McNair RSS Feed Apr 2017 00:00:00 -0800firmwise McNair Attorneys Named in 2017 Edition of South Carolina Super Lawyers&reg;26 Apr 2017 00:00:00 -0800 <p>McNair Law Firm, P.A. is pleased to congratulate 23 of its attorneys for being selected by their peers for inclusion in South Carolina Super Lawyers 2017&reg;. The honorees represent five of McNair&rsquo;s office locations and a broad range of practice areas. Each year, no more than five percent of lawyers in the state are named by Super Lawyers.&nbsp; The following attorneys have been recognized for excellence in their practice area:</p> <p><b>Columbia</b></p> <p>Jeffrey T. Allen &ndash; Tax (Rising Star)<br /> M. Elizabeth Crum &ndash; Health Care<br /> Celeste T. Jones &ndash; Health Care<br /> Judith L. McInnis &ndash; Real Estate<br /> Richard J. Morgan &ndash; Employment &amp; Labor<br /> Benjamin E. Nicholson, V &ndash; Business Litigation<br /> Robin C. Stanton &ndash; Creditor Debtor Rights<br /> Jane W. Trinkley &ndash; Health Care<br /> Michael H. Weaver &ndash; Bankruptcy: Business (Rising Star)</p> <p><b>Charleston</b></p> <p>Henry W. Frampton, IV &ndash; Employment Litigation: Defense (Rising Star)<br /> Susan Taylor Wall &ndash; Professional Liability: Defense<br /> A. Victor Rawl, Jr. &ndash; Class Action</p> <p><b>Greenville</b></p> <p>Weyman C. Carter &ndash; Bankruptcy: Business<br /> Bernie W. Ellis &ndash; General Litigation<br /> Hunter S. Freeman &ndash; Intellectual Property Litigation (Rising Star)<br /> Douglas W. Kim &ndash; Intellectual Property<br /> Rita M. McKinney &ndash; Employment &amp; Labor<br /> Brandon T. Norris &ndash; Business/Corporate (Rising Star)</p> <p><b>Myrtle Beach</b></p> <p>Amanda A. Bailey &ndash; Civil Litigation: Defense (Rising Star)<br /> James K. Gilliam &ndash; Employment &amp; Labor (Rising Star)<br /> Henrietta U. Golding &ndash; Employment &amp; Labor<br /> Alicia E. Thompson &ndash; Business Litigation (Rising Star)</p> <p><b>Pawleys Island</b></p> <p>David J. Mills &ndash; Business Litigation</p> SC court awards Lowe's employee workers' comp disability benefits26 Apr 2017 00:00:00 -0800 <div><em>Employee disabilities are becoming a common issue that employers must address. Short- and long-term disability plans employers often make available to employees, the Americans with Disabilities Act (ADA), and the varying definitions in state workers&rsquo; compensation statutes can create difficult decisions for employers. The South Carolina Supreme Court recently issued a decision on disabilities in the workers&rsquo; comp context. Read on to see how the court addressed the issue.</em></div> <div>&nbsp;</div> <div><strong>Background</strong></div> <div>&nbsp;</div> <div>In September 2010, Henton T. Clemmons, Jr., a Lowe&rsquo;s employee, was assisting a customer when he slipped and fell, severely injuring his back. He visited neurological specialist Dr. Randall Drye and was diagnosed with a herniated disk, which caused severe spinal cord compression and required immediate surgery. Drye removed Clemmons' herniated disk and fused his C5 and C7 vertebrae by screwing a rod into his spine. After the surgery, Clemmons underwent extensive inpatient and outpatient physical rehabilitation. However, he continued to experience pain in his neck and back as well as difficulty maintaining his balance and walking.</div> <div>&nbsp;</div> <div>Clemmons filed a workers' comp claim for medical expenses and temporary total disability benefits. Lowe's admitted that he had suffered a compensable injury in the course of his employment and agreed to pay benefits until he reached maximum medical improvement (MMI) or returned to work.</div> <div>&nbsp;</div> <div>In June 2011, Drye determined that Clemmons had reached MMI. In accordance with <em>AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition</em>, he assigned Clemmons a whole-person impairment rating of 25% based on his cervical spine injury, which converted to a 71% regional impairment to his spine. Drye also determined that Clemmons could return to work at Lowe's with certain permanent restrictions. The restrictions prohibited Clemmons from standing or walking for more than an hour at a time, climbing stairs, reaching overhead repetitively, and lifting more than 30 pounds. A few months later, Lowe's agreed to accommodate his restrictions and permitted him to return to work as a cashier.</div> <div>&nbsp;</div> <div>In June 2012, Drye conducted a follow-up evaluation and reached the same conclusion: Clemmons had reached MMI and required permanent work restrictions. Thereafter, Lowe's requested a hearing before the South Carolina Workers&rsquo; Compensation Commission (WCC) to determine whether Clemmons was owed permanent disability benefits.