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Small Towns Emerge Victorious in Recent Legal Battle on Fracking



July 29th, 2014

Hydraulic fracturing, or “fracking,” has become one of the most controversial issues that environmentalists and oil companies alike are grappling with.  Hydrofracturing is a process by which high-pressure fluid is injected into small holes that have been drilled into the ground, in order to create fractures in deep-rock formations.  The fracturing of the rock then allows oil and natural gas, which would otherwise be trapped and inaccessible, to escape via wells.  Proponents of fracking point to its economic benefits, as well as the potential for the United States to become less reliant on foreign oil.  Critics, however, are concerned that the environmental costs, including potential groundwater contamination, possible triggering of earthquakes, degradation of air quality, loss of freshwater, and consequential health risks, outweigh the economic benefits of fracking.

In New York State, high-volume fracking has been suspended since 2008, when then-Governor David Patterson launched an extensive environmental review in order to determine the public health risks posed by fracking. The review currently continues under Governor Andrew Cuomo, with no sign of completion in the near future.

However, towns across the state have taken the matter into their own hands.  Throughout the last six years, over 150 towns and cities have passed bans on fracking within their lines.  Dryden and Middlefield passed zoning ordinances in 2011 that prohibited any drilling or hydrofracturing; the validity of each of these bans has been challenged, and as a result, each town has been entrenched in a long legal battle ever since.  Dryden’s opponent is a Colorado-based oil and gas company, while Middlefield’s dispute involves a local dairy farm.  The lawsuits ultimately boil down to whether or not individual towns and municipalities have the authority to ban drilling and fracking using zoning laws that apply within their own boundaries.  The lower courts had ruled in favor of the towns, and in a precedent-setting decision, New York State’s Court of Appeals upheld the prior decisions and ruled 5-2 in favor of Dryden and Middlefield.  Writing for the majority, Associate Judge Victoria Graffeo stated: “We conclude that they may because the supersession clause in the statewide Oil, Gas and Solution Mining Law does not pre-empt the home rule authority vested in municipalities to regulate land use.”

The decision is significant for the future of fracking in New York State, as large companies are now likely to shy away from investing in a state in which local towns and municipalities can essentially make autonomous decisions about fracking.  Further, the decision could have even wider implications as fracking opponents hope that the ruling will spur communities in other states to follow suit and take action at the local level.  The number of key players involved continues to rise, with oil companies, the government, landowners, environmentalists, public health experts, and local communities all weighing in.  As public opinion in New York remains evenly divided, it is likely that the issue of fracking will continue to appear in the courtroom.

10 Summer Moving Tips to Make For a Breezy Transition

Author: Krystal Chapin


July 21st, 2014

It’s summertime and the real estate market is in full swing. Are you getting the moving bug? When it’s time to make the big move, will you be ready? Read these 10 Summer Moving Tips to make sure you’re prepared.

