Joanne Murray, a partner of Antheil Maslow & MacMinn and member of the firm’s business and finance practice group, was a presenter at the Bucks County Bar Association’s continuing legal education program, “Company Formation Best Practices: People and Collateral”. The program focused on the intersection between intellectual property and general business issues when forming small to medium sized enterprises.
Ms. Murray counsels business owners as they face the financial, legal and operational challenges that are an inevitable part of the life cycle of a business.
Elizabeth Fineman, an Associate with Antheil Maslow & MacMinn, received the 2017 Isadore Kohn Young Leadership Award from the Jewish Federation of Greater Philadelphia on September 13th . The award recognizes an exemplary record of participation in the Federation’s programs, communal affairs, and annual campaign as well as demonstrated growth potential within the leadership ranks of the organization and its partner agencies. Ms. Fineman also commenced her tenure on the Federation’s Board of Trustees at that time.
Elizabeth is a family law attorney concentrating on the full range of domestic relations matters, including divorce, child support, alimony/spousal support, marital taxation, equitable distribution and child custody.
Antheil Maslow & MacMinn, an AV Preeminent firm, congratulates our 2017 Top Rated Lawyers named by the Legal Intelligencer, American Lawyer Media and Martindale-Hubbell™. William Antheil, Patricia Collins, William MacMinn, Michael Mills, Joanne Murray, and Jessica Pritchard have been named for this distinction awarded to AV Preeminent attorneys who demonstrate leadership qualities within their field.
For more than twenty-five years, Antheil Maslow & MacMinn, LLP has provided sophisticated legal advice and representation at competitive fees to a wide range of business and nonprofit enterprises throughout the region. We bring a depth and breadth of experience, insight, forward-thinking and personalized service to every client engagement, whether the client is an entrepreneur, family business, middle-market company, multinational enterprise or nonprofit organization. We pride ourselves on developing deep relationships with our clients by taking time to understand their businesses and goals so that we can provide responsive, practical legal advice and aggressive advocacy. Our attorneys become part of each client's team and are invested in their long-term success.
We offer the same high-quality innovative legal services and client-centered focus to our individual clients, with services such as family wealth preservation including tax and estate planning, estate administration and litigation, family law, residential real estate matters, employment disputes and personal injury representation.
Martindale-Hubbell facilitates secure online peer review surveys of lawyers across multiple jurisdictions and geographic locations. Reviewers are asked to assess their colleagues' general ethical standards and legal ability in a specific area of practice. A confidential threshold number of qualified responses is required to achieve a Martindale-Hubbell® Peer Review .
AMM is pleased to announce the addition of Stephanie M. Shortall to the Firm’s Corporate and Estate Planning and Administration practice groups. Ms. Shortall’s practice is focused on advising closely held businesses on the full range of issues faced in today’s legal landscape. She also works with individuals to develop comprehensive estate plans and administer estates of varying sizes and complexity. Stephanie Shortall is active in a number of local civic and charitable organizations. To learn more about Stephanie, check her attorney profile.
Legislative Updates Owners of PA LLC’s & Partnerships Need to Know – Part 2
Written by Joanne Murray
Earlier this year, amendments to Pennsylvania’s statutes governing partnerships and limited liability companies (often referred to as unincorporated entities or alternative entities) went into effect. I recently blogged about the “transferable interest” concept adopted by the Act. Today, in Part 2 of this series, I highlight another significant change brought about by Act 170: the clarification of the fiduciary and other duties owed in the context of an unincorporated entity. In general, there are three basic duties:
• Duty of loyalty: generally, a duty to avoid self-dealing, competing and usurping company or partnership opportunities
• Duty of care: a duty to refrain from gross negligence and recklessness
• Duty of good faith and fair dealing: a duty to deal fairly and consistently with the terms of the parties’ agreement and the purpose of the entity
In a general partnership, each partner owes the above duties to each of the other partners and to the entity.
