Articles Archives

Best Practice for Conducting an Effective Internal Company Investigation

Pennsylvania Business Central

(by Kevin Douglass, Carla Castello, and Stephen Antonelli)

Today’s businesses are subject to increasing workplace scrutiny concerning possible misconduct of their owners, officers, management, and personnel. When faced with an allegation that can potentially expose the company to legal, financial and reputational harm, it is critical that the company promptly investigate the facts and assess the business risk in order to make an informed decision on the best course of action.

Is an Internal Company Investigation Warranted?

Employee complaints, or even allegations from third parties, concerning improper workplace conduct should always be taken seriously. Whether the claims involve an entry level employee, a manager, a corporate officer, or anyone in between, the company should assess whether the allegations, if true, would constitute violations of law or company policies, or otherwise materially impact the company’s finances, culture, reputation, or workforce.

Workplace investigations are often sensitive. Employees may be reluctant to step forward and become the center of an investigation. They may also fear backlash from the individual(s) being investigated, particularly if they carry significant clout within the company. The company can assuage those concerns by reminding employees involved in the investigation of the company’s obligation to comply with applicable anti-retaliation laws and company policies. The company should also explain that it will perform the investigation with impartiality and (as much as possible) confidentiality, and that it will comply with the organization’s policies and procedures while minimizing business disruption.

Planning for and Conducting the Investigation

At the outset, the company must define the scope and purpose of the investigation (i.e. identify the allegations and the reasons for undertaking the investigation), select an investigation team, and determine a timeline for the investigation. It is important to recognize that the scope may shift as the investigation progresses and information is gathered. The team needs to implement measures designed to protect the attorney-client privilege and the attorney work product doctrine, including defining the roles of both internal and/or external attorneys and determining whether counsel will lead the investigation. The company should also identify the employees who will serve as the points of contact with the investigation team and the frequency and manner in which they will be kept informed of the investigation’s progress.

Another critical consideration is the preservation, collection, and review of key documents, including e-mails and text messages. In that regard, the organization’s document retention policy must be reviewed, and a notice issued to ensure the preservation of relevant communications and other documents that could become evidence in potential subsequent litigation. The team should also evaluate whether to engage a third-party to collect documents in a forensically sound manner from company-issued electronic devices. It is helpful to compile at the outset a list of potential people to be interviewed, including current and former employees, consultants, and any other individuals with pertinent information, including the person(s) who is the target of the investigation. Typically, the target of the investigation will be interviewed near the conclusion of the other interviews.

When planning for interviews, the investigation must balance the need for a thorough investigation while maintaining confidentiality and meeting timelines. How many interviews should be conducted and which interviews are critical to the investigation? It is recommended that the investigation team explain during the interviews the importance of confidentiality and, if counsel is conducting the interview, also emphasize that counsel represents the company, not the individual being interviewed. It is critical to exercise care concerning the manner in which the records witness statements or facts in interview notes, as those notes may become discoverable in potential subsequent litigation. Moreover, attorneys’ impressions or communications of the interviews should be separately recorded and protected.

Concluding the Investigation

As the investigation proceeds, the company should determine whether to prepare a written or verbal report, or materials for a presentation. If issuing a written report, the company should take appropriate steps to ensure confidentiality and privilege where appropriate. The company must then decide whether the investigation team will simply report its findings or take the additional step of recommending a course of action, up to and including disciplinary measures. Ultimately, management, the board of directors, or other decision makers must act in the best interests of the organization and decide what, if any, action is necessary to address the allegations that led to the investigation. At the investigation’s conclusion, the company should inform the complaining employee(s) as well as the target(s) of the outcome while reminding them of the company’s interest in maintaining confidentiality.

Kevin Douglass is a shareholder in the Litigation, Energy and Natural Resources, and Emerging Technologies groups. He is a complex commercial litigator with significant trial and arbitration experience. He also provides counseling and litigation services to businesses, business owners, managers, directors and officers. On behalf of companies, he has managed confidential internal investigations concerning the conduct of officers and employees.

Carla Castello is a shareholder in the Litigation, Emerging Technologies, and Employment and Labor groups. She has a broad range of range of litigation experience in several areas including commercial, labor and employment, consumer protection, antitrust, energy, and toxic tort. She represents corporate clients in defending a variety of matters, including environmental and toxic tort disputes, commercial contract disputes and conflicts between shareholders in closely held businesses.

Stephen Antonelli is a shareholder in the Employment and Labor, Litigation, and Energy and Natural Resources groups. He represents employers of all sizes, from Fortune 500 companies and large healthcare organizations to non-profit organizations and family-owned businesses. His practice focuses on all phases of employment and labor law, from complex class and collective actions and fast-paced cases involving the interpretation of restrictive covenants, to single-plaintiff discrimination claims and day-to-day human resources counseling.

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Published in the Pennsylvania Business Central on September 27, 2024.

Data Privacy: A Friend or Foe of Artificial Intelligence

TEQ

(by Kristen Petrina)

Artificial Intelligence (AI) is advancing at unprecedented speeds. AI relies on vast amounts of datasets for processing and model training, creating the challenge of balancing the benefits of AI, while protecting data privacy. As a result of improper data processing and usage, organizations are facing harsh penalties including AI usage prohibition, algorithm disgorgement, and multibillion dollar fines. When considering how to introduce AI into any organization, one of the first questions to consider is, “How can AI be utilized to drive innovation without violating privacy and misusing collected data?”

AI governance analysis should be under a privacy lens, as personal data is at the core of many opportunities that come with AI development. Privacy risks may result in societal and ethical impacts on individuals which speaks to the heart of responsible AI usage. Incorporating responsible AI practices is user specific to each organization and it is possible to protect privacy and drive innovation. In order to achieve both goals, organizations should consider data protection preventative measures before implementing AI into its processes.

Data privacy should be addressed at the onset of AI implementation. Organizations should conduct risk assessments and consider data enablement through AI from the beginning before it becomes an issue. Generative AI in particular is self-learning, the more data fed into the model, the harder it will be to unwind or remove data if improperly used.
AI and data privacy governance teams must work together from the beginning to address any risks that may arise. Organizations may consider forming an ethical AI committee engaging diversified team members to reduce potential bias in the development and design.
Contemplate data inputs by asking questions such as what the existing and potential future data sources may be, what data will be collected, what are in the datasets, how to categorize the types of data, will the data modeling receive personal or sensitive data, should those things be included.
Consider data outputs by asking questions such as what information will be displayed after processing, what is the impact of the processing, is there any potential for harm from the processing and results, what controls are needed at the data layer to mitigate the risks.
Review regulatory and data privacy requirements that impact and influence AI to assess and address any privacy policy gaps as a result of the introduction of AI into the organization’s processes. Policies can include but are not limited to addressing transparency into training data origins, acceptable use policies, data quality, validation of algorithms to confirm the AI model meets the organization’s AI and data policies, and sharing or transfer of data with third parties.
What consent did the data owner give, particularly what purpose did the owner agree to? When implementing AI, organizations can get ahead of consent issues by educating the data owner of the intended purpose and use of the data.
Build privacy measures into the system’s architecture to guarantee alignment with purpose consent given by the data owner and careful treatment of the data.
Is the value provided to the organization proportional to the data owners risk? If data is used, should it be minimized to strip identifying features, or is it essential to include information such as sensitive data to determine if the model is biased?
Determine the permanence of the data, depending on how it is incorporated into the AI model, an enforcement action can result in the loss of years of data. Additionally, some states allow data owners to be forgotten. If data is not de-identified it is possible to remove it from the datasets, however, if the data is de-identified it will not be possible to determine how the data was used and for the data to be removed from the datasets, potentially requiring a retraining of the model.
Implement data security and privacy controls for stored decommissioned AI systems and associated data.

Organizations must safeguard data and ensure privacy compliance within AI systems, however, that does not mean innovation cannot thrive. An organization that considers privacy from the onset of AI implementation can drive innovation while also protecting privacy and reducing the risk of future penalties.

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Navigating the Shifting Landscape of Non-Compete Agreements: Key Updates and Implications for Pa. Employers

The Legal Intelligencer

(by Steve Antonelli and Alex Farone)

Changes in the world of non-competition agreements (“non-competes”) have been particularly prevalent in recent weeks, most notably including court activity barring the Federal Trade Commission’s new non-compete ban and Pennsylvania’s new law restricting the use of certain non-competes for healthcare practitioners.

In May of this year, the Federal Trade Commission (FTC) published a final rule that would ban nearly all new non-competes with employees, independent contractors, and volunteers nationwide, with the exception of non-competes entered into pursuant to certain business sales, on the basis that non-competes are an unfair method of competition and therefore a violation of Section 5 of the FTC Act.

The final rule would also void all pre-existing non-competes except (1) those made with senior executives earning more than $151,164 annually who are in a policy-making position, and (2) those that have been breached and for which a cause of action accrued prior to the final rule’s effective date of September 4, 2024.

