Pepper Hamilton LLP

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3000 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, Pennsylvania 19103-2799, United States
Phone: 215.981.4000
Fax: 215.981.4750
Areas of Practice
  • Alternative Dispute Resolution (ADR)
  • Antitrust & Trade Regulation
  • Appellate Practice
  • Bankruptcy
  • Class Action
  • Commercial Law & Contracts
  • Communications & Media Law
  • Constitutional Law
  • Construction Law
  • Debtor/Creditor
  • Education
  • Energy & Utilities
  • Environmental Law
  • Finance & Banking
  • Government
  • Health
  • Insurance
  • Intellectual Property
  • International Law & Trade
  • Labor & Employment Law
  • Litigation
  • Mergers & Acquisitions
  • Privacy
  • Products Liability
  • Professional Malpractice
  • Real Estate
  • Science, Computers, & Tech
  • Securities Law
  • Taxation
  • Toxic Torts
  • Transportation
  • Wills, Trusts, & Estate Planning
  • Zoning, Planning & Land Use
See more
Locations
Other U.S. Locations
  • California
  • D.C.
  • Delaware
  • Massachusetts
  • Michigan
  • New Jersey
  • New York
  • Pennsylvania
Number of Attorneys
400+ Attorneys

Crowdfunding Regulations

On October 30, 2015, the Securities and Exchange Commission (SEC) adopted final crowdfunding rules. More than two years after the publication of the proposed crowdfunding rules, the SEC approved regulations that permit companies…more

Blue Sky Laws, Broker-Dealer, Capital Raising, Compliance, Crowdfunding

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Recent Changes to the India-Mauritius Tax Treaty: What Does This Mean for American Investors?

The amendments may cause some uncertainty and anxiety for U.S. investors as they consider how these changes will impact business, income, profitability and the benefits or drawbacks of investing in India through Mauritius…more

Acquisitions, Capital Gains, Double Taxation, Foreign Direct Investment, India

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Is This the End of Arbitration for Consumer Financial Disputes?

The proposed rule has broad implications for the financial industry, which has relied on class action waivers in consumer agreements to ensure that arbitration is a cost-effective way of resolving disputes with customers…more

Arbitration, Arbitration Agreements, CFPB, Class Action, Class Action Arbitration Waivers

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Tax Developments in 2016: Federal Tax (Part I) - Sections 355, 382, and 385; and new rules on partnership audits dominate landscape

Section 385 Proposed Regulations — Impact on Related-Party Financing - Section 385 has been in the Internal Revenue Code since 1969. It was enacted to provide guidance for whether to classify an interest in a corporation as…more

Audits, Bifurcation, Change of Ownership, Debt, Debt Instruments

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SEC Modernization in Plain English: Decoding the Regulation

Practical points on managing SEC Modernization. INTRODUCTION - On October 13, 2016, the Securities and Exchange Commission (SEC) issued its final Investment Company Reporting Modernization rules and forms for the…more

Disclosure Requirements, Exchange-Traded Products, Form N-Cen, Form N-PORT, Form N-SAR

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Federal Court in Pennsylvania Strikes at the Heart of the Residential Mortgage System; Can Commercial Syndicated Loans and Mortgage Securitizations Survive Unscathed?

On June 30, 2014, the United States District Court for the Eastern District of Pennsylvania issued an important decision on Pennsylvania’s recording statutes in the case of Montgomery County, Pennsylvania, Recorder of Deeds, on…more

Loans, Mortgages, Real Estate Market

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Will New U.S. Court Of Appeals Decision On ‘Recess Appointments’ Stay Dodd-Frank Powers Granted To CFPB And Vacate Certain Actions?

Holding that recess appointments authorized by the Recess Appointments Clause of the U.S. Constitution are limited to “intersession recesses” – “the period between sessions of the Senate when the Senate is by definition not in…more

Barack Obama, Canning v NLRB, CFPB, Dodd-Frank, Pro Forma Sessions

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Top 5 Things You Should Know About Online Direct (P2P) Lending Law And Regulations — Before You Do Anything Else!

Few people following the crowdfunding space have been able to ignore the recent meteoric rise of online direct lending, often called “peer-to-peer” (P2P) lending. What started out as a simple one-to-multiple consumer lending…more

Broker-Dealer, Crowdfunding, FINRA, Investment Adviser, Investment Opportunities

See all updates »

Tax Developments in 2016: Federal Tax (Part I) - Sections 355, 382, and 385; and new rules on partnership audits dominate landscape

Section 385 Proposed Regulations — Impact on Related-Party Financing - Section 385 has been in the Internal Revenue Code since 1969. It was enacted to provide guidance for whether to classify an interest in a corporation as…more

Audits, Bifurcation, Change of Ownership, Debt, Debt Instruments

See all updates »

Student and Alumni Litigation

In This Issue: - Unionization of Students ..The New Meaning of “Student Union” ..Overview of Labor Laws and Organized Labor ..Unionization of Graduate Students ..The Northwestern University Case …more

College Athletes, Colleges, Employee Rights, Employer Liability Issues, Internships

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Music and the Blockchain

The promise of blockchain technology for the music industry is its ability to solve the problem of “shared facts” and to provide transparency in real time or near-real time. Advancing digital technology has created new…more

Blockchain, Digital Currency, Digital Media, Encryption, Music

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Pennsylvania Accepts Applications for Medical Marijuana Growers, Processors and Dispensaries

The Pennsylvania Department of Health will accept permit applications for medical marijuana grower/processors and dispensaries from February 20, 2017 until March 20, 2017, pursuant to its authority under the Medical Marijuana…more

Applications, Business Development, Decriminalization of Marijuana, Dispensaries, Marijuana

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Inside or Outside? How to Best Perform Your Company’s Social Media Background Check

No employer wants its employee’s bad behavior at work to become the next viral video. So it is not surprising that more employers have started using social media in the hiring process to screen out candidates who post…more

Background Checks, Discrimination, NLRA, NLRB, Popular

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Your Own Agreements Can Be Your Worst Enemy in IC Misclassification Cases

Companies that use independent contractors (ICs) typically require ICs to sign a contractor agreement prepared by the company. But, if it is drafted like the one reviewed in late September by the U.S. Court of Appeals for the…more

Contract Drafting, Corporate Counsel, Franchise Agreements, Franchisee, Franchisors

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Health Care Providers Should Review Assignment of Benefit Forms After 9th Cir. Decision

A federal appeals court recently brushed aside the claims of several health care providers, in large part because of the language in the assignment forms signed by their patients. The opinion from the U.S. Court of Appeals for…more

Article III, Assignments, Employee Benefits, ERISA, Health Care Providers

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Is Title IX Guidance and Enforcement About to Change?