  1. Decide whether or not your move is manageable to do yourself with a few helpers, or if you will need to hire a licensed moving company. To decide, take into account your lifestyle, household size, budget, and your time frame. If a moving company is what you decide, make sure to get at least 3 different quotes so you are sure to be getting the best deal.
  2. Plan to unpack BEFORE you pack. It is important to take photos of each room in your new house so you can get an idea of where you want your furniture, appliances, and decorations to go. This way, you can pack these items together. On moving day, list the major items that need to be assembled first so that you can begin enjoying your home sooner.
  3. Pack strategically. In the moving whirlwind, it’s easy to simply throw things in boxes and figure it out later. But trust us, if you take the time to go through years of accumulated belongings ahead of time, it will make for a much cleaner, clutter-free home. Keep in mind these options when choosing what to hang on to; donate to charity, give to a friend, recycle or trash.
  4. Schedule for your children. Moving with small children can add to the stress of moving day. Much more can be done if you don’t have to tend to and keep an eye on the young ones. Consider daycare or a babysitter so they aren’t underfoot.
  5. Consider your animals. Sometimes pet-owners forget the stress that can be put on animals, not to mention the constant in-and-out of visitors. It is smart to arrange for a pet-sitter or a daycare facility to keep your animals happy and healthy.
  6. Keep track of the small stuff. Oftentimes furniture and other objects need to be broken down to make transportation easier. Make sure to put small screws, nails, washers, etc., into small labeled baggies, instead of taping them to the furniture. This way you can personally carry these easy-to-lose items on moving day.
  7. Take pictures of your electronics. This tip will help keep your sanity later when trying to remember which plug gets connected where. This will prevent headaches when setting up technology in your new home.
  8. Consider getting full value insurance protection. If you are using a professional mover, this may cost a few more dollars, but it is worth it. Investing in full value protection means that any lost or damaged items will be repaired, replaced, or paid for at current market value. Accidents happen.
  9. Unpack one room at a time according to basic needs. It is a good idea to start with the kitchen and at least one bathroom. While packing, mark boxes “Basic Needs” for these rooms so it’s easy to find the initial items you’ll want handy on those first few days of being in your new home.
  10. Know your rights. If using a professional moving company, research your rights as a consumer. You may also enlist the help of The Better Business Bureau (BBB) if the moving company fails to live up to its promises. Do research before you decide on which company to hire. Read reviews and ask friends and family for suggestions and who to avoid.

At HoganWillig, we do our part in making sure your move goes as smoothly as possible. These 10 tips, along with the help of our large real estate team, will make sure you are happily in your new house in no time! Call us today at 716-636-7600.

Social Media in the Courtroom: Evidence, Hacking, and the Issue of Free Speech



July 9th, 2014

As social media becomes an increasingly widespread method of communicating with friends and family, conducting business, and sharing news, it also appears more frequently within the context of the law.  For quite some time now, material from social media has been used as evidence in investigations and lawsuits alike.  Evidence gathered from a defendant’s social media accounts can include photographs, status updates, tweets, geographical whereabouts, and even private messages.  The use of social media posts as evidence should come as little surprise; phone calls, emails and text messages have long been included in lawsuits as admissible evidence, and thus, citing incriminating material gathered from social media appears to be the next logical step.  Further, because so much of the information posted to social networks is publicly available, investigators often bypass the need for a subpoena or a search warrant.  Social media sites are often far less “private” than users believe, and the effect of incriminating posts can weigh heavily on the outcome of a lawsuit; for example, an individual seeking compensation for a broken leg will likely lose out when opposing counsel presents recent Facebook photos of the plaintiff dancing or running a marathon.

While the use of social media as evidence is obviously growing in scope and significance, many of the legal issues that arise around these relatively new networking sites are forcing courts to venture into uncharted waters.  For example, a court in Ireland recently fined a man €2,000 for defacing his ex-girlfriend’s Facebook page from within her account, which many view as a form of hacking.  The man had been able to access her account through her phone, and while logged into her account, posted an offensive status update.  In an unprecedented ruling, the Irish court charged him under the country’s Criminal Damage Act 1991, which is typically applied to disputes involving physical property damage.  Similarly, in the United States, the equivalent charge would also be something more closely related to vandalism, rather than cybercrime. The case is emblematic of the widespread uncertainty facing judges when it comes to handling very new types of crime using old laws.

This becomes especially difficult when the question of free speech arises.  In the United States, free speech activists are concerned about heavy government regulation of online sharing, and whether taking these steps will infringe upon people’s rights.  Similarly, enacting US federal laws could potentially open up the sites themselves to liability for what their users are posting, which would also force these companies to confront the free speech issue.

As Facebook posts and tweets are constantly being used as evidence, and user behavior is at the core of unprecedented legal decisions, it becomes obvious that the extensive use of social media among the masses will simultaneously raise free speech questions and expand the need for clearer legal guidelines.

