High Swartz Attorney Honored by Swedenborg Foundation

NORRISTOWN, Pa. (July 28, 2014)Law firm High Swartz is pleased to announce that Marlyn F. Smith, Of Counsel, has been granted the status of director emeritus of the Swedenborg Foundation and recognized for distinguished service to the organization. He has served 19 years on the Board, the last four as president. The nonprofit’s purpose is to help people learn about the 18th century Swedish scientist, nobleman, civil engineer, and religious visionary Emanuel Swedenborg. As past President, Smith currently serves as an associate director of the Foundation.

Smith has been practicing estate planning, probate law and real estate law at High Swartz for more than 50 years. He was the firm’s first managing partner from 1978 to 1993, and a partner until early 2004. He has a distinguished career of service to the Bar, having served as chairman of numerous committees and sections throughout the years. He also has served as solicitor to many regional borough and township authorities.

A lifelong civic and community leader, Smith is a recipient of the Glencairn Foundation Award for community service. He has been a head usher for church services at Bryn Athyn Cathedral for 60 years, having started as a student usher while in school, and also sings in the Cathedral choir. Smith is also a member of the Board of Governors for the Cairnwood Estate, a National Historic Landmark, in Bryn Athyn.

Celebrating its 100th year, High Swartz LLP has a track record of legal excellence for clients in Pennsylvania, Southern New Jersey, and other Mid-Atlantic states, as well as dedication to the community. The firm counsels clients in a broad range of areas including litigation, business, employment, real estate, and municipal and governmental law.

Pre-License Fee: How Franchisors are Skirting the Intent of the FTC Franchise Rule

By Joel D. Rosen, Esquire July 29, 2014

Deciding whether or not to purchase a franchise can be an exciting but stressful time. It can also be complicated with unanticipated pitfalls blocking your path to success. In 1979, in response to these difficulties, the Federal Trade Commission (“FTC”) promulgated the original franchise rule (“Franchise Rule”). The FTC determined that the Franchise Rule was necessary after finding the franchising industry was struggling with misrepresentations and deception on the part of certain franchisors. To combat these concerns, the Franchise Rule mandated disclosures and procedures designed to safeguard the rights of potential franchisees in their pursuit of franchise ownership.

How Franchisors are Skirting the Intent of the FTC Franchise Rule
How Franchisors are Skirting the Intent of the FTC Franchise Rule

Protections Provided by the Franchise Rule

One such protection under the Franchise Rule is the requirement that a potential franchisee must be given 14 calendar days from the receipt of the franchise disclosure document (previously known as the Uniform Franchise Offering Circular) before being permitted to sign a binding agreement or make any payment to the franchisor in connection with the proposed sale. This document must contain specific information that the FTC has deemed to be essential in the franchise decision-making process. This built-in delay provides the prospective franchisee with guaranteed time to look over the material information contained in the disclosure document so that his/her ultimate decision can be fully informed.

Pre-License Fee to Allow Time for Due Diligence

Sometimes, however, 14 days may not be enough time for a prospective franchisee to conduct adequate due diligence. A franchisee may find that there are still questions to be resolved before he/she feels comfortable signing an agreement or investing money. At the same time, a prospective franchisee may worry that taking additional time will result in a loss of the opportunity if another interested party acts during the due diligence period. Franchisors eager to complete the sale as soon as possible within the constraints of the Franchise Rule have, with increasing frequency, suggested a creative solution to these two concerns. Some franchisors have begun to offer the prospective buyer a “pre-license fee.” This fee is usually some portion of the ultimate license fee, and effectively holds the franchisee’s place at the table while they conduct additional due diligence.

How the Pre-License Fee Favors the Franchisor

While payment of this pre-license fee does not technically violate the Franchise Rule, asking for a nonrefundable deposit in order to have enough time to understand and seek guidance on the franchise disclosure document certainly seems to fly in the face of the intent of the Franchise Rule. The Franchise Rule was intended to ensure that prospective franchisees have the ability to make informed decisions about their significant investment without unnecessary pressure from the franchisor. The 14 days was not meant as the universal time needed to conduct all due diligence, rather it was a minimum standard to build in some protection for prospective franchisees. By requiring money as soon as the 14 day limit imposed by the Franchise Rule expires, a franchisor is forcing a significant commitment from the prospective franchisee. This ensures that at the end of the day the franchisor ends up with cash, whether or not the sale is finalized. This tactic complies with the law as written, but not with its intent.

