As in recent years, the controversy regarding the legal status of owner-operators and other drivers was a recurring theme in many of the cases decided in 2018, which we review in this year’s edition of the Barclay Damon annual transportation law review. This issue keeps the owners of trucking companies up at night with concerns regarding how to make payroll and cover related expenses. Of course, it also troubles many drivers who are struggling to support their families. And now, legal issues arising out of those concerns are increasingly front and center in various litigation matters. A close reading of the topics summarized here will give one a taste of the different contexts in which the issue bubbles up. Issues of federalism and conflicts between federal and state law are also prevalent in the cases we reviewed this year.

You can begin to read below or click here to open the full newsletter.

1. Owner-Operator Agreements and Leasing Regulations

Part 376 of Title 49 of the Code of Federal Regulations sets out the rules regarding the relationship between authorized interstate motor carriers and the owner-operators who lease their rigs to the motor carriers. These rules have implications for the scope of liability for motor carriers, the employment status of the owner-operators, and the rights of the owner-operators to be protected from contracts of adhesion. Because of that last topic, the regulations are often referred to as the Truth in Leasing regulations.

Mervyn v. Atlas Van Lines, 882 F.3d 680 (7th Cir.), involved an owner-operator (Mervyn) who had leased his rig to Ace World Wide Moving, an agent of the well-known household goods mover, Atlas. Some four years into the lease, Mervyn filed suit against Atlas and Ace, alleging breach of contract and violations of the truth-in-leasing regulations. The regulations require leases to be in writing and to contain various provisions, including one setting out the amount to be paid to the owner-operator for equipment and driver’s services, which may be expressed as a percentage of gross reserve, a flat rate per mile, or by any other mutually agreed method.

(click to read more)

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Within two weeks of Tim Green, of counsel to the firm, launching his not-for-profit webpage Tackle ALS, firm attorneys and staff raised over $100,000 to support innovative ALS-treatment trials and to increase access to effective treatments for people living with ALS. The Team Barclay Damon fundraising page can be accessed here on any browser other than Internet Explorer.

Tackle ALS participants have collectively raised over $1.5 million in a month, prompting several large foundations to contribute an additional $7 million to the cause. Tackle ALS and the Healey Center for ALS at Massachusetts General Hospital now have enough funds to begin three drug trials, for which 1,000 ALS patients have already signed up.

Green’s former Morning Edition producer Tom Goldman recently interviewed Green and his family and ALS doctor for an NPR profile discussing the disease, Tackle ALS, and Green’s life as an NFL player and author.

Additionally, the firm’s significant fundraising and visible support of Green resulted in a WSYR interview with Green’s longtime friends and business partners John Langan, managing partner, and Rick Capozza, Energy Practice Area chair.

“Being able to rally around Tim has been encouraging and inspirational from our perspective,” Langan said. “Right now, we’re in a battle with him.”

Tim Green, attorney and of counsel to the firm, recently announced his ALS diagnosis. As a New York Times-bestselling author, former NFL defensive end, and former Fox Sports broadcaster, Tim’s announcement has gained widespread coverage in both local and national media that include Bleacher Report, ESPN, Los Angeles Times, NBCSports, NBC3, People, Reuters, Spectrum News, Sports Illustrated, Washington Post, WPRI, WSYR, and KATV.

Tim was additionally interviewed on 60 Minutes for a segment that aired November 18 and Fox Sports aired a piece on Green’s diagnosis and his new not-for-profit webpage, Tackle ALS, during the Thanksgiving Day pregame show before the nationally televised Dallas Cowboys-Washington Redskins game.

In partnership with the Healey Center for ALS at Massachusetts General Hospital, Tackle ALS will use funds to support innovative ALS-treatment trials and to increase access to effective treatments for people living with ALS. In support of our friend and business partner, the firm has created a Tackle ALS Team Barclay Damon fundraising page, which can be accessed here on any browser other than Internet Explorer. Additionally, the Barclay Damon Tower in Syracuse, New York, will be lit up in red, the color of ALS awareness, every Sunday through December 31.

Tim has been an integral part of the development and growth of Barclay Damon, and he will continue to be a leader at the firm for years to come. Anyone who knows him knows this announcement is not the end of anything. Rather, it is the beginning of a new phase, and we are honored that Barclay Damon is joining him at the beginning of it.

Barclay Damon announces the official launch of the law firm’s cannabis team, led by attorney Sara Payne, a member of the New York State Bar Association Committee on Cannabis Law.