The final rule would additionally require employers to provide “clear and conspicuous notice” to all current and former workers, other than senior executives, with existing non-competes by September 4 stating that the non-compete will not be, and cannot legally be, enforced. Immediately after the final rule was published, legal challenges to the ban were quickly filed in various federal courts across the country. As the September 4 deadline approached without a decisive ruling from any of these courts, employers wondered whether the non-compete ban would be ultimately enforceable and began to make strategic plans on whether to proactively change their non-compete practices.

Two weeks before the ban went into effect, on August 20, 2024, the U.S. District Court for the Northern District of Texas ruled against the FTC, finding that the non-compete ban exceeded the FTC’s statutory authority. In Ryan LLC, et al. v. Federal Trade Commission, the court determined that the creation of substantive rules like the non-compete ban stretched beyond the FTC’s power, and that the ban was unreasonably overbroad.

The Ryan decision sets aside the non-compete ban nationally, meaning the ban cannot be enforced or take effect on September 4. All requirements of the FTC rule—including banning the use of new non-competes and notifying workers and former workers with existing non-competes of the unenforceability of those agreements, with few exceptions—are no longer in effect. Employers may continue to utilize non-competes, in the manner prescribed by state statutes and case law. Despite being somewhat overshadowed by the FTC rule and the various legal challenges to it, on July 17, 2024, Governor Josh Shapiro signed one such Pennsylvania state statute into law.

Act 74, which is known as the Fair Contracting for Health Care Practitioners Act, takes effect on January 1, 2025. As of that date, most new non-competes between an employer and a health care practitioner shall be void and unenforceable as contrary to Pennsylvania public policy if the length of the agreement lasts longer than one year. If the time period of a non-compete entered after January 1, 2025 is one year or less, the non-compete will be enforceable, unless the employer dismisses the practitioner. The act will not impact existing non-competes entered before January 1, 2025, regardless of the length of the agreement. Additionally, employers may still enforce non-competes that are entered “as a direct result of” a sale or other transaction (such as a merger) of the health care practitioner’s ownership interest, or substantial ownership interest of, the assets of a business.

Non-competes covered by the act are agreements between an employer and a health care practitioner that prohibits the health care practitioner from treating patients or accepting new patients, whether independently or through the employment of a competitor after the term of the practitioner’s employment. The term “health care practitioner” is defined as medical doctors, doctors of osteopathy, certified registered nurse anesthetists, certified nurse practitioners, and physicians’ assistants, as those terms are defined by applicable laws.

Following the departure of a health care practitioner from their employer, the act also requires employers to take certain steps relative to patients who had been seen by the practitioner within the year before their departure (or two years for ongoing outpatient relationships). The employer must notify patients of: (1) the practitioner’s departure; (2) the manner in which the patient may transfer their health records to a different health care practitioner; and (3) the fact that the patient may be assigned to a new health care practitioner with the employer, if the patient chooses to continue receiving care from the employer.

Employers should continue to monitor the status of the now-barred FTC non-compete ban, as well as Pennsylvania’s newly enacted Fair Contracting for Health Care Practitioners Act. If you have questions about either, please contact Stephen A. Antonelli at 412-394-5668 or santonelli@babstcalland.com, or Alexandra G. Farone at (412) 394-6521 or afarone@babstcalland.com.

Stephen A. Antonelli is a shareholder in the Employment and Labor and Litigation groups of Babst Calland. His practice includes representing employers in all phases of labor and employment law, from complex class and collective actions and fast-paced cases involving the interpretation of restrictive covenants, to single-plaintiff discrimination claims and day-to-day human resources counseling.

Alexandra Farone is an associate in the Litigation and Employment and Labor groups of Babst Calland. Ms. Farone’s employment and labor practice involves representing corporate clients, municipalities, and individuals on all facets of employment law, including restrictive covenants, discrimination claims, human resources counseling, grievances, and labor contract negotiations.

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Pennsylvania PUC Approves Joint Motion to Implement Comprehensive Review to Reduce Application Processing Times

The Foundation Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(Joseph K. Reinhart, Sean M. McGovern, Gina F. Buchman and Matthew C. Wood)

On April 4, 2024, the Pennsylvania Public Utility Commission (PUC), in a 4–1 vote, adopted a joint motion to comprehensively review processing times of certain applications under its purview. See Press Release, PUC, “PUC Launches Comprehensive Review of Application Procedures” (Apr. 4, 2024). Specifically, the PUC proposed to analyze how to make more efficient application processes that do not have applicable regulatory or statutory deadlines (or have deadlines that the PUC has authority to extend). Joint Motion for Chairman Stephen M. De Frank and Commissioner Ralph V. Yanora (Joint Motion), at 2.

The initiative consists of two parts. First, the PUC directed each of its various bureaus that work on these types of applications to review and inventory each applicable proceeding with the following information:

the methods by which the PUC receives the applicable filings;
the statutory or regulatory authority underlying issued approvals;
whether publication of an application is required;
whether the application has a protest period, and if so, its length; and
a description of the bureau’s tasks.

Id.

Second, the Office of the Executive Director will analyze the inventory information, examine each bureau’s average application review time and the total average processing time from application filing to a final decision, and evaluate process improvements. Id. The goal of the evaluation is to reduce processing times by at least 15% (subject to revision), while also considering the allocation of necessary resources, legal deadlines, and compliance with applicable legal requirements under the Public Utility Code, PUC Regulations, or PUC Orders. Id.

According to the Joint Motion, the PUC’s initiative was influenced by multiple Shapiro administration actions, including: (1) the February 2024 PermitConnectPA workshop, which focused on making permitting, licensing, application, and certification procedures more efficient; (2) Governor Shapiro’s creation of the Office of Transformation and Opportunity, “to position Pennsylvania as the most business-friendly state in the U.S. and to empower [stakeholders] to reignite economic growth and promote prosperity throughout the Commonwealth”; and (3) Governor Shapiro’s Executive Order 2023-07, “Building Efficiency in the Commonwealth’s Permitting, Licensing, and Certification Processes” (Jan. 31, 2023). Id. at 1. Executive Order 2023-07 directed all commonwealth agencies to catalog the types of permits, licenses, or certifications they issue (including legal authority and timeframes) and submit the information to the Governor’s office for review and recommendations to make processing times more efficient.

The Joint Motion directs the bureaus to submit their inventories within 60 days of its adoption (by June 3, 2024) and the Office of the Executive Director is tasked with reviewing and compiling the inventories into a report within six months of its adoption, unless a request for an extension is submitted and approved. Id. at 3. The PUC docket for this action is No. M-2024-3047172.

PADEP Presents Revised Draft Notification Rules for Unauthorized Spills into Waters of the Commonwealth
At the May 16, 2024, Water Resources Advisory Committee (WRAC) meeting, the Pennsylvania Department of Environmental Protection (PADEP) presented a revised draft proposed rule that would amend and clarify certain existing spill reporting requirements. The regulation, 25 Pa. Code § 91.33 (Existing Rule), governs notification requirements for unauthorized releases of substances into waters of the commonwealth. Specifically, the Existing Rule requires immediate notification to PADEP if the release of a substance “would endanger downstream users of the waters of this Commonwealth, would otherwise result in pollution or create a danger of pollution of the waters, or would damage property.” 25 Pa. Code § 91.33(a). The party responsible for initiating the notification is “the person at the time in charge of the substance or owning or in possession of the premises, facility, vehicle or vessel from or on which the substance is discharged or placed.” Id. Notably, the Existing Rule, which was adopted in 1971, offers no clear guidance on determining whether notification is required.

To address this, PADEP has proposed a revised draft of the regulation that clarifies the requirements for notifying or not notifying the agency of an unauthorized release (Proposed Rule). See Proposed Revisions to 25 P.A. Code § 91.33. Proposed subsection 91.33(a.1) would require reporting for substances listed in 40 C.F.R. § 117.3 when released in amounts equal to or greater than their reportable quantities and subsection 91.33(a.2) states that a person who immediately notifies PADEP in accordance with subsections (a) and (a.1) has satisfied the notification requirements under section 91.33. The most substantive changes are found in proposed subsection 91.33(a.3), which sets forth the method by which a responsible party can determine that an unauthorized release does not require immediate notification to PADEP. To reach the conclusion that an unauthorized release does not require immediate notification, the responsible party must evaluate and document enumerated factors to determine that the substance(s) “does not cause or threaten pollution of the waters, endanger downstream users or cause damage to property.” Proposed Rule § 91.33(a.3). Those factors include:

The properties of the substance(s) involved (e.g., harmful effects on human health, animal health, and the environment); persistence in the environment (and how the substance(s) might change); mobility of the substance(s) in soil and water; and the concentration and quantity of the substance(s);
The location or locations involved, including proximity to commonwealth waters and the characteristics of such waters; land use, soils, and geology; and the presence and qualities of relevant infrastructure, e.g., spill containment systems;
Weather conditions before, during, and after the incident;
Presence and implementation of adequate response plans, procedures, or protocols;
The duration of the accident or other activity or incident.