In a limited partnership: (a) the general partner owes each of these duties to the limited partners and to the partnership; and (b) the limited partners owe only a duty of good faith and fair dealing to each other.
In a manager-managed LLC: (a) the manager owes these duties to the members and to the entity; and (b) the members owe a duty of good faith and fair dealing to each other. In a member-managed LLC, the members owe these duties to each other and the company.
Some of these duties may be modified by agreement of the parties. In their operating or partnership agreement, the parties may modify, but not eliminate, the duty of loyalty and the duty of care, as long as the modification is not “manifestly unreasonable.” This standard is not defined and is left to the courts to interpret, but in general the agreement cannot convert the relationship into a strictly arm’s length relationship. The duty of good faith and fair dealing may not be modified or removed, but the owners’ agreement can identify the standards by which this duty will be measured.
A Cautionary Tale for Employers: One-Time Racial Slur Can Be Basis of Harassment Claim Against Employer
Written by Michael Klimpl
Clarifying its earlier rulings, the Court of Appeals for the Third Circuit (which includes Pennsylvania) has ruled that a single utterance of a racial slur at the workplace could support a claim for harassment.
In this case, two African-American males (plaintiffs) brought suit challenging their firing on the basis that their termination was discriminatory and racially motivated.
The employees specifically alleged that when they arrived at work on various occasions, an anonymous note was written on the sign-in sheets: “don’t be black on the right of way.” They also asserted that while they had more experience working on pipelines than the non-African-American workers, they were only permitted to clean the pipelines rather than work on them. Significantly, a supervisor of these two African-American employees used a severe racial slur to threaten firing if a specific project was not completed to his satisfaction.
The two employees reported this offensive language to a superior and two weeks later they were fired without explanation. After being rehired they were again terminated for “lack of work”.
The suit filed in federal District Court specifically alleged unlawful harassment, discrimination and retaliation. The District Court dismissed the harassment claim, holding that the facts in the complaint did not support a finding that the alleged harassment was “pervasive and regular”. The Court also dismissed the related claims of discrimination and retaliation.
Elizabeth Fineman of Antheil Maslow & MacMinn’s Family Law practice group was profiled in Suburban Life Magazine’s “Women Who Lead” feature. Ms. Fineman was selected for her outstanding legal career and commitment to community service. In addition to her busy family law practice, Elizabeth is active in the Jewish Federation of Greater Philadelphia, as well as the Anti-Defamation League and Crohn's & Colitis Foundation of America.
Fineman concentrates her practice exclusively on domestic relations matters and handles a variety of issues, including divorce, child support, alimony/spousal support, marital taxation, equitable distribution and child custody matters. She has handled many high-income support cases involving an intricate knowledge of both family law and complex financial issues.
No Request is Too Small for Your HR Department
Written by Patricia Collins
I hear a lot of interesting stories in my line of work: there are as many interesting employment law problems as there are interesting people, which is to say, a lot. A recent opinion from the United States Court of Appeals for the Fourth Circuit encapsulates this variety nicely, and serves as a reminder not to disregard unorthodox employee requests.
In EEOC v. Consol Energy, the Equal Employment Opportunity Commission sued Consol Energy on behalf of one of Consol’s employees, Beverly K. Butcher. Mr. Butcher worked diligently for Consol Energy for 37 years when his employer decided to install a biometric hand scanner to track employee attendance. Consol required each employee to have his or her hand scanned, and then, upon entering or departing the workplace, required the employee to wave the hand over the scanner.
Mr. Butcher identifies as a devout evangelical Christian. While the hand scanner seems like a fairly innocent and efficient way to track employees, Mr. Butcher did not see it that way. Mr. Butcher’s faith informed his belief in an Antichrist, whose followers are condemned to everlasting punishment. The followers of the Antichrist are identified by the Mark of the Beast. Mr. Butcher feared that the use of the hand scanner would result in his receiving the Mark of the Beast. No one disputed that Mr. Butcher’s belief were sincerely held. Indeed, Mr. Butcher resigned rather than submit to the new hand scanning rules, after his employer failed to accommodate his request.
