Data Security Tips

Reviewing and implementing these data security tips can help business owners reduce their risk of data loss, compromise or attack, "Data Security: 10 Tips for Protecting Your Small Business".

Estate Planning For Blended Families

Tune in tomorrow at 11:30 a.m. to 101.5 WORD-FM to hear Michele Conti discuss the various estate planning options that may be used for a blended family. Understand what you need to plan for when multiple families are involved.

Estate Planning For Pet Owners

Tune in tomorrow to hear Michele Conti discuss the estate planning techniques available to pet owners.  She will discuss what arrangements a pet owner can make upon their death or incapacity to ensure that the beloved pet will be cared for by someone the owner has chosen.  The broadcast begins at 11:30 a.m. on 101.5 WORD-FM.

Four Partners Named 2015 Lawyer of the Year

Congratulations to Andrea Geraghty, Richard Kotarba, Kevin McKeegan and David Oberdick on being name 2015 "Lawyer of the Year" by Best Lawyers®.

These four lawyers are joined by sixteen of their colleagues in the firm who have been named to the 2015 Edition of Best Lawyers®, the oldest and most respected peer-review publication in the legal profession.  Best Lawyers® has published their list for over three decades, earning the respect of the profession, the media, and the public as the most reliable, unbiased source of legal referrals.

Use this link to see the full article.

This material is for informational purposes only. It is not and should not be solely relied on as legal advice in dealing with any specific situation.

Dennis Unkovic To Appear On Our Region’s Business

Don’t miss Our Region’s Business on WPXI-TV Sundays at 11 a.m. The show airing this Sunday, February 15 focuses on China – the big challenges facing the world's second biggest economy and what you need to know about doing business there. Dennis Unkovic, partner with Meyer, Unkovic and Scott, and Daniel Joseph, foreign business strategist and author of " The China Learning Curve," join us to offer their takes.

Now in its 11th year and hosted by our own Bill Flanagan, the 30-minute program is co-produced by the Allegheny Conference on Community Development and WPXI-TV. Interviews from previous shows can be found here. The program is rebroadcast on PCNC-TV at 3:30 p.m. and 7:30 p.m. Sundays, and at 3:30 p.m. Mondays.

H-1B Visas - Be Prepared To Submit Applications on April 1

Do not delay in preparing your H-1B visa applications as the demand is great, and it is likely that the U.S. Citizenship and Immigration Services (USCIS) will receive more applications than there are available during the first week of April 2015.  There is an annual cap on the number of H-1B visas available: 65,000 for those applicants holding the equivalent of a U.S. Bachelor's degree and an additional 20,000 visas available for foreign nationals with a U.S. Master's degree or higher.  In the past several years, the USCIS has conducted a lottery to determine which applicants would be eligible for an H-1B visa due to the great demand.

It is recommended that employers file on or about April 1, 2015 to secure a slot for employment beginning on the fiscal year 2016 that begins on October 1, 2015.  Employers can file H1-B applications no earlier than six months in advance of the anticipated start date, and therefore April 1, marks the beginning of the race for obtaining an H1-B Visa.  The last two fiscal years have seen the cap be filled within the first week of the filing period, resulting in USCIS conducting a lottery on April 10, 2014 and April 7, 2013.  Companies employing students on Optional Practical Training (OPT) with work visas expiring in the months between April and September 2015, may have the opportunity to extend the work of students until October 1 with a timely filed H-1B visa application.

In addition, every H-1B application requires a Labor Condition Application (LCA) certified by the U.S. Department of Labor (DOL).  The DOL takes approximately one week to certify an LCA.  If an employer has not previously filed an LCA with the DOL, it may take an additional week for the DOL to verify the employer's Federal Employer Identification Number.

It is important for companies to carefully prepare their applications as the USCIS has increased its scrutiny and regularly requests additional evidence from employers.  Employers need to work with counsel to develop detailed explanations as to why the employee qualifies for this visa. 

For more information about H-1B visas and other immigration matters, please contact Joel Pfeffer, Elaina Smiley, or Gary M. Sanderson.  

Joel Pfeffer 412.456.2877 jp@muslaw.com

Elaina Smiley 412.456.2821 es@muslaw.com

Gary M. Sanderson 412.456.2550 gms@muslaw.com

FINRA Rule 12206: Statute of Repose or Statute of Limitation?