Id. Under the Proposed Rule, the responsible party would be required to provide this documentation to PADEP upon request, with a signed statement attesting to its accuracy. Id. § 91.33(a.4). The last addition, proposed subsection 91.33(a.5), confirms that not immediately reporting “an accident or other activity or incident which caused or threatened pollution, endangered downstream users or caused damage to property as described in subsection (a)” is a violation of section 91.33.

At the May 16, 2024, WRAC meeting, PADEP stated its goals for and the purposes of the Proposed Rule: (1) make notification requirements straightforward for stakeholders, including PADEP’s consistent application of the Proposed Rule; (2) provide stakeholders increased clarity and consistency regarding notification of unauthorized discharges; and (3) confirm that the Proposed Rule does not expand the set of discharges that require notification to PADEP. PowerPoint Presentation, WRAC, “Notification Requirements for Unauthorized Discharges to Waters of the Commonwealth: Revised Draft Proposed Rulemaking” (May 16, 2024) (PADEP Presentation). PADEP also offered examples of unauthorized discharges where notification would not be required (e.g., minor motor oil spill that will not reach waters), may be required (e.g., spill of non-liquid materials like soybeans into stream), and would be required (e.g., sanitary sewer overflows that reach waters of the commonwealth). See PADEP Presentation, slides 13–15. Although not required to move the Proposed Rule forward, PADEP requested WRAC’s support.

This is not the first time PADEP has attempted to revise the Existing Rule or offer clarifying guidance. In September 2023, the agency presented a draft revision to WRAC (that revision was updated by the Proposed Rule). Prior to that, PADEP published a draft technical guidance document (TGD) that offered guidance on notifying PADEP under the Existing Rule. See “Guidance on Notification Requirements for Spills, Discharges, and other Incidents of a Substance Causing or Threatening Pollution to Waters of the Commonwealth Under Pennsylvania’s Clean Streams Law,” No. 383-4200-003 (Oct. 16, 2021).

Although this TGD was never finalized, some of its elements, e.g., the factors for evaluating the risk that an unauthorized release constitutes or threatens pollution, are included in the Proposed Rule. In its recent meeting with WRAC, PADEP said it intends to revisit the October 2021 TGD when the Proposed Rule is finalized, including providing “updated practical examples of when reporting may or may not be required . . . .” PADEP Presentation, slide 16. Although PADEP has not yet indicated how it will proceed, if the agency decides to move forward with the Proposed Rule as written, the Proposed Rule will be published in the Pennsylvania Bulletin, which will begin a public comment period.

PADEP Publishes Proposed Erosion and Sediment Control General Permit for Oil and Gas Industry for Public Comment
On June 29, 2024, the Pennsylvania Department of Environmental Protection (PADEP) published notice in the Pennsylvania Bulletin that the proposed Erosion and Sediment Control General Permit for Earth Disturbance Associated with Oil and Gas Exploration, Production, Processing or Treatment Operations or Transmission Facilities (ESCGP-4) was available for public comment. 54 Pa. Bull. 3717 (June 29, 2024). The current ESCGP-3 is scheduled to expire on January 6, 2025. PADEP issues ESCGPs under the authority of the Pennsylvania Clean Streams Law, 35 Pa. Stat. §§ 691.1—.1001.

In the Pennsylvania Bulletin notice, PADEP stated that it was not proposing “significant changes” to the ESCGP-4 as compared to the ESCGP-3, but there are several noteworthy differences between the two permits. First, as a threshold matter, the ESCGP-4 contains a requirement that in discharges approved under the ESCGP-4 that exhibit a condition rendering it ineligible for coverage, “the permittee promptly shall take action to restore eligibility, to notify the Department in writing of the condition, and, if eligibility cannot be restored, to submit an individual erosion and sediment control permit (Individual E&S Permit) application to the Department.”

Next, the ESCGP-4 proposes to now require operators to submit a notice of intent (NOI) for coverage under the ESCGP-4 at least 60 days prior to the planned date for commencing any new discharge. The ESCGP-3 did not contain an NOI submission deadline. Further, PADEP has removed the expedited review option that was available under the ESCGP-4 for projects meeting specific criteria.

PADEP is also proposing new substantive requirements in the ESCGP-4. Under the ESCGP-3, weekly inspections of controls were required, as well as inspections following stormwater events. The ESCGP-4 adds an inspection requirement following “snowmelt sufficient to cause a discharge” and requires that inspections be documented using PADEP’s Chapter 102 Visual Site Inspection Report form (Doc. ID No. 3800-FM-BCW0271d) or a similar form that contains the same information. The ESCGP-4 also requires that the inspections be completed by “qualified personnel, trained and experienced in erosion and sediment control and post-construction stormwater management” and outlines requirements for such qualifications. Further, where the ESCGP-3 required “immediate” action to restore controls, the ESCGP-4 requires the initiation of repair or replacement within 24 hours of discovery of an issue.

Finally, the ESCGP-4 also proposes to require that any stormwater control measure (SCM) implemented by an operator that is not in PADEP’s Erosion and Sediment Pollution Control Manual (No. 363-2134-008) or the Water Quality Antidegradation Guidance (No. 391-0300-002) must be approved by PADEP. The ESCGP would also require confirmation testing for infiltration capacity of SCMs that must be reviewed by a licensed professional. Operators will also have to document the implementation of each structural SCM using a PADEP form and submit this documentation to PADEP within 30 days of completion of construction.

Comments on the ESCGP-4 were due by July 29, 2024.

PADEP Issues Request for Information Regarding Clean Energy Campus Projects on Commonwealth’s Abandoned Mine Lands

The Foundation Mineral and Energy Law Newsletter

Pennsylvania – Mining

(Joseph K. Reinhart, Sean M. McGovern, Gina F. Buchman and Christina M. Puhnaty)

On June 1, 2024, the Pennsylvania Department of Environmental Protection (PADEP) issued a request for information (RFI) to anyone interested in submitting concept papers for PADEP’s consideration for the Design, Development, Commercialization and Maintenance of Clean Energy Campus (CEC) Projects on abandoned mine lands (AML) controlled by the Commonwealth. 54 Pa. Bull. 3098 (June 1, 2024) PADEP requests concept papers from project sponsors, namely clean energy project developers, asset owners, financial institutions, and other relevant parties, willing to coinvest with PADEP to transfer AML sites into CECs. PADEP notes in the notice that it owns 13 properties greater than 50 acres in size eligible for conversion.

In terms of design, PADEP requests information on the design for land reclamation and remediation to create sites ready for clean energy generation or energy storage sites. PADEP is looking for a sponsor who can provide professional design services, feasibility studies, geophysical investigations, construction oversight, and other technical services as required. Such remediation designs could require action in perpetuity. With respect to development, PADEP is looking for a project sponsor that can manage the remediation and development of the site by completing leases, conducting site preparation, securing permitting, conducting geotechnical investigations, and securing interconnection. PADEP has pointed to EPA’s Revitalization Handbook as guidance for renewable energy development on AML sites, which recommends property purchasers assess whether they should conduct all appropriate inquiries to take advantage of CERCLA liability protections. For commercialization, PADEP seeks sponsors with experience deploying grid-scale clean energy generation and storage projects. PADEP will require a project sponsor to invest capital and be responsible for “any and all risks associated with the investment.” 54 Pa. Bull. at 3099. The project sponsor must also consider the availability of tax credits under the Inflation Reduction Act of 2022, Pub. L. No. 117-169, 136 Stat. 1818, for the project. Finally, PADEP is looking for a sponsor that can oversee the long-term maintenance of the project.

PADEP is also soliciting feedback on the possibility of using loans through the U.S. Department of Energy’s (DOE) Loan Programs Office (LPO) Title 17 Clean Energy Financing Program, specifically the DOE LPO Energy Infrastructure Reinvestment (EIR) category of the Title 17 Clean Energy Financing Program. The EIR expands the LPO’s mission to allow for the repurposing of energy infrastructure to avoid, reduce, utilize, or sequester air pollutants, including anthropogenic GHG emissions. EIR funds are available on or before September 30, 2026.

PADEP will prioritize concept papers that utilize one or more of the following technologies: solar, wind, advanced or enhanced geothermal, small modular reactor nuclear, biomass generation with carbon capture and sequestration, new manufacturing facilities for clean energy products or services, coal ash remediation with site redevelopment, critical minerals recovery (including processing, manufacturing, and recycling of mineral alternatives), hydrogen production and infrastructure, and sustainable aviation fuels or other biofuels production.

For more detail, see PADEP’s “Assessment of Solar Development on Previously Impacted Mine Lands in Pennsylvania” (May 7, 2024).

