On Election Eve, Pennsylvania Courts Enjoin Victims’ Rights Amendment to Constitution Pending Further Judicial Review

In a split decision that came down after 4 p.m. on the eve of the November 5 election, the Pennsylvania Supreme Court affirmed an injunction issued last week by the Commonwealth Court in an important lawsuit regarding victims’ rights and the rights of criminal defendants.

The action concerned a proposed amendment to the Pennsylvania constitution commonly referred to as “Marsy’s Law,” which was scheduled to be on the ballot in the November 5, 2019 general election. Marsy’s Law, if enacted, would confer broad, and numerous, constitutional rights on victims of crime that would be equally weighty before the law as the constitutional rights of persons accused of crime.

Petitioners League of Women Voters of Pennsylvania and Lorraine Haw, represented by the American Civil Liberties Union (ACLU) and Dechert LLP, filed an action in the Commonwealth Court maintaining that the proposed amendment was unconstitutional in that it violated the “single subject” requirement of the Pennsylvania constitution, and that the proposed ballot question was incomplete and misleading, and therefore harmed the ability of voters to knowingly and intelligently cast a vote. Petitioners sought an injunction that would allow the proposed amendment to remain on the ballot, but would prevent the votes from being tabulated, and the results certified, until the courts could finally resolve the constitutional issues involved.

Philadelphia criminal defense attorney Ronald L. Greenblatt, represented by Steve Harvey Law LLC, sought to intervene in the action for a specific purpose—to testify as to how enactment of Marsy’s Law would cause immediate and irreparable harm by impairing the constitutional rights of criminal defendants, and would create great uncertainty and confusion in the criminal justice system. Particularly troublesome was the potential for the amendment to impair the ability of those accused of crime to engage in a complete investigation; to restrict the ability of defendants to fully and effectively cross-examine accusers; and to impair the right to a speedy trial. Mr. Greenblatt successfully intervened in the action, and provided crucial testimony at the October 23, 2019 injunction hearing before Commonwealth Court Judge Ellen Ceisler. In her opinion granting the requested injunction, Judge Ceisler extensively quoted Mr. Greenblatt’s testimony, and specifically relied on it in finding that the Petitioners and Mr. Greenblatt had established the “irreparable harm” necessary to obtain an injunction.

The day after Judge Ceisler granted the injunction, Respondent Kathy Boockvar, the Acting Secretary of the Commonwealth, appealed the decision to the Pennsylvania Supreme Court, which ordered expedited briefing, for the clear purpose of being able to decide the case prior to the election. On November 4, 2019, after 4:00 p.m. on the day before the election, the court, in a split 4-3 decision, upheld the injunction. Thus, as the Petitioners and Mr. Greenblatt requested, the proposed amendment will remain on the ballot for the voters to consider, but the results will not be tabulated, or the results certified, until the constitutional issues are finally resolved. This is an excellent result, as it will give the courts the ability to thoughtfully consider the weighty constitutional issues involved, without the immediate harm that would result if the amendment became effective before those issues are finally decided.

Lower Susquehanna Riverkeeper Sues Fredericksburg Poultry Plant Over Pollution

 

Steve Harvey Law LLC is pleased to represent the Plaintiffs in this important environmental justice matter which was filed in federal court in the Middle District of Pennsylvania. The complaint alleges that the defendant, a poultry rendering facility, discharges over 350,000 pounds of nitrogen in excess of its permit limits in violation of the Clean Water Act. Excess nitrogen, in addition to phosphorus and sediment, cause algae blooms which consume oxygen and create dead zone that are fatal to aquatic life.

Follow the story here: http://bit.ly/31tvFxM

Suit Alleges Sunoco Drilling Contaminated Homeowner’s Water Well

Suit Alleges Sunoco Contaminated Water Well

 

Here is a report on a case Steve Harvey Law LLC filed last week. We are proud to represent our client, David W. Anspach, III, as he seeks justice for the contamination of his water well caused by pipeline activities on his property in Eastern Pennsylvania.

Follow the story here: http://bit.ly/2OiVsHi

Trial Lawyer, Litigator Mike Gehring Joins Steve Harvey Law

Steve Harvey Law LLC is very pleased to announce that Michael E. Gehring has joined the firm’s commercial and complex litigation practice as Senior Counsel effective July 1, 2019. “I am super psyched to have Mike join me and the team at Steve Harvey Law,” said Steve Harvey. “He is a great lawyer. We worked together on the Villanova Law Review in 1987-89 and have been friends ever since.”