</div> <div>&nbsp;</div> <div>Before the hearing, Clemmons visited a number of medical professionals for additional opinions regarding his condition. Physical therapist Tracy Hill assigned him a 36% whole-person impairment rating and a 91% regional impairment rating for his back under the<em> AMA Guides</em>. Dr. Leonard Forrest of Southeastern Spine Institute assigned him a 40% whole-person impairment rating, which translated to a 99% regional impairment to his back. In addition to the <em>AMA Guides</em> impairment ratings, Clemmons presented testimony from general practitioner Dr. Gal Margalit, who opined that, to a reasonable degree of medical certainty, Clemmons had lost more than 50% of the functional capacity of his back.</div> <div>&nbsp;</div> <div> <div>At the hearing, Clemmons argued he was entitled to permanent total disability (PTD) benefits because he had lost more than 50% of the use of his back based on the consensus among the medical experts who examined him. On the other hand, Lowe&rsquo;s argued that Drye's 25% whole-person rating and Clemmons' return to work indicated that he had not lost more than 50% of the use of his back. Thus, Clemmons was entitled only to permanent partial disability (PPD) benefits.</div> <div>&nbsp;</div> <div>A commissioner determined that Clemmons was not permanently and totally disabled, finding he sustained an injury to his back of only 48% and was limited to an award of PPD benefits. The full WCC affirmed the commissioner's decision in its entirety.</div> <div>&nbsp;</div> <div>The court of appeals also affirmed the decision, holding the WCC&rsquo;s factual findings were supported by substantial evidence. The South Carolina Supreme Court agreed to review the case to determine whether Clemmons&rsquo; ability to work affected his entitlement to disability benefits under the South Carolina Workers&rsquo; Compensation Act&rsquo;s scheduled-member statute (an amount based on the number of weeks set forth in the statute&mdash;i.e., the schedule&mdash;and the compensation rate calculated from the employee&rsquo;s average weekly wage).</div> <div>&nbsp;</div> <div><strong>Court&rsquo;s decision</strong></div> <div>&nbsp;</div> <div>The court was faced with two issues: one procedural and one substantive. The procedural issue dealt with whether there was substantial evidence in the record as a whole to support the WCC&rsquo;s decision (i.e., the substantial evidence test used in administrative hearings and appellate reviews) or whether there was an error of law. The court may not substitute its judgment in place of the agency&rsquo;s judgment regarding the weight of evidence on factual questions. However, the court may reverse or modify the WCC&rsquo;s decision if it is affected by an error of law or is clearly erroneous in light of substantial evidence in the record as a whole.</div> <div>&nbsp;</div> <div>Clemmons argued that the court of appeals erred in finding the WCC&rsquo;s order was supported by substantial evidence. Specifically, he contended that all the medical evidence in the record showed he suffered more than a 50% loss of use of his back, which entitled him to PTD benefits, not PPD benefits. The court looked at the relevant portion of the scheduled-member statute:</div> <div>&nbsp;</div> <div>In cases included in the following schedule, the disability in each case is considered to continue for the period specified and the compensation paid for the injury is as specified: . . . In cases where there is [50%] or more loss of use of the back[,] the injured employee shall be presumed to have suffered total and permanent disabilityand [will be] compensated under Section 42-9-10(B). The presumption set forth in this item is rebuttable.</div> <div>&nbsp;</div> <div>S.C. Code Ann. &sect; 42-9-30 (2015).</div> <div>&nbsp;</div> <div>In reviewing the statutory language, the court noted that although a claimant's degree of impairment is usually a question of fact for the WCC, the issue becomes a question of law for the court if all the evidence points to one conclusion or the WCC&rsquo;s findings are based on surmise, speculation, or conjecture.</div> <div>&nbsp;</div> <div>In assessing the entire record, the court noted that the WCC&rsquo;s conclusion regarding Clemmons&rsquo; loss of use of his back was not supported by substantial evidence in the record. Specifically, there was no evidence that he suffered anything less than a 50% impairment to his back. Every doctor and medical professional who assigned an <em>AMA Guides</em> impairment rating, including Drye, whom the WCC relied on, indicated that Clemmons lost more than 70% of the use of his back.