On February 22, the U.S. Department of Education issued its first Dear Colleague Letter guidance of the new administration, rescinding the transgender rights guidance that the Obama administration issued last summer. The…more

Dear Colleague Letter, Department of Education, Discrimination, Educational Institutions, Gender Identity

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Consumer Financial Regulation: Pennsylvania

A Q&A guide to consumer finance regulation in Pennsylvania. This Q&A addresses state-specific laws governing the offering and sale of consumer financial products and services, including credit cards, residential mortgages,…more

Consumer Financial Products, Consumer Lenders, Credit Cards, Debt Collection, Financial Services Industry

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A Possible Game-Changer for 'Silent' Arbitration Clauses

Companies and other business entities use arbitration clauses to protect themselves from class action liability. While they often use class action waivers that state the parties agree not to pursue class claims in arbitration,…more

Arbitration, Class Action Arbitration Waivers

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Organizational Conflicts of Interest: An Issue That Requires Government Contractors To Be Proactive

In an effort to ensure there is no OCI or that your mitigation plan is effective and timely implemented, government contractors must be proactive when reviewing the agency’s needs in light of its mission, the solicitation, and…more

Conflicts of Interest, Federal Acquisition Regulations (FAR), Federal Contractors, GAO, Procurement Guidelines

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What Your TV Wouldn’t Tell You and Your Fridge Didn’t Know: FTC Best Practices for Consumer-Facing IoT Devices

On January 27, the Federal Trade Commission (FTC) issued an FTC staff report titled “Internet of Things: Privacy & Security in a Connected World” (Report). The Report summarizes the FTC’s November 2013 workshop on the privacy…more

Best Practices, Corporate Counsel, FTC, Information Reports, Internet of Things

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1099ers Exposing Startups, Private Equity Firms to Costly Liability

A recent online edition of New York Magazine’s “Daily Intelligencer” includes a comprehensive article on how Silicon Valley startup tech companies using “the 1099 model” may be exposed to employment, tax and benefit law…more

1099s, Employer Liability Issues, Independent Contractors, Popular, Private Equity

See all updates »

Top 5 Things You Should Know About Online Direct (P2P) Lending Law And Regulations — Before You Do Anything Else!

Few people following the crowdfunding space have been able to ignore the recent meteoric rise of online direct lending, often called “peer-to-peer” (P2P) lending. What started out as a simple one-to-multiple consumer lending…more

Broker-Dealer, Crowdfunding, FINRA, Investment Adviser, Investment Opportunities

See all updates »

Lessons Learned from the FCPA Pilot Program's First Six Months

The guidance issued by the DOJ in connection with the Pilot Program and recent declinations state that disclosure, remediation and cooperation are essential to any favorable resolution with the government. Six months ago,…more

Akamai Technologies, Bribery, Compliance, Cooperation, Corporate Counsel

See all updates »

Software as a Medical Device: FDA Releases Draft Guidance

Companies that develop software that functions as a medical device should be aware that the Food and Drug Administration (FDA) has issued draft guidance that, once finalized, will classify the endless variety of Software as a…more

Comment Period, Draft Guidance, FDA, Healthcare, Medical Devices

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[Webinar] Does Your Company's Distribution Strategy Create Legal Risk? – April 27th, 12:30pm EST

What does in-house counsel need to consider when reviewing pricing and marketing decisions in a dual-distribution system? The internet can extend the geographic reach of your product, but what issues must in-house counsel…more

Antitrust Provisions, Continuing Legal Education, Internet Marketing, Manufacturers, Marketing

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Proposed Loss of Interest Deduction Would Boost Cost of PE Deals

Where asset acquisitions or deemed asset acquisitions are not available, the loss of the interest deduction would likely result in an increased focus on pure equity-funded transactions. Originally published on the Middle…more

Acquisitions, Financial Markets, Financial Sector, Private Equity, Tax Deductions

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Post-Grant Challenges in Life Sciences: 2015 in Review

The prevalence of inter partes reviews (and post-grant reviews to come) forces practitioners to consider the strong likelihood that patents covering commercial products will face post-grant challenges. Originally published…more

Inter Partes Review (IPR) Proceeding, Life Sciences, Orange Book, Patents, Post-Grant Review

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Second Circuit Holds American Express Can Stop Merchants From Steering Customers to Lower-Fee Cards, Competition News Volume 2016, Issue 1

The opinion could provide useful guidance for participants in two-sided markets, like the credit card industry and the health care industry, where separate interests of insurers and patients are often implicated by the same…more

American Express, Anti-Steering Rules, Antitrust Investigations, Antitrust Violations, Credit Cards

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Leasing to Health Care Tenants: What You Need to Know

Commercial office building landlords frequently find themselves leasing to health care provider tenants. A landlord may not consider doctor’s offices or diagnostic labs as specialty uses, but there are several lease provisions…more

ADA, Anti-Kickback Statute, CMS, Commercial Leases, Health Care Providers

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SEC Further Enhances the IPO On-Ramp

The SEC’s rule changes further streamline the pathway for many companies to conduct their initial public offerings and reduce the burdens associated with their subsequent SEC periodic reporting obligations. On January 13,…more

Emerging Growth Companies, Financial Statements, Fixing America’s Surface Transportation Act (FAST Act), Form S-1, IPO

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The Risks and Implications of Failing to Comply with U.S. Government Cyber and IT Requirements

This article summarizes some of the many risks and implications that are associated with failing to comply with U.S. government-unique cyber and information technology requirements. We are often asked by small and medium-sized…more

Breach of Contract, Confidential Information, Cyber Attacks, Cybersecurity, Data Breach

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[Webinar] Acquiring a Company with Government Contracts: A Checklist of Unique Issues and Considerations - June 15th, 8:30am EDT

Pepper Hamilton invites you to attend a webinar discussing the unique issues to be considered when acquiring a company that does business with the federal government…more

Acquisition Agreements, Acquisitions, Government Contractors, Webinars

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Summary of HUD's Lean 232 Program Email Blast Office of Residential Care Facilities (ORCF) April 2016

