Legal Advice Blog: Legal Advice, Case Insights, & Local Law Information

Legislation introduced by Congressman Alex Mooney (R-WV-2), and being considered in a U.S. House of Representatives Committee this week, would exempt attorneys and law firms from rules designed to protect West Virginians from abusive debt collection practices. As attorneys we know that this legislation is tragically misguided. H.R. 5082, the Practice of Law Technical Clarification Act of 2018, would severely weaken the federal Fair Debt Collection Practices Act by carving out an exception, just for attorneys that immunizes them from liability when they abuse the debt collection process in court. It would also prevent the Consumer Financial Protection Bureau from exercising its supervisory and enforcement authority over lawyers and firms engaged in abusive debt collection practices. According to the Urban Institute’s findings, 42 percent of West Virginians have debts in collections, nearly 10 points above the national average. More than half of the residents of Braxton and Clay counties, in Representative Mooney’s district, have debts in collections. If his bill should pass, hundreds of thousands of West Virginians will likely be exposed to harmful and aggressive debt collection practices previously made illegal under federal law. Every year thousands of cases are filed in the courts against West Virginia consumers to collect debts. The majority of these cases are filed by lawyers representing debt buyers— out-of-state businesses that buy delinquent debts for pennies on the dollar. Many of the debts cannot be verified as actually owed by a particular defendant, or include inflated amounts due, or indeed, have already been completely satisfied. Yet consumers rarely have the resources to contest these cases. As a result, many cases result in a default judgment for the collector, allowing the debt buyers to seize the assets and wages of the consumer-defendant.  These judgments will generally have a long-lasting impact on the consumer’s credit report, making it more difficult for consumers to obtain housing, a loan, find a job or even secure insurance. Some Recent Examples of Abuses Against West Virginia Consumers Include Parents being harassed and threatened for debts owed by their adult child A bank foreclosed on the wrong property and took the owners’ furniture, clothes and other belongings to the town dump--and it was the wrong house! Harassing a woman for debts she did not owe after her identity was stolen Debt collectors lying to consumers by telling them to pay up or the police were on their way to arrest them if they didn't pay in full immediately Consumer getting sued for a medical debt she had already paid in full The current federal consumer protection law provides a remedy for consumers who have been abused in these ways, and allows them to sue lawyers who bring these cases in unfair, deceptive, or abusive ways. But Congressman Mooney’s bill—H.R. 5082—eliminates these protections for consumers, simply for the benefit of the attorneys who are hurting consumers. If it passes, his bill would allow lawyers to subject West Virginians to numerous unfair litigation tactics currently prohibited under this federal law. In short, Congressman Mooney’s bill will hurt those he is supposed to represent. This effort to shield attorneys and law firms from the consequences of breaking the law will come at the expense of West Virginia consumers, their families, and the majority of debt collectors and attorneys that abide by the law. Lawyers occupy a privileged role in our justice system and should be held to the highest ethical and professional standards. For that reason, to support West Virginia consumers and ethical attorneys engaged in debt collection, we urge Rep. Mooney to pull his support for this bad bill. -- Jason Causey, of Bordas and Bordas, represents consumers throughout West Virginia and Ohio; Margot Saunders, who lives in Hurricane, WV, has been an attorney with the National Consumer Law Center for over 25 years, a national public interest law firm representing low-income consumers before Congress and the federal agencies.

