonder is whether it is necessary to call 911. This seems like a drastic move, especially if no one has life-threatening injuries. But there are many benefits to calling 911 in addition to getting checked out by emergency medical personnel.

It doesn't matter how minor the damage may seem. It doesn't matter how sorry the other driver claims to be. You need to report the accident.

In states like New Jersey and Pennsylvania, reporting a crash isn't only a smart decision. It's something you're legally required to do.

Why does a police report matter? Without getting your body and your car examined by the right professionals, from the police officer to emergency responders to medical staff, you don't know if the accident will have serious consequences.

If you try to pursue a claim later and you don't have this information, you can't.

In addition, calling 911 can help to provide you with evidence to support your claims that the other driver was responsible for causing the accident. Part of what the police will do when they arrive is to determine whether any drivers violated the law. If so, they can issue a citation or arrest the driver, which can often help your case.

Consider a drunk driving accident, after which the other driver emerges stumbling and slurring from their vehicle. Never confront the driver, but instead, call 911 right away. Police officers will likely determine that the driver is intoxicated and place them under arrest. If the driver pleads guilty or a court convicts them of driving under the influence, your lawyer can use that to prove liability in your claim and may need no other evidence.

Even if the police do not issue tickets or make arrests, their reports might be helpful in your case, and your attorney can request the official report. In short, calling the police to report the accident is always an important step, and failing to do so can be a big mistake.

5 | Never Admit Fault

After a car crash, you'll talk to a lot of people: the police, the other driver, witnesses, and your insurance company. Many people will have questions, and you will likely do your best to answer them.

No matter who you're talking to, do not take the blame for the accident. Admitting fault for a car accident is one of the biggest mistakes you can make.

It might not even be true.

Why admitting fault for a car accident is a bad idea. The thing is, it can be difficult right after an accident to figure out what happened. In the aftermath, people accept blame for accidents they didn't even cause. For example, rear-ended drivers may blame themselves for stopping too quickly. They might not realize the other motorist caused the accident by tailgating them.

Ultimately, the statements in which accident victims are-or even just seem to be-admitting fault for the car accident can end up hurting their claim. Under New Jersey law, comparative negligence applies to car accident claims in the Garden State. That means that you can pursue a claim even if you are partly at fault, as long as you are less at fault, percentage-wise, than the other driver or any other defendant.

If you rush to apologize for the accident because you think you may have made a minor error that contributed to the crash, and an investigation later reveals a much bigger error on the part of the other driver, your admission of fault can make it harder to get the money that you would otherwise be entitled to.

You could also face traffic violation citations and insurance rate hikes that you don't really deserve. It's admirable that you feel empathy for the other motorist, but the reality is that both of you (and any other victims) are now facing this unfortunate situation of a car accident to deal with.

Never apologize for an accident that isn't your fault, and never rush into admitting fault for a car accident unless you are 100 percent sure that you are the only person to blame.

Sometimes, people say things in the aftermath of a crash that might appear to be admitting fault, even if they don't realize it.

Some comments to avoid might include:

"I'm sorry."

"I only looked down for a second."

"I didn't even see them."

"I tried to slow down."

Even if some of these comments might seem harmless to you, they are weapons in the arsenal of insurance companies seeking to reduce their liability and pay you as little as possible.

Should you ever admit fault after a car accident? Even if you think you did cause the crash, admitting fault for a car accident isn't a good idea-at least, not without first talking to an attorney.

Admitting fault for a car accident isn't a wise move, even if it seems obvious that you caused the crash. Even if the other driver blames you and the police ticket you for a violation, you are better off keeping your mouth shut-and your answers to officers' questions cooperative but short and to-the-point-than outright admitting fault.

An investigation will shed more light on exactly what happened. At that point, you can look at the evidence and see who is really at fault, and to what degree, for causing the crash.

6 | Never Neglect to Gather Evidence

After a car crash, there can be a lot going on, and the accident scene can disperse before you know it. After all, the police likely want to clear the accident so traffic can return to normal.

Remember how failing to act quickly is one of the main mistakes people make after an accident? Not collecting evidence or getting important information right away is a key part of taking action early, and you should do so before the accident scene gets forever cleared.

While you're waiting for the police to arrive at the scene of your accident, take the time to compile as much information as you possibly can.