In an effort to summarize the highlights of the LEAN Email Blasts that we receive, and rarely have time to review in a timely fashion, we at Pepper Hamilton are providing this quick synopsis of the latest LEAN update. Our aim is…more

Appraisal, Healthcare Facilities, HUD, LEAN Program, ORCF

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Public Comment Period on PA Department of Environmental Protection’s Oil and Gas Rulemaking Closes May 19

The Pennsylvania Department of Environmental Protection’s (DEP’s) rulemaking regarding surface activities for oil and gas wells, Environmental Protection Performance Standards at Oil and Gas Well Sites (Chapters 78 and 78a), has…more

Drilling Waste Disposal, Horizontal Wells, Inland Waterways, Oil & Gas, Rulemaking Process

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1099ers Exposing Startups, Private Equity Firms to Costly Liability

A recent online edition of New York Magazine’s “Daily Intelligencer” includes a comprehensive article on how Silicon Valley startup tech companies using “the 1099 model” may be exposed to employment, tax and benefit law…more

1099s, Employer Liability Issues, Independent Contractors, Popular, Private Equity

See all updates »

Is the FTC’s Authority Over Consumer Privacy About to Be Limited?

Historically, the Federal Trade Commission (FTC) has been the most active federal regulator of data privacy and security. Since its creation, it has pursued hundreds of cases against companies that violated privacy statutes or…more

Cybersecurity, Data Breach, Data Protection, FTC, FTC v Wyndham

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2015 Amendments to Delaware Alternative Entity Acts

New amendments affect Delaware general partnerships, limited liability partnerships, limited partnerships and limited liability companies. On July 24, Delaware Governor Jack Markell signed into law several amendments to the…more

Delaware Limited Liability Company Act, General Partnerships, Limited Liability Company (LLC), Limited Liability Partnerships, Limited Partnerships

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ACA: Employers, Non-Discrimination Rules And The ‘Cadillac Tax’

For most employers, the substantive provisions of the Patient Protection and Affordable Care Act (the PPACA) have been implemented. Almost all plans cover an employee’s child until that child reaches the age of 26, fully cover…more

Affordable Care Act, Cadillac Tax, Healthcare, Healthcare Reform, Human Resources Professionals

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Delaware Supreme Court Preserves Benefit of Exculpatory Provisions for Independent Directors at Motion to Dismiss Stage

A recent decision by the Delaware Supreme Court provides independent directors, such as special committee members, with the ability to escape protracted fiduciary duty litigation during its initial stages. The court’s decision…more

Bad Faith, Controlling Stockholders, Exculpatory Clauses, Fiduciary Duty, Independent Director

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Beyond the Label: FDA Addresses Permissible Scope of Communications With Payors and Physicians

The draft guidances create a grey area between “on-label” and “off-label” communications that will require careful navigation as manufacturers develop HCEI analyses and promotional communications…more

Comment Period, Draft Guidance, FDA, First Amendment, HCEI

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Going Mobile: The Risks and Rewards of a BYOD Program

Employees are increasingly using their personal electronic devices, such as laptops, smartphones, and tablets, for work purposes. The trend, dubbed “Bring Your Own Device” or “BYOD,” has redefined what it means to “be at…more

Bring Your Own Device, Employer Liability Issues, Over-Time, Policies and Procedures, Popular

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Confession of Judgment in Commercial Leasing: Impact of Pennsylvania's New Power of Attorney Law

In the wake of the new law, leases containing a confession of judgment provision will need to be reviewed, and standard clauses for new leases and amendments will need to be revised to comply with the new requirements. New…more

Commercial Leases, Commercial Tenants, Landlords, Power of Attorney

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An Update on Pennsylvania's Oil and Gas Law - Act 13 - After Supreme Court Decisions

While many key provisions of Act 13 have now been struck down by the Supreme Court’s two Robinson decisions, much of the Act remains. Act 13 of 2012 represented a major overhaul of Pennsylvania’s oil and gas law and…more

Department of Environmental Protection, Eminent Domain, Energy Projects, Energy Sector, Energy Storage

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Federal Court in California Rules That the Federal Arbitration Act Preempts California Statute That Requires Arbitrations Relating to California Construction Projects Take Place in California

Bell Prods. v. Hosp. Bldg. & Equip. Co., 2017 U.S. Dist. LEXIS 9183 (ND of Cal. Jan. 23, 2017) - A Contractor, Hospital Building and Equipment Company (“HBE”) entered into a subcontract with a mechanical subcontractor, Bell…more

Arbitration, Construction Contracts, Construction Industry, Construction Project, Federal Arbitration Act

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Going the Distance: The Expanding Lifecycles of Private Equity Funds

Pepper Hamilton annually commissions a survey to keep clients abreast of middle-market private equity trends. This year, with Mergermarket, we surveyed 50 middle-market PE firms regarding fund life cycles. Our findings were no…more

Capital Raising, General Partnerships, Investment, Limited Partnerships, Private Equity Funds

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Federal Court in Oklahoma Rules that Bond Issued on a Sovereign Tribal Construction Project is Not a Miller Act Bond Even Though it Stated it was Issued Pursuant to the Act and Named The United States As Obligee

United States ex rel. J.A. Manning Constr. Co. v. Bronze Oak, 2017 U.S. Dist. LEXIS 6054 (N.D. Okla. Jan. 17, 2017) - In May 2014 the Cherokee Nation issued a bid notice for bridge and roadway construction in Mayes County,…more

Competitive Bidding, Construction Industry, Miller Act, Motion to Dismiss, Native American Issues

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Ninth Circuit Again Clarifies that Arbitration Is Creature of Contract: Employee's Agreement to Abide by Company Manual Is Sufficient to Send Title VII Claims to Arbitrator

The court’s opinion instructs that employee agreements to arbitrate may be obtained through written acknowledgments referencing company manuals. Arbitration remains a preferred forum for many employers, yet courts are often…more

Arbitration Agreements, Employee Rights, Federal Arbitration Act, Harassment, Title VII

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OIG Issues HHS Fiscal Year 2016 Work Plan

The Work Plan describes more than 100 initiatives, including 43 new initiatives for the upcoming year. On November 2, the Department of Health and Human Services (HHS) Office of the Inspector General (OIG) issued its annual…more

Healthcare, Medicaid, Medical Devices, Medicare, Section 340B

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Department of Labor Issues Long-Awaited Fiduciary Rule