</div> <div>&nbsp;</div> <div>Once the court determined there was not substantial evidence to support the lower court&rsquo;s finding, it made its own decision on how the law should be interpreted. The court believed there was no evidence to support the WCC&rsquo;s finding of a 48% impairment rating. Although there was medical evidence that Clemmons' whole-person impairment was less than 50%, the issue was not impairment to the whole body. Instead, the issue was the loss of use of a specific body part&mdash;Clemmons' back. All the medical evidence in the record pointed to one conclusion: Clemmons suffered an impairment to his back that was greater than 50%. Therefore, the court held that he had lost more than 50% of the use of his back and was presumptively permanently and totally disabled.</div> </div> <div>&nbsp;</div> <div> <div>Further, the court held that based on the scheduled-member statute, it had not squarely addressed whether a return to employment can rebut the presumption of permanent and total disability. The court ultimately ruled that the mere fact that Clemmons returned to work was insufficient to defeat the presumption of permanent and total disability for the loss of use of his back. Moreover, the court determined that allowing an employee's ability to work, by itself, to rebut the presumption would undermine the established principle that the scheduled-member statute is separate and distinct from the general disability statute. Importantly, the court went on to observe that allowing an employee&rsquo;s ability to work to rebut the presumption of total and permanent disability would have the undesirable effect of discouraging people from returning to the workforce.</div> <div>&nbsp;</div> <div>Finally, the court noted that it was incorrect to say Clemmons fully &quot;returned to work.&rdquo; While it is true he returned to his job as a cashier, his duties were significantly reduced because of his condition. The court wrote that a person wanting to work and being willing to accept a less-demanding position to be able to work should be commended, not used to deny him disability benefits. Therefore, the court held that evidence of subsequent employment is insufficient by itself to rebut the presumption of permanent and total disability under the workers&rsquo; comp statute.</div> <div>&nbsp;</div> <div><strong>Lessons for employers</strong></div> <div>&nbsp;</div> <div>This decision likely will drive workers&rsquo; comp premiums and costs higher at a faster rate. In this case, the scheduled-member injury payout was required, and the court allowed a finding of permanent and total disability despite the employee returning to work.</div> <div>&nbsp;</div> <div>Stay involved with your workers&rsquo; comp cases. Do not simply turn them over to an adjuster to handle. Work with the adjuster to provide as much information&mdash;expert and otherwise&mdash;as possible to show that the employee did not suffer a loss of wages as a result of a work-related injury.<br /> <br /> <font color="#3a3a3a">For more information on the BLR, click <a href="" target="_blank">here</a>. For more information on the South Carolina Employment Law Letter, click <a href="" target="_blank">here</a>. &nbsp;</font></div> </div> How to Effectively Navigate Through Internal Investigations and EEOC Charges18 Apr 2017 00:00:00 -0800 <p>Join McNair attorneys as they present, <em>How to Effectively Navigate Through Internal Investigations and EEOC Charges.&nbsp;</em>The event will focus on key tactics and best practices for HR professionals during an internal investigation, and how to respond to an EEOC charge.&nbsp;Topics will include:</p> <ul type="disc"> <li>Key tactics and best practices for internal investigations</li> <li>Policies and procedures when conducting an internal investigation</li> <li>Procedures when responding to an EEOC charge(s)</li> <li>Best practices for investigation of the EEOC charge(s)</li> <li>Steps to take during an EEOC investigation</li> </ul> The schedule is as follows:&nbsp;<br /> <br /> <div>April 18 - Columbia (Presenter: Rick Morgan)<br /> Time: 8:00 - 9:30 am<br /> Location: McNair Law Firm, P.A. - 1221 Main Street, Suite 1800, Columbia, SC<br /> To register, click <a href=";oeidk=a07edxb6gylf490eac9&amp;llr=jbjxsnoab&amp;utm_campaign=April18Columbia&amp;utm_source=invitation" target="_blank">here</a>.<br /> <br /> April 18 - Charleston (Presenters: Josh Dixon, Hal Frampton and Megan McNeely)<br /> Time: 8:00 - 9:30 am<br /> Location: McNair Law Firm, P.A. - 100 Calhoun Street, Suite 400, Charleston, SC<br /> To register, click <a href=";oeidk=a07edxb8as430772692&amp;llr=jbjxsnoab&amp;utm_campaign=April18Charleston&amp;utm_source=invitation" target="_blank">here</a>.<br /> <br /> April 18 - Charlotte (Presenter: Jeremy Stephenson)<br /> Time: 11:45 am - 1:00 pm<br /> Location: McNair Law Firm, P.A. - Bank of America Plaza 101 South Tryon Street, 25th floor conference room, Charlotte, NC<br /> To register, click <a href=";oeidk=a07edxbf92ja1095099&amp;llr=jbjxsnoab&amp;utm_campaign=April18Charlotte&amp;utm_source=invitation" target="_blank">here</a>.