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Spilman Thomas & Battle, PLLC

 

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When Does Overpayment Actually Occur?
Spilman Thomas & Battle, PLLC, September 2018

In Reed v. Exel Logistics, Inc., No. 17-0864, 2018 WL 2769041 (W. Va. June 6, 2018), the Supreme Court of Appeals of West Virginia clarified the circumstances necessary for an employer to claim overpayment of temporary total disability ("TTD") benefits. The question arose after an employer's claims examiner paid a claimant for an additional 156 days past the 104-week limit...

Changes on the Public Construction Horizon: A North Carolina Legislative Update
Spilman Thomas & Battle, PLLC, August 2018

This past year the North Carolina Legislature has been incredibly active. Among the legislation proposed and adopted, a few bills will create changes in how contractors interact with various public entities. Most notably, big changes are on the horizon for contractors that work with the NCDOT and with school systems. Sitting with the Committee on Transportation, H.B...

Senate Approves Trump Nominee for General Counsel of NLRB: How This Will Impact Non-Union Lawyers
Spilman Thomas & Battle, PLLC, November 2017

On November 8, 2017, the U.S. Senate confirmed Peter Robb as the new General Counsel for the National Labor Relations Board ("NLRB" or "Board"). In private practice, Robb was a noted critic of the NLRB under the Obama administration, particularly the Board's so-called quickie election rules and what he has termed the Board's narrow definition of supervisory status...

New One-stop Resources for Real Estate Settlement Professionals
Spilman Thomas & Battle, PLLC, August 2016

Last week, the Consumer Financial Protection Bureau ("CFPB") published an informational guide to help settlement professionals navigating the changes that are a part of the Know Before You Owe mortgage initiative. After months of preparation, the TRID Rule became effective last fall, with the promise to help consumers make informed decisions about mortgage choices. Since that time, the CFPB has issued multiple updates and tweaks to the rule and requirements...

Cybersecurity: What You Must Know and What You Must Do.
Spilman Thomas & Battle, PLLC, March 2016

On February 1, 2016, the Federal Deposit Insurance Corporation (“FDIC”) published the Winter 2015 issue of Supervisory Insights. Not surprisingly, the first article dealt with the most important issue facing the financial industry today – cybersecurity...

Looking Back, Looking Forward – A 2015 Retrospective and 2016 Predictions
Spilman Thomas & Battle, PLLC, December 2015

This past year has seen many changes in the community banking industry. Some of these issues we expected and some had more of an impact than maybe we would have thought. As we reflect and look forward to 2016, we asked several of our colleagues to weigh in regarding what we saw, what we expect and how to best prepare for the coming new year. Timothy R...

Revisiting the Post-Bankruptcy Toolbox: Don’t Forget to Compare the Financials
Spilman Thomas & Battle, PLLC, December 2015

For better or worse, lenders have become increasingly familiar with the strange dynamic that is the post-bankruptcy minefield created by their borrowers filing a bankruptcy petition. Immediately, lenders begin thinking about how they can minimize the write-off, how they can reduce exposure, how they can avoid violations of the automatic stay, whether they can convince a borrower to reaffirm debt, and many other questions that often must be analyzed situationally...

Virtual Currencies and the Risks They Bring to Community Banks and the Financial Industry
Spilman Thomas & Battle, PLLC, December 2015

Virtual currencies are once again at the forefront of discussion about top issues facing community banks and the financial industry as a whole. The Independent Community Bankers of America (“ICBA”), a trade association representing more than 6,500 community banks, recently published its list of top issues for the fourth quarter of 2015. Among them were the risks associated with virtual currencies...

UPDATE - Calling in Sick: Pittsburgh Sick Leave Law Delayed Until March
Spilman Thomas & Battle, PLLC, November 2015

UPDATE: On December 21, 2015, Common Pleas Judge Joseph James struck down the employee sick leave ordinance, ruling that Pittsburgh’s City Council lacked authority to “to enact any ordinance determining any duty, responsibility or requirement of a business or private employer.” The ordinance would have required employers of more than 15 employees to provide up to 40 hours of paid sick leave per year and smaller employers to offer up to 24 hours of paid sick leave...

Working with Union Experts After an Accident: A Federal Appeals Court Sides with the Union’s Right to Inspect Over the Employer’s Privacy Rights
Spilman Thomas & Battle, PLLC, November 2015

A federal appellate court in the Midwest suggests that while unions do not have blanket approval to inspect an employer’s worksite, the union’s interest in safety generally will outweigh an employer’s interest in confidentiality and property rights. The United States Court of Appeals for the Seventh Circuit, in Caterpillar, Inc. v. NLRB, 803 F.3d 360 (7th Cir...