Here are some early steps you can take:

Get the names and contact information of any witnesses and ask for their statements now. Don't wait-you want their accounts while the accident is still fresh in their minds. Ask if they would be willing to speak with you and help with your case. Do this as soon as possible, as witnesses can decide to leave the scene at any given time.

Collect the other driver's insurance and contact information. You'll need their phone numbers, license plate numbers, and driver's license numbers, as well as the name of their car insurance company and their insurance policy numbers. It's okay to exchange information with the other drivers, but remember never to make a statement or admit fault during this process.

Get a copy of your accident report, and if possible, the badge number of the officer who completed it. Make sure the officer has the right version of events as you told them.

Use your phone camera to take pictures of the accident scene. Don't forget to photograph the damage to your car, the damage to the other car, and the position of the vehicles. Take a video of the entire scene if you can, including the surrounding road, buildings, and other conditions.

If you file a lawsuit, all of this information is very important to your case and helps your attorneys properly communicate with the insurance company about your auto insurance claim.

Another way you can help with evidence in your case is to start an accident and injury journal right away. Start at the emergency room if you can. You can even take notes on your phone if you do not have access to a real journal. Write down your pain levels and locations, what the doctor says to you, and more.

As you proceed with your treatment, keep updating your journal with:

Pain levels and how pain impacts your life

Activities you cannot participate in because of your injuries

If you have difficulty sleeping due to your injuries or trauma

Whether you are feeling mental effects, such as PTSD, anxiety, or depression

How your injuries impact your marriage or romantic relationship

All of your treatment appointments and how you felt before, during, and after

How your injuries restrict your movement or cause other types of impairments

Pain and suffering is often a significant part of an injury settlement when you have serious injuries. A journal that tracks the effects of your injuries on your life can help demonstrate the extent of the pain and suffering you experienced.

7 | Never Agree to a Quick Settlement

A quick settlement sounds like a good thing, right? After all, you get a check that can help cover some of those first medical bills, and you don't have to go to court. If you're losing income from missed work, you might need help covering certain bills and expenses as soon as possible. But the reality is that settling your case too early is only good for the insurance company.

The insurance company wants to spend as little time and money as possible settling your claim. They hope that, if they give you a quick offer, you'll accept and they can keep their profits. They know that you are likely under great financial stress, and they use that to their advantage.

This happens all the time. An adjuster might say to you that the insurer wants to settle quickly to "help you." So you can "put everything behind you."

A fast settlement isn't a full settlement, however. Don't make the mistake of accepting less money than you deserve.

Don't settle fast for less. Once you accept a settlement offer and sign on the dotted line‚ you can't reopen your case. This is true even if you later learn that your injuries are more serious than you realized or if your recovery takes longer or costs more than you expected. When your case is closed, it's closed for good.

So, while the offer may seem fair now, it might not be even close to enough to cover the full cost of your recovery later.

Imagine that you accept a settlement offer a few weeks after the crash, since you believe your injuries are healing and you are anxious to get a settlement check. However, a year and a half after the accident, it turns out that you need surgery. You'll be out of work for weeks.

Will the money the insurer initially offered cover those damages? And what if you can never return to your old job in the same capacity? Will that quick settlement provide enough money?

Generally, people who accept settlements right away end up with far less than they deserve. Then, if their losses keep skyrocketing, they will be responsible for any costs the settlement did not cover.

Sometimes, accident victims are pretty sure they understand the nature of their losses. They might add up the medical bills they already received, and the settlement offer looks pretty good compared to these bills. But they are likely missing many other types of losses that are compensable.

Many injury claimants fail to consider:

Medical expenses for treatments they might need in the future

Lost income from missing work, whether it was a few hours missed or days or weeks

Future lost earnings if they have to change jobs because of their injuries

Physical pain and suffering, mental trauma, and other intangible losses

Damages for injury claims can be difficult to calculate. Claimants who try to do this step themselves often seek far less than they should. It is always beneficial to have a lawyer evaluate the value of your claim.

Working with an attorney can often increase the size of your settlement. In fact, clients who let attorneys handle their car accident claims receive an average of 3.5 times MORE than someone who tries to file a claim on their own.

8 | Never Sign Anything From the Insurance Company

You should always talk to an attorney before you sign any forms from any insurance company. Otherwise, you could end up signing away your legal rights. The documents the insurer asks you to sign are legally binding contracts, and if you sign without fully understanding the terms of the agreement, you might still have to abide by those terms.