<br /> <br /> April 19 - Hilton Head Island (Presenters: Melissa Azallion and Jon Eggert)<br /> Time: 8:00 - 9:30 am<br /> Location: Hilton Head Island/Bluffton Chamber of Commerce - 1 Chamber Commerce Drive, Hilton Head Island, SC<br /> To register, click <a href=";oeidk=a07edxbpgrj5524a15f&amp;llr=jbjxsnoab&amp;utm_campaign=April19HHI&amp;utm_source=invitation" target="_blank">here</a>.<br /> <br /> April 20 - Myrtle Beach (Presenter: Jim Gilliam)<br /> Time: 11:45 am - 1:00 pm<br /> Location: Myrtle Beach Area Chamber of Commerce, 1200 N. Oak Street, Myrtle Beach, SC<br /> To register, click <a href=";utm_campaign=April20MB&amp;utm_medium=email" target="_blank">here</a>.</div> <div>&nbsp;</div> <div>April 20 - Greenville (Presenters: Reggie Gay and Rita McKinney)</div> <div>Time: 8:30 - 10:00 am</div> <div>Location: McNair Law Firm, P.A. - 104 South Main Street, Suite 700, Greenville, SC</div> <div>To register, click <a href=";oeidk=a07edxcbz8n7f6b34f2&amp;llr=jbjxsnoab&amp;utm_campaign=April20Greenville&amp;utm_source=invitation" target="_blank">here</a>.</div> <div>&nbsp;</div> <div>April 21 - Anderson (Presenters: Reggie Gay and Rita McKinney)</div> <div>Time: 8:30 - 10:00 am</div> <div>Location: Hospice of the Upstate - 1835 Rogers Road, Anderson, SC</div> <div>To register, click <a href=";oeidk=a07edxd0lxt52b596b5&amp;llr=jbjxsnoab&amp;utm_campaign=April21Anderson&amp;utm_source=invitation" target="_blank">here</a>.</div> <div>&nbsp;</div> <div>This seminar has been approved for 1.0 PDCs for SHRM-CP or SHRM-SCP and 1.0 General HRCI credit. Complimentary breakfast and refreshments will be provided. Lunch will be provided for the Myrtle Beach and Charlotte sessions.</div> <br type="_moz" /> Lessons from Boeing's union election victory in Charleston05 Apr 2017 00:00:00 -0800 <div><em>Many of you already know about Boeing workers soundly rejecting the Machinist Union&rsquo;s effort to represent approximately 2,800 employees at Boeing&rsquo;s Charleston facility. Seventy-four percent of voting employees desired to keep the facility union-free. The vote certainly dealt a blow to labor unions&rsquo; efforts to expand their ranks in the private sector. The history of the union&rsquo;s organizing effort will shed light on several points all employers should be aware of.</em></div> <div>&nbsp;</div> <div><strong>Union seeks members</strong></div> <div>&nbsp;</div> <div>Boeing built the final assembly line for its Dreamliners in South Carolina. At least one reason for the move was to avoid strikes like the ones that brought work to a halt at its Puget Sound facility in Washington, where the union represents the workforce. South Carolina is a right-to-work state (i.e., employees do not have to be union members and pay union dues if a union represents workers in the group to which the employees belong) and has a union membership rate of approximately 1.6 percent of the workforce. Obviously, that translates into an environment that supports good employer-employee relations without the necessity for a third party in the relationship. That held true in the Boeing vote.</div> <div>&nbsp;</div> <div>In 2015, the union filed a petition with the National Labor Relations Board (NLRB) asking for a secret-ballot election at the Charleston plant. The union withdrew the petition later that year, claiming that an antiunion campaign and political pressure by then-Governor Nikki Haley made it impossible to go forward with the election at that time. The withdrawal, however, came after the union received the so-called Excelsior list containing the contact information for all employees in the group or unit who were eligible to vote. Access to the list allowed the union to meet with employees and continue its efforts to convince them that it would be helpful in dealing with Boeing over wages, benefits, and other terms and conditions of employment. Even though there was a waiting period before the union could refile its petition, it had the advantage of an election being held under the expedited election procedures adopted by the NLRB, which had a majority of its members appointed by President Barack Obama.</div> <div>&nbsp;</div> <div><strong>Expedited election process</strong></div> <div>&nbsp;</div> <div>The expedited election process provides a number of features that reduce the amount of time between a petition and an election. Those features include:</div> <ul> <li>Election petitions, election notices, and voter lists can be transmitted electronically. NLRB regional offices can deliver notices and documents electronically rather than by mail.</li> <li>Parties receive a more-detailed description of the NLRB&rsquo;s representation case procedures as well as a &ldquo;Statement of Position&rdquo; form when served with a petition. The statement of position helps parties identify issues they may want to raise at the preelection hearing. A Notice of Petition for Election, which is served with the Notice of Hearing, provides employees and the employer information about the petition and their rights and obligations. The Notice of Election provides prospective voters more-detailed information about the voting process.