The members of Barclay Damon’s multidisciplinary team, which represents individuals and organizations participating in or impacted by legal cannabis operations, have nearly a decade of cannabis-specific experience. Coupled with Barclay Damon’s long history of successfully representing businesses in highly regulated fields, the firm is well qualified to counsel clients across the full spectrum of cannabis-related legal issues.

Payne said, “We are proud to represent clients in this dynamic and rapidly changing area of law, whether they are entrepreneurs, established companies, or individuals with cannabis-based business interests. Our team’s bench depth allows us to carefully monitor developments in legislation and marketplace trends to help them adapt and succeed in the changing landscape.”

“As an attorney with established clients in this field,” Payne continued, “I feel fortunate to be part of a firm with such an extensive range of resources and industry knowledge in the area.”

Payne represented one of the original five registered organizations authorized to produce and distribute medical marijuana in New York State and has assisted the company since its inception with all aspects of its operations. She is a contributing editor for Cannabis Law Digest, and her recent presentations include “Legislative Developments in Medical Marijuana and Industrial Hemp in New York,” a New York State Bar Association continuing legal education (CLE) seminar presented in May.

John Langan, Barclay Damon’s managing partner, said, “Our firm prides itself on the spirit of innovation that drives us, and we are delighted to be an integral part of our cannabis clients’ operations and growth as they navigate this new regulatory terrain and emerging business environment. We are excited to see what lies ahead for these clients and honored to partner with them to help minimize their risks and support their endeavors.”

Barclay Damon currently has approximately 10 clients with businesses based in this evolving field. In addition to representing cannabis-based businesses, the team’s understanding of how cannabis laws and regulations intersect with mainstream organizations and individual rights is critical to numerous additional clients.

Payne's involvement and the new team have attracted considerable attention in the press, including the following:

Law.com
New York Law Journal
Onondaga County Bar Association Bar Reporter
Rochester Business Journal
The Capital Pressroom
The Daily Record

In an article accompanying its 2016 list of the country’s  500 largest law firms, the National Law Journal says, “Barclay Damon jumped onto several of our top charts, including largest gains in total attorneys, size of the partnership, and associate ranks.”

The article notes attorney numbers at the firm were level from 2008 until last year, and quotes John P. Langan, managing partner: "When there is no growth, it's weird in the group dynamics [of a firm]. Things can get stale or intractable."

But with growth came excitement, the article says, explaining that “the chart-topping happened because of the combination between Hiscock & Barclay, a NLJ 350 firm last year with more than 200 attorneys, and the 90-lawyer Damon Morey.”

"There's dust in the air, and noise and coffee cups with cigarettes in them,” Langan says in the article, “but when you're done, you're so happy you did it."

Barclay Damon is the 157^th largest law firm on the NLJ 2016 list.

On February 27, 2018, Barclay Damon commenced an action in federal court in Chicago seeking recovery of $1.2 billion on behalf Shelbourne North Water Street Corporation, the frustrated developer of the Chicago Spire, against National Asset Management Agency and National Asset Loan Management, both statutory bodies of the Republic of Ireland. The verified complaint asserts claims for breach of contract, tortious interference with contract, tortious interference with prospective economic advantage, breaches of statutory and common law duties to preserve confidential information, and spoilation of evidence.

Shelbourne has demanded a jury trial. This will be the first jury trial the defendants have faced since their creation in 2009 as a consequence of the Irish/World Financial Crisis. Shelbourne is owned by Garrett Kelleher, a well-known Irish international real estate developer, who either personally or through one of his companies is currently engaged in litigation with the defendants in Brussels, Ireland, and now the United States.

Shelbourne has not abandoned hope of completing the Spire—a project in which it has already invested over $300 million. If constructed, the Spire, designed by world-renowned Spanish architect, structural engineer, sculptor, and painter Santiago Calatrava, will be at 2,000 feet the tallest residential building in North America and be located facing Lakeshore Drive on the last major undeveloped site in downtown Chicago.

The well-seasoned Barclay Damon team is led by J. Joseph Bainton. Chicago counsel is Freeborn & Peters LLP. The case has attracted considerable attention in both the Irish and US press, including the following publications:

Chicago Sun Times
Chicago Tribune
Cook County Record
Crain's Chicago Business
Global Restructuring Review
Irish Post Plus
Law360
Loop North News
The (Irish) Independent
The Irish Times

A copy of the verified complaint, jury demand, and notice of reliance on foreign law can be obtained by clicking here.

October 4, 2017—Barclay Damon announces the election of M. Cornelia (Connie) Cahill to the newly created position of deputy managing partner, effective January 1, 2018. Connie will work closely with John P. Langan, the firm’s managing partner, to guide the firm and ensure its continued success. At Barclay Damon and many other law firms, the managing partner operates as chief executive officer of the enterprise.