PADEP Issues Revised Coal-Mine Methane Enclosed Flare General Permit
The Pennsylvania Department of Environmental Protection (PADEP) has issued a revised version of the General Plan Approval and/or General Operating Permit BAQ-GPA/GP-21, Coal-Mine Methane Enclosed Flare (Revised GP-21). As reported in Vol. 41, No. 2 (2024) of this Newsletter, on March 16, 2024, PADEP announced an opportunity to submit public comments on the proposed revised permit. See 54 Pa. Bull. 1429 (Mar. 16, 2024). Industry groups appealed the previous version of the permit issued on September 23, 2023, and PADEP decided to revise the permit because it “was presented additional source and site-specific information . . . and upon review, decided certain changes were warranted to address the new information and intended use of GP-21.” Technical Support Document for the Revised GP-21, at 2.

PADEP published the final version of the revised GP-21 permit on June 15, 2024. See 54 Pa. Bull. 3493 (June 15, 2024). The Revised GP-21 incorporates the proposed changes, including an increase in the best available technology (BAT) compliance requirement to limit NOx emissions to less than or equal to 0.15 lb/MMBtu, allowing operators to install and operate methane gas monitors to continuously measure and record the coal-mine gas methane concentration, and removed the requirement to conduct quarterly gas analysis at the inlet gas stream to the enclosed flare if a methane gas monitor is used. PADEP also published a comment and response document that summarizes the comments received on the draft published in March.

The GP-21 permit, permit application, application instructions, technical support documents, and comment and response documents are available here.

Right-To-Know Law Policy Update in the Wake of Anonymous FOIA Buddy Record Requests

The Legal Intelligencer

(by Max Junker and Anna Hosack)

If sunlight is said to be the best of disinfectants and electric lights the most efficient policeman, then what is said of the darkness of anonymity? Many agencies have been receiving Right-to-Know Law, 65 P.S. § 67.701, et seq. (“RTKL”) record requests created through “FOIA Buddy” that they suspect are anonymous. FOIA Buddy is an online service that lists its mission as “simplifying the process of requesting public records.” After numerous inquiries about anonymous requests, the Pennsylvania Office of Open Records (“OOR”) released a memo confirming that FOIA Buddy is operated by people who have a stated goal of efficiently promoting government transparency and accountability in a cost-effective manner for all involved and that the OOR found no indication that FOIA Buddy is part of a phishing, scraping, or scamming activity. The memo also stated that the OOR is unable to provide specific legal advice on responding to RTKL requests that are made by or through FOIA Buddy. However, the OOR recommends that agencies ensure their internal RTKL policies are clear and posted on the agency’s website and easily accessible. This has provided an opportunity for local agencies to dust off their RTKL policies, which likely have not been reviewed since the enactment of the new RTKL in 2008.

Section 702 of the RTKL provides that “Agencies may fulfill verbal, written or anonymous verbal or written requests under this act.” Therefore, agencies have discretion as to whether they will answer anonymous requests. For a request not to be anonymous, the request must have a valid requester with an ascertainable address. A “requester” is defined by the RTKL as “[a] person that is a legal resident of the United States.” Section 703 of the RTKL requires that all written requests under the RTKL “shall include the name and address to which the agency should address its response.” The use of an alias or fake name or the lack of inclusion of a verifiable address on the RTKL form constitutes an anonymous request.

While “Frank Curry” from FOIA Buddy sent agencies into a flurry of activity over the past few weeks, anonymous requests previously have been addressed by the OOR. In Ryan v. Cumberland County, OOR Dkt. No. AP 2024-0349 (Apr. 12, 2024), the OOR addressed a RTKL request from “Ryan” which included only an email address and a zip code. The OOR concluded that without an ascertainable address, the OOR could not confirm “Ryan” was a legal resident of the United States. In John Doe v. Pennsylvania Dept. of Community and Economic Development, OOR Dkt. No. AP 2024-0543 (Feb. 27, 2024), the Requester creatively submitted a sworn affidavit to prove he/she was in fact a legal resident of the United States but redacted the name and signature from that sworn affidavit. The redacted affidavit and request which only included the name “John Doe” and an email address was insufficient for the OOR to determine that the Requester was in fact a legal resident of the United States. In Anonymous v. Downington Area School District, OOR Dkt. No. AP 2023-2329 (Sept. 28, 2023), the OOR held that a request that only included the name “Anonymous” which was appealed by an email address “uwchlanauditing@gmail.com” was an anonymous request because the Pennsylvania Department of States does not list an entity registered as Uwchlan Auditing.

Although there have been numerous RTKL appeals of denied record requests by “Frank Curry,” the OOR denied the majority of those appeals as insufficient. Recently, the OOR finally had the opportunity to address anonymity concerns in Frank Curry v. South Western School District, OOR Dkt. No. AP 2024-1311 (Jun. 20, 2024). The School District had received ten RTKL requests from “Frank Curry” seeking records related to IT operations, contracts, staff, and budgets. On appeal, the School District asserted sufficient evidence that “Frank Curry” is the equivalent of a “John Doe” and requests utilizing the “Frank Curry” name have opted into the anonymous request function of FOIA Buddy’s service. In fact, the Solicitor created a FOIA Buddy account to show that the name “Frank Curry” was assigned to his anonymous request. The School District had adopted a policy of fulfilling only RTKL requests made by a legal resident of the United States and its website notifies requesters that anonymous requests will not be fulfilled. Therefore, as an anonymous request, the School District was not required to respond to the request.

On appeal, the “Frank Curry” asked the OOR to make a finding of bad faith against the School District. Under the RTKL, a finding of bad faith may be appropriate where an agency refuses to comply with its statutory duties. The OOR concluded that the School District had not acted in bad faith in ignoring the request because the RTKL requests were anonymous requests which the School District was not required to respond to under the RTKL and because the School District promptly notified ”Frank Curry” of the anonymity issue in its timely denial letter.

In the wake of agency concern over anonymous requests, the OOR recommends that agencies ensure their internal RTKL policies are clear, especially regarding what requests will be accepted or denied. Agencies should review and revise RTKL policies to state that anonymous RTKL requests will not be accepted by the agency. If a request is received from “Frank Curry” utilizing the “foiabuddy.com” email address and the agency has a clear and accessible internal RTKL policy stating that anonymous requests will not be accepted, the agency may ignore the request as anonymous.

In light of this new anonymous service, agencies should review their old RTKL policies or consider the adoption of a policy for agencies that do not currently have one. Agencies are not required to promulgate regulations and/or policies under the RTKL, but they may do so in accordance with Section 504 of the RTKL. Notably, Section 504(b) of the RTKL requires that any such regulations or policies must be posted at the agency’s physical location and on the agency’s website if it maintains one. The OOR has published a sample Agency RTKL Policy on its website which may be a good starting place for agencies adopting or revising their current policies. It is important to remember that the RTKL prohibits the adoption of regulations or policies that include the following: (i) a limitation on the number of records that may be requested or made available for inspection or duplication and/or (ii) a requirement to disclose the purpose or motive in requesting access to records. When revamping its RTKL policy, an agency should consider the following:

Agency Contact Information

With the constant ebb and flow of staffing at agencies, the policy must remain up to date as far as the title of the agency employee who is tasked with being the Open Records Officer (“ORO”). Agencies may also consider designating an Alternate Open Records Officer (“AORO”) in the event that the ORO is unavailable such as during a vacation. An agency’s policy should include the contact information for the ORO and AORO (if applicable).

ORO Responsibilities

The policy may also list the responsibility of the ORO and/or AORO in receiving, processing, and responding to RTKL requests.

Record Request Information

An agency’s policy can dictate the method of submission of RTKL requests and all agencies must accept RTKL requests on the OOR’s standard form. However, if an agency’s policy dictates the use of a form, agencies do not have to honor record requests outlined in an email or letter. Similar to anonymous requests, the agency can state that it will not acknowledge verbal or repeat RTKL requests. The policy may also include the agency’s hours of daily operation and a notice that requests received outside those hours of operation will be considered received by the agency as of the next business day.

Fee Waiver

The policy can dictate whether an agency will waive all fees under a certain dollar amount.

Posted Public Records

Where a record is available on an agency’s website, Section 704 of the RTKL allows the agency to point requesters to the website rather than providing copies of the record. The RTKL policy can designate what records will be posted to the website.

Record Retention Policy

An agency’s policy may include a reference to the agency’s record retention policy to put requesters on notice of what records are no longer available, which may help reduce RTKL requests.

Even if an agency does not have a RTKL policy, pursuant to Section 504(b) of the RTKL, it must post the following information at its physical office and on its website: (i) ORO contact information, (ii) OOR contact information for appeals, and (iii) a form which may be used to file a RTKL request. This information may be incorporated into the RTKL policy to satisfy this requirement. While not required, a RTKL policy posted to the agency’s website and physical offices can help show an agency was not acting in bad faith in not responding to a verbal or anonymous request. RTKL policies can also be a helpful reminder to agency staff of an agency’s internal review and procedure related to processing RTKL requests which can often be complex. Our office continually monitors the OOR’s guidance on RTKL policies and the processing of anonymous requests. A government agency should be operating in the sunlight and can do so through clear RTKL policies that prevent records requesters from operating in the darkness.