</li> <li>The NLRB regional director generally sets the preelection hearing to begin eight daysafter the hearing notice is served and the postelection hearing 21 days after the tally of the ballots.</li> <li>Nonpetitioning parties are required to identify any issues they have with the petition in their statements of positions, generally one business day before the preelection hearing opens. The petitioner is required to respond to issues raised by nonpetitioning parties at the beginning of the hearing. Litigation that is inconsistent with the positions generally is not allowed.</li> <li>As part of its statement of position, the employer must provide a list of prospective voters with job classifications, shifts, and work locations to the NLRB&rsquo;s regional office and the other parties, generally one business day before the preelection hearing opens. That process helps the parties reduce the number of issues in dispute at the hearing or enter into an election agreement.</li> <li>The purpose of the preelection hearing is clearly defined, and parties generally litigate only issues that are necessary to determine whether it is appropriate to conduct an election. Litigation of a small number of eligibility and inclusion issues that do not have to be decided before the election may be deferred until after the election. Those issues often are made moot by the election results.</li> <li>The parties are provided an opportunity to argue orally before the close of the hearing, and written briefs are allowed only if the regional director determines they are necessary.</li> <li>The parties may wait to see whether the election results make the need to file a request for a review of the regional director&rsquo;s preelection decision unnecessary. The parties do not waive their right to seek a review of the decision if they decide to file a request after the election.</li> <li>There are no automatic stays of an election.</li> <li>The Board is not required to review the regional director&rsquo;s postelection decisions regarding which party has raised an issue and may deny review consistent with thediscretion it has long exercised in reviewing preelection rulings.</li> <li>The voter list includes employees&rsquo; personal phone numbers and e-mail addresses (if available to the employer). The employer must submit the list within two business days of the regional director&rsquo;s approval of an election agreement or decision directing an election.</li> </ul> In addition to the expedited election rules, the NLRB has issued decisions that allow for so-called mini- or microunits within a group of employees at a company. For instance, a company may have a shift in which the employment relationship is simply not very good, but all other shifts for the same group or class of workers are fine. A union can now carve out a shift or a smaller group of employees and gain a toehold in a company if it is successful in an election. Those standards will stay in effect at least until a new Board is appointed over the next several years by the Trump administration.<br /> <br /> <strong>Bottom line</strong><br /> <br /> <div>There are several important takeaways from the Boeing vote. First, the company did an excellent job of educating its entire workforce on why it made more sense to maintain a union-free status at the facility. Second, it demonstrated that a using solid approach to dealing with wages, benefits, and other terms and conditions of employment and consistently and continuously communicating that message in a positive way translate into not having to play catchup when a union petition hits your company. The bottom line is, using good HR practices every day is a&mdash;if not the&mdash;key factor in keeping a union-free environment.<br /> <br /> <div>For more information on the BLR, click <a href="" target="_blank">here</a>. For more information on the South Carolina Employment Law Letter, click <a href="" target="_blank">here</a>. &nbsp;</div> </div> McNair Grows Myrtle Beach Office with the Addition of John Connell05 Apr 2017 00:00:00 -0800 McNair is pleased to announce John Connell has joined the Firm&rsquo;s Myrtle Beach office, focusing his practice on general business litigation matters.<br /> <br /> Connell has extensive experience in insurance defense, construction defects and negligence claims. He has successfully represented clients and argued motions before South Carolina courts, as well as the United States Tax Court.<br /> <br /> &ldquo;It&rsquo;s important that we continue to build a practice to meet the region&rsquo;s increasingly diverse legal needs,&rdquo; said Amanda Bailey, Myrtle Beach Managing Shareholder. &ldquo;Having John on board solidifies we are moving in that direction, as we continue to grow our office.