I have recently decided to eliminate sodas and other sweetened drinks from my daily regimen.  Problem is, I have always despised drinking “just plain water”. It’s boring and tasteless to me. Soda is fun, bubbly and full of flavor. However, those concoctions have gotten me somewhat addicted to this sugary drink which has resulted in a few extra pounds. I reminisced back to our family vacation to Cancun, Mexico last year. When we walked into our resort, we were handed glasses of “cucumber water” which was immediately refreshing to us after our three-hour flight into 103-degree weather. As I researched online for a recipe for this water (which was more than just cucumbers and water) I became introduced to “water infusion”. I purchased an infuser water bottle along with a few organic fruits and mint. My problem is solved! I can now hydrate myself using a healthier option while eliminating the artificial sweeteners and dyes. Here are a few recipes that I enjoy: Cucumber Mint - Thinly slice one cucumber. Peel if it isn’t organic! Add the sliced cucumbers to a ½ gallon glass jar, add 8 muddled fresh mint leaves, and fill with filtered water. Stir gently and place in refrigerator for at least 4 Strawberry Lemon - Add 15 fresh strawberries, washed and finely sliced to a ½ gallon glass jar. Add one sliced lemon with rind on. Fill with water. Stir gently and refrigerate 4 hours or overnight in refrigerator and enjoy. Grapefruit Raspberry - Add one grapefruit, thinly sliced with rind on, to a gallon-size glass jar. Then add ½ cup slightly muddled fresh raspberries. Add water and mix well. Store in refrigerator for at least 4 hours before drinking. So grab your pitcher or infuser bottle and get creative for a healthier you!!

For all the negative ideas coming out of Charleston during the recent legislative session, there was one small victory for mineral owners. Some of you might be aware that the West Virginia Supreme Court recently held a rehearing of one of its prior decisions, EQT v. Legget, and determined that oil and gas operators would be permitted to subtract post-production costs from old “flat-rate” royalty leases which had been modified by the minimum royalty statute. Years ago, there were many oil and gas leases which did not pay mineral owners a percentage of proceeds for their royalty, but instead paid pre-set flat fee- for example $300 per year after a well was drilled. Ultimately, the West Virginia legislature passed a statute which required minimum royalties of 12.5%. Old “flat-rate” leases were grandfathered into the new law unless the operator needed to alter their permit.  After the permit was altered, those old leases had to meet the 12.5% royalty requirement. Could the oil and gas operator subtract post-production costs from that minimum 12.5% royalty under the statute? Originally the West Virginia Supreme Court said no. A change in the make-up of the Court after the most recent Supreme Court elections enabled the new majority to rehear that decision and change their ruling. The new Court decided that it would allow post-production costs to be deducted from those 12.5% statutory leases. This year, however, Senate Bill 360 changed that. The bill passed both houses and was signed by the governor on March 9, 2018. The new law specifically altered the language of W.Va. Code § 22-6-8(e) to state that payments under the statute should be based on “the gross proceeds, free from any post-production expenses.” This does provide some protection to mineral owners, but there are still questions. The statute includes language referencing the “first point of sale” which still might be used to limit the monies ultimately payable to mineral owners.   Oil and gas operators might try to create earlier markets for gas such that the “price” that they receive is lower and ultimately lower royalties are paid to landowners. The concern is that these oil and gas operators might still obtain their value for the gas through other contractual and business relationships with the “third parties” who buy the gas. In any event, in a legislative session which seemed intent on continuing to protect big business, and the oil and gas industry in particular, there was one small victory and perhaps something that can be built upon moving forward. The new law, however, does not fully protect other landowners from the dangers of post-production costs. The oil and gas companies are continuing their assault on landowners by trying to milk every last cent of costs from the landowner’s royalty share. Landowners are losing as much as 50-60% of their royalty payments to these costs. If you have concerns about the nature and types of costs being deducted from your royalty checks, please do not hesitate to contact us!