Connie has been a member of Barclay Damon’s Management Committee for nine years and is its longest-standing member. As the Albany representative on the Management Committee, her responsibilities include oversight of the Albany, Boston, and Washington DC offices. During Connie’s tenure, the Albany office has doubled in size to roughly 40 attorneys and is now ranked in the Capital District as the second-largest law firm office.

As a public finance attorney and chair of that practice, Connie has more than 25 years of experience serving as bond counsel, underwriter’s counsel, institution counsel, and bank counsel in a wide range of transactions. During her career, Connie has trained and led teams of public finance professionals that serve clients located throughout New York State, from Long Island to Buffalo. These clients include the Dormitory Authority of the State of New York, New York State Housing Finance Agency, New York State Environmental Facilities Corporation, numerous industrial development agencies and local development corporations, more than 100 municipalities and school districts, and all of the major investment bank underwriting firms active in the state. Under Connie’s leadership, the firm’s Public Finance Practice Area is one of the highest performing groups at the firm.

Connie was instrumental in forming the firm’s Women’s Forum, an affinity group that encourages, mentors, and champions women attorneys to enhance and promote their professional and personal success. In addition to internal activities, the Women’s Forum hosts events throughout New York State for women clients and friends of the firm to share information, experiences, strategies, and problem-solving ideas in an open, trusting, and supportive environment.

Connie received her undergraduate degree from Siena College, her Juris Doctorate from Albany Law School, her LLM in Tax from New York University, and started her career at Millbank Tweed Hadley & McCloy in New York City.

“We are honored to welcome Connie to this important new role,” John Langan said, “and I join my partners in their excitement for her expanded leadership role. Connie’s accomplishments as a partner and leader of the firm have been second to none, and I look forward to the successes that are in store for the firm with her involvement at the helm. Our valued clients, our 275 attorneys, and our roughly 425 members of the Barclay Damon family are indeed fortunate to have Connie’s leadership and vision.”

Connie added, “I am grateful to work with so many talented and hard-working professionals and to take on new challenges and opportunities involved in helping lead this extraordinary, progressive firm. Under John’s leadership, the firm has embraced excellence, change, growth, and diversity and inclusion, making these cornerstones of everything we do. The firm’s support and advancement of the Women’s Forum, our award-winning pro bono and shadowing programs, and our culture of inclusiveness make me proud to be part of Barclay Damon. I look forward to continuing to serve the needs of our clients while working with our management team as deputy managing partner to help guide the firm to even greater heights.”

In addition to creating the deputy position, Barclay Damon has also established a chair position that remains unoccupied at this time. The position is available to serve the managing partner on select assignments by former managing partners transitioning from their position. As John Langan has served with distinction as managing partner for almost 18 years, the chair position is designed to allow the firm to access his expertise after his eventual transition.

As noted by Langan, “The managing partner of Barclay Damon historically has been resident in the Syracuse office, but consistent with our multi-office platform and our “no home office” structure, we were pleased to see another first—that the partners elected Connie as an Albany office resident. Connie’s election to the deputy managing partner position creates shared executive leadership to ensure that the firm remains strong and forward-looking for the benefit of our clients and employees.”

Barclay Damon LLP, listed as a “Top 250 Firm” by The National Law Journal, is a full-service law firm with offices throughout the major cities of New York State and in Toronto, Boston, Washington, DC, and Newark. At 275 lawyers, Barclay Damon is the largest law firm in the Northeastern United States that is not centered in a major market. Barclay Damon provides comprehensive legal and business counsel to a diverse client base in 33 practice areas.

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Barclay Damon’s transportation team again looks back at the past year’s important cases in transportation law. Our review of 2017 follows and includes links to decisions for the cases discussed.  

You can begin to read below or click here to open the full newsletter.

 1. Insurance Coverage Litigation

Always looking for additional deep pockets, plaintiffs’ lawyers sometimes look to the owners and insurers of trailers to contribute to judgments secured against the motor carriers that have possession of those trailers. Sentry Select Insurance Co. v. Lopez, 241 F. Supp. 3d 777 (W.D. Tex.) is among the latest in a series of decisions relating to trailer coverage, stemming from a one-vehicle accident that resulted in the death of the two men who had shared driving duties for the rig. The accident has led to many litigations, some of which we have described in past years. Goal Transports, insured by Sentry, had leased the trailer at issue and had hired Trans Front to move its freight on an ongoing basis between Texas and Mexico. At the end of the day, though, it was Moore Transportation, with drivers Munoz and Franceware, who were hauling the Goal trailer with cargo unrelated to Goal’s business and far from the international border. The two men were injured in a one-vehicle collision. Goal was unfamiliar with Moore and had not been in touch directly with Moore or the drivers. Could the Moore drivers, nonetheless, be deemed permissive users of the Goal trailer.