The new standard requires broker-dealers providing advice with respect to IRAs to put their client’s interests ahead of their own. The U.S. Department of Labor released new rules on April 6 that materially enlarge the…more

401k, Best Interest Contract Exemptions, Best Interest Standard, Broker-Dealer, Business Advice

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Texas Court of Appeals Holds That the Effect of a Failure to Meet a Specific Contractual Deadline for Arbitration is a Procedural Question for the Arbitrator, Not the Trial Court

Tilson Home Corp. v. Zepeda, No. 14-16-00075-CV, 2016 Tex. App. LEXIS 12022 (Tex. App. Nov. 8, 2016) - The Court of Appeals of Texas has held that an arbitrator—not a trial court—must determine whether a prerequisite to the…more

Appeals, Arbitration, Arbitration Agreements, Arbitrators, Construction Industry

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Delaware Bankruptcy Court: Debtors Can Offset Administrative Claims Before General Unsecured Claims

While section 503(b)(9) claims deserve priority payment over general unsecured claims, they do not provide a basis for stripping a debtor’s defenses in determining the allowed amount of a section 503(b)(9) claim…more

Bankruptcy Code, Chapter 11, Commercial Bankruptcy, Section 503(b)(9)

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California Supreme Court Finds Arbitration Agreement Waiver of 'Public Right' Unenforceable

On April 6, the California Supreme Court issued a unanimous opinion in McGill v. Citibank, finding that a pre-dispute arbitration agreement was unenforceable to the extent it required the plaintiff to waive her right to seek…more

Arbitration, Arbitration Agreements, AT&T Mobility v Concepcion, Banking Sector, CA Supreme Court

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New Jersey Joins the 'Ban the Box' Movement

On August 11, 2014, New Jersey Governor Chris Christie signed into law the Opportunity to Compete Act (Act) which prohibits private and public employers that employ 15 or more employees from inquiring about an applicant’s…more

Ban the Box, Criminal Background Checks, Employee Rights, Job Applicants

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Modi's Demonetization Policy: Is the Cure Worse than the Disease? U.S.-India Newsletter Volume 2017, Issue 1

In the short term, demonetization has completely dampened the Indian economy. On November 8, 2016, Indian Prime Minister Narendra Modi declared that the two highest denomination currency notes, INR 500 notes (USD 7.3) and…more

Anti-Corruption, Banking Sector, Banks, Counterfeiting, Currency Control

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OIG Targets Fraud in Physician Compensation Arrangements

Health care organizations and physicians must be cautious in structuring physician compensation arrangements so that they do not violate the Anti-Kickback Statute. The U.S. Department of Health and Human Services Office of…more

Anti-Kickback Statute, Fraud Alerts, Healthcare, HHS, OIG

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Philadelphia Employers May Not Ask Wage History Questions Under New Ordinance

On January 23, 2017, Mayor Kenney signed into law an amendment to the Philadelphia Fair Practices Ordinance making it unlawful for an employer or employment agency to inquire about a prospective employee’s wage history or to…more

Employer Liability Issues, Employment Discrimination, Hiring & Firing, Job Applicants, Local Ordinance

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Extension Period Expires for Pennsylvania Development Permits, Approvals

Now that the extension period has ended, it is imperative for those involved in real estate development to review and understand the approvals and permits that affect their properties and properly calculate and verify the…more

Building Permits, Construction Industry, Construction Permits, Construction Project, Land Developers

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Five Ways to Bring Your Firm's Culture Into the Recruiting Process

As the pool of top associate talent has decreased over the past several years due to reduced numbers of experienced midlevel associates, increased opportunities for in-house positions, and declining law school enrollment, the…more

Corporate Culture, Hiring & Firing, Interviews, Law Firm Associates, Law Firm Partners

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Recent Developments Affecting UCC Filings in New Jersey

New laws and regulations affect the information that must be listed on a financing statement and require electronic filing of all financing statements. There have been two recent developments affecting Uniform Commercial…more

Financing, UCC Financing Statements, Uniform Commercial Code (UCC)

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The Risks and Implications of Failing to Comply with U.S. Government Cyber and IT Requirements

This article summarizes some of the many risks and implications that are associated with failing to comply with U.S. government-unique cyber and information technology requirements. We are often asked by small and medium-sized…more

Breach of Contract, Confidential Information, Cyber Attacks, Cybersecurity, Data Breach

See all updates »

The Spring Meeting Confronts the Yates Memo: Execs in the Front Lines of Corporate Criminal Responsibility; Presentation of the Business Law Section's Director and Officer Liability Committee

The Business Law Section’s Director and Officer Liability Committee conducted a program at the Section’s Spring Meeting in Montréal. The program focused on the recent Yates memorandum of the U.S. Department of Justice (DOJ), and…more

Commercial Insurance Policies, Cooperation, Corporate Crimes, Corporate Executives, Corporate Officers

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Top 5 Things You Should Know About Online Direct (P2P) Lending Law And Regulations — Before You Do Anything Else!

Few people following the crowdfunding space have been able to ignore the recent meteoric rise of online direct lending, often called “peer-to-peer” (P2P) lending. What started out as a simple one-to-multiple consumer lending…more

Broker-Dealer, Crowdfunding, FINRA, Investment Adviser, Investment Opportunities

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On the Grid: Blockchain May Create New Possibilities for Grid Enhancements and Energy IoT Applications

Just as blockchain technology has allowed for the tracking and authentication of Bitcoin and other cryptocurrency transactions, it could similarly mediate transactions in energy units. Blockchain technology — once known…more

Bitcoin, Blockchain, Connected Items, Cryptocurrency, Digital Currency

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Federal Court in Alabama Rules that 1999 Amendment to the Miller Act Does Not Preclude Arbitration of Underlying Claims

United States v. Int’l Fid. Ins. Co., No. 16-0472-WS-C, 2017 U.S. Dist. LEXIS 16791 (S.D. Ala. Feb. 7, 2017) - This action arose out of a payment dispute between Bay South Limited, Inc. (“Bay South”) and Stephens…more

Arbitration, Arbitration Agreements, Construction Disputes, Construction Industry, Contract Terms

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California Supreme Court Finds Arbitration Agreement Waiver of 'Public Right' Unenforceable

On April 6, the California Supreme Court issued a unanimous opinion in McGill v. Citibank, finding that a pre-dispute arbitration agreement was unenforceable to the extent it required the plaintiff to waive her right to seek…more