The EEOC sued on Mr. Butcher’s behalf, arguing that the failure to accommodate Mr. Butcher’s sincerely held religious belief violated Mr. Butcher’s civil rights. A federal jury in West Virginia returned a verdict in excess of $550,000 in Mr. Butcher’s favor, finding that Consol had constructively discharged Mr. Butcher in violation of his rights to accommodations for his religious beliefs. For want of a simple accommodation, Consol Energy risked a verdict in excess of a $550,000, not to mention the related legal fees and expenses. Interestingly, Consol does not appear to have offered any operational reason for its failure to accommodate: other employees were permitted to clock in by entering their personnel numbers into a keypad, without additional cost or burden to the company. Indeed, email produced in the case seems to indicate that the employer was scoffing at the religious objection.
It would have been cheap and easy for Consol to accommodate the request. The failure to do so appears to be based on a judgment about the validity of the request. This type of fact pattern presents itself often in many contexts: religious accommodations, disability accommodations, requests for medical leave. It is easy, as Consol Energy appears to have done, to disregard requests as “kooky” or “odd.” This is a mistake. If the accommodation is not needed, or is overburdensome, or is not based in fact, that will come out in the accommodation process. The danger lies in not following the process that such a request, however strange, requires. Certainly, it is well worth the effort in the beginning to avoid the stress and expense of litigation later.
Does That Dispute Resolution Clause Constitute Arbitration Under the FAA?
Written by Thomas P. Donnelly
Reprinted with permission from the June 27th edition of the The Legal Intelligencer © 2017 ALM Media Properties, LLC. All rights reserved.Further duplication without permission is prohibited.
Earn out clauses in business acquisitions are notoriously fertile ground for disputes. Complicated post-closing performance metrics, access to information, modifications to accounting methodologies after closing, tracking and collection of revenue information all present opportunities for buyer and seller to disagree. The classic struggle of seller’s effort to maximize sale return juxtaposed against buyer’s focus on transforming the operations of the acquired enterprise for long term success necessarily create friction. Both sides bring their unique perspectives to the interpretation of the exhaustively negotiated purchase agreement with the new benefit of hindsight.
Certainly, arbitration pursuant to the Commercial Rules of the American Arbitration Association is common in any number of business contracts. When the parties elect that process, they accept the applicable Rules and agree to adopt the procedures which have been developed by AAA. In the earn out or deferred consideration context, however, acknowledging the sheer number of potential conflicts surrounding inherent accounting practices, scriveners often incorporate a unique mechanism for dispute resolution in their transactional documents. When the issue is theoretically limited to a calculation, the parties go to great pains to define the applicable accounting terms and may design a system of dispute resolution which does not contemplate many of the applicable provisions of the Commercial Rules or empower any judicial or quasi-judicial third party to control the process.
Indeed, transactional practitioners have developed language which seeks to avoid the intricacies of AAA arbitration in preference for what should be a predictable accounting calculation based on verified numerical results of operations. In such cases, parties most commonly agree to submit any dispute related to the earn out to an informal resolution process using mutually agreed upon accountants to serve as “expert consultants and not as arbitrators.” The sole purpose of the accountants’ participation is the review of financial information relating to post closing operations and the calculation of deferred consideration; which calculation would be “final and binding”.
Elizabeth Fineman will teach a course on June 29th for the Pennsylvania Bar Institute entitled “Child & Spousal Support Basics” This is an educational program for family law attorneys seeking to learn more about case law, procedure and local practice from a faculty composed of seasoned practitioners and those who work in the family court system. The program will be at the CLE Conference Center, Wanamaker Building in Philadelphia, and simulcast throughout the area.