A concept that has recently been at the forefront of health and wellness magazines and discussions is that of mindfulness or mindful thinking. At first blush, this might seem like new-age nonsense or incite thoughts of monks meditating for hours on a mountaintop, but in reality, it is a concept that is much easier for anyone to achieve than they may think. Mindfulness is essentially defined as paying attention to the present moment that you are in or thinking and acting with specific and realized purpose. It is a way of redirecting your mind out of auto-pilot or to intentionally move your thoughts away from stressful and negative ones. Particularly in a day and age where we are constantly connected to everything through our phones and technology, it can be very easy to simply go through the motions of your day and wonder, what was I even doing? We have probably all experienced a time where we go to the store for the sole purpose of buying the soap or milk that we need, then arriving at the store and having no clue why we came. Or watching a television program and having to rewind parts of it because you simply cannot remember what just happened. These are examples of thinking in a way that is not mindful, and can contribute to stress and anxiety, inefficiency, and a lack of satisfaction in activities of daily life, hobbies, careers, or relationships. Mindfulness efforts attempt to reset thinking into being aware of what you are doing or thinking about at that very moment. The goal is not total calm or relaxation, or a blank slate of a mind free of all bad thoughts. It is simply to realize and recognize what you are thinking or doing and make a conscious choice of your next thought or action. While the actual act of practicing mindfulness is fairly simple, it can be tough to get used to at first. Mindfulness activities can include taking a few minutes in the morning when you first wake up or before you go to bed at night to focus your thoughts on something of your choosing. You might dedicate your thoughts to an entire task at work without looking at your phone, in an effort to train your brain to be less concerned with immediately responding to an email or text that will interrupt you from the task at hand. It could also be something like picking a simple activity, such as washing dishes or brushing your teeth, and focusing your attention on just that activity for the duration. You can also acknowledge a bad or stressful thought when it enters your mind, and choose how you will respond to it, whether that be redirecting your thoughts to something more uplifting or deciding how you will cope with that particular stressor. Mindfulness can also include more in-depth practices, such as yoga or meditation, but can be as simple or as involved as you choose for it to be. As a simple, free, and beneficial activity for people of all kinds, it certainly seems that mindful thinking is more than just another health fad and is a worthwhile practice for everyone to try.

In a game that shocked the sports world and blew up just about every March Madness bracket in existence, the University of Maryland Baltimore County (UMBC) upset the number one overall seed Virginia in 2018 NCAA men’s tournament. This will be a game that sticks in my mind and memory for the rest of my life. I’ll remember exactly where I was sitting, exactly what I was eating, exactly who I was with, and exactly how I felt. There is something about an upset that is written into the American DNA.  After all, we are at our core, a nation of underdogs who upset our own number one seeds in order to make our mark on the world. Even though our country likes to consider itself the reigning champion, our vitality, work ethic, and prolificacy are derived from our willingness to accept the underdogs of the world into our community and value their contributions. In watching what will go down as one of the most legendary upsets in March Madness history, my mind began to drift off to other great upset stories. The first upset that sprang to the forefront of my mind was Appalachian State’s upset of the University of Michigan in 2007. This was a wildly entertaining college football game where a FCS school upset one of the top ranked teams in the country. At the time we didn’t believe that anything like this could happen. The level of ASU’s talent, facilities, money, and coaching expertise simply could not rise to the level of a storied blue-blood program like the University of Michigan. However, Appalachian State proved the world wrong upsetting Michigan in dramatic fashion. I will always remember exactly where I was when I was watching this game. I was in the “HUB” student center on the campus of Penn State University watching the game on a giant screen television in a student lounge. This game’s legacy stems far beyond the scoreboard on that particular day. In my mind, this upset created a chain reaction across the country of smaller programs upsetting college football royalty on a consistent basis. Some other great upset stories that stick out are, of course, the “miracle on ice” where the United States hockey team beat the Soviet Union in the 1980 Winter Olympics, and Buster Douglas’ knock-out of Mike Tyson in 1990. No matter what walk of life you are from, I am willing to bet that you have at least one memory of a great upset or come-back victory. Take care to hold these moments of triumph in your mind and draw on them for inspiration when you face adversity in your own life.