Robert Max Junker is a shareholder in the Public Sector, Energy and Natural Resources, and Employment and Labor groups of Babst Calland Clements & Zomnir. Contact him at rjunker@babstcalland.com. Anna R. Hosack is an associate in Babst Calland’s Public Sector group and focuses her practice on zoning, subdivision, land development, and general municipal matters. Contact her at ahosack@babstcalland.com.

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Stare Decisis: The U.S. Supreme Court’s Recent Willingness to Overturn Longstanding Precedent and Its Potential Effect on State Appellate Courts

The Legal Intelligencer

(by Casey Alan Coyle and Michael Libuser)

Courts have long extolled the benefits of stare decisis, saying that it “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827 (1991). Indeed, it has been said that, without the doctrine, “we may fairly be said to have no law.” Commonwealth v. Thompson, 985 A.2d 928, 953–54 (Pa. 2009) (quoting McDowell v. Oyer, 21 Pa. 417, 423 (1853)). Recently, however, the U.S. Supreme Court has departed from longstanding precedent in several cases—most notably in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022)—leading some members of the High Court to accuse it of making a “laughing-stock” of stare decisis. Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2295 (2024) (Kagan, J., dissenting, joined by Sotomayor and Jackson, JJ.).

The public’s confidence in the High Court has suffered as a result. According to a recent Gallup poll, the approval of the U.S. Supreme Court is near a historic low, with only 43% of Americans approving of its performance. The current approval rate is “statistically similar to its ratings over the past three years since it declined to block a Texas abortion law in 2021 and later overturned Roe v. Wade in the landmark 2022 [Dobbs] decision.” Megan Brenan, Approval of U.S. Supreme Court Stalled Near Historical Low, Gallup (July 30, 2024). Thus, there is ostensibly a direct correlation between adherence to precedent and the public’s view of the courts.

Two appeals pending before the Pennsylvania Supreme Court are about to test that theory. Those appeals—Freilich v. SEPTA, No. 10 EAP 2024, and Yoder v. McCarthy, No. 43 EAP 2024— collectively seek to overturn over 150 years of precedent, including a pair of unanimous decisions that were argued on the same day more than a decade ago, Zauflik v. Pennsbury School District, 104 A.3d 1096 (Pa. 2014), and Patton v. Worthington, 89 A.3d 643 (Pa. 2014).

Freilich

Freilich involves a purported “as applied” challenge to Section 8528 of the Sovereign Immunity Act, 42 Pa.C.S. §8528, under Article I, Section 6 (“right to jury trial”) and Article I, Section 11 (“remedies clause”) of the Pennsylvania Constitution. Section 8528 limits damages arising from the same cause or transaction or occurrence—or series of causes of action or transactions or occurrences—to $250,000 per plaintiff or $1 million in the aggregate in actions against Commonwealth parties. Section 8553 of the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8553 (“Tort Claims Act”), similarly limits damages arising from the same cause or transaction or occurrence—or series of causes of action or transactions or occurrences—to $500,000 in the aggregate in actions against local agencies or their employees. The Sovereign Immunity Act and Tort Claims Act are “interpreted consistently, as they deal with indistinguishable subject matter,” Finn v. City of Philadelphia, 664 A.2d 1342, 1344 (Pa. 1995), and have “no legally significant differences” in the way they operate, Lyles v. PennDOT, 516 A.2d 701, 703 (Pa. 1986).

Over the last 40 years, the Pennsylvania Supreme Court and the Pennsylvania Commonwealth Court have upheld statutory caps on damages on at least eight separate occasions amid a flurry of constitutional challenges. For instance, in Smith v. City of Philadelphia, 516 A.2d 306 (Pa. 1986), the Pennsylvania Supreme Court held that Section 8553 of the Tort Claims Act was constitutional under Article I, Section 11 of the Pennsylvania Constitution, reasoning: “If the legislature may abolish a cause of action, surely it may also limit the recovery on the actions which are permitted. To hold otherwise would be, in our view, to grant with one hand what we take away with the other. Such a result would be absurd, or at least, unreasonable.” Likewise, in Griffin v. SEPTA, 757 A.2d 448 (Pa. Commw. Ct. 2000), the en banc Commonwealth Court concluded that inflation did not render the statutory cap unconstitutional, opining that “the mere passage of time will not render the amount of the cap unconstitutional due to the influence of inflation.” “Presumably,” the court went on to state, “the legislature was aware of the effects of inflation and could have opted for some cap indexed to inflation. That the legislature did not index the cap to inflation but set forth an absolute dollar amount does not render the cap unconstitutional.” By way of another example, in Zauflik, the Pennsylvania Supreme Court unanimously rejected the “creative argument” that the application of the damages cap violates Article I, Section 6 of the Pennsylvania Constitution. The Court determined that “[t]he damages cap does not present a condition or restriction on [the plaintiff’s] right to have a jury hear her case; rather, the burden lies in the limited amount of recovery allowed, and that is obviously not the same thing.”

Despite over four decades of unbroken precedent upholding the constitutionality of statutory caps on governmental tort liability, the Pennsylvania Supreme Court granted allocatur in Freilich in March. The Court agreed to hear, inter alia, whether Section 8528 violated the plaintiff’s right to a remedy in Article I, Section 6 of the Pennsylvania Constitution “under the facts of [that] case.” Briefing is set to be completed this month, and it is anticipated that oral argument will take place in the fall.

Yoder

Yoder concerns a challenge to statutory employer immunity. Under Section 302(b) of the Workers’ Compensation Act, 77 P.S. §462 (WCA), general contractors are secondarily liable for the payment of workers’ compensation benefits to the injured employees of their subcontractors. Thus, if the subcontractor-employer defaults, these general contractors must pay workers’ compensations benefits to the subcontractor-employees. Therefore, although they are not the actual employers of the subcontractor-employers, general contractors are considered “statutory employers” of the subcontractor-employees due to their treatment under the WCA. In exchange for assuming secondary liability for the payment of workers’ compensation benefits, statutory employers have immunity in tort for work-related injuries sustained by subcontractor-employees. This immunity “pertains by virtue of statutory-employer status alone, such that it is accorded even where the statutory employer has not been required to make any actual benefit payments.” Patton, 89 A.3d at 645.

The Pennsylvania Supreme Court first recognized statutory employer immunity over a century ago in Qualp v. James Stewart Co., 109 A. 780 (Pa. 1920). Since that time, the Pennsylvania Supreme Court has reiterated the validity of the doctrine on numerous occasions. For example, in Fonner v. Shandon, Inc., 724 A.2d 903 (Pa. 1999), the Pennsylvania Supreme Court rejected the argument that the 1974 amendments to the WCA—which made it mandatory, rather than elective, for employers to provide workers’ compensation coverage for employees—eliminated statutory employer immunity. The Court reasoned that “when the General Assembly amended Section 302(b) in 1974, it could have at the same time amended” a different section of the act––Section 203—to provide that a “statutory employer in reserve status could only escape liability for a common law suit if the statutory employer had the direct responsibility to pay workers’ compensation benefits.” As the Court noted, however, the General Assembly “did not make any changes in the 1974 or subsequent amendments to Section 203 in spite of established case law.” More recently, in Patton, the Pennsylvania Supreme Court unanimously reaffirmed the validity of the “relatively straightforward” statutory-employer doctrine. In a notable concurring opinion, the late Chief Justice Max Baer described Section 203(b) as “clear and unambiguous” and the Pennsylvania Supreme Court’s precedent as “consistent[]” over decades.

Notwithstanding the settled nature of statutory employer immunity, the Pennsylvania Supreme Court granted allocatur in Yoder in May. Among other issues, the Court agreed to hear whether it should overrule Fonner and hold that the 1974 amendments to the WCA “necessitates denying ‘statutory employer’ status to general contractors unless they in fact have been called on to pay workers’ compensation benefits to the injured employee of a subcontractor.” Briefing is set to be completed in the late fall, and it is anticipated that oral argument will take place in early 2025.

Conclusion

If the U.S. Supreme Court’s fallen approval rating is, at least in part, a result of its own tendency to revisit and overturn prior case law, it serves as a warning to state appellate courts—overruling precedent can undermine public confidence in the courts and strike a blow to their perceived integrity. Whether that warning will discourage state appellate courts from revisiting well-settled precedent remains to be seen, but Freilich and Yoder are front and center on that issue. If state appellate courts’ adherence to stare decisis ebbs and flows along the lines of the U.S. Supreme Court, they could contribute to a new era of “optional” stare decisis and, with it, find a corresponding decline in public approval.

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Casey Alan Coyle is a shareholder at Babst, Calland, Clements and Zomnir, P.C. and Co-Chair of the firm’s Litigation Group. He focuses his practice on appellate law and complex commercial litigation. Coyle is also a former law clerk to Chief Justice Emeritus Thomas G. Saylor of the Pennsylvania Supreme Court. Contact him at 267-939-5832 or ccoyle@babstcalland.com.