Click to read more.

Barclay Damon’s addition of 14 attorneys and all paralegals and staff from leading bankruptcy firm Menter, Rudin & Trivelpiece, P.C., announced July 17, received coverage from numerous media outlets.

In the New York Law Journal article “In an Acquisition Spree, Barclay Damon Hooks On to 14-Lawyer Bankruptcy Firm,” author Christine Simmons quotes John Langan, Barclay Damon managing partner, and Jeff Dove, Menter president and CEO, discussing Barclay Damon’s “reputation for growth and combinations effective for clients.” Simmons noted that the firm has closed 12 lateral deals in the past two decades.

The combination was also covered by The Buffalo News, Watertown Daily Times, The Daily Record, Syracuse.com, and Central New York Business Journal.

Barclay Damon’s addition of 11 attorneys and all staff from the energy-environmental firm Gilberti Stinziano Heintz & Smith, announced November 1, 2017, received coverage from numerous high-profile media outlets.

• In New York Law Journal, “Gobbling Smaller Firms, Barclay Damon Sets Sights on Growth,” author Christine Simmons quotes John Langan, Barclay Damon’s managing partner, saying the deal with Gilberti will qualify the firm for AmLaw 200 ranking. Simmons also notes the firm “is in serious talks now with two smaller firms for mergers that could close next year.”
• In Law360, “Barclay Damon Picks Up NY Enviro, Energy Boutique,” author Adam Lidgett quotes Langan saying that bringing on attorneys from Gilberti is part of the larger growth of Barclay Damon’s energy practice. “The firm recently completed a deal to add four attorneys from the Massachusetts-based McCauley Lyman LLC to its renewable energy team,” Lidgett notes.

Other notable articles include:

• Syracuse.com, “Powerful Syracuse Law Firm Barclay Damon Brings Another Local Firm Into Its Fold”
• Central New York Business Journal, “Barclay Damon Combines With Gilberti Law Firm”
• Buffalo Law Journal, “Syracuse-Based Law Firm Acquired by Barclay Damon”

Law360 published an expert analysis article by Laura Vogel and Bella Satra, attorneys in Barclay Damon’s Intellectual Property Litigation Practice Area who have extensive experience representing pharmaceutical and other life sciences companies. “Proactive Brand Strategies for Pharma Innovators” focuses on a dynamic and innovative approach to Hatch-Waxman Act pre-litigation counseling.

Read more here.

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Barclay Damon has experience representing dozens of colleges and universities across the Northeast.  The firm’s higher education services include: day-to-day academic, business and corporate matters; labor and employment; student discipline and affairs; NCAA compliance; tax matters (including tax-exempt issues); real estate, financing and construction; employee benefits; litigation; higher education regulatory issues; and health care. 

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The New York Law Journal published “Barclay Damon: Am Law 50 Firms Fighting Hard to Regain Lost Market Share,” a Q&A article with managing partner John P. Langan. Learn more about Barclay Damon’s progress and Langan’s thoughts on topics including the evolution of midsize firms, alternative fee arrangements, millennial lawyers, technology, and more in the full article here.

Barclay Damon is pleased to offer clients newly enhanced legal services in the critical area of cyber security. 

There is no question that data is a strategic asset for any company, and commitments relating to its use, sharing, acquisition, and storage can have long-term impact on a company’s business. At Barclay Damon, we are focused on protecting businesses in a digital world. Our attorneys represent clients in investigations, crisis responses to data breach incidents, litigation, government relations, and transactions, providing sound counsel on the full range of legal issues concerning cyber security, privacy and data protection.  

Barclay Damon offers clients practical guidance across the spectrum of cyber risks, drawing on the deep experience of many lawyers whose backgrounds allow the firm to help clients keep up with fast-changing data protection laws. In addition, we assist clients in addressing complex workplace privacy issues, including employee data breach response, employee surveillance, data privacy policies, privacy issues arising from the use of technology, and unique data transfer issues for employees.  

Through cyber protection planning, data breach coaching, and the defense of clients’ interests in court, our objective is to assist clients in preparing for and reducing data and security related risks. 

Clients of many of the firm’s practice areas take advantage our attorneys’ multidisciplinary cyber security expertise. These practice areas include Commercial Litigation, Corporate, Insurance Coverage & Regulation, Labor & Employment, White Collar, and more.