Veterans Day: A Day to Remember, to Honor, and to Reexamine Compliance with Laws Protecting Servicemembers
Spilman Thomas & Battle, PLLC, November 2015

As a veteran of the United States Marine Corps and someone who has seen the challenges that veterans face firsthand, I can attest to the benefits of giving veterans an opportunity to return to work following periods of service and providing families with the opportunity to manage the needs of their servicemembers. At Spilman, we feel that employers should adhere to best practices guidelines and prepare to implement and facilitate such enforcement...

Update: The NLRB and Single Integrated Employers
Spilman Thomas & Battle, PLLC, November 2015

In October, the National Labor Relations Board (“NLRB” or “Board”) employed a little-used procedural doctrine to issue a consolidated complaint against a parent company of a chain of hospitals located throughout the U.S. The NLRB issued the consolidated complaint, which included 29 unfair labor practice charges, against Community Health Systems, Inc...

An Interview with James C. Cherry, CEO, Park Sterling Bank
Spilman Thomas & Battle, PLLC, October 2015

With more than three decades of experience in banking in North Carolina and Virginia, Park Sterling’s CEO James C. Cherry has a lot to say about the state of community banks and their future. He graciously took the time to address his successes, leadership philosophy, and some of the best advice he ever received. It is well worth your time to read. Park Sterling, a regional, community-focused financial services company with approximately $2...

Cyber-Risks 2015 – A Board Primer
Spilman Thomas & Battle, PLLC, October 2015

Cyber-risk is a witch’s brew of reputational, operational, legal and financial dangers. This toxic combination exposes a financial institution to a potentially existential hazard when an intrusion occurs. The only way to mitigate (because an intrusion cannot be prevented) is proper planning. To quote Benjamin Franklin, “If you fail to plan, then you are planning to fail.” Cyberattacks are not only increasing in sophistication, but are increasingly focusing on smaller financial institutions...

Paradigm Shift: Hydraulic Fracturing, Shale Development and Energy Abundance
Spilman Thomas & Battle, PLLC, October 2015

As is commonly held by energy sector experts, the game-changing development of the shales and the resurgence of natural gas as a virtually new, huge, versatile, long-term fuel, with a shrinking environmental footprint, is based upon the synergistic deployment of several key technologies...

Guarantors Can Use Anti-Deficiency Statute in North Carolina
Spilman Thomas & Battle, PLLC, October 2015

The North Carolina Supreme Court recently handed down the final word in a dispute over whether guarantors get the benefit of the state’s anti-deficiency statute after the lender bids on and buys the real property at a foreclosure sale. And that word is that the guarantors can use the anti-deficiency statute, whether or not the primary borrower is a party to the lawsuit against the guarantors on the deficiency. The case, High Point Bank and Trust Company v...

Response Plan Rewind: The Essentials of Data Breach Response Plans
Spilman Thomas & Battle, PLLC, October 2015

From the financial sector to the healthcare industry, and even the security business itself, hackers are creeping their way into business data systems and pilfering personal information. For financial institutions, security measures to prevent attacks are not foreign. Nor is the need for a response plan in case preventative measures fail...

Supreme Court Decision May Make It Easier for Borrowers to Sue for Discrimination
Spilman Thomas & Battle, PLLC, September 2015

A recent decision of the Supreme Court of the United States may make it easier for borrowers to claim discrimination when denied a loan. In late June 2015, the Court addressed whether lawsuits brought under the Fair Housing Act (“FHA”)[1] required a plaintiff to show that the defendant intentionally discriminated against him or her. The Court held that the FHA does not require that...

WVDEP Files "Agency-Approved" Rules for Horizontal Well Development and Aboveground Storage Tanks
Spilman Thomas & Battle, PLLC, September 2015

As reported in the July 2015 IOGA News, on June 24, 2015, the West Virginia Department of Environmental Protection (“WVDEP”) filed a proposed legislative rule amending the Horizontal Well Development Rule, 35 C.S.R. 8 (the “Horizontal Well Rule”), which established a public comment deadline on July 27, 2015. Then on June 25, 2015, WVDEP filed three proposed legislative rules implementing the Aboveground Storage Tank Act, as amended, W. Va. Code § 22-30-1, et seq. (“AST Act”)...

The Fiduciary Exception to the Attorney-Client Privilege: Whose Privilege is it in Litigation?
Spilman Thomas & Battle, PLLC, August 2015

The attorney-client privilege is a cornerstone of the legal practice. The privilege protects the confidentiality of communications between a client and an attorney from disclosure to a third party when the communications are intended to be confidential and the confidentiality is not waived...