&rdquo;<br /> <br /> Before coming to McNair, Connell served as a judicial law clerk to The Honorable Roger L. Couch of the 7th Judicial Circuit. He has also worked for the Internal Revenue Service (IRS) and the U.S. Department of State at the U.S. Consulate in Germany. Connell maintains proficiency in German.<br /> McNair Welcomes Paula Williamson as Communications Manager04 Apr 2017 00:00:00 -0800 McNair Law Firm, P.A. is pleased to welcome Paula Williamson as Communications Manager. Among several duties, Williamson will manage the Firm&rsquo;s public relations efforts and support the diverse marketing initiatives across its eight locations. <br /> <br /> A graduate of the University of South Carolina with a degree in broadcast journalism, Williamson has legal marketing experience working for both a large national firm and a small local firm where she assisted in leading public relations, multimedia content management, and the development of client materials. Williamson has also worked as a video producer and was a photojournalist for the Columbia-based NBC affiliate WIS News 10. <br /> <br /> &ldquo;With Paula&rsquo;s legal marketing experience and communications background, we are delighted to have her join McNair where we know she will represent our values of providing quality performance with a client-centered approach,&rdquo; said Kathryn Whitaker, Director of Marketing and Business Development. <br /> <br /> Williamson has enhanced her communications skills through her involvement with the Legal Marketing Association of the Southeast&rsquo;s (LMASE) Columbia chapter, serving as the 2017 Local Steering Committee Chair.<br /> <br /> Williamson is based in McNair&rsquo;s Columbia, SC office. <br /> <br /> McNair Elects Gilliam to Shareholder22 Mar 2017 00:00:00 -0800 McNair Law Firm is pleased to announce that attorney Jim Gilliam has been elected to shareholder in the firm&rsquo;s Myrtle Beach office.<br /> <br /> Jim&rsquo;s practice is concentrated in employment, business and appellate law. He advises employers on compliance with federal and state employment laws, drafts employee handbooks and employment contracts, litigates employment related disputes and represents clients in various disciplinary matters. He also represents clients in an array of business disputes, including shareholder disputes, unfair trade practice allegations, and other business claims. <br /> <br /> &ldquo;Jim has been a valued member of the firm and our Myrtle Beach office, and we are very pleased to see him continue to grow with us,&rdquo; said Myrtle Beach Managing Shareholder Amanda Bailey.<br /> <br /> Prior to working at McNair, Jim earned an undergraduate degree Newberry College and a law degree from the Charleston School of Law in 2008. After graduating from law school, Jim worked as a law clerk to the Honorable Kaye G. Hearn at both the South Carolina Court of Appeals and the South Carolina Supreme Court.<br /> <br /> McNair's Michael Weaver Named to The State's 20 Under 4020 Mar 2017 00:00:00 -0800 McNair attorney Michael Weaver has been selected as a 2017 &ldquo;20 Under 40&rdquo; winner by The State Newspaper. Michael, selected in 2016 to lead McNair&rsquo;s Columbia office, is a shareholder with 13 years of experience representing financially distressed companies, creditors, trustees and committees in bankruptcy, insolvency, and litigation matters. He is active in both professional and civic organizations, serving in leadership roles for the South Carolina Bankruptcy Law Association and the United Way of the Midlands. He is also a 2011 graduate of Leadership Columbia and a member of the 2017 Leadership South Carolina class.<br /> <br /> &ldquo;Michael dedicates himself to the people and businesses of South Carolina through his leadership in his profession and in this community,&rdquo; said Managing Shareholder David Tigges. &ldquo;He holds extraordinary commitment to both client and community service, and we are pleased to see his efforts recognized.&rdquo;<br /> <br /> The State&rsquo;s &ldquo;20 Under 40&rdquo; is a class of twenty professionals in the Midlands under 40 years of age each of whom are making a difference both professionally and within Midlands communities. The 2017 class is the fourteenth to be recognized by The State Newspaper, all of whom are nominated by their peers. They will each be recognized at the upcoming reception on March 22, 2017 at the Capital City Club. <br /> NCSHRM Government Affairs Webinar Series: Americans with Disabilities Act: Technical Compliance and Latest Case Law15 Mar 2017 00:00:00 -0800 <p>Join McNair attorney and NCSHRM Government Affairs Director Jeremy Stephenson as he presents <b><i>Americans with Disabilities Act: Technical Compliance and Latest Case Law.