Arbitration, Arbitration Agreements, AT&T Mobility v Concepcion, Banking Sector, CA Supreme Court

See all updates »

An Update on Pennsylvania's Oil and Gas Law - Act 13 - After Supreme Court Decisions

While many key provisions of Act 13 have now been struck down by the Supreme Court’s two Robinson decisions, much of the Act remains. Act 13 of 2012 represented a major overhaul of Pennsylvania’s oil and gas law and…more

Department of Environmental Protection, Eminent Domain, Energy Projects, Energy Sector, Energy Storage

See all updates »

Leveraging Proportionality to Set Reasonable Limits on Discovery at the Outset

Plaintiffs should not be permitted to insist on an extensive discovery wish list but rather must make some showing that their requests are proportional to the needs of the case. A district court in California recently…more

Discovery, e-Discovery, Electronically Stored Information, Evidence, Federal Rules of Civil Procedure

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Antitrust Division Threatens Criminal Prosecution for Employment Practices: Antitrust Agencies Issue Joint Guidance on Employment Restrictions, Competition News Volume 2016, Issue 1

Even in the absence of an agreement to fix compensation, simply exchanging competitively sensitive information could serve as evidence of an implicit illegal agreement. On October 20, the Department of Justice (DOJ) and…more

DOJ, Employer Liability Issues, Employment Contract, FTC, Hiring & Firing

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Not So Sweet: The Debate Over Evaporated Cane Juice

FDA’s final guidance expresses its view that the phrase “evaporated cane juice” is false and misleading. “Evaporated cane juice” has become a popular ingredient in everything from yogurt to cookies, attracting consumers who…more

Class Action, Evaporated Cane Juice, False Advertising, FDA, Food Labeling

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Bass’s First IPR Decision Rendered – Victory for Patent Owner, Shire Lpc

If Kyle Bass’s Coalition for Affordable Drugs Series II hedge fund was hoping to reap a windfall from short positions in Shire Plc’s stock this week, it was dealt a major setback by a Patent Trial and Appeal Board (PTAB)…more

Inter Partes Review (IPR) Proceeding, Patent Infringement, Patent Litigation, Patent Trial and Appeal Board, Patents

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New York Case Is a Win for the Merchant Cash Advance Industry

Providers of cash advances repaid by sales of future receivables in New York can have greater confidence that these advances are not loans and are not subject to usury laws. On March 16, the Supreme Court of New York,…more

Advances, Banking Sector, Financial Services Industry, Lenders, Loans

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Negotiation Tactics To Consider As Dispute Over Control Of EHR Brews In Milwaukee

A contractual dispute between an electronic health records (EHR) vendor and a federally qualified community health center based in Milwaukee over access to, possession of, control over electronic patient medical records…more

EHR, Vendors

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Beyond the Label: FDA Addresses Permissible Scope of Communications With Payors and Physicians

The draft guidances create a grey area between “on-label” and “off-label” communications that will require careful navigation as manufacturers develop HCEI analyses and promotional communications…more

Comment Period, Draft Guidance, FDA, First Amendment, HCEI

See all updates »

SEC Modernization in Plain English: Decoding the Regulation

Practical points on managing SEC Modernization. INTRODUCTION - On October 13, 2016, the Securities and Exchange Commission (SEC) issued its final Investment Company Reporting Modernization rules and forms for the…more

Disclosure Requirements, Exchange-Traded Products, Form N-Cen, Form N-PORT, Form N-SAR

See all updates »

Lessons Learned from the FCPA Pilot Program's First Six Months

The guidance issued by the DOJ in connection with the Pilot Program and recent declinations state that disclosure, remediation and cooperation are essential to any favorable resolution with the government. Six months ago,…more

Akamai Technologies, Bribery, Compliance, Cooperation, Corporate Counsel

See all updates »

Pennsylvania Supreme Court Affirms Superior Court Decision Protecting Attorney-Expert Communications From Discovery

On April 29, an evenly divided Pennsylvania Supreme Court resolved an issue of paramount importance to Pennsylvania litigants: whether communications between an attorney and a testifying expert are protected from discovery by…more

Discovery, Expert Witness, Work Product Privilege, Work-Product Doctrine

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Going the Distance: The Expanding Lifecycles of Private Equity Funds

Pepper Hamilton annually commissions a survey to keep clients abreast of middle-market private equity trends. This year, with Mergermarket, we surveyed 50 middle-market PE firms regarding fund life cycles. Our findings were no…more

Capital Raising, General Partnerships, Investment, Limited Partnerships, Private Equity Funds

See all updates »

What Every Contractor Needs To Know About Mediation

A generation ago, mediation of construction disputes was unusual. Today, it is rare that a construction claim goes to trial without some effort at mediation first. Indeed, a substantial percentage of construction contracts…more

Arbitration, Construction Industry, Mediation

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Preventing Limitation of Liability End-Runs

Owners who are dissatisfied with their contractors’ performance increasingly assert fraud-based claims in addition to breach of contract claims because fraud-based claims are not typically barred by contractual waivers and…more

Arbitration, Construction Contracts, Construction Disputes, Construction Industry, Construction Project

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Rebalancing Your IP Portfolio

Financial advisors often advise their clients to maintain a balanced investment portfolio. Occasionally these advisors recommend rebalancing the investments within a portfolio to account for changes in market…more

America Invents Act, CLS Bank v Alice Corp, Damages, Federal Rules of Civil Procedure, IP Portfolio

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Second Circuit Holds Class Can Be Decertified After Jury Verdict

A class certification ruling is always subject to challenge if the class representative does not prove the necessary elements of class certification. On July 15, the U.S. Court of Appeals for the Second Circuit held that…more

Class Action, Class Certification, Corporate Counsel, Late Fees, Mortgage Servicers

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Review Of Arbitration Awards: Lessons for the Construction Industry from the Tom Brady Case

NFL Mgmt. Council v. NFL Players Ass’n, 2015 U.S. Dist. LEXIS 117662 (S.D.N.Y. Sept. 3, 2015) - “Arbitration has been proven to be an effective way to resolve disputes fairly, privately, promptly and economically.” So…more

Arbitration, Arbitration Awards, Collective Bargaining Agreements (CBA), Construction Industry, Construction Litigation

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SEC Modernization in Plain English: Decoding the Regulation

Practical points on managing SEC Modernization. INTRODUCTION - On October 13, 2016, the Securities and Exchange Commission (SEC) issued its final Investment Company Reporting Modernization rules and forms for the…more