Unauthorized Transfers Present Growing Risks for Commercial Accounts
Spilman Thomas & Battle, PLLC, August 2015

Could your institution be at risk of liability for unauthorized wire transfers and Automated Clearing House (“ACH”) credit transfers? Data security breaches continue to garner headlines, and criminals continue to engage in targeted activities to steal millions of dollars in unauthorized funds...

SBA Lending May Be Critical to Future Community Banking
Spilman Thomas & Battle, PLLC, August 2015

Headlines should read, “Congress and President Do Something Right!” On July 28, 2015, only one day after Congress passed the matter, the President signed into law an increase in Small Business Administration (“SBA”) lending, from $18.75 billion to $23.50 billion, for the 7(a) program. One common SBA lending program, 504, was not restricted, so loans for buying and developing real estate continued...

How Bad is Dodd-Frank for Community Banks?
Spilman Thomas & Battle, PLLC, August 2015

Congress passed the Dodd-Frank Act in June and July 2010 with minimal Republican support, and it was signed by President Obama July 21, 2010. Since passing, Dodd-Frank has been hailed, depending on who answers, as salvation for our banking system or the death knell of community banking. The American Banker published a number of articles about this act in July 2015. Most were critical, highlighting the raised regulatory burden, which is huge...

An Interview with David Barksdale, President and CEO of Carolina Premier Bank
Spilman Thomas & Battle, PLLC, August 2015

Q: You recently took the helm of Carolina Premier. What has been the biggest surprise to you in your new role as a CEO? What has been the biggest surprise about Carolina Premier?A: Well, bankers are known not to surprise well. I like to think that my previous roles, especially working closely with NewBridge Bank CEO Pressley Ridgill, prepared me for the role. That said, I believe the biggest surprise in the new role was how quickly issues came at you...

DOL to Target Independent Contractor Misclassification
Spilman Thomas & Battle, PLLC, July 2015

Continuing a trend of increased scrutiny of independent contractor relationships, the U.S. Department of Labor (“DOL”) has issued new guidance to employers warning that "most workers" should be classified as employees and not independent contractors...

DOL to Target Independent Contractor Misclassification
Spilman Thomas & Battle, PLLC, July 2015

Continuing a trend of increased scrutiny of independent contractor relationships, the U.S. Department of Labor (“DOL”) has issued new guidance to employers warning that "most workers" should be classified as employees and not independent contractors...

Construction Contract Claims Against a Third-Party Lender? The Unforeseen Consequences of a Standard Practice
Spilman Thomas & Battle, PLLC, July 2015

For those of us who commonly represent lenders, there is nothing more unsettling than hearing the words “course and pattern of conduct” or “dominion and control” or some variation of the same. Any suit where someone seeks to impose liability on a bank for something above and beyond the amounts loaned and repaid is a scary one for lenders (and ultimately should be a scary one for anyone who may need to borrow money in the future)...

Northeast Natural Energy, LLC - Making History for the Future of Energy
Spilman Thomas & Battle, PLLC, July 2015

Entrepreneurs are a special breed. The good ones have that special blend of vision, timing and risk tolerance most others lack. The really good ones find a way to use their special talents to make their communities a better place to live and work. Mike John is a really good entrepreneur. As we all know, the shale plays across the United States have been game changers...

Now is the WOTUS of Our Discontent….
Spilman Thomas & Battle, PLLC, March 2015

“Waters of the United States” or “WOTUS” in the esoteric taxonomy of the Clean Water Act (“CWA”), is a term with which many are becoming increasingly familiar. This deceptively simple phrase is anything but simple in its application. The oil and gas industry is increasingly experiencing the U.S. Environmental Protection Agency’s (“EPA”) proclivity finding CWA jurisdiction through WOTUS interpretation. New proposed regulatory language issued by the EPA and the U.S...

Danger Zone: Employer Hit with Huge Pregnancy Discrimination Act Verdict
Spilman Thomas & Battle, PLLC, November 2014

In a stunning employment verdict, a California jury awarded $185 million in punitive damages and $873,000 in compensatory damages to a former AutoZone store manager who claimed the auto-parts retailer mistreated her based on her gender, demoted her after learning she was pregnant, and ultimately terminated her from employment based on her decision to challenge her demotion...