Pennsylvania Superior Court orders new trial in landmark products liability case: Tincher v. Omega Flex The Tinchers lived in the central unit of a two-story triplex. In 2007, a fire erupted in their home. Investigators later determined that a nearby lightning strike caused a small puncture in corrugated stainless steel tubing (“CSST”) that transported natural gas to a fireplace located on the first floor of the residence. Heat associated with the melting of the CSST caused by the lightning strike ignited the natural gas and fueled a fire estimated to have burned for over an hour before it was discovered. No one was injured in the fire, but the fire caused significant damage to the Tinchers’ home and personal contents. The CSST installed in the Tinchers’ home was manufactured and sold by Omega Flex as part of a gas transportation system marketed as the “TracPipe System.” The Tinchers sued Omega Flex, asserting claims premised on theories of strict liability, negligence, and breach of warranty. The strict liability claim was based on section 402A of the American Law Institute’s Restatement (Second) of Torts (1965), which provides: One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. The Tinchers alleged that “the CSST incorporated into the TracPipe System was defective, and unreasonably dangerous to intended users, because its walls are too thin to withstand the effects of lightning.” Omega Flex moved to have the trial court apply Sections 1 and 2 of the Third Restatement of Torts: Products Liability (1998) and to deliver jury instructions based on the Third Restatement, rather than the Restatement (Second) of Torts. The Tinchers responded that the Second Restatement remained the law of Pennsylvania and the court, therefore, should base its jury instructions on the Second Restatement and the Supreme Court’s decisions under that Restatement, including Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978). In Azzarello, the Court had held that: it was improper to introduce negligence concepts into a strict liability case; it was for the court, not a jury, to determine whether a product was “unreasonably dangerous” under the Second Restatement; the dispositive question in a case alleging that there was a defective design was whether the product is safe for its intended use; and in such a case, “the seller is the ‘guarantor’ of the product, and a jury could find a defect ‘where the product left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for its intended use.’” The trial court denied Omega’s motion and instructed the jury under the Second Restatement and Azzarello. The jury returned a verdict in favor of the Tinchers on the products liability claim and in favor of Omega Flex on the negligence claim. The jury awarded the Tinchers more than $950,000 in damages. After adding delay damages, the court entered judgment in excess of one million ($1,000,000.00) dollars. Omega’s appeal ultimately reached the Pennsylvania Supreme Court to determine whether the Court should replace the strict liability analysis of Section 402A of the Second Restatement with the analysis of the Third Restatement. The Supreme Court declined to adopt the Third Restatement, overruled Azzarello, and crafted a new test for proving whether a product is in a defective condition under Section 402A of the Second Restatement of Torts: The plaintiff may prove defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions. The Supreme Court remanded this case to the trial court for “further action upon post-trial motions,” and permitted the trial court to order the filing of supplemental post-verdict motions or briefs on the issue. The Supreme Court did not specifically grant a new trial. On remand to the trial court, Omega Flex filed a renewed motion for post-trial relief in which it abandoned its request for entry of judgment notwithstanding the verdict and sought only a new trial on the basis that the jury was instructed on the law under Section 402A of the Second Restatement of Torts and Azarello; and therefore, was improper in accordance with the Supreme Court’s decision . The parties submitted additional briefs, and the trial court held oral argument. Ultimately, the trial court denied Omega Flex’s motion, and it entered judgment against Omega Flex. In denying Omega Flex’s motion, the trial court recognized that the predominant factual issue in the case was whether the corrugated stainless steel tubing was defective because of its inferior thickness (equal to the thickness of four sheets of paper), rendering it incapable of withstanding perforation by an electrical arc produced by lightning. The court further held that if the jury instruction it gave in this case required a new trial, the Supreme Court would have simply remanded this case for a new trial. Omega appealed and the issue for the Superior Court was whether the trial court erred by denying Omega’s motion for a new trial. The Superior Court determined that there was a “fundamental” error in the trial court’s decision because the trial court instructed the jury in accordance with Azzarello and its progeny, Omega was entitled to a new trial. More specifically, the court noted that the jury was instructed only on whether TracPipe was defective under Azzarello’s now-overruled design defect test, and not on the new definition of “defect” under Tincher, and thus a new trial was required.

Today marks the start of 3 weeks of ‘madness’ where anything can happen and seeds get thrown out the window. The tournament starts off with 64 teams playing in 32 games over the course of a week, then the Sweet Sixteen, Elite Eight and Final Four tournaments follow in the next week or 2, generally ending around the first weekend of April. The national championship game this year will be held on Monday, April 2. You can catch these games at almost any time of the day on the following networks: CBS, TNT, TruTV and TBS. Creating a bracket must be done by noon today so if you’re just tuning in, CBS and ESPN are our top two picks for the best platforms to create brackets. Good luck and enjoy the madness!