&nbsp;</i></b>The event will cover both basic rules and occasionally highly technical requirements of the Americans with Disabilities Act (ADA). New ADA cases are decided by Federal Courts around the country every week, and this session will address the very latest of these. Topics will include:</p> <ul type="disc"> <li>Basic rules;</li> <li>Practical tips and best practices;</li> <li>Managing applicants and employees;</li> <li>New cases;</li> <li>And more</li> </ul> <div> <div>This seminar is from 12:00 pm to 1:00 pm on Wednesday, March 15.</div> <div>To register, click <a href=";oeidk=a07edv0a3qv5399fe0c&amp;llr=jbjxsnoab&amp;utm_campaign=employmentwebinar031517&amp;utm_source=invitation" target="_blank">here</a>.</div> <div>1.0 PDCs from SHRM-CP or SHRM-SCP and 1.0 General HRCI credit hours available.</div> </div> Northern District of California's Revised Patent Local Rules Require Early Disclosure of Damages Information14 Mar 2017 00:00:00 -0800 <div> <div> <div> <div> <div> <div> <div _mce_style=" font-size: 12pt;"> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify">Last month, the Northern District of California revised its Patent Local Rules by adding requirements for early disclosure of damages information. Because the Northern District of California has been a national driving force in establishing patent local rules for nearly two decades, these new revisions and their subsequent application may be the beginning of a trend that could impact patent cases in districts across the country.<br /> &nbsp;</div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify">In 2000, the Northern District of California enacted its Patent Local Rules, which were the first local rules to address procedural issues unique to patent cases. The Northern District&rsquo;s Patent Local Rules have served as a model for many other patent-heavy districts, including the Eastern District of Texas and the Southern District of New York.<br /> &nbsp;</div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify">Over the years, the Northern District of California has revised its Patent Local Rules to further streamline patent litigation by narrowing issues and requiring the disclosure of infringement and invalidity contentions earlier in litigation. As explained in more detail below, the most recent revisions add requirements for the parties to disclose damages-related information: (1) the patentee must identify the categories of damages it is seeking and theories of recovery with factual support; and (2) accused infringers must provide information regarding its sales of the accused products and explain why they disagree with the patentee&rsquo;s damages theories and calculations.</div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify"><b><br /> Parties must disclose initial damages estimates.<br /> <br type="_moz" /> </b></div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify">The new revisions require the parties (patentees and the accused infringers) to disclose damages information as early as the initial case management conference.&nbsp; Pursuant to Patent Local Rule 2-1(b)(5), the parties now must provide a &ldquo;non-binding, good-faith estimate of the damages range expected for the case along with an explanation for the estimates.&rdquo; If a party cannot provide this information, &ldquo;that party shall explain why it cannot and what specific information is needed before it can do so. Such party shall also state the time by which it should be in a position to provide that estimate and explanation.&rdquo;&nbsp;<i>See&nbsp;</i>Patent L.R. 2-1(b)(5).</div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify"><b><br /> Patentees must produce agreements and marking information.<br /> <br type="_moz" /> </b></div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify">No later than 14 days after the Case Management Conference, the patentee&rsquo;s Disclosure of Asserted Claims and Infringement Contentions must also identify the date of first infringement, and the start and end of claimed damages.&nbsp;<i>See&nbsp;</i>Patent L.R. 3-1(h). The patentee must simultaneously produce the following (1) &ldquo;all agreements, including licenses, transferring an interest in any patent-in-suit;&rdquo; (2) all agreements the party &ldquo;contends are comparable to a license that would result from a hypothetical reasonable royalty negotiation;&rdquo; (3) &ldquo;all agreements that otherwise may be used to support the party asserting infringement&rsquo;s damages case;&rdquo; (4)&nbsp; &ldquo;documents sufficient to show marking of [the patentee&rsquo;s or licensees&rsquo; product covered by the patent] and if it wants to preserve the right to recover lost profits based on such products, sales, revenues, costs and profits of such embodying accused instrumentalities;&rdquo; and (5) &ldquo;all documents comprising a F/RAND commitment with respect to the asserted patent(s).