A Barclay Damon team led by Karim A. Abdulla and Joseph M. Finnerty succeeded in its request to have court documents in the legal fight between law partners Ross M. Cellino Jr. and Stephen E. Barnes unsealed. The ruling was made June 26 by State Supreme Court Judge Deborah Chimes.

 The complaint filed last month by Cellino seeking to break up the prominent law firm had previously been sealed by Judge Chimes due to undue anxiety she believed disclosure of its contents would cause the firm’s clients and employees. Barclay Damon’s request to have it unsealed was made on behalf of the Buffalo News, New York Daily News, and New York Post.

 The high-profile decision has been widely covered by media, including extensive quotes from Abdulla, who is cited in the Buffalo News saying, “Open courts help to ensure that the legal process remains fair and transparent.” 

Click here for the full Buffalo News article, and click here for the report on NPR-affiliate WBFO.

Abdulla and Finnerty are members of the firm’s Media & First Amendment Law Practice Area. Finnerty serves as the practice’s chair.

Barclay Damon is expanding its renewable energy practice with the addition of four attorneys from the New England-based firm McCauley Lyman. The new lawyers—Don McCauley, Frank Lyman, Jill D. Winans, and Michael J. Blasik—will join Barclay Damon as of counsel, while remaining partners of their firm. This strategic alliance will provide additional bench strength to Barclay Damon’s already substantial renewable energy practice by adding four lawyers with 30 years of experience in the areas of solar and wind energy development.

Barclay Damon’s renewable energy practice, led by Richard R. Capozza and Brenda D. Colella, represents clients across the renewable energy sector, including in hydropower, wind, solar, and biomass. McCauley Lyman has national experience in renewable energy project development, siting, and finance, with an emphasis on solar energy projects. The strategic alliance of the firms will expand the scope of each firm in terms of energy expertise and geographic reach.

John P. Langan, Barclay Damon’s managing partner, said, “The deal presents an opportunity for our firm to enhance the services we already provide nationally to the renewable energy sector, increasing our capabilities in particular on the east and west coasts and in the southwest. With a team of attorneys that is well aligned with us, the combination of McCauley Lyman attorneys with Barclay Damon will allow us to deliver even stronger energy capabilities to our clients while providing McCauley Lyman clients with additional services in a wide range of areas our firm is known for, such as regulatory, environmental, tax, and mergers and acquisitions.”

Don McCauley noted, “We look forward to providing expanded services to existing and new clients through Barclay Damon’s breadth and depth of practice expertise. The added practices and resources of this full-service firm combined with its established reputation as a key provider to the renewable energy industry will enable us to offer more comprehensive solutions.”

Barclay Damon LLP, listed as a “Top 250 Firm” by The National Law Journal, is a full-service law firm with offices throughout the major cities of New York State and in Toronto, Boston, Washington, DC, and Newark. At 275 lawyers, Barclay Damon is the largest law firm in the Northeastern United States that is not centered in a major market. Barclay Damon provides comprehensive legal and business counsel to a diverse client base in 33 practice areas regionally and nationally.

In a federal district court patent infringement suit, Barclay Damon represented the top innovator in the broadband cable industry and successfully obtained a jury verdict of willful infringement against a major competitor.  

Barclay Damon sued on behalf of the innovator, won favorable claim construction rulings in district court, and defended the validity of the patents at issue in reexamination proceedings before the United States Patent and Trademark Office. 

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On June 16, 2016, the Supreme Court issued its long-awaited decision in University Health Services Inc. v. Escobar on the issue of implied certification as a basis for False Claims Act liability. The case squarely presented the unsettled question of where the line of materiality should be drawn where there has been no obvious departure from established conditions of payment, but liability was based upon a lack of technical compliance with applicable laws and regulations rendering a government claim technically improper.

The Court held that the “implied false certification theory” is a valid means of imposing liability on health care providers under the False Claims Act, identifying two conditions that must be met for the implied certification theory to apply: (1) the request for payment must make specific representations about the goods or services provided; and (2) the failure to disclose noncompliance with material statutory, regulatory or contractual requirements makes those representations “misleading half-truths.” According to the Court, a provider’s request for payment constitutes the provider’s implied certification of compliance with all material statutory, regulatory and contractual requirements for the provision of the service. Moreover, if a provider fails to disclose (or omits) its noncompliance with these requirements, then the provider is misrepresenting the claim and the claim is “false or fraudulent” under the False Claims Act based on the Court’s decision.

Related News:

Law 360: Attorneys React to High Court’s FCA Liability Ruling

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