The ancient Babylonians calculated pi roughly 4,000 years ago. What Is Pi? Pi represents the ratio of a circle’s circumference to its diameter. The first calculation of pi as 3.14 is attributed to Greek mathematician Archimedes, who lived in the third century B.C.. He used the Pythagorean Theorem, a geometric theorem involving triangles, to accurately calculate the number. It wasn't until the 1700s that the Greek letter we commonly see began to be used to represent pi. Pi Day has been recognized on March 14 ‘officially’ for the last 30 years. Some people who celebrate tend to eat foods that are circular in shape – such as pizza or pie, naturally. It seems appropriate that March 14 also marks the birthday of renowned theoretical physicist Albert Einstein. Most recently, famed physicist Stephen Hawking passed away today at the age of 76.

It was 6:45 p.m. Sunday evening and it wasn’t dark. I was thrilled! Daylight saving time (DST) started it’s 8-month run earlier that day at 2 a.m. while celebrating its 100 th birthday in the United States. I always look forward to the longer days. I feel like I get so much more accomplished with the additional daylight and the desire to fall asleep in the evening diminishes. I won’t deny there is a bit of an initial adjustment in that the mornings aren’t nearly as bright, but that doesn’t bother me nearly as much as dusk at 5 p.m. According to USA Today, daylight saving time was first enacted by the federal government March 19, 1918, during World War I as a way to conserve coal. Although it was halted nationally later that year, it persisted in some form at local or state levels for decades before being finally being recognized again nationally in 1966 by the Uniform Time Act. The Department of Transportation (DoT) is in charge of daylight saving time and all time zones in the U.S. because time standards are important for many modes of transportation. Daylight saving is observed because it saves energy as lights and household appliance are used less during that time, saves lives by preventing traffic accidents because people are driving more during daylight hours and reduces crime because people are out during the daylight and not at night when more crime occurs. In 2007, the federal government expanded daylight saving time and it now accounts for about 65 percent of the year. However, individual states have the final say as to whether to opt out of DST. Whether you love the time change or could do without it, DST is a reminder that spring is just around the corner.

This time of the year has my mind rushing back to a time in my life that I spent so much of my time planning for, training for and simply could not wait for - spring! But for a different reason than most. I like the flowers, everything is starting to bloom, the weather is changing, etc. These are all good things, but for me, it was the start of spring sports and the one I looked forward to most was softball. I played other sports as well, but softball was my favorite and holds a special place in my memory book. From the time I was old enough to play, I played all spring, summer and fall on regular season teams, all-star teams and travel teams. The friendships, opportunities and memories made along the way are irreplaceable. I was lucky enough to have two daughters who felt the same way and carried on the love of the game. It was, and still is, a huge part of our lives. As I sit and reminisce for a moment, one of my favorite quotes comes to mind, “To uncover your true potential, you must first find your own limits and then you have to have the courage to blow past them.” – Picabo Street. For all of the athletes out there getting ready to step on the field, track or court, good luck and take in every minute!

Webster defines the word “name” as “a word or combination of words by which a person or thing is known.” Before we are even born, our parents more than likely pondered over names with family members, baby name books and other resources in order to choose our perfect title. People put a lot of value in their name as it is their identity – how they are recognized. Calling a person by his/her name shows respect and recognition. It makes a person feel a sense of connection which generally leads to a friendlier conversation. People tend to listen more closely to your thoughts and ideas simply because you care enough to bring the conversation to a more personal level. We live in such a busy and technical world. It becomes very easy to get lost and feel insignificant because of hurried schedules each and every day. However, we need to practice slowing down and keep in mind the importance of “name calling”. It builds better relationships and may even prompt others to return the favor.

Today is International Women’s Day. This marks a day where we celebrate the social, economic, cultural and political achievements of women. International Women’s Day (or “IWD”) has been observed since the early 1900s. It came about during a time of great expansion in the industrialized world that saw booming population growth and the rise of radical ideologies. The theme this year is #PressforProgress if you want to follow along on social media. International Women’s Day’s hashtag is #IWD2018. Today, and all days, we salute the strong women out there making a difference in their communities. How will you celebrate?