FINRA Rule 12206: Statute of Repose or Statute of Limitation? Under the FINRA rules of procedure, the grounds for a pre-hearing dismissal are limited.  FINRA Rule 12206 is one of those limited options. Rule 12206 states that “no claim shall be eligible for submission to arbitration under the [FINRA] Code when six years have elapsed from the occurrence or event giving rise to the claim.”  Confusion exists as to whether to treat Rule 12206 as a statute of repose, i.e., a substantive limit on the agreement to arbitrate, or as a statute of limitation, which can be subject to tolling and the discovery rule.  This is because, historically, courts were inconsistent in their treatment of Rule 12206’s NASD predecessors.  Current court decisions suggest the trend towards treating Rule 12206 as a statute of limitations, which can be subject to tolling and the discovery rule and, thus, requiring the hearing of evidence.  As a result, Rule 12206 cannot be utilized, at least in one jurisdiction and potentially others, to dismiss claims on a pre-hearing basis. Prior to 2002, the issue before most courts was whether or not rules, such as Rule 12206’s predecessor, NASD Rule 10304, were subject solely to their review or solely to the arbitrator’s review.  There were decisions on both sides.  While some courts held that the Rule was solely the purview of the arbitrator and, by extension, could be treated as a statute of limitation and, thus, subject to tolling and the discovery rule, other courts concluded that Rule 12206’s predecessors were statutes of repose, i.e., substantive limits on the agreement to arbitrate that were not subject to tolling or the discovery rule and, thus, were within the court’s power to determine whether the claims were time barred or not.  Still the decisions by other courts sought a middle ground approach that started the six-year clock running from events other than the initial purchase, such as a later recommendation to hold onto an investment, continuing breaches of fiduciary duty, and/or the active concealment of wrongdoing can also be events or occurrences from which a claim can arise, thereby not triggering Rule 12206’s six-year limitation. In any event, the rationale underlying those decisions that placed the power to decide with the courts, were eviscerated by the U.S. Supreme Court in Howsam v. Dean Witter, 357 U.S. 7985 (U.S. 2002).  In Howsam, the High Court held that NASD Rule 10304 was a matter presumptively for the arbitrator and not for a judge to decide since the time limit rule was more of a gateway question and not a question of arbitrability.  Howsam accordingly overruled the justification used by earlier decisions that held that Rule 12206 and its predecessors were questions of what the parties contractually had agreed was eligible for arbitration and were not, therefore, a statute of limitation subject to tolling.  Consequently, a number of courts have held that post-Howsam, Rule 12206 is not a substantive limit on agreement to arbitrate, but rather it is akin more to a statute of limitation subject to interpretations that include tolling provisions or discovery rule.  See Mid-Ohio Securities v. Estate of Burns, 790 F.Supp. 2d 1263, 1271-1272 (D. Nev. 2011).  See also, Oshidary v. Purpura-Androiola, 2012 U.S. Dist. LEXIS 81367 (N.D. Cal. June 12, 2012). Post-Howsam, at least one appellate court has held that Rule 12206 is, in essence, a statute of limitations without explicitly saying so.  More critically, that court has held that Rule 12206 cannot be used in Pennsylvania to dismiss claims prior to a hearing on the merits, thereby effectively eliminating Rule 12206 as grounds for a pre-hearing dismissal. In Andrew v. CUNA Brokerage Services, the Pennsylvania Superior Court considered whether it was appropriate for the arbitrators to dismiss the claimant’s causes of action pursuant to NASD Rule 10304(a) and FINRA Rule 12206 when the arbitrators only conducted a prehearing telephone conference, as required by FINRA Rule 12206.  The Superior Court determined that it is inappropriate for arbitrators to dismiss a claim prior to the close of a claimant’s case-in-chief (976 A.2d 496, 502 (Pa. Super. 2009)).  The court noted that where a matter is submitted to arbitration, arbitrators are obliged to abide by the minimal procedural requirements necessary for a common law arbitration which entails granting the parties a full and fair hearing.  Id., infra.  Consequently, in Pennsylvania, there can be no pre-hearing dismissal of claims pursuant to Rule 12206 as there must be a hearing first. Because Pennsylvania is one of many states that adopted the Uniform Arbitration Act, although not controlling, the rationale of Pennsylvania Superior Court’s decision may have application beyond the keystone state’s borders.  In any event, post-Howsam, the rationale that Rule 12206 is a statute of repose is, at best, on shaky ground. Consequently, it appears that the trend will be to treat Rule 12206 as a statute of limitation and not as a statute of repose.

	This material is for informational purposes only.  It is not and should not be solely relied on as legal advice in dealing with any specific situation.