Band Fined USD$100 Million by CFPB for Violating New Mortgage Servicing Rules
Spilman Thomas & Battle, PLLC, October 2014

Earlier this week, on September 29, 2014, the Consumer Financial Protection Bureau (“CFPB”) took action against Michigan-based Flagstar Bank, fining it $10 million and ordering $27.5 million in payments to consumers. Flagstar allegedly “took excessive time to process borrowers’ applications for foreclosure relief, failed to tell borrowers when their applications were incomplete, denied loan modifications to qualified borrowers, and illegally delayed finalizing permanent loan modifications...

Partition Suit Decision Could Be Problematic for W.Va. Oil & Gas Operators
Spilman Thomas & Battle, PLLC, September 2014

Based on a recent decision in West Virginia’s 3rd Judicial Circuit, which includes Doddridge, Pleasants and Ritchie counties, the use of litigation in the form of partition suits may be more problematic than it otherwise has been for oil and gas operators attempting to acquire property interests to create efficient drilling units for their planned wells. The Court’s decision (described below) denied a mineral interest owner’s request to partition by sale under W. Va. Code § 37-4-1 et seq...

North Carolina Supreme Court Upholds Enforceability of Waiver of ECOA
Spilman Thomas & Battle, PLLC, September 2014

Last month, the North Carolina Supreme Court issued an important opinion for lenders in this state. The opinion reversed the North Carolina Court of Appeals’ decision in RL REGI N.C., LLC v. Lighthouse Cove, LLC, which found that a waiver of claims contained in a forbearance agreement could not waive a guarantor’s affirmative defense that a guaranty was obtained in violation of the Equal Credit Opportunity Act (ECOA). The Lighthouse Cove case involves a familiar story for many lenders...

Aboveground Storage Tank Act Interpretive Rule Filed
Spilman Thomas & Battle, PLLC, September 2014

This morning, the West Virginia Department of Environmental Protection (“DEP”) filed a proposed interpretive rule (the “Interpretive Rule”) with the West Virginia Secretary of State’s office implementing, in part, the recent Aboveground Storage Tank Act (the “AST Act”), which was enacted in response to the January 9, 2014 event that contaminated the water supply of approximately 300,000 West Virginia residents across nine counties...

Administration’s Climate Action Plan Breathes New Life Into Oil and Natural Gas Air Regulations
Spilman Thomas & Battle, PLLC, April 2014

On March 28, 2014, the White House released its Climate Action Plan Strategy to Reduce Methane Emissions. The oil and natural gas sectors are clearly in the cross-hairs for reductions. The report indicates the oil and natural gas sector was responsible for 28 percent of man-made methane emissions in 2012—second only to the agricultural sector, which accounts for 36 percent of emissions...

The Telephone Consumer Protection Act: Take Care, Pitfalls Ahead
Spilman Thomas & Battle, PLLC, January 2014

For more than twenty years, the federal government has attempted to limit the number of unsolicited phone calls consumers receive through the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), which is perhaps best known for governing the famous “Do Not Call” list. Businesses, including banks and financial institutions, must understand the statute and stay abreast of its changes because the penalties for violating the TCPA are steep...

The New N.C. Standard for Employer Responses to Unemployment Benefits Claims
Spilman Thomas & Battle, PLLC, January 2014

What North Carolina Law Says Employers have often ignored a separation notice from the Employment Security Commission and not provided any details as to reason for separation because it was not being contested or it was a non-charging situation. Ignoring the notices is no longer a good choice...

ECOA Now Growing Fangs in North Carolina
Spilman Thomas & Battle, PLLC, December 2013

In my last article, “ECOA Gets More Teeth in North Carolina,”  I wrote about the recent North Carolina Court of Appeals decision, RL Regi North Carolina, LLC v. Lighthouse Cove, LLC,…,and Connie S. Yow (COA12-1279). As expected, it did not take long for this important decision to limit the enforcement of some spousal guaranties. Approximately one month after the Lighthouse decision, Wells Fargo v. Triplett v...

Dodd-Frank Essentials: Executive Compensation Requirements and Disclosures
Spilman Thomas & Battle, PLLC, December 2013

Several provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act have brought compensation of financial institution executives into the public eye. Although disclosure of executive and director compensation dates back to the 1930s, Dodd-Frank’s most highly publicized requirement, “say-on-pay,” shifts the disclosure to a dialogue with shareholders, essentially allowing shareholders to vote on compensation for certain executives...

Accidents Don’t Cut It – Ensuring You Don’t “Unintentionally” Violate the Automatic Stay
Spilman Thomas & Battle, PLLC, December 2013

A debtor files for bankruptcy protection, and his or her creditors are sent notice of the filing. Despite having received the notice, due to a breakdown in internal procedures one of the creditors, a bank, accidentally takes action to collect on the debt after the filing of the bankruptcy case – thus violating the automatic stay. Since the violation was unintentional, surely the bank cannot be sanctioned, right? Wrong...