Franchisee Beware

A franchisor-franchisee relationship is a long-term commitment and a franchisor who is unwilling to give you the time you need to make an informed decision is probably not one you want to begin a relationship with. A good franchisor wants a buyer who has done his/her homework and will provide the time, to a reasonable degree, to do just that.For more information about franchise law, please contact Joel Rosen at 610-275-0700 or by email at jrosen@highswartz.com.The information above is general: we recommend that you consult an attorney regarding your specific circumstances. The content of this information is not meant to be considered as legal advice or a substitute for legal representation. 

High Swartz Attorney Receives Rotary Award for Outstanding Community Service

NORRISTOWN, Pa. – (July 21, 2014) – The law firm of High Swartz announced that Associate Stephanie A. Henrick has been awarded a Paul Harris Fellowship by The Pottstown Rotary Club. A Paul Harris Fellow is recognized as a person whose life demonstrates a shared purpose with the objectives and mission of The Rotary Foundation to build world understanding and peace. In recognition of this honor, presented to Henrick by Pottstown Rotary Club members at the organization’s annual “Changeover” event, a contribution of $1,000 was made in her name to The Rotary Foundation.A member of the Pottstown Rotary Club since 2012, Henrick has been active in many club activities, including fundraising, literacy, road clean-up, the Four-Way Test Speech Contest, the annual Community Talent Show, membership development, and other volunteer initiatives.“Stephanie has demonstrated time and again her commitment to helping persons in need here and around the world. She is the epitome of what the Paul Harris recognition stands for,” said Roger Baumann, a former president of the Pottstown Rotary Club and a past district governor for Rotary District 7430, which encompasses 49 area Rotary clubs.Henrick, who concentrates her practice in estate planning, estate administration and tax law, is also involved with the “Wills for Heroes” program in Pennsylvania.Celebrating its 100th year, High Swartz LLP has a track record of legal excellence for clients in Pennsylvania, Southern New Jersey and other Mid-Atlantic states, as well as dedication to the community. The firm counsels clients in a broad range of areas including litigation, business, employment, real estate, and municipal and governmental law.

Equal Employment Opportunity Commission Expands Rights of Women in the Workplace – But for How Long?

By James B. Shrimp, Esq.July 18, 2014On July 14, 2014, the Equal Employment Opportunity Commission (“EEOC”) issued updated enforcement guidance (“Guidance”) on pregnancy discrimination and related issues. The issuance of this new enforcement guidance is the first comprehensive update by the EEOC on the subject of the Pregnancy Discrimination Act (“PDA”) since 1983. The EEOC maintains that this Guidance is necessary because of increased charges filed alleging pregnancy discrimination. Specifically, the Guidance provides that in 1997, more than 3,900 pregnancy discrimination charges were filed, and that number increased to 5,342 charges in 2008.Who Should Review this new Guidance?EEOC enforcement guidance is a must read for employees and employers alike, as the enforcement guidance is what EEOC investigators review and follow in their investigation of Charges of discrimination. However, enforcement guidance is not law; it is guidance as to how the EEOC interprets the law – in this instance the PDA. Accordingly, EEOC guidance can be overruled by Congress and the President through statute, or by the federal courts, in particular the United States Supreme Court. This is an important point to make, as the Supreme Court will rule on a case next year that confronts a key aspect of the new guidance, as described herein.More About the Pregnancy Discrimination ActThe PDA was signed into law in 1978, as an amendment to Title VII of the Civil Rights Act of 1964. The Guidance provides that the PDA’s purpose was “to make clear that discrimination based on pregnancy, childbirth, or related medical conditions is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.” The PDA (1) prohibits an employer from discriminating against an employee on the basis of pregnancy, childbirth, or related medical conditions; and (2) requires an employer to treat equally an employee affected by pregnancy, childbirth, or related medical conditions as an employee not so affected but similar in their ability or inability to work.The Guidance provides that the PDA protects women:
  • who are pregnant;
  • who have been pregnant in the past;
  • who may become pregnant in the future; and
  • who suffer medical conditions resulting from pregnancy (e.g., back pain, preeclampsia, gestational diabetes, complications requiring bed rest).
Some important aspects of the PDA Guidance include:
  • If the employer provides light duty accommodations to non-pregnant employees, the employer is required to provide light duty accommodations to pregnant employees;
  • An employer, but for very limited exceptions, is not permitted to “protect” a pregnant employee from work conditions it deems dangerous to a pregnant employee – such as working around hazardous chemicals;
  • An employer may not compel a pregnant employee to take leave; and
  • The requirements of the Americans with Disabilities Act (“ADA”) will apply to pregnant employees if the employee is suffering from a pregnancy-related disability (e.g., pregnancy-related carpal tunnel syndrome, gestational diabetes, pregnancy-related sciatica and preeclampsia).
There is a possibility that the EEOC’s Guidance on the PDA may have limited legal impact for two reasons. First, in its next term, the Supreme Court will hear two cases that address whether federal agencies subject to the Administrative Procedure Act can revise/update interpretive rules without engaging in a formal notice and comment rule making process. Depending upon how the Supreme Court rules in those cases, it may make the Guidance vulnerable to attack. Second, in its next term the Supreme Court will hear a case – Young v. United Parcel Services, Inc.—on the extent to which an employer must provide an accommodation to a pregnant employee under the PDA.Until the Supreme Court rules in those cases, it would be prudent for employers to review and incorporate the Guidance into its policies and procedures. For more information about pregnancy discrimination and to address related employment law questions, please contact Jim Shrimp at 610-275-0700 or by email at jshrimp@highswartz.com.The information above is general: we recommend that you consult an attorney regarding your specific circumstances. The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