Michael Libuser is a litigation associate at the firm. He focuses his practice on appellate law and complex commercial litigation. Before entering private practice, Libuser served as a law clerk to the Honorable Yvette Kane, Senior United States District Judge for the Middle District of Pennsylvania, and the Honorable Karoline Mehalchick, United States District Judge for the Middle District of Pennsylvania (then United Magistrate Judge). Contact him at 717-868-8379 or mlibuser@babstcalland.com.

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Data Privacy: A Friend or Foe of Artificial Intelligence

TEQ Hub

(by Kristen Petrina)

Data privacy should be addressed at the onset of AI implementation. Organizations should conduct risk assessments and consider data enablement through AI from the beginning before it becomes an issue. Generative AI in particular is self-learning, the more data fed into the model, the harder it will be to unwind or remove data if improperly used.
AI and data privacy governance teams must work together from the beginning to address any risks that may arise. Organizations may consider forming an ethical AI committee engaging diversified team members to reduce potential bias in the development and design.
Contemplate data inputs by asking questions such as what the existing and potential future data sources may be, what data will be collected, what are in the datasets, how to categorize the types of data, will the data modeling receive personal or sensitive data, should those things be included.
Consider data outputs by asking questions such as what information will be displayed after processing, what is the impact of the processing, is there any potential for harm from the processing and results, what controls are needed at the data layer to mitigate the risks.
Review regulatory and data privacy requirements that impact and influence AI to assess and address any privacy policy gaps as a result of the introduction of AI into the organization’s processes. Policies can include but are not limited to addressing transparency into training data origins, acceptable use policies, data quality, validation of algorithms to confirm the AI model meets the organization’s AI and data policies, and sharing or transfer of data with third parties.
What consent did the data owner give, particularly what purpose did the owner agree to? When implementing AI, organizations can get ahead of consent issues by educating the data owner of the intended purpose and use of the data.
Build privacy measures into the system’s architecture to guarantee alignment with purpose consent given by the data owner and careful treatment of the data.
Is the value provided to the organization proportional to the data owners risk? If data is used, should it be minimized to strip identifying features, or is it essential to include information such as sensitive data to determine if the model is biased?
Determine the permanence of the data, depending on how it is incorporated into the AI model, an enforcement action can result in the loss of years of data. Additionally, some states allow data owners to be forgotten. If data is not de-identified it is possible to remove it from the datasets, however, if the data is de-identified it will not be possible to determine how the data was used and for the data to be removed from the datasets, potentially requiring a retraining of the model.
Implement data security and privacy controls for stored decommissioned AI systems and associated data.

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Two Babst Calland Attorneys Named as 2025 Best Lawyers in America® “Lawyer of the Year”, 40 Selected for Inclusion in The Best Lawyers in America®, and 17 Named to Best Lawyers: Ones to Watch® in America

Babst Calland is pleased to announce that two lawyers were selected as 2025 Best Lawyers in America® “Lawyer of the Year” in Pittsburgh, Pa. and Charleston, W. Va. (by BL Rankings). Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant.

Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, professionalism, and integrity. Those named to the 2025 Best Lawyers in America^®“Lawyer of the Year” include:

Blaine A. Lucas, Litigation – Land Use and Zoning “Lawyer of the Year” in Pittsburgh, Pa.

Timothy M. Miller, Litigation – Environmental “Lawyer of the Year” in Charleston, W. Va.

View the award recipients here.

In addition, 40 Babst Calland lawyers were selected for inclusion in the 2025 edition of The Best Lawyers in America^®, the most respected peer-reviewed publications in the legal profession:

Chester R. Babst III – Environmental Law, Litigation – Environmental
Donald C. Bluedorn II – Environmental Law, Litigation – Environmental, Water Law
Lisa Bruderly – Environmental Law
Joseph G. Bunn – Banking and Finance Law, Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law, Business Organizations (including LLCs and Partnerships), Commercial Transactions / UCC Law, Corporate Law, Mergers and Acquisitions Law, Mining Law
Dean A. Calland – Environmental Law
Matthew S. Casto – Commercial Litigation, Litigation – Environmental
Frank J. Clements – Corporate Law
Kathy K. Condo – Commercial Litigation, Energy Law
James V. Corbelli – Commercial Litigation, Litigation – Environmental
James Curry – Energy Law, Oil and Gas Law
Mark K. Dausch – Commercial Litigation
Julie R. Domike – Environmental Law, Litigation – Environmental
Kevin K. Douglass – Natural Resources Law
Christian A. Farmakis – Corporate Law and Real Estate Law
Kevin J. Garber – Energy Law, Environmental Law, Litigation – Environmental, Natural Resources Law, and Water Law
Steven M. Green – Energy Law
Jennifer Hicks – Commercial Litigation and Energy Law
Lindsay P. Howard – Environmental Law, Litigation – Environmental
Robert Max Junker – Land Use and Zoning Law, Municipal Law
Justine Kasznica – Corporate Law
Stephen L. Korbel – Litigation – Labor and Employment
Blaine A. Lucas – Energy Law, Land Use and Zoning Law, Litigation – Land Use and Zoning, and Municipal Law
John A. McCreary Jr. – Labor Law – Management
Sean M. McGovern – Environmental Law
Christina Manfredi McKinley – Commercial Litigation
Timothy M. Miller – Bet-the-Company Litigation, Commercial Litigation, Energy Law, Litigation – Environmental, Oil and Gas Law
Matthew Moses – Mergers and Acquisitions Law
Jean M. Mosites – Energy Law, Environmental Law
Christopher B. Power – Arbitration, Commercial Litigation, Energy Law, Environmental Law, Litigation – Environmental, Litigation – Land Use and Zoning, Litigation – Municipal, Litigation – Regulatory Enforcement (SEC, Telecom, Energy), Mining Law, Natural Resources Law, Oil and Gas Law
Joseph K. Reinhart – Energy Law, Environmental Law, Litigation – Environmental, Natural Resources Law
Bruce F. Rudoy – Corporate Law
Charles F.W. Saffer – Real Estate Law
Mychal Sommer Schulz – Litigation – ERISA
Mark D. Shepard – Bet-the-Company Litigation, Commercial Litigation, Litigation – Environmental, Mediation
Steven B. Silverman – Commercial Litigation, Information Technology Law
Laura Stone – Corporate Law
Robert M. Stonestreet – Commercial Litigation, Energy Law, Environmental Law
David E. White – Construction Law, Litigation – Construction
Richard S. Wiedman – Energy Regulatory Law, Environmental Law
Michael H. Winek – Environmental Law

View the award recipients here.

17 Babst Calland lawyers were also named to the 2025 Best Lawyers: Ones to Watch® in America which recognizes associates and other lawyers who are earlier in their careers for their outstanding professional excellence in private practice in the United States:

Susanna Bagdasarova – Corporate Law
Mary H. Binker – Corporate Law, Energy Law, Real Estate Law
Gina Falaschi Buchman – Environmental Law
Carla M. Castello – Commercial Litigation, Litigation – Labor and Employment, and Mass Tort Litigation / Class Actions – Defendants
Andrew C. DeGory – Commercial Litigation
Alexandra G. Farone – Commercial Litigation, Litigation – Labor and Employment
Marc J. Felezzola – Commercial Litigation, Litigation – Construction
Michael E. Fink – Corporate Governance and Compliance Law, Corporate Law, Mergers and Acquisitions Law
Alyssa Golfieri – Land Use and Zoning Law, Municipal Law
Sean R. Keegan – Commercial Litigation, Litigation – Labor and Employment
Jennifer L. Malik – Land Use and Zoning Law, Municipal Law
James D. Mazzocco – Construction Law, Litigation – Environmental, Transportation Law
Daniel R. Richey – Corporate Governance and Compliance Law, Corporate Law, Mergers and Acquisitions Law, Securities / Capital Markets Law
Joseph V. Schaeffer – Commercial Litigation
Varun Shekhar – Environmental Law
Joshua S. Snyder – Commercial Litigation, Energy Law
Eric Spada – Commercial Litigation

View the award recipients here.

Best Lawyers undergoes an authentication process, and inclusion in The Best Lawyers in America® is based solely on peer review and is divided by geographic region and practice areas. The list has published for more than three decades, earning the respect of the profession, the media, and the public as the most reliable, unbiased source of legal referrals. Its first international list was published in 2006 and since then has grown to provide lists in over 65 countries.

Pennsylvania’s Carbon Capture and Sequestration Act of 2024

PIOGA Press

(by Kevin Garber, Gina Falaschi Buchman, and Sean McGovern)

On July 17, 2024, Governor Josh Shapiro signed the Carbon Capture and Sequestration Act into law, effective immediately. This comprehensive new statute positions Pennsylvania to join a growing list of states, including North Dakota, Wyoming, Indiana, and West Virginia, that promote underground storage of carbon dioxide.

