Pennsylvania Litigation Lawyer & Attorney : Barley Snyder Law Firm : Serving Lancaster, Reading, York, Chambersburg

This afternoon, I delivered a presentation (pdf warning) to the York Society of Human Resources Managers on the subject of identity theft.  Now, everyone understands identity theft from the perspective of a consumer, i.e., the poor sap whose identity is stolen, but identity theft from the perspective of an HR professional is, as I found out, a rather different kettle of fish. 

The presentation discusses two recent Pennsylvania laws that bear on identity theft as well as the federal "shredder law," all of which place obligations on businesses that maintain confidential/personal information, whether for customers or employees.  In addition, the presentation considers a relatively recent negligence case (pdf warning) out of Michigan as a cautionary tale for Pennsylvania businesses that don't take sufficient precautions to guard employees' confidential/personal information.  Although the law elucidated in the Michigan case is not yet the law of Pennsylvania, I suspect it may be if and when such a case percolates through the courts.  The very bottom line?  Businesses should stop using employee social security numbers for any purpose not strictly necessary.  If you can accomplish that, you've halfway cracked the nut.

Over at their joint blog, Becker and Posner bring a law-and-economics approach to bear on the issue of deterring ID Theft   Although the discussion is from last September, it remains interesting stuff.  Really, though, how could it not?

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Class action cases are being filed to stop the practice of stock option backdating. Backdating allows a stock option exercise price to be set using hindsight, by reporting the market price from a previous date. In most cases of backdating, a date on which the stock price was very low is chosen. Currently, there are over a dozen securities fraud cases in federal court and an unknown number of derivative actions in state courts related to the practice. It reportedly has hit hardest in the technology and telecommunications industries. Backdating is not expressly forbidden by statute but rather is being postured as a violation of SEC disclosure regs (SEC Rule 10b-5). With the recent US Supreme Court ruling in Dura Pharmaceuticals (requiring a casual connection between a company's misrepresentation and the plaintiff's economic loss), it appears that there will be proof issues in the cases that have been filed.

Eric adds™ -- Perhaps the next significant options backdating ruling will be rendered in the forthcoming U.S. v. Jobs matter.  Although I don't know about doctors, it sure doesn't look like an Apple a day repels the SEC . . .

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The Pennsylvania Rules of Civil Procedure require a plaintiff to file a timely certificate of merit in any professional liability action, including a medical malpractice lawsuit, subject to dismissal of the action.  We have seen a number of procedural issues come up in this context, and the legal landscape is developing.

One argument plaintiffs raise with some frequency in trying to revive a dismissed lawsuit is that the application of the rules was inequitable under the circumstances.  The Supreme Court of Pennsylvania has weighed in on the issue and said that the certificate of merit rules are subject to equitable considerations so long as the rules' requirements are met.  See Womer v. Hilliker, 908 A.2d 269 (Pa. 2006) (Justices Baer's dissent is here).  At least substantial compliance is required, and where a plaintiff does nothing to comply with the rules, equitable considerations cannot save a claim.  The court also said that serving an expert report upon a defendant, in and of itself, is not substantial compliance with the rules.  Generally, we do not expect equitable considerations to save many dismissed lawsuits.

A plaintiff's compliance with the certificate of merit rules must be carefully evaluated.  We can offer valuable assistance to our healthcare clients in this regard.

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Over at the Volokh Conspiracy there is an interesting series of posts on what one might call the Problem of the Air Force.  The problem, being one only for those espousing a so-called originalist view of the Constitution, is this:  The document confers on the federal government (Congress in particular) the powers "To raise and support Armies" and "To provide and maintain a Navy."  The Constitution, however, says nothing about Congress' power to create an independent Air Force.  As such a force could hardly have been envisioned by the framers -- let alone intended to be encompassed by the terms Armies and Navy -- originalists must concede that such power simply does not exist.  In sum, the U.S. Air Force is unconstitutional. 

As I said, an interesting argument.  Fortunately, it is just plain wrong.  Contrary to what one might initially suspect, aircraft did exist during the time in which the framers toiled:

The first recorded manned balloon flight was made in a hot air balloon built by the Montgolfier brothers on November 21, 1783.

So too did the knowledge, however inadvertently acquired, that such craft could be used to distinct military advantage:

The first aircraft disaster occurred in May 1785 when the town of Tullamore, Co. Offaly Ireland was seriously damaged when the crash of a balloon resulted in a fire that burned down about 100 houses giving the town the unusual distinction of being home to the world's first aviation disaster.

It seems odd, then, that the framers would have deprived the republic of the ability to defend itself from the air.  And, of course, they did not.  A close reading of the constitution reveals the manifestly intentional establishment of a federal Hot Air Force.  See Article I, section 1.  And being thus descended, the modern Air Force remains a perfectly constitutional branch of service.  (With all due apologies to John Cole and Allahpundit).

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