Supreme Court Hobby Lobby Ruling: Beyond Birth Control



July 3rd, 2014

On Monday, June 30th, a divided Supreme Court ruled that closely-held, for-profit corporations are not legally obligated to provide contraception coverage to their female employees.  Initially, the case began when Hobby Lobby, a Christian-owned craft supply chain, and Conestoga Wood, a Pennsylvania-based and Mennonite family-owned wood manufacturer, decided to challenge the contraception mandate included in the Affordable Care Act.  They argued that complying with the mandate, which requires companies to provide birth control to female employees at no cost, violates their religious freedom by forcing them to pay for contraception methods that they are morally opposed to.  They argue that certain forms of birth control, such as intrauterine devices and emergency “morning after” pills, too-closely resemble abortion because they could prevent a fertilized egg from implanting.

Prior to the ruling, the Obama administration had already granted an exception for churches, and had made accommodations for religious hospitals, schools and non-profits.  For-profit corporations were still required to either comply with the coverage rule or pay a fine.  Now, the Supreme Court’s decision expands the contraception mandate exception to encompass for-profit corporations that are religiously-held.  However, this exception applies to birth control only, and does not give religious employers the ability to refuse to cover other medical services that they might object to, such as vaccines or blood transfusions.

The majority opinion was authored by Justice Samuel Alito, who stated that within the Affordable Care Act, the Obama administration failed to demonstrate that the mandate was the “least restrictive means of advancing its interest.”  However, many believe that this ruling opens the door to a wide range of issues in the future on the grounds that a for-profit company can obtain a religious exemption, essentially allowing the employer to pick and choose which portions of the law to follow.  Justice Ruth Bader Ginsburg filed the dissenting opinion, asserting that the decision is less narrow and more far-reaching than the majority suggests: “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

The ruling may blur the lines of religious freedom rather than clarify them.  Some are concerned about the ruling’s enhancement of “corporate personhood,” as it recognizes that a company itself can have a religious identity, which in turn affects its employees.  Further, the decision may complicate many citizens’ decisions about their healthcare coverage.  While it has always been typical for people to rely on their employers for healthcare plans, as companies acquire an increased say over the coverage they offer, Americans may look elsewhere, on their own.  Thus, the Hobby Lobby case may give rise to subsequent decisions on religious freedom, civil rights, corporation status, and healthcare in the not-so-distant future.

FIFA World Cup Law versus Brazilian Constitutional Law: A Legislative Match



June 27th, 2014

The global outbreak of World Cup fever rages on as the highly anticipated and widely followed sporting event progresses into the next stage.  Currently in the midst of the competition, goals, saves, controversial calls, and perhaps even more controversial player antics, take center stage.  However, throughout the lead up to this World Cup, before the matches began, an interesting legal battle unfolded as tensions emerged between strictly-enforced FIFA law and host country Brazil’s constitutional law.

Before a host-country is selected, FIFA requires a government guarantee with regards to various legal issues, such as security, infrastructure, tax law, customs, and visa procedures.  Perhaps the most significant issue that arose this year in Brazil was that of the sale of alcohol inside stadiums.  Prior to working with FIFA, Brazil had a federal statute in place that banned the entry and sale of alcoholic beverages at stadiums during football matches.  This law was originally put into place in an effort to curb football-related violence that had long plagued Brazil, a country with one of the worst records in the world of fan deaths in or around their soccer stadiums.  To comply with FIFA, Brazil’s congress enacted Law 12.663/2012, allowing for the sale of alcohol during Cup matches.  Also in contention with Brazilian law, the country has agreed to assume civil liability for FIFA in the event of losses or damages resulting from an accident or security issue, whereas typically the state would only assume liability on behalf of a public entity, or a private entity performing public services; FIFA does not qualify as either.

Further, the alcohol industry walks away with even larger pockets due to the requirement that the host country must waive tax on any profits made by a World Cup commercial partner.  This stipulation on its own deprives Brazil of an estimated $523 million in revenue, fueling the fire of domestic protesters who have been against the World Cup’s Brazilian location since day one, citing the contrast between millions spent on stadiums and facilities and the dire poverty that affects much of the country’s population.