The Act authorizes the underground injection and sequestration of CO₂; confirms that the surface owner of real property owns the subsurface pore space; gives the Pennsylvania Department of Environmental Protection statutory authority to obtain primacy to issue injection permits; transfers title to stored carbon dioxide to the Commonwealth fifty years after injection ends; and establishes the Carbon Dioxide Storage Facility Fund to defray the Commonwealth’s long-term monitoring and management costs.

The Act has three key aspects – pore space ownership, permitting and operating an injection and storage facility, and liability and long-term responsibility for sequestered CO₂.

Pore Space Ownership. The Act provides that the owner of the surface property interest owns the pore space beneath surface lands and waters of Pennsylvania. “Pore space” means subsurface strata, formations, cavities, or voids, whether natural or artificially created, that can be used to store CO₂. Conveying surface ownership also conveys the pore space unless it is (or has been) excepted and reserved, similar to the conveyancing of oil, gas, and minerals. The Act does not change Pennsylvania law regarding dominance of the mineral estate. A notice regarding pore space, like the coal notice, is now required in property deeds.

If, through negotiations with pore space owners, a prospective operator obtains at least 75% of the ownership interest in pore space for a storage facility, the Environmental Hearing Board may include the remaining 25% in the proposed facility by issuing a “collective storage order” if the EHB finds that the operator satisfied the notice and other provisions of the Act. Other state statutes have different thresholds for pooling; for example, the threshold is 60% in North Dakota, 70% in Indiana, and 75% in West Virginia. Unless the landowner or manager agrees, the EHB may not approve a collective storage order for land owned by a governmental entity or by a charitable organization that is used to protect natural or scenic values or wildlife, or to preserve historical and cultural resources.

Permitting. The new law directs the Environmental Quality Board to promulgate permitting criteria and regulations. Although DEP is not specifically directed to apply to EPA for primacy to issue Class VI Underground Injection Control permits, the Act does provide authority for DEP to do so if it chooses, and DEP recently announced its intent to apply for primacy. Until primacy is obtained, EPA will issue UIC injection permits in Pennsylvania.

The EQB’s regulations must address several specific subjects for permitting injection wells and operating storage facilities, including community and cumulative impacts, environmental justice, and seismicity monitoring. A storage facility must be designed to isolate CO₂ from coal, oil, gas, and other commercially valuable minerals. DEP may condition or deny a permit based on these considerations. We can expect the EQB to publish proposed regulations soon to implement the Act.

CO₂ Ownership, Liability and Long-Term Responsibility. The storage operator is presumed to own the CO₂ injected into a storage facility. The Act protects pore space owners from liability for the effects of injecting CO₂ for sequestration based solely on their interest in the pore space and it protects storage operators from claims for damage or migration unless a claimant proves the injection or migration was performed without reasonable care and caused injury. DEP may issue a certificate of project completion 50 years after injection ends if the operator demonstrates that the injected CO₂ will remain within its pore space boundary and does not threaten drinking water, human health, safety, or the environment. Thereafter, title to and responsibility for the injected CO₂ passes to the Commonwealth and the storage operator is released from regulatory requirements regarding the facility. The Carbon Dioxide Storage Facility Fund will subsidize the Commonwealth’s cost to monitor and manage the closed storage facility. Other states (for example, North Dakota and West Virginia) have agreed to accept long-term responsibility for sequestered CO₂.

Carbon capture and sequestration has been touted as a solution to reduce carbon emissions from fossil fuel-fired power plants^[1] and a mechanism to generate valuable emission reduction credits for sale or trading. Pennsylvania did not have the statutory framework in place to compete with other states in this area until it adopted the Carbon Capture and Sequestration Act. Determining whether Pennsylvania has sufficient deep geology to make capture and sequestration economically attractive and developing the regulations to govern the industry are the next steps in this energy evolution.

For more information on the Carbon Capture and Sequestration Act, please contact Kevin J. Garber at (412) 394-5404 or kgarber@babstcalland.com, Gina Falaschi Buchman at (202) 853-3483 or gbuchman@babstcalland.com, or Sean M. McGovern at (412) 394-539 or smcgovern@babstcalland.com, or any of our other environmental attorneys.

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^[1] EPA’s latest iteration of regulations setting greenhouse gas emissions standards for power plants, which was published in May 2024, names CCS as best system of emission reduction for the longest-running existing coal units and most heavily utilized new gas turbines. The Carbon Capture and Sequestration Act could help power generators comply with the federal regulations regarding their carbon emissions. While the regulation is currently in litigation in the U.S. Court of Appeals for the District of Columbia Circuit, the court has declined to stay the rule while litigation is pending.

Legislative & Regulatory Update

The Wildcatter

(by Nikolas Tysiak)

July 2024 Legislative and Regulatory Article for MLBC

There are not a lot of relevant cases to report this period. Here are what the courts have been up to this month:

The West Virginia Intermediate Court of Appeals handled another important case regarding tax sales of oil and gas interests recently. In Northeast Natural Energy, LLC v. LT Realty Unlimited, LLC (— S.E.2d —; 2024 WL 338948 (July 12, 2024). The case arises from competing claims of title to oil and gas rights under approximately 119 acres of land in Clay District, Monongalia County. George Tennant owned interests in the Surface, Sewickley Coal, and the oil and gas associated with the 119 acres when he died in 1938. Two assessments were entered from 1938 through 1941 – the first covering 3/8 of the surface oil and gas under the land, and the second covering the Sewickley Coal interests under the land. In 1940, the lands of George Tennant were partitioned, as part of which all oil and gas and coal rights were reserved to the estate. The assessments for the surface dropped the oil and gas label, and only described “SUR” or surface as being the interest being assessed, entered in the name of the surface purchaser. George Tennant and his heirs continued to be assessed for the Sewickley Coal interests.

The Sewickley Coal rights and Oil and Gas rights descended to various heirs of George Tennant, but only the Sewickley Coal rights were separately assessed. Eventually, the successors to George Tennant executed deeds and leases with Northeast Natural Energy LLC and other parties, in 2015. However, in 1992, Shuman Inc. acquired a tax deed for the Sewickley Coal assessment for non-payment of taxes. The same “Sewickley Coal” assessed interest eventually became vested in LT Realty Unlimited LLC, which successfully argued at trial that the oil and gas rights associated with the land were included with the Sewickley Coal assessment, thereby resulting in LT Realty owning such oil and gas rights, and NOT Northeast.

The Intermediate court disagreed with the trial court, finding that there was a presumption that the oil and gas rights, while severed in title, remained assessed with the surface estate under West Virginia law. As such, the burden of proof lied with LT Realty to overcome the legal presumption. Factually, there was evidence from 1938-1941 that the surface and oil and gas were assessed together under the name of George Tennant, and only after the partition deed from his estate did the subsequent surface assessment drop the “oil and gas” description words. Additionally, the valuation of land from the 1940 assessment to the 1941 assessment (where the assessment changed from “surface, oil and gas” to “surface” remained the same, indicating that the value of the oil and gas rights were never deducted from the “surface” assessment, and therefore remained assessed with the surface. Based on these factors, the court concluded that LT Realty had not provided sufficient factual evidence to overcome the presumption and reversed the lower court’s holding.

The Seventh Circuit Court of Appeals has made several Marketable Title Act/Dormant Mineral Act decisions in the past couple of months:

Cardinal Minerals, LLC v. Miller, 2024-Ohio-2133 (7th Dist.). This is a case where Cardinal Minerals LLC brought suit claiming that a severed mineral interest had been preserved in contradiction to a Dormant Mineral Act claim by the surface owners, the Millers. Cardinal Minerals purchased the severed mineral interests from the Pfalzgrafs, heirs of the original severing parties, and claimed that the DMA action of the surface owners was improper for failing to serve notice on the Pfalzgraf heirs. The Court of Appeals sidestepped the claim of Cardinal Minerals that the notice requirement under the Dormant Mineral Act was not properly adhered to, instead determining that Cardinal Minerals unlawfully “purchased a lawsuit” under the Doctrine of Champerty (Champerty being defined as “assistance to a litigant by a nonparty, where the nonparty undertakes to further a party’s interest in a suit in exchange for a part of the litigated matter if a favorable result ensues . . .”). The court further stated that the assignment of rights to a lawsuit is void as champerty. For these reasons, Cardinal Minerals’ claims were denied; the Court of Appeals effectively ignored the question of whether the surface owners followed the Dormant Mineral Act requirements by providing notice to the known successors to a reserving title interest holder pursuant to wills and intestate succession. This seems like a possible case for further appeal to the Ohio Supreme Court, as reconsideration of the suit was denied on July 2.
Wolfe v. Bounty Minerals LLC, 2024-Ohio-2460 (7th Dist.). A claim of ownership by the surface owners against a reserved interest by the Holms heirs under the Marketable Title Act. The key question being whether the Holmes’ interest was preserved in connection with the Marketable Title Act. The District Court of appeals found that the preservation documents of the Holmes’ heirs was sufficient to preserve their interests.