Instead, have an experienced injury lawyer review all paperwork before you sign it.

The insurance company may ask you to sign:

Releases. When you accept a settlement for any part of a claim, you'll have to sign a release form. This form releases that party from further financial responsibility. Basically, you agree that you won't sue again for a claim after you receive money for those damages.

But some releases contain language that strips you of further legal rights. If you sign these forms, you might lose your chance to pursue a claim against any defendant, not only the one already sending you a check.

This isn't fair, but it happens, which is why you need to be careful when signing a release.

Medical authorizations. We also discourage accident victims from signing a medical authorization form. When you sign this form, you allow the insurance company to review your medical history.

What you may not know is that signing this form allows your insurer to see all of your medical history, including all diagnoses and treatment you received. That includes parts of your medical records that have nothing to do with the accident. That's private health information, something the insurer should not review.

You might wonder what the big deal is-because these medical records aren't related to your accident, there's no reason they'd need them, right? But an insurer who has access to that information could twist it to reduce or deny your claim.

Suppose you had a previous injury that healed years before your accident. The old injury is unrelated to your current injuries, and you are certain of that. But an insurer might still try to use your medical records to say that the injuries you claimed to sustain in the accident are pre-existing and related to past conditions. This type of allegation can hurt your claim, even if it isn't true.

Remember, no insurance company is on your side - even your own. You need to be carefully agreeing to anything, especially in writing. Always have a trusted legal professional review anything before you sign your name and agree.

9 | Never Talk About Your Claim on Social Media

Using social media after an accident can be risky. Any information you choose to share could be helping insurance companies build a case against you.

This is because insurance adjusters regularly use social media to spy on claimants. They look for updates and photographs that contradict your claims that you are dealing with a serious injury. They even seize on innocent posts and pictures they think they can twist to weaken your credibility.

Be especially wary of sharing updates about your accident or medical condition on social media. Even seemingly simple updates about your life could cause problems with your claim.

Suppose a Facebook friend comments on a status you post and asks how you are feeling. If you say you're feeling better, an insurer who finds that post may argue that your injuries aren't that serious and that your pain and suffering is long over.

Even if something is seemingly unrelated, the insurance companies might twist normal posts to use against you. They can use a photo of a hobby, trip, or special occasion after the accident to make it look like the injury hasn't affected your life, even if it clearly has.

How can you protect yourself? We suggest disabling your social media profiles until your case settles. At the very least, avoid broadcasting sensitive personal information across the internet. If a loved one asks you how you're doing, reach out and respond to them privately.

10 | Never Handle a Car Accident Claim on Your Own

Failing tohire an attorney may be the single biggest mistake a car accident victim can make, but many people hesitate to consult with a legal professional.

Your insurance adjuster might tell you that you don't need a lawyer, but that's only because the insurance company doesn't want you to have one.

Why? It's bad for their business. Studies show that accident victims who hire lawyers get 3.5 times more money than those who don't. A lawyer is familiar with insurance company tactics and knows better than to accept a lowball offer right out of the gate.

Paying out more money in claims may be bad news for the insurance company-but it's good news for you. After all, you want to get the full amount of money you deserve. Your recovery depends on it. Without a lawyer, you can't do that. Without a lawyer, you're looking at a huge personal hassle that ends in a lower payout.

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The 10 Biggest Mistakes Made After a Car Accident

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Making the wrong moves after an auto accident can ruin your chances of getting what you deserve. In fact, some mistakes can affect your physical health and keep you from making a full recovery. Other errors can prevent you from recovering financially for your medical bills and other losses.

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Kids have a right to a basic education, according to a new legal milestone

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Kids have a right to a basic education, according to a new legal milestone

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A federal court with jurisdiction over Kentucky, Michigan, Ohio and Tennessee found that the state governments have a legal obligation to ensure that children can learn how to read.

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A federal appeals court has found that children have a constitutional right to an opportunity to learn how to read.

The decision on April 23 in a case involving the Detroit public school system finally answers a question the Supreme Court has avoided for nearly four decades: Is there a federal right to a basic education in the United States?

Although state constitutions each contain a right to education, state courts interpret these rights in very different ways. As a result, in states like Michigan, children are only guaranteed the ability attend to a public school, not to receive an education of even a minimal level of quality.