Over the past 30 years, Mike has worked as a trial lawyer and litigator for some of the best law firms in Chicago and Philadelphia. He also worked as an appellate lawyer for the Philadelphia District Attorney’s office. He has worked on wide variety of litigation subjects, ranging from business disputes to civil rights, class actions, and insurance. Learn more about Mike here.

Mike’s skills and deep substantive knowledge match perfectly with our firm’s mission of helping people and organizations seek justice in complex civil legal matters. Having him on the team enhances our ability to provide high quality, cost effective representation to our clients.
Steve Harvey Law LLC is a trial and litigation law firm based in Philadelphia, PA, that represents plaintiffs and defendants in cases involving business, employment, intellectual property, environmental justice, trusts and estates, and other state and federal legal matters.

Steve Harvey Named to PennFuture Board

Philadelphia-based commercial litigator and environmental justice lawyer, Steve Harvey, was recently named to the Board of Directors of PennFuture.org. Steve brings his advocacy, legal thinking, and passion for climate change action to PennFuture’s goal of a clean energy economy for Pennsylvania and beyond. @SteveHarveyLaw @PennFuture

Update: Additional Petitioners Added to Pennsylvania Cap-and-Trade Program Petition

On February 28, 2019, the Clean Air Council and other petitioners for an economy-wide cap-and-trade program in Pennsylvania submitted a supplemental petition for the purpose of adding to the list of petitioners. The list now includes 192 environment leaders.

 

Supplemental petition can be found here: Climate Petitioner Feb 28 Supplemental Submission w email

CLE Program: Reflections on the 13th Anniversary of the Intelligent Design Case, Kitzmiller v. Dover Area School District and its Legal Implications.

November 1, 2018

Speakers: Steve Harvey with Lauri Lebo and Eric Rothschild

Steve will be joined by Eric Rothschild, his co-counsel in the noted case of Kitzmiller v. Dover Area School District, and journalist Lauri Lebo, who covered the trial and later wrote a book about the experience, The Devil in Dover An Insider’s Story of Dogma v. Darwin in Small-Town America. Together, they will make a presentation entitled Wandering 40 Days in the High Profile Case Desert: What to Consider When the Media is an Interested Party. Their presentation will be part of a larger CLE to commemorate the 13th anniversary of the Kitzmiller case. Other program highlights include mock argument and discussion of the outcome of Kitzmiller and a review of the ethical issues and other considerations.

The program will take place at the Delaware State Bar Association, 405 N. King St., Suite 100, Wilmington, DE.

To register and for more information go to http://media.dsba.org/CLEReg/OfficeandTrialPractice2018

 

Supreme Court Kiboshes Kids’ Climate Claims (For Now)

 

On Friday, October 19, Chief Justice Roberts issued an administrative stay order in Juliana v. U.S., a lawsuit over climate change in federal court in Oregon against the federal government with a group of children as plaintiffs. https://www.supremecourt.gov/orders/courtorders/101918zr1_086c.pdf?fbclid=IwAR0M2xwMUaoXOWUc8yuKFnXKqvImJk50pPiu0J8gULSPVhoN9jpoI9mlF5M

The trial was scheduled to begin on October 29. The case survived motions to dismiss in the trial court, two trips to the 9th Circuit, and a prior stay request in the Supreme Court, which it unanimously denied on July 30, 2018.

The government sought the stay claiming irreparable harm from being forced to participate in a trial scheduled to last 50 days that it claims is inconsistent with Article III and the separation of powers under the Constitution and allegedly violates the law in other respects.

The trial was expected to feature numerous experts testifying about a wide range of topics, including the impacts of climate change on ocean chemistry, sea level, glaciers, terrestrial ecosystems, and human physical and mental health as well as the technical and economic feasibility of transitioning to renewable sources of energy and sequestering carbon from the atmosphere.

Effect of Stay on Trial

The stay order is temporary. It lasts until after the plaintiffs file a response on October 23 and further order of the Court. Theoretically, this means the Court is only staying the case to give itself time to decide whether to issue a longer stay of the case.