Disclosure Requirements, Exchange-Traded Products, Form N-Cen, Form N-PORT, Form N-SAR

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Drilling Deeper: The Intersection of Producer Bankruptcies and Gathering Agreements

The issue of whether gathering agreements are subject to rejection in bankruptcy as executory contracts and whether certain provisions of those agreements run with the land and survive rejection will impact ongoing bankruptcy…more

Bankruptcy Code, Business Judgment Rule, Commercial Bankruptcy, Covenants that Run With the Land, Energy Sector

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Expect Increased Environmental Regulatory Scrutiny in the Wake of the Flint Water Crisis

The regulated community should plan for an increased level of agency oversight, inspection and enforcement and increased public involvement. Although there has been much finger pointing as to which party or parties may be…more

Contamination, Drinking Water, Enforcement Actions, Environmental Liability, Environmental Site Assessment

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Long Time Coming: United States Wins First Extradition On Antitrust Charge

On April 4, 2014, the U.S. Department of Justice (DOJ) announced its first-ever successfully litigated extradition of a foreign citizen to the United States in a federal criminal antitrust case. This was an inevitable next step…more

Antitrust Litigation, DOJ, Extradition

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SEC Further Enhances the IPO On-Ramp

The SEC’s rule changes further streamline the pathway for many companies to conduct their initial public offerings and reduce the burdens associated with their subsequent SEC periodic reporting obligations. On January 13,…more

Emerging Growth Companies, Financial Statements, Fixing America’s Surface Transportation Act (FAST Act), Form S-1, IPO

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Counsel to the Company: A Framework for Corporate Governance

As a threshold matter, counsel must identify, and remain clear as to, the identity of its client, which may be the company or a subsidiary, the Board or Board committee, or one or more executives. The identity of the client will…more

Attorney-Client Privilege, Board of Directors, Chief Compliance Officers, Compliance, Corporate Counsel

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Tax Update, Volume 2017, Issue 2

THE NEW REGULATIONS EXPAND THE FILING REQUIREMENTS FOR FORM 5472 TO INCLUDE DISREGARDED ENTITIES WITH FOREIGN OWNERS WHEN THERE ARE CERTAIN REPORTABLE TRANSACTIONS. If a non-U.S. person (individual or corporation) owns…more

Audits, Charitable Donations, Disregarded Entities, Electronic Filing, Escheat

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Supreme Court of California Holds That a Losing Bidder on a Public Works Contract Cannot Sue the Winning Bidder for Intentional Interference with Prospective Economic Advantage

Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc., 2017 Cal. LEXIS 1024 (Cal. February 16, 2017) - This tort lawsuit relates to a dispute over the bidding process on several public works contracts in California…more

Competitive Bidding, Construction Industry, Federal Contractors, Public Works

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Materiality Is the New Condition of Payment: The Implied False Certification Theory After Escobar

The Supreme Court has made it clear that, even at the pleadings stage, relators (or the government) must plead facts to support materiality with plausibility and particularity. For False Claims Act (FCA) defendants who were…more

Conditions of Payment, False Claims Act (FCA), False Implied Certification Theory, Federal Contractors, Fraud

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The 100-Day Program at the ITC

In light of Audio Processing Hardware, it is now clear that, with respect to appeals of ITC 100-day program determinations, Commission determinations against a complainant are immediately appealable, while determinations in…more

28 U.S.C. § 1295(a)(6), ALJ, Article III, Federal Pilot Programs, ITC

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Kentucky Appellate Court Holds That a Contractor May Pursue Claim of Negligent Misrepresentation Against Architect Despite Lack of Contract, the Economic Loss Rule, and Project Waivers

D.W. Wilburn, Inc. v. K. Norman Berry Assocs., No. 2015-CA-001254-MR, 2016 Ky. App. Lexis 206 (Ky. Ct. App. Dec. 22, 2016) - This case arose out of a construction project in which the Oldham County Board of Education (the…more

Appeals, Architects, Construction Disputes, Construction Industry, Construction Litigation

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Pennsylvania Legislature Seeks to Limit Access to Police Video Recordings

The bill establishes a more restrictive process for obtaining video than the courts have provided for under the Right to Know Law. The Pennsylvania Senate passed a bill on October 19 that would prohibit police body camera…more

Body Worn Cameras, Law Enforcement, Pending Legislation, Police, Police Brutality

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State Universities Rejoice: PTAB Recognizes Sovereign Immunity Defense

In Covidien LP v. University of Florida Research Foundation Inc., the Patent Trial and Appeal Board (the “Board”) upheld a defense of sovereign immunity asserted by the University of Florida Research Foundation (the…more

Eleventh Amendment, Intellectual Property Protection, Inter Partes Review (IPR) Proceeding, Patent Infringement, Patent Litigation

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Reforms to the Foreign Investment in Real Property Tax Act and REIT Taxation - Tax Update Volume 2016, Issue 1

The reforms generally encourage foreign investment in U.S. real estate. The enacted Protecting Americans from Tax Hikes Act of 2015 (the Act) contains numerous reforms to the Foreign Investment in Real Property Tax Act of…more

FIRPTA, Foreign Investment, Pension Funds, Protecting Americans from Tax Hikes (PATH) Act, Real Estate Investments

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[Webinar] Could My Company's Website Violate the Americans with Disabilities Act? - June 14th, 12:00pm EDT

Under the Americans with Disabilities Act (ADA), places of public accommodation must ensure equal access to the goods and services they offer to disabled individuals. Is a company website subject to the ADA? The answer to that…more

ADA, Continuing Legal Education, Disability Discrimination, Equal Access, Public Accommodation

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Title IX: Responding To Sexual Harassment And Violence Incidents

Confronting these emotionally laden, incendiary events requires an even-handed and fearless approach - A senior administrator recently described the issues related to sexual misconduct as a dormant volcano that lies…more

Corporate Counsel, Harassment, Sexual Harassment, Title IX, Workplace Violence

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Don’t Short Before The Deal, SEC Reminds Hedge Funds And Buyside Firms

On September 17, 2013, the Securities and Exchange Commission (SEC) announced enforcement actions against 23 investment firms for violations of Rule 105 of SEC Regulation M. Rule 105 generally prohibits short selling securities…more

Enforcement Actions, Hedge Funds, Public Offerings, Regulation M, SEC

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Non-Party Document Discovery in Arbitration: Does It Exist?