The power of the alcohol industry has not only manifested itself in this year’s host country. Qatar, a Muslim nation with very rigid drinking laws, has already agreed to sell alcohol in fan zones during its 2022 World Cup games.  Ireland had planned on prohibiting alcohol companies from sponsoring sporting events by 2016, but has since backed down.  England and Wales have loosened certain licensing laws in order to allow pubs to stay open later than usual when a match has a late kickoff time, despite a 37.5% rise in emergency visits on the days that England played during the 2010 World Cup.

In a global climate so favorable to the sport, it is unlikely that FIFA, referred to as the “United Nations of Football,” will experience much pushback from a country eager to host a World Cup.  With hundreds of millions of dollars in revenue at stake for the host country and billions of viewers worldwide, the combination of a promised economic boost and promoting the general public interest may very well establish a pattern of legal rule-bending for many Cups to come.

When is an unpaid internship illegal?



June 26th, 2014

During the summer months, thousands of college students and recent graduates flock to companies and organizations for internships in the hopes of bolstering their resumes.  About half of these positions do not offer the students any compensation.  Although there is a mutual benefit in the tradeoff between experiential learning for the students and free labor for the organization, there is growing concern within the workforce that many of these unpaid internships are illegal in their failure to comply with wage and hour law.

Non-profit organizations are less likely to incur violations because people can legally do unpaid work for them in the form of volunteerism. However, the U.S. Department of Labor warns for-profit companies that it is difficult to establish unpaid internships that comply with the law.  Companies often rely on summer programs as a “trial run” to determine whether or not they want to offer the student a full-time position post-graduation, and students with high hopes of getting these coveted job offers are unlikely to complain about working for free. For these reasons, violations of labor law are widespread in the realm of summer internships, but difficult to identify or stop.

Generally speaking, if the intern derives a greater benefit from the unpaid internship than the company does from the free labor, the internship can be considered legal.  For example, the completion of summer internships satisfies academic credit requirements for many colleges.  However, if the employer is the “primary beneficiary” of the intern’s labor, the intern should be compensated at least minimum wage and be covered by the protections of federal wage and hour law.  The Labor Department offers these six rules for employers establishing unpaid internships:

  1. They must give training similar to that of an academic or vocational institution
  2. They must not displace existing workers
  3. They must give prime benefit to the intern
  4. They must not give immediate advantage to the employer
  5. They do not promise a future job
  6. There is a mutual understanding that the position is unpaid

If you or your organization has any questions or concerns about the legality of unpaid internship programs, please call the offices of HoganWillig at (716) 636-7600.

Supreme Court Cracks Down on Straw Purchases of Guns



June 17th, 2014

A divided Supreme Court ruled on Monday that the government can strictly enforce a ban on purchasing a firearm for someone else, even if the other individual is lawfully allowed to own a gun.  Regardless of whether or not the other person is entitled to have a gun, this type of transaction is known as a “straw purchase” and conflicts with the lawfulness of a gun sale.  Because a gun purchase requires personal information, photo identification, and a background check, buying a gun with the intention of selling it to another person is a misrepresentation of the identity of the actual gun owner.

The case involved Bruce Abramski, a Virginia man and former police officer who was sentenced to five years probation for purchasing a $400 Glock handgun for his uncle in Pennsylvania, even though his uncle would have been lawfully able to purchase a gun himself.  However, because Abramski failed to disclose that he was not the actual purchaser of the weapon, the sale was not lawful.  Monday’s decision makes it clear that circumventing any part of the required purchase process is illegal; gun control advocates are hopeful that this ruling will help ensure that guns do not end up in the hands of dangerous people.

“The firearms law contemplates that the dealer will check not the fictitious purchaser’s but instead the true purchaser’s identity and eligibility for gun ownership,” Justice Elena Kagan said, in writing the majority opinion. “By concealing that Alvarez was the actual buyer, Abramski prevented the dealer from transacting with Alvarez face-to-face, recording his name, age, and residence, inspecting his photo ID, submitting his identifying information to the background check system, and determining whether he was prohibited from receiving a firearm.”

If you have questions about this change, or any other concerns regarding your rights, please call HoganWillig at (716) 636-7600.

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