The stay order will make it very difficult if not impossible for the trial to begin on October 29 or anytime soon. This will have the practical effect of preventing the plaintiffs from commanding national news attention for a lawsuit about the science and danger of climate change. Coming just days before the November 6 election, some will claim that the five conservative justices are playing politics.

The timing of the stay is particularly hard on the plaintiffs, given that the case is over three years old. According to a plaintiffs’ press release, their 20 experts, all working pro bono, have already booked their travel to be in Oregon for trial. Plaintiffs’ experts include Nobel Laureate Joseph Stiglitz and renowned climate scientists including Dr. Kevin Trenberth, Dr. Ove Hoegh-Guldberg, and Dr. Eric Rignot.

Main Allegation and Relief Sought

The plaintiffs allege that, through the government’s affirmative actions that cause climate change, it has violated the youngest generation’s constitutional rights to life, liberty, and property, as well as failed to protect essential public trust resources. They seek declaratory and injunctive relief, including an order requiring the U.S. government “to prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend.”

What Happens Next

It will be noteworthy if the Court issues any order before October 29. If the Court as a whole issues an order before then denying the stay, the trial could begin on or soon after October 29. Otherwise, the parties and the trial court will have to shelve the plan for the trial until the Court rules, which could take weeks. Either way, court watchers will look first to see how the justices voted on this case, which stands as a proxy for concern about climate change.

Our Children’s Trust

The plaintiffs’ legal team is led by Our Children’s Trust, a nonprofit organization based in Eugene, Oregon. Its mission is to give young people a legal and public platform on the climate issue. https://www.ourchildrenstrust.org/

Steve Harvey

Steve Harvey is the founder and president of A Call to the Bar: Lawyers for Common Sense on Climate Change, a nonpartisan, nonprofit group of lawyers, law professors, law students, and citizens dedicated to using the law to secure the rights of all people to a healthy and sustainable planet earth.

 

Advancement versus Indemnification: One Issue Every Litigator and Business Lawyer Should Spot

Steve Harvey Law Philadelphia American Flag

The issue is called advancement of fees and expenses, and it can make or break a lawsuit for the client, the plaintiff’s counsel, and the business lawyer who had the foresight to include it in the operative contract. Here’s why.

Indemnification for Corporate Agents

Under corporation statutes in Delaware and most other states, when a claim is brought against a corporate employee, officer, or director (“agent”) that arises of out the of agent’s status as employee, officer, or director, if the agent defends the case and wins, the corporation is obligated to reimburse the agent for all attorney’s fees and costs incurred defending the claim.

  • This includes all types of claims—e.g., breach of fiduciary duty, sexual harassment, even allegations of criminal misconduct—as long as the claim arises out of the relationship with the corporation.
  • The standard for “arises out of” is very broad. Essentially it means that but for the agent’s relationship to the corporation they would not be facing the claim.
  • The only other limits are that the agent’s fees and costs must be reasonable, which is also broad and would include the hourly rates of lawyers at a good law firm, and the agent must prevail.

Indemnification Can Be Meaningless Without Advancement

Here’s the rub. To get to the point of prevailing, the corporate agent has to pay the lawyers’ invoices out of her own pocket. That could cost easily tens or hundreds of thousands of dollars. As a result, the right to indemnification is, in many cases, meaningless, unless the agent can convince a lawyer to represent them with the promise of being paid at the end of the lawsuit, assuming the agent prevails. Not many lawyers will take that risk. This is where advancement comes in.

Permissive Advancement

The corporation statutes that provide for indemnification also provide that the corporation may pay for the legal fees and costs of claims against corporate agents as the fees and costs are incurred. This is called permissive advancement, and it enables the folks who run the corporation to pay for the defense costs of themselves and members of their team facing lawsuits, provided that the agent denies the allegations and agrees in writing that she will pay back all of the fees and costs if she loses the lawsuit.

That’s all well and good if the agent is on the good side of the people who run the corporation, but what if that is not the case, such as when it is the corporation making the claim against the agent?

Mandatory Advancement

To protect against this situation, and to incentivize qualified people to work for corporations, those same statutes permit corporations to enter into agreements requiring them to pay attorney’s fees and expenses in advance of the conclusion of the lawsuit, as they are incurred. What are the requirements for mandatory advancement?