Limited discovery (and the associated cost savings) is often touted as one of the benefits of arbitration over traditional litigation. Parties are generally confident that even the scaled-back discovery devices available in…more

Arbitration, Arbitration Agreements, Discovery, Evidence, Federal Arbitration Act

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Big News from the Supreme Court in the Madden v. Midland Funding Case

While far from certain, this development shows that the Supreme Court is interested in the case and will likely give weight to the Solicitor General’s recommendation as to whether the Second Circuit’s ruling should be reviewed…more

Consumer Lenders, Financial Services Industry, Madden v Midland Funding, Online Marketplace Lending, SCOTUS

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Investment Advisers Should Take Note of SEC Updates on Custody Rule

The Securities and Exchange Commission (SEC) recently released additional interpretations of the Custody Rule, Rule 206(4)-2 under the Investment Advisers Act of 1940. Registered investment advisers that have custody of client…more

Custody Rule, Investment, Investment Adviser, Investment Advisers Act of 1940, SEC

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2015 Amendments to Delaware Alternative Entity Acts

New amendments affect Delaware general partnerships, limited liability partnerships, limited partnerships and limited liability companies. On July 24, Delaware Governor Jack Markell signed into law several amendments to the…more

Delaware Limited Liability Company Act, General Partnerships, Limited Liability Company (LLC), Limited Liability Partnerships, Limited Partnerships

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Is This the End of Arbitration for Consumer Financial Disputes?

The proposed rule has broad implications for the financial industry, which has relied on class action waivers in consumer agreements to ensure that arbitration is a cost-effective way of resolving disputes with customers…more

Arbitration, Arbitration Agreements, CFPB, Class Action, Class Action Arbitration Waivers

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Noncompliance with the California Contractor’s License Law Brings Severe Consequences

Pacific Caisson & Shoring, Inc. v. Bernards Brothers Inc., 236 Cal. App. 4th 1246 (Cal. Ct. App. 2015) - In California, a contractor must be licensed by the Contractors State License Board (Board) in order to lawfully…more

Construction Industry, Contractor's License, Contractor's State License Board, Contractors, Disgorgement

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SEC Modernization in Plain English: Decoding the Regulation

Practical points on managing SEC Modernization. INTRODUCTION - On October 13, 2016, the Securities and Exchange Commission (SEC) issued its final Investment Company Reporting Modernization rules and forms for the…more

Disclosure Requirements, Exchange-Traded Products, Form N-Cen, Form N-PORT, Form N-SAR

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On the Grid: Blockchain May Create New Possibilities for Grid Enhancements and Energy IoT Applications

Just as blockchain technology has allowed for the tracking and authentication of Bitcoin and other cryptocurrency transactions, it could similarly mediate transactions in energy units. Blockchain technology — once known…more

Bitcoin, Blockchain, Connected Items, Cryptocurrency, Digital Currency

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Pennsylvania Legislature Seeks to Limit Access to Police Video Recordings

The bill establishes a more restrictive process for obtaining video than the courts have provided for under the Right to Know Law. The Pennsylvania Senate passed a bill on October 19 that would prohibit police body camera…more

Body Worn Cameras, Law Enforcement, Pending Legislation, Police, Police Brutality

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[Webinar] Health Care Construction Projects: Avoiding Claims Through Better Coordination - September 21st, 12:00pm EDT | 9:00am PDT

In January of this year, following frantic talks and a public fight over who was to blame for delays costing close to $100,000 a day in lost revenue, Santa Clara County was finally able to reach an agreement and settle its…more

Construction Contracts, Construction Project, Continuing Legal Education, Healthcare Facilities, Hospitals

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Why Courts Should Not Go 'Over and Above' the Federal Rules to Impose Sanctions for Loss of ESI

A recent case offers a cautionary tale of how courts may cite to the requirements of amended Federal Rule of Civil Procedure 37(e), which governs imposing sanctions for failure to preserve electronically stored information…more

Corporate Counsel, Discovery, Duty to Preserve, Electronically Stored Information, Email

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Bill Baer Announces First Major Policy Shift And Provides 2013 Antitrust Division Update

Bill Baer assumed his post as leader of the U.S. Department of Justice (DOJ) Antitrust Division in January of this year and is starting to make his mark…more

Antitrust Investigations, Antitrust Litigation, DOJ, Enforcement, Political Appointments

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FTC Issues First Formal Policy on Section 5's Unfair Competition Authority

Although the brief FTC statement is beneficial, the sweeping language contained in the policy statement gives little practical guidance to the business community. On August 13, the Federal Trade Commission (FTC) issued its…more

FTC, SCOTUS, Section 5, Sherman Act, The Clayton Act

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Status Quo At The PTAB For Now: Supreme Court Makes No Changes to IPR Practice

Recently, the Supreme Court declined to make any changes to IPR procedure in its opinion in Cuozzo Speed Technologies, LLC v. Lee, 579 U.S. ___ (2016). Relying primarily on statutory language and concepts of agency rulemaking…more

Appeals, Broadest Reasonable Interpretation Standard, Claim Construction, Cuozzo Speed Technologies v Lee, Inter Partes Review (IPR) Proceeding

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Investment Management and Hedge Funds – What’s Happening Now?

In This Presentation: - Trademarks – not just for consumer companies - Strength of a Trademark: Categories - Choosing a Trademark - Obtaining Protection – Common Law Rights - Obtaining…more

Hedge Funds, Investment Management, Likelihood of Confusion, Trademark Infringement, Trademarks

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[Webinar] Does Your Company's Distribution Strategy Create Legal Risk? – April 27th, 12:30pm EST

What does in-house counsel need to consider when reviewing pricing and marketing decisions in a dual-distribution system? The internet can extend the geographic reach of your product, but what issues must in-house counsel…more

Antitrust Provisions, Continuing Legal Education, Internet Marketing, Manufacturers, Marketing

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Third Circuit Focuses on Relevant Product Market and Lack of Anticompetitive Conduct in Doryx Product-Hopping Case

To prevail in a product-hopping case, a plaintiff must be prepared to establish both monopoly power and anticompetitive effects. On September 28, a unanimous panel of the U.S. Court of Appeals for the Third Circuit affirmed…more

Anti-Competitive, Appeals, Generic Drugs, Hatch-Waxman, Mylan Pharmaceuticals

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Court Grounds the Use of Unbargained-for Warranty Disclaimers