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Best Practice for Conducting an Effective Internal Company Investigation

Pittsburgh Business Times

(by Kevin Douglass, Carla Castello, Stephen Antonelli)

Is an Internal Company Investigation Warranted?

Planning for and Conducting the Investigation

Concluding the Investigation

Business Insights is presented by Babst Calland and the Pittsburgh Business Times.

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Don’t Bank on It: Recovering Expenses for Motions to Compel Discovery

Pretrial Practice & Discovery

American Bar Association Litigation Section

(by Michael Libuser)

“Discovery sanctions serve the objectives of discovery by correcting for the adverse effects of discovery violations and deterring future discovery violations from occurring.” Taylor v. Illinois, 484 U.S. 400, 425 (1988) (Brennan, J., dissenting). Serving these objectives is important given the common refrain that “practitioners, judges, and academics . . . perceive discovery abuse . . . as a major, if not the major contributor to the growing cost and delay of litigation and to the dissatisfaction with our court systems in resolving civil disputes.” Earl C. Dudley, Jr., “Discovery Abuse Revisited: Some Specific Proposals to Amend the Federal Rules of Civil Procedure,” 26 U.S.F. L. Rev. 189, 190 (1992). Still, many litigators write off motions for sanctions as noncredible threats that rarely gain traction. See, e.g., William T. Gallagher, “IP Legal Ethics in the Everyday Practice of Law: An Empirical Perspective on Patent Litigators,” 10 J. Marshall Rev. Intell. Prop. L. 309, 341 (2011). And some judges have outspokenly decried them. A federal judge recently commented, “There are few things that I truly despise. The short list includes meatloaf, the Ohio State Buckeyes, and hangovers. It also includes motions for sanctions. It is no exaggeration to say that I hate, hate, hate motions for sanctions.” Boshears v. Polaris Eng’g, Inc., 2023 WL 2572204, at *1 (S.D. Tex. Mar. 20, 2023) (per Edison, J.). One form of discovery sanction—awards of expenses—is rarely imposed. Why that is so, and, more specifically, the extent to which state procedural rules authorize those awards, is the impetus for this practice point.Majority Rule

A majority of states follow Federal Rule of Civil Procedure 37(a)(5). Under that rule, a court that grants a motion to compel discovery must order the party whose conduct necessitated the motion (or the party’s attorney, or both) to pay the movant reasonable expenses. But there are three exceptions. Awards of expenses are not permitted if: (1) the moving party failed in good faith to obtain the discovery without involving the court; (2) the losing party was substantially justified in withholding the discovery; or (3) other circumstances make an award of expenses unjust. Conversely, a court that denies a motion to compel must order the moving party to pay expenses, subject to the second two exceptions. “The great operative principle of Rule 37(a)(5) is that the loser pays.” 8B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2288 (3d ed. June 2024 update). Thirty-nine states and the District of Columbia follow the federal model almost verbatim. Their procedural rules embrace a presumption in favor of awarding expenses—courts must award expenses to a party who prevails on a motion to compel, unless an exception applies. There are differences, to be sure. For instance, only 15 of these states authorize an award of expenses if the noncompliant party produces the sought-for discovery after a motion to compel is filed but before the court rules on it.

That most states have adopted the federal approach is notable when considered against the history of Rule 37(a)(5). Rule 37(a)(5) reflects the view that “expenses should ordinarily be awarded,” Fed. R. Civ. P. 37(a) advisory committee’s note to 1970 amendment, and the belief that “potential or actual imposition of expenses is virtually the sole formal sanction in the rules to deter a party from pressing to a court hearing frivolous requests for or objections to discovery,” Proposed Amendments to The Federal Rules of Civil Procedure Relating to Discovery, 48 F.R.D. 487, 540 (1970).

Minority Rule

A minority of states—Arizona, Colorado, Massachusetts, Michigan, Rhode Island, Oregon, and Utah—permit awards of expenses in provisions that largely track Rule 37(a)(5), but with one significant change. These states have permissive rather than presumptive rules. Their courts “may” award expenses to the prevailing party, subject to similar exceptions in the federal model.

Outlier States

Five states—California, Connecticut, New Hampshire, New York, and Pennsylvania—do not track Rule 37(a)(5) in the same way.

In Pennsylvania, courts may not award expenses upon granting a motion to compel discovery. Parties must file the motion to compel, obtain an order compelling compliance, and then, if the noncompliant party disobeys the order, seek sanctions in a subsequent motion. Pa. R. Civ. P. 4019(g). If the court grants the sanctions motion, it “may” require payment of reasonable expenses incurred in obtaining both “the order of compliance and the order for sanctions.” Id. But as with Rule 37(a)(5), Pennsylvania courts’ discretion to award expenses is subject to the substantial-justification and unjust-circumstances exceptions.

New York discovery rules do not authorize awards of expenses or monetary sanctions of any kind. N.Y. CPLR 3126. Its courts, however, enjoy broad discretion to impose monetary sanctions for “frivolous conduct.” N.Y. Rules of the Chief Administrator of the Courts § 130-1.1(a). And that authority has been applied in the discovery context, including to impose monetary sanctions on a party that “should have produced” discovery but failed to do so. Lis v. Lancaster, 225 A.D.3d 568, 569 (N.Y. Sup. Ct. App. Div. 1st Dep’t 2024).

Courts in California, Connecticut, and New Hampshire can impose monetary sanctions for discovery abuses regardless of whether a motion to compel is filed or granted, although only California’s rules are presumptive in that its courts “shall impose” any authorized monetary sanction. Cal. Civ. Proc. Code § 2023.030(a); Conn. Practice Book Sec. 13-14(a)–(b); N.H. R. Dist. Ct. R. 3.21(d)(2)(A).

Takeaway

While rare, awards of expenses incurred in moving to compel discovery are sometimes granted, even if they are generally reserved for repeated abuses and violations of discovery orders. But attorneys—particularly multi-state practitioners—should be mindful of state-specific rules and practices, some of which are beyond the scope of this article. For instance, some state courts have alternate mechanisms for awarding expenses for discovery abuses, whether derived from an inherent power, or through additional rules like the provisions for “immediate sanctions” in Maryland’s rules. Md. Rules 2-432(a).

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© 2024. Discovery Disputes: Best Practices from the Bench, Pretrial Practice & Discovery, American Bar Association Litigation Section, July 24, 2024 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Babst Calland Expands Aerospace, Aviation and Airports Practice

Pittsburgh Technology Council

Firm Announces Strategic Partnership with Former PIT General Counsel Jeff Immel

Law firm Babst Calland announced today its plan to expand the firm’s capabilities in its Aerospace, Aviation and Airports practice through a strategic partnership with Jeff Immel, former general counsel of the Allegheny County Airport Authority (ACAA), the operator of Pittsburgh International Airport and Allegheny County Airport, and experienced aviation and aerospace attorney.

Prior to joining ACAA, Immel served as the head of U.S. aviation regulatory and legal affairs for Zipline International Inc. where he provided legal counsel in obtaining and maintaining all federal approvals necessary to begin unmanned aircraft systems (UAS) commercial package delivery operations in the U.S. He also served as the primary legal and regulatory counsel to Amazon Prime Air and Amazon Air and was an associate attorney for Jenner & Block and Jones Day where he advised clients on various aspects of aviation regulation and emerging technologies law. Prior to attending to law school, Immel served in the United States Navy as a combat fighter pilot, where he achieved the rank of Lieutenant Commander.

Led by Justine Kasznica, Babst Calland currently actively supports the mission and vision of the growing space industry in the region, and currently serves as general counsel for various aerospace contractors and suppliers and non-profit space organizations. Babst Calland is also in partnership with the Department of Defense and U.S. Space Force’s AFWERX/SpaceWERX hub in Pittsburgh, and is a founding member of the Pittsburgh-based Keystone Space Collaborative and the Moonshot Museum,

“We look forward to partnering with Jeff on many new endeavors as we forge new pathways in the aerospace, aviation and airport industries and helping our existing clients in these sectors to grow and expand,” said Justine Kasznica, shareholder, and chair of Babst Calland’s Emerging Technologies practice.

With demonstrated experience as a naval aviator flying in combat, an in-house attorney, airport general counsel, and legal and business advisor to multiple clients in the aviation and technologies industries, Immel is affiliating with Babst Calland to broaden its capabilities to meet the evolving and dynamic legal and regulatory challenges facing these highly regulated fields.

“Aviation, airport, and aerospace law are complex and rapidly evolving disciplines and demand quick answers to difficult problems. Joining forces with Babst Calland’s multidisciplinary legal and regulatory team is a welcome opportunity to focus on the complex needs and expectations of companies with emerging technologies,” said Immel.

“Partnering with Jeff further represents Babst Calland’s commitment to continue to meet the legal and regulatory needs of our clients,” said Donald C. Bluedorn II, Managing Shareholder. “Jeff is well-known in the industry and has a great reputation among local, state and federal regulatory agencies. We’re very pleased to have him as part of our team.”

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