As a professor of law and education policy, I have written about this legal debate for years.

Chronic conditions

This case began in 2016. Lawyers representing students attending five Detroit public schools alleged that literacy rates in these schools were in the single digits and that the school buildings urgently needed major repairs.

According to to the lawsuit they filed in 2016, some schools were infested with mice, rats and cockroaches. They lacked enough teachers to educate the students enrolled, and even many permanent teachers were chronically absent. Heating and air conditioning systems in some of the buildings did not work, the attorneys said, and windows often were broken or unable to open. The few books available for students regularly were decades old.

All of these problems were serious. Taken together, they made it hard to imagine how anyone could be expected to learn anything.

Two years after attorneys sued the state of Michigan in federal district court on behalf of Detroit schoolchildren, the district court dismissed the case. That ruling hinged on the assertion that because the law did not recognize a federal right to get an education, there was no basis for a case.

However, the ruling concluded that the state of Michigan was a proper defendant because of its extensive involvement in the governance of Detroit's public schools over the course of decades. This was significant. Attorneys had sued the state rather than the school district because they claimed the state was responsible for creating the problems and thus should be on the hook for fixing them.

Additionally, if the Detroit students were to win, state involvement almost certainly would be required for a remedy. These days, about 8% of K-12 school funding comes from the federal government nationally, with the remainder split between state and local sources. In Michigan, more funding comes from the state than locally collected property taxes. In addition, state policies about teacher pensions, capital improvements and school choice also have a significant impact on school districts' finances.

After losing in the district court, attorneys representing the Detroit students then appealed to the Sixth Circuit Court of Appeals, a federal court with jurisdiction over Kentucky, Michigan, Ohio and Tennessee.

Change at the top

In the meantime, Democrats prevailed at the polls, resulting in Michigan's Republican governor and attorney general being replaced by Democrats.

Gov. Gretchen Whitmer, who took office in 2019, had supported plaintiffs on the campaign trail. She argued, like her Republican predecessor had done, that the case should be dismissed. However, rather than addressing whether she saw a federal right to education, she asserted that the state had returned control to the school district and that the conditions in Detroit's schools had improved greatly.

For example, a new superintendent and an influx of state funding had enabled the district to stabilize. School buildings are markedly better. In 2019, test scores were up more than they had been in years, although they still lagged far behind state averages.

However, Attorney General Dana Nessel opposed the governor in a legal brief, instead supporting the Detroit students. An attorney general's job is to represent the governor, and refusing to do so is highly unusual, whether or not the two are politically aligned.

The appeals court's 2-1 decision establishing the federal right to education as a legal precedent relied heavily on the history of public education, with its emphasis on preparing people to be good citizens. The majority stated, "without the literacy provided by a basic minimum education, it is impossible to participate in our democracy."

The majority held that states must ensure that schooling occur in facilities staffed by teachers with materials that, at the very least, give students an opportunity to become literate.

Next steps

If Michigan does not appeal this decision, it will become binding law in the four states in the Sixth Circuit. In that case, I would expect education rights advocates who have identified low literacy rates elsewhere to file similar suits across the country because this precedent might apply in other regions too.

Even so, the Supreme Court might consider this issue at some point, especially if other appeals courts reach a different conclusion about the right to a basic education in other cases, such as one pending in Rhode Island.

Meanwhile, the case would go back to the district court and eventually the case would go to trial. Lawyers representing the schoolchildren would move forward to determine whether Michigan acted unconstitutionally. However, the two parties also could reach a settlement which would provide additional support for Detroit schools and allow the state to avoid years of costly litigation.

Appeal options

This case could still be appealed in one of two ways, though. If the state of Michigan appeals to the U.S. Supreme Court, they would need to do so within 90 days.

Separately, the state could ask all 16 judges on the Sixth Circuit to hear the case again. This procedure is rare but would not be unprecedented.

No matter what happens next, the appeals court's decision will remain groundbreaking.

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Kids have a right to a basic education, according to a new legal milestone

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A federal appeals court has found that children have a constitutional right to an opportunity to learn how to read. The decision on April 23 in a case involving the Detroit public school system finally answers a question the Supreme Court has avoided for nearly four decades: Is there a federal right to a basic education in the United States?