The Pennsylvania Superior Court’s decision in Allen-Myland, Inc. will likely increase liability exposure for manufacturers. In a case of first impression, the Pennsylvania Superior Court recently rejected the…more

Aviation Industry, Contract Drafting, Contract Terms, Corporate Counsel, Disclaimers

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Six Things the Private Sector Should Know About EPA's Final Vapor Intrusion Guidance

The cumulative impact of the EPA guidance is to require the generation of more data, which means more sampling and analysis, more frequent and stringent remediation, and potentially higher remediation costs. At long last,…more

Compliance, Department of Defense (DOD), EPA, Final Guidance, Groundwater

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Materiality Is the New Condition of Payment: The Implied False Certification Theory After Escobar

The Supreme Court has made it clear that, even at the pleadings stage, relators (or the government) must plead facts to support materiality with plausibility and particularity. For False Claims Act (FCA) defendants who were…more

Conditions of Payment, False Claims Act (FCA), False Implied Certification Theory, Federal Contractors, Fraud

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Breaking News: Supreme Court Rules on Affordable Care Act Contraception Mandate

In Burwell v. Hobby Lobby, the U.S. Supreme Court ruled 5-4 that certain closely held corporations with religious objections cannot be required to provide health insurance coverage that includes certain types of contraception…more

Affordable Care Act, Burwell v Hobby Lobby, Contraceptive Coverage Mandate, Contraceptives, Hobby Lobby

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FTC Issues First Formal Policy on Section 5's Unfair Competition Authority

Although the brief FTC statement is beneficial, the sweeping language contained in the policy statement gives little practical guidance to the business community. On August 13, the Federal Trade Commission (FTC) issued its…more

FTC, SCOTUS, Section 5, Sherman Act, The Clayton Act

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Do No-Damage-for-Delay Clauses Bar Acceleration Claims?

Time is money in construction, and project delays can cause contractors to incur substantial additional costs. To avoid responsibility for paying these costs, project owners often include a no-damage-for-delay (NDFD) clause in…more

Acceleration, Construction Contracts, Construction Industry, Construction Project, Contractors

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Highlights of the Defend Trade Secrets Act of 2016

The DTSA permits federal civil actions to be brought for the misappropriation of trade secrets if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce…more

Asset Seizure, Defend Trade Secrets Act (DTSA), Ex Parte, Intellectual Property Protection, Misappropriation

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It Is Not All Bad News from the Supreme Court in Campbell-Ewald v. Gomez

In a recent clash between contract principles and the mootness doctrine, contract principles won. Relying on traditional contract principles, the U.S. Supreme Court issued a 6–3 decision on January 20, holding that an unaccepted…more

Campbell Ewald v Gomez, Class Action, Class Representatives, Corporate Counsel, Mootness

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U.S. Supreme Court Agrees To Hear Government’s Appeal Of Sixth Circuit’s Ruling In U.S. v. Quality Stores That SUB Payments Are Not ‘Wages’ Subject To FICA Taxation

On October 1, 2013, the U.S. Supreme Court agreed to hear the federal government’s appeal of the Sixth Circuit’s decision in United States v. Quality Stores, Inc. (In re Quality Stores, Inc.), 693 F.3d 605 (6th Cir. 2012),…more

FICA Taxes, Quality Stores, SCOTUS, Wages

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Mid-Market Trends - Leveraged Lending and the Current Regulatory Environment

Financial institutions, institutional investors and liquidity providers to the leveraged loan markets are finding themselves increasingly subject to new regulation in the United States and abroad. Both global and U.S. regulators…more

Capital Markets, Comptroller, FDIC, Federal Reserve, Financial Institutions

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In Omnicare, Supreme Court Draws Distinction Between Factual Misstatements and Factual Omissions in Setting Standards for Determining Section 11 Opinion Statement Liability

On March 24, the U.S. Supreme Court handed down its landmark decision in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund. The Court vacated the U.S. Court of Appeals for the Sixth Circuit’s ruling…more

Material Misstatements, Omnicare, Omnicare v Laborers District Council, Registration Statement, SCOTUS

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The OCC Launches Its New FinTech Charter Initiative

Whether the long and arduous chartering process, ongoing examination and supervision requirements, substantial capital requirements and limitations on initial rapid growth will outweigh the benefits of the bank partnership model…more

Banking Sector, Comment Period, Federal Reserve, FinTech, OCC

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Statute of Limitations

The Doctrine of Nullum Tempus, and Its Impact on Statutes of Limitation and Statutes of Repose - The common law doctrine of nullum tempus occurrit regi — generally translated to mean “time does not run against the king” —…more

Construction Industry, Construction Litigation, Statute of Limitations, Statute of Repose

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Is This the End of Arbitration for Consumer Financial Disputes?

The proposed rule has broad implications for the financial industry, which has relied on class action waivers in consumer agreements to ensure that arbitration is a cost-effective way of resolving disputes with customers…more

Arbitration, Arbitration Agreements, CFPB, Class Action, Class Action Arbitration Waivers

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FOIA for Federal Contractors: Finding New Uses for a Familiar Tool

Freedom of Information Act (FOIA) updates bookended the Obama administration. We previously covered the 2007 congressional update that immediately preceded Obama’s taking office. We now offer insight into how federal contractors…more

Federal Contractors, FOIA, Obama Administration, Trump Administration

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Executives Beware: The DOJ and SEC Have Set Their Sights on Individual Wrongdoing

The DOJ’s Yates Memo makes individual prosecutions a higher priority and makes a company’s own identification of potentially culpable individuals an explicit factor in assessing cooperation credit…more

Corporate Fines, Corporate Governance, Deferred Prosecution Agreements, DOJ, DPA

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Long-Running Corruption Scheme Exposed in Brazil: Operation "Exposed Invoice" Provides Continuous Improvement Opportunity for Effective Compliance Programs

A massive scheme involving medical products sales to Brazilian public entities has led to recent high-profile arrests. The events highlight the importance to a well-functioning compliance program of keeping up with new schemes…more

Brazil, Bribery, Compliance, Corruption, Enforcement Actions

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Pennsylvania Supreme Court Affirms Superior Court Decision Protecting Attorney-Expert Communications From Discovery

On April 29, an evenly divided Pennsylvania Supreme Court resolved an issue of paramount importance to Pennsylvania litigants: whether communications between an attorney and a testifying expert are protected from discovery by…more

Discovery, Expert Witness,