Tuesday, November 27, 2012

DMCA Take-Down Wrestles IP Theft

Nicholas J. Bell, Esquire
An article by Nick Bell was featured in the Business Workshop section of the Pittsburgh Post-Gazette. To read the article, “DMCA take-down wrestles IP theft,” please click here.

Monday, November 26, 2012

Business Workshop: Courtesy Policy Could Be Illegal

Jane Lewis Volk, Esquire
Could a simple policy expecting employees to act with courtesy in the workplace be illegal?

According the National Labor Relations Board, it could.

The NLRB recently decided that an employer policy intended to promote courtesy and decorum unlawfully chilled their employees' federal right to engage in conversation among themselves aimed at improving their working conditions or petitioning their employer or union to do so.

The policy seemed simple on its surface: "Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of [the employer]."

The NLRB reasoned that employees "could construe" this language as prohibiting conversations with their co-workers, supervisors, managers or third parties about objections to their working conditions and support of efforts to improve them. The policy was therefore held to be unlawful, even though no employee had been disciplined under it.

Some employers may contend that this decision takes the "could construe" reasoning to an extreme. As noted in the dissenting opinion, the issue should be whether employees would "reasonably" understand a challenged policy to prohibit protected activity, not whether the language "could possibly" do so.

Until the pendulum swings back to another interpretation, the NLRB decision stands as law. Employers are well-advised to keep this in mind in drafting workplace policies and rules. Employers should not over-reach in their efforts to maintain appropriate levels of decorum in their workplaces.

While profanity can certainly be prohibited, "respect" in the workplace, as anywhere else, cannot be achieved through mandate.
For more information on this topic, please contact Jane Lewis Volk at jlv@muslaw.com.
This article originally appeared in the Pittsburgh Post-Gazette's Business Workshop section. Business workshop is a weekly feature from local experts offering tidbits on matters affecting business.

Tuesday, November 20, 2012

Supreme Court Ruling On Resale of Items Produced Abroad Could Affect Many

David G. Oberdick, Esquire
Dave Oberdick was quoted in the article, “Supreme Court ruling on resale of items produced abroad could affect many,” that appeared in the Business section of the Tribune-Review.
Click here to read what Dave had to say. 

Monday, November 19, 2012

Minority Shareholders Gain Post-merger Rights

Alexis Unkovic McKinley, Esquire
The Pittsburgh Post-Gazette’s Business Workshop featured an article by Alexis Unkovic McKinley on minority shareholder rights. Click here to read, “Minority shareholders gain post-merger rights.”

Thursday, November 15, 2012

Your Green Project Could End Up In Court

Chad I. Michaelson, Esquire
It makes sense that more and more building owners want to certify their commercial developments as green. On average, green buildings earn higher rents, have higher occupancy rates and sell for a 13% premium.
But overpromising or under delivering on a green project can lead the building developer into financial and legal hot water.
Owners and developers usually can’t get the money to build or renovate until they have tenants signed up. To get those tenants, owners and developers often tout the green features of the building and the expectation of green certification. But certification is not awarded until after a building is complete and more than a quarter of all buildings drop out before the certification is awarded.  And in other cases the building is awarded a lesser certification than was represented at the time potential tenants signed leases.
Without the promised certification, the building owner can suffer a pernicious domino effect: The tenants may terminate their leases, the lender may declare a default, the owner may lose tax credits or other incentives, and the partners and investors may sue.
Owners and developers must not overpromise.  Marketing materials should make it clear that a project under construction is merely registered for LEED certification and that the building in question may perform better or worse once it is operational. Moreover, landlords should not sign leases allowing tenants to terminate if LEED certification is not obtained.
Green building also complicates contracts with those who are doing the work. Just as a green building requires a more sophisticated design and construction methods, it also requires more sophisticated contract documents.  Those documents must clearly set forth the owner’s sustainability goals and allocate responsibility for reaching those goals among the owner, architect(s)/engineer(s), general contractor, subcontractors and suppliers.
The contract documents must be drafted with the certification process in mind.  They should clearly define who is responsible for maintaining and gathering the information necessary to support certification submittals and who is responsible for the submittals themselves.  The contract should also spell out precisely what type of supporting documents and information must be maintained. 
The contract documents also must provide for the possibility of a failure to achieve certification, or to obtain certification at the desired level.  Because the hallmark of green building is a sustainable design, much of the responsibility for reaching certification goals should fall on the architect’s shoulders.  The general contractor, however, has a responsibility to ensure that the building is built in accordance with that sustainable design.  Certification points could be lost if, for instance, the owner and general contractor agree during construction to substitute for a specified material or otherwise modify the design to reduce cost or save time.  In addition, the general contractor exercises control over certain activities that have a significant impact on a project’s ability to meet certification goals, such as management of construction waste.  Consequently, the contract documents must clearly spell out the responsibilities of each member of the team.

Friday, November 9, 2012

Meyer, Unkovic & Scott is pleased to welcome new attorney Valerie Kamin

Valerie B. Kamin, Esquire
Valerie is an Associate at Meyer, Unkovic & Scott LLP and a member of the Real Estate & Lending Group.
She graduated cum laude from the University of Pittsburgh School of Law and upon graduating, was accepted to the Order of the Coif. Valerie earned the Thomas M. Cooley II Legal Writing Award for the most distinguished seminar paper, the Benjamin H. Tepliz Award for the highest third-year grade point average, as well as a Dean’s Scholarship. She also served as a Teaching Assistant for several professors and worked as a certified legal intern for the University of Pittsburgh Low Income Tax Clinic and Southwestern Pennsylvania Legal Services. While in law school, Valerie also spent a summer abroad at the University of Oxford studying comparative corporate law.