&rdquo;&nbsp;<i>See&nbsp;</i>Patent L.R. 3-2(f)-(j).&nbsp;<br /> &nbsp;</div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify"><b>Accused infringers must produce agreements, sales, revenue, cost, and profit information.<br /> <br type="_moz" /> </b></div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify">Revised Patent Local Rule 3-4 requires the accused infringer to produce with its invalidity contentions (1) all agreements it contends are &ldquo;comparable to a license that would result from a hypothetical reasonable royalty negotiation;&rdquo; (2) &ldquo;documents sufficient to show the sales, revenue, cost, and profits for accused instrumentalities;&rdquo; and (3) &ldquo;all agreements that may be used to support the party denying infringement&rsquo;s damages case.&rdquo;&nbsp;<i>See&nbsp;</i>Patent L.R. 3-4(c) - (e).</div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify"><b><br /> The patentee and accused infringer must provide damages contentions.&nbsp;</b><br /> <br /> Within 50 days of service of the invalidity contentions, the patentee must serve damages contentions that &ldquo;identify each category(ies) of damages it is seeking, as well as its theories of recovery, factual support those theories, and computation of damages within each category, including: 1. lost profits; 2. price erosion; 3. convoyed or collateral sales; 4. reasonable royalty; and 5. any other form of damages.&rdquo;&nbsp;<i>See&nbsp;</i>Patent L.R. 3-8(a). Further, to the extent the patentee cannot provide &ldquo;fulsome&rdquo; damages contentions, the party must provide the information required to provide a fulsome response. Patent L.R. 3-8(b).</div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify"><br /> Within 30 days of service of the patentee&rsquo;s damages contentions, the accused infringer must &ldquo;identify specifically how and why it disagrees with those contentions&rdquo; and disclose its &ldquo;affirmative position on each issue.&rdquo;&nbsp;<i>See&nbsp;</i>Patent L.R. 3-9.&nbsp; Like the requirement for the patentee, if the accused infringer &ldquo;contends it is unable to provide a fulsome response to the disclosures required by this rule, [it] shall identify the information it requires.&rdquo;&nbsp;<i>See&nbsp;</i>Patent L.R. 3-9.</div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify"><b><br /> Practical effect of the revisions.<br /> <br type="_moz" /> </b></div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify">It appears that the intent of the Northern District&rsquo;s revised Patent Local Rules is to require early damages assessments in order to facilitate settlement negotiations between the parties. The hope is that if the parties have a more clear understanding of the amount and basis for the claimed damages, fewer cases will be tried to a substantive ruling, thereby reducing the cost and expense to the parties and the District&rsquo;s current patent caseload.</div> <div _mce_style="margin: 7.5pt 0in 11.25pt; line-height: 16.8pt;" align="justify"><br /> These revisions mark a significant change to patent litigation in the Northern District of California. Given the evolving law surrounding damages in patent law and the substantial costs of patent litigation, the early disclosure of damages contentions may be welcomed by both sides in particular cases.&nbsp;</div> </div> </div> </div> </div> </div> </div> <div> <div> <div> <div> <div> <div><span _mce_style="Times New Roman&quot;; font-size: 10pt;" size="3">&nbsp;&nbsp;______________________________________________________________</span></div> <div><span _mce_style="Times New Roman&quot;; font-size: 10pt;" size="3"><br /> </span></div> </div> </div> </div> </div> </div> </div> <span _mce_style="Times New Roman&quot;; font-size: 11pt;" size="3"> <div> <div align="left" _mce_="">If you have questions, please contact the authors of this alert,&nbsp;<a href="" _mce_href="" _mce_style="color: blue; text-decoration: underline;" linktype="1" track="on" target="_blank">Hunter S. Freeman</a>&nbsp;and&nbsp;<a href="" _mce_href="" _mce_style="color: blue; text-decoration: underline;" linktype="1" track="on" target="_blank">Lance A. Lawson, P.E.</a>,&nbsp;or a member of the firm's&nbsp;<a _mce_style="color: #0000ff; text-decoration: underline;" track="on" shape="rect" _mce_shape="rect" href=";LPA=574&amp;format=xml&amp;p=2358" _mce_href=";LPA=574&amp;format=xml&amp;p=2358" linktype="1" target="_blank">Intellectual Property</a>&nbsp;and&nbsp;<a _mce_style="color: #0000ff; text-decoration: underline;" track="on" shape="rect" _mce_shape="rect" href=";LPA=577&amp;format=xml&amp;p=2358" _mce_href=";LPA=577&amp;format=xml&amp;p=2358" linktype="1" target="_blank">Litigation</a>&nbsp;practice groups.</div> </div> </span>