High Swartz Partner Moderates Panel at Pennsylvania Bar Association Family Law Meeting

NORRISTOWN, Pa. – (July 17, 2014) – Family law attorney Melissa M. Boyd, a partner at the law firm of High Swartz, recently moderated a program called “Valuation of a Small Business on a Tight Budget,” presented at the Pennsylvania Bar Association (PBA) Family Law Section (FLS) Summer Meeting in Cambridge, Maryland. A distinguished panel of accountants and financial experts from across Pennsylvania addressed the many challenges that arise in the valuation of a small business where the client is on a limited budget. An active member of the PBA FLS since 2004, Boyd recently served a one-year term on the organization’s Executive Committee. She is a current member of the PBA’s FLS Council, which oversees the section’s programs and initiatives, and has served on many other committees for the PBA’s FLS over the years.Boyd, a Fellow of the American Academy of Matrimonial Lawyers, Pennsylvania Chapter, concentrates her practice on divorce, pre-nuptial and post-divorce agreements, child custody and support, equitable distribution, alimony, adoptions, protection from abuse and juvenile law, and other family law matters. A member of the Montgomery County Bar Association’s Board of Directors and Executive Committee, Boyd is vice chair of its Family Law Section and a frequent presenter for the organization, as well as for the Pennsylvania Bar Institute.Boyd has dedicated much of her professional career and advocates in the community to preserving the rights of children and their families. She is a graduate of Washington College, and received her J.D., cum laude, from the University of Baltimore School of Law.Celebrating its 100th year, High Swartz LLP has a track record of legal excellence for clients in Pennsylvania, Southern New Jersey and other Mid-Atlantic states, as well as dedication to the community. The firm counsels clients in a broad range of areas including litigation, business, employment, real estate, and municipal and governmental law.

High Swartz Welcomes New Associate Stephanie A. Henrick to its Estate Practice

NORRISTOWN, Pa. – (July 11, 2014) – The law firm of High Swartz is pleased to announce that Stephanie A. Henrick recently joined the firm’s estate practice as an associate. Henrick concentrates her practice in estate planning, estate administration and tax law. Prior to joining High Swartz, she also practiced in family law, insurance subrogation and Social Security Disability.Henrick earned her J.D. from Widener University School of Law, as well as a Masters of Law (LL.M.) in Taxation and a Certificate in Estate Planning from Villanova University School of Law. She earned a B.A. in English, with a minor in mathematics and sociology, from Villanova University.An active member of the Pottstown Rotary, Henrick is also involved with Wills for Heroes and the American Cancer Society’s Relay for Life.Celebrating its 100th year, High Swartz LLP has a track record of legal excellence for clients in Pennsylvania, Southern New Jersey and other Mid-Atlantic states, as well as dedication to the community. The firm counsels clients in a broad range of areas including litigation, business, employment, real estate, and municipal and governmental law.