Tuesday, November 6, 2012

Deed Provisions and Timber and Mineral Rights

Ralston, et. ux. v. Ralston, et. al, 2012 PA Super 234, 2012 Pa. Super. LEXIS 3467 (2012)
Frank Kosir, Jr., Esquire
This matter addressed the issue of whether a provision in a deed retaining the grantors’ interest in timber and minerals constituted an exception or reservation of those rights and whether, upon the grantee’s violation of a restriction on alienation set forth in the deed, those timber and mineral rights reverted to the heirs of the grantors.  Walter Francis Ralston, Sr. and his wife Elverta Ralston (“Grantors) held title to a parcel of real property (“Property”) situated in Decatur Township, Clearfield County, Pennsylvania.  By deed dated June 30, 1984, the Grantors conveyed the surface estate of the Property to their son, Walter Francis, Jr. (“Junior”), with the deed excepting and reserving in the Grantors, inter alia, “all timber, coal, gas, oil, and all other minerals in and upon the said property together with the right of ingress, egress, and regress, in cutting, digging for, drilling for, or any other appropriate method of removal for said timber, coal, gas, oil or any other minerals, and the carrying away of the same.”  The deed also included a restraint on alienation stating that the surface could not be conveyed during the natural lifetime of the Grantors and that, upon the death of both the Grantors all reservations and exceptions set forth in the deed would be null and void, and title to the timber, coal, gas, oil, and all other minerals in and upon the Property would pass to Junior.
Upon the 1986 death of Walter Francis Ralston, Sr., Junior conveyed the surface to himself and his wife, Patricia L. Ralston (“Patricia”) as Tenants by the Entireties. Junior died in 1993 and, by operation of law, title to the surface passed to Patricia as the surviving tenant by the entireties. The original Grantor, Elverta Ralston, died in 1996 and, in 1999, Patricia conveyed her interest in the Property to her son, Bernard R. Ralston (“Bernard.”) In 2011, Bernard and his wife Marissa commenced a quiet title action in the Clearfield County Court of Common Pleas seeking to be declared sole owners of the surface of the Property, as well as the timber, coal, gas, oil, and all other minerals excepted and reserved in the June 30, 1984 deed.  In response, several heirs of the Grantors (“Heirs”) filed a counterclaim alleging a 5/7 ownership interest in the timber, coal, gas, oil, and all other minerals reserved and accepted.  The trial court entered summary judgment for the Heirs concluding that the 1986 deed from Junior to himself and Patricia violated the restraint on alienation clause set forth in the June 30, 1984 deed.  The court further concluded that the provision relating to title in the timber, coal, gas, oil, and all other minerals was an exception to the grant and that, as a result of Junior’s breach of the restraint on alienation, the rights in timber, coal, gas, oil, and all other minerals remained in the Grantors and passed to their heirs upon death.
On appeal, our Superior Court affirmed in part and reversed in part. The court affirmed with regard to the restraint on alienation provision concluding that, as the provision was limited in duration, it was a reasonable restraint on alienation and enforceable under Pennsylvania law.  However, with regard to the provision relating to timber, coal, gas, oil, and all other minerals, the court reversed.  In issuing its ruling, the court agreed with the trial court’s conclusion that the language constituted an exception, not a reservation.  However, in reviewing the language of the June 30, 1994 deed as a whole, the court found no provision indicating that a violation of the restraint on alienation would work as a forfeiture of Junior’s rights in the timber, coal, gas, oil, and all other minerals, and there was no evidence that the Grantors ever sought such a forfeiture after Junior conveyed title to the Property to himself and Patricia.  Rather, the “null and void” language evidenced an intention by the Grantors that the exception would terminate upon their respective deaths, and that title to the timber, coal, gas, oil, and all other minerals would pass to Junior.  As such, the trial court erred in concluding that Junior’s violation of the restraint on alienation resulted in a forfeiture of the timber, coal, gas, oil, and all other mineral rights and, upon the death of Elverta Ralston, title to the timber, coal, gas, oil, and all other minerals passed to Patricia as the surviving entireties tenant.

Thursday, November 1, 2012

Meyer, Unkovic & Scott Welcomes New Attorney - Gary M. Sanderson

Gary M. Sanderson, Esquire
Associate at Meyer, Unkovic & Scott LLP
Gary's practice will include work in the Corporate & Business Law, Real Estate & Lending, Litigation & Dispute Resolution and International Law & Immigration Groups. 
He earned his law degree, cum laude, from the University of Pittsburgh School of Law in 2012, and was inducted into the Order of the Coif.  Gary also earned an additional Certificate in International & Comparative Law. While in law school he served as the Research Editor of the University of Pittsburgh School of Law Tax Review, a legal research and writing Teaching Assistant, a Research Assistant, and was the co-founder and Business Manager of the Business & Corporate Law Association. Gary also received two CALI Excellence for the Future Awards, in Federal Income Taxation and Immigration Law, respectively.

While in law school he worked at Meyer, Unkovic & Scott LLP as a Summer Associate and Law Clerk. Prior to joining the firm, Gary served as a Law Clerk at an immigration law firm, an intern at the Allegheny County Public Defender’s Office, and a Teaching Assistant, teaching international attorneys about the American legal system.