Challenges of New Indiana Bat Guidance
Spilman Thomas & Battle, PLLC, December 2013

The federal Endangered Species Act is designed to prevent the taking of endangered species and imposes a regulatory program geared toward the protection and conservation of federally listed species and their critical habitat...

In Case You Missed It - Three Cases Impact W.Va. Consumer Finance Law
Spilman Thomas & Battle, PLLC, November 2013

Confirmation of the W.Va. Attorney General's Authority to Hire Private Counsel on Behalf of the State For more than a decade, the circuit courts in West Virginia have wrestled with the issue of whether the State Attorney General has the ability to retain private attorneys to pursue litigation on behalf of the State. The Supreme Court of Appeals of West Virginia recently issued a decision confirming the Attorney General does, in fact, have that authority. In State of W. Va. ex rel...

Mortgage Loan Officers: Likely Exempt Under the Fair Labor Standards Act . . . For Now
Spilman Thomas & Battle, PLLC, November 2013

This past July, the United States Court of Appeals for the District of Columbia (“D.C. Circuit”) vacated a 2010 Department of Labor (“DOL”) Interpretation Letter that concluded employees who perform the “typical” job duties of a mortgage loan officer do not qualify as administrative employees...

Federal Contractors Should be Planning Ahead for the New Section 503 and VEVRAA Rules
Spilman Thomas & Battle, PLLC, November 2013

On August 27, 2013, the Office of Federal Contract Compliance Programs (“OFCCP”) issued two Final Rules, making significant changes to the regulations implementing affirmative action under Section 503 of the Rehabilitation Act (“Section 503”) and the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”)...

Putting the Pieces Together: How the ACA Impacts Health Reimbursement and Flexible Spending Arrangements
Spilman Thomas & Battle, PLLC, November 2013

Employers responding to the market reforms contained in the Affordable Care Act (“ACA,” also referred to as ObamaCare) are trying to grasp how it treats some current arrangements, such as health reimbursement arrangements (HRAs) and flexible spending arrangements (Health FSAs). These features are popular in many employer-sponsored benefits plans...

8 Important Things You Should Know About the Employment Non-Discrimination Act
Spilman Thomas & Battle, PLLC, November 2013

The Employment Non-Discrimination Act (“ENDA”) is federal legislation that would prohibit employers from discriminating against potential or actual employees during hiring and employment based on their sexual orientation or gender identity. The Act defines sexual orientation as “homosexuality, heterosexuality, or bisexuality...

"Twenty Years" is Actually "Six Years" for Contractors and Manufacturers in North Carolina
Spilman Thomas & Battle, PLLC, November 2013

This year the North Carolina Court of Appeals issued an opinion that effectively nullifies many construction warranties. In Christie v. Hartley Construction, Inc., et al., No. COA12-1385, the Court limited warranties for construction defects to six years, even when the contractor or product manufacturer expressly provides a longer one.     Plaintiffs George and Deborah Christie contracted for the construction of a custom home in Chapel Hill, North Carolina, in 2004...

Spilman Alert: W.Va. Supreme Court Decision Could Have Significant Implications for Employer Liability Under Deliberate Intent Statute
Spilman Thomas & Battle, PLLC, October 2013

The Supreme Court of Appeals' recent decision in McComas v. ACF Indus., Inc. could have significant implications for employer liability under West Virginia's deliberate intention statute. In McComas, the plaintiff was a welder who was injured by an arc blast emanating from an electrical box...

WVSCA Decision Strengthens Enforcement of Agreements to Arbitrate
Spilman Thomas & Battle, PLLC, July 2013

On June 19, 2013, the West Virginia Supreme Court of Appeals (“the Court” or “WVSCA”) issued an important decision that bolsters the ability of financial institutions and other defendants to enforce arbitration agreements. Credit Acceptance Corporation v. Front, Docket Nos. 11-1646, 12-0545 (W. Va. June 19, 2013), Slip Op. Spilman consumer finance attorneys were pleased to obtain this victory on the consolidated appeal of two orders denying arbitration...

Simplifying the Mechanic's Lien Agent Process: N.C.'s New Online Clearinghouse
Spilman Thomas & Battle, PLLC, July 2013

A version of this article was originally published in April 2013 and has now been updated. Effective April 1, 2013, project owners in North Carolina are now required to designate a Mechanic’s Lien Agent (MLA) for the vast majority of construction projects, and contractors or other potential lien claimants must now identify themselves through written notice to the MLA if they want to ensure their lien priority against lenders or purchasers...

 

 

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