  • The contract must contain clear language requiring advancement.
  • The claim must arise out of the agents’ status as corporate agent.
  • The agent must deny the claim.
  • The agent must agree in writing to reimburse the fees and expenses if they lose the lawsuit.

Mandatory advancement provisions are enforceable in summary enforcement proceedings that can be brought in any state or federal court with jurisdiction; they are often brought in Delaware Chancery Court and federal district courts in Delaware and New York.

Practical Importance of Mandatory Advancement

Litigation about advancement almost always arises when the corporation and the agent have become adverse. In addition to funding the defense of the litigation (and the prosecution of the advancement claim), success on an advancement claim provides a powerful incentive for the corporation to settle or drop the claim against the agent.

Practice Pointer

There is an extensive body of law on the rights of advancement and indemnification. The prudent client will consult experienced counsel considering such a provision in a contract or when facing a lawsuit involving a corporate agent with allegations of wrongdoing that arose out of their corporate statute. But the main thing for those of us who get paid to spot issues is this: when drafting or reading an indemnification clause in any corporate contract, including not just employment contracts but also purchase and sale contracts, look for the magic language requiring the corporation to advance fees and expenses as incurred. It can make all the difference if the relationship later goes sour.

Steve Harvey

The lawyers at Steve Harvey Law have extensive experience litigating advancement and indemnification issues. Check out the decision of U.S. District Judge Jed Rakoff in one of our recent cases: Ryu v. Hope Bancorp, Inc., 2018 WL 1989591 (April 26, 2018)

 

CLE Program: Scientific Expertise in the Courtroom

Thursday, March 29, 2018
9 a.m. – 12:30 p.m.

Science History Institute
315 Chestnut Street, Philadelphia

Testimony by scientific experts plays a key role in criminal and civil cases throughout the U.S. Yet it is an area that is continually evolving as cutting-edge scientific procedures are developed and new ethical questions are raised.

Villanova University Charles Widger School of Law and the Science History Institute bring together top scholars and experienced practitioners in evidence, psychology, economics and ethics to tackle some of the field’s most pressing issues in a symposium entitled “Scientific Expertise in the Courtroom.” Topics of discussion include the crisis in forensic science; the standards for admissibility of expert testimony, including statistical estimation evidence; the problem of bias in expertise; the ethical dilemmas of attorneys drafting expert reports; and the ethical challenges when consulting experts become testifying experts.

The event takes place on Thursday, March 29, 2018 from 9 a.m. to 12:30 p.m. at the Science History Institute (315 Chestnut Street, Philadelphia). The program is approved by the Pennsylvania Continuing Legal Education board for 2 substantive CLE credits and 1 ethics CLE credit. 

CLICK TO REGISTER

Schedule of Events

8:30 – 9 a.m.: Registration and Coffee

9 – 9:10 a.m.: Welcome Remarks

9:10 – 10:30 a.m.: Issues of Forensic Science in the Criminal Context

Jules Epstein, Director of Advocacy Programs, Temple University Beasley School of Law
Jennifer Gentile LongCEO, AEquitas: The Prosecutors’ Resource on Violence against Women
Kevin Todorow, JD Candidate, Temple University Beasley School of Law

Moderated by David S. Caudill, Professor of Law and Arthur M. Goldberg Family Chair, Villanova University Charles Widger School of Law

10:30 – 10:40 a.m.: Break

10:40 – 11:30 a.m.: Statistical Estimation Evidence in Toxic Tort Cases, and the Impact of Human Psychology in Criminal Cases

Jonah Gelbach, Professor, University of Pennsylvania Law School
Adam Benforado, Professor, Drexel University Thomas R. Kline School of Law

Moderated by Jody A. Roberts, Director of Institute for Research, Science History Institute

11:30 a.m. – 11:40 a.m.: Break

11:40 a.m. – 12:30 p.m.: Examining the Practical and Ethical Issues of Expert Testimony

Stephen G. Harvey, Steve Harvey Law LLC
David S. CaudillProfessor of Law and Arthur M. Goldberg Family Chair, Villanova University Charles Widger School of Law

Moderated by Shea M. Rhodes, Director, Villanova Law Institute to Address Commercial Sexual Exploitation