contesting msha citations: successful strategies to reduce liability 6 th annual tennessee mining...
TRANSCRIPT
Contesting MSHA Citations:Successful Strategies to Reduce Liability
6th Annual Tennessee Mining Conference
November 17, 2014
Presented by:
Matthew R. Korn (803) 255-0000
www.workplacesafetyandhealthlaw.com
LinkedIn Group: MSHA Regulatory and Enforcement Updates
Atlanta · Boston · Charlotte · Chicago · Cleveland · Columbia · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville
Memphis · New England · New Jersey · New Orleans · Orlando · Philadelphia · Phoenix · Portland · San Diego · San Francisco · Tampa · Washington, DC
www.laborlawyers.com
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work®
Overview
Uh oh…we got a citation. Now what?
How informal can I be?
Time to put on the tie
Who’s that in the front of the room with the long black robe?
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com ● Phone (803) 255-0000
Managing the inspection
• Be prepared.
• Be active.
• Be respectfully curious.
• Be professional.
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com ● Phone (803) 255-0000
Closing it out
• What to say…
• What not to say…
• How to know the difference
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com ● Phone (803) 255-0000
Informal conference
To request or not to request . . .
That is the question.
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com ● Phone (803) 255-0000
Should I show my hand?
Providing the “right” information
Will they buy it?
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com ● Phone (803) 255-0000
Thinking through the contest
MSHA Needs to VACATE this Citation
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com ● Phone (803) 255-0000
Ok, maybe not vacate…but
What’s your goal?
Money? S&S? Unwarrantable?
The Inspector “got it wrong”
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com ● Phone (803) 255-0000
That’s not significant and substantial
What will MSHA find persuasive?
Facts? Cases? Statistics?
Does our training plan help us?
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com ● Phone (803) 255-0000
Who knew I could be “moderately” negligent?
What’s the difference in levels of negligence?
How do I get MSHA to reduce the negligence?
Does it even matter?
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com ● Phone (803) 255-0000
MSHA denied our request – what now?
Checking the box
Preparing in advance
Seek advice from others
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com ● Phone (803) 255-0000
You show me yours…
FOIA [email protected]
Discovery Requests
Do I have to show them mine?
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com ● Phone (803) 255-0000
What’s a “Notice of Contest”?
Must submit within 30 days!
But, is it worth it?
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com ● Phone (803) 255-0000
You called, and I Answered.
Responding to all allegations
Affirmative defenses
Is all of 30 CFR Void for Vagueness?
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com ● Phone (803) 255-0000
It’s like a game of chess…ok, checkers.
Settlement Talks – Early and Often
What’s the basis for your argument, counselor?
Be professional…did I say that already?
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com ● Phone (803) 255-0000
Global settlement conference…not just for Israel-Palestine
Did you get more than one citation?
All it takes is a handshake
Efficiency drives productivity
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com ● Phone (803) 255-0000
You can’t handle the truth
Deposing the Inspector
Defending your Witness
Can I handle it?
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com ● Phone (803) 255-0000
Stating your case
Demystifying the Hearing
Presenting the Evidence
Your Honor
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com ● Phone (803) 255-0000
After the dust settles
VICTORY!
I think the Judge missed something…
26.2 miles
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com ● Phone (803) 255-0000
Knowing when to ask for help
So, why do we pay for lawyers?
Various levels of assistance
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com ● Phone (803) 255-0000
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000
Fisher & Phillips LLPATTORNEYS AT LAW
Solutions at Work®
Any Questions?
Thank You
www.laborlawyers.com
Presented by:
Matthew R. Korn
(803) 255-0000
www.workplacesafetyandhealthlaw.com
LinkedIn Group: MSHA Regulatory and Enforcement Updates
Atlanta · Boston · Charlotte · Chicago · Cleveland · Columbia · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville
Memphis · New England · New Jersey · New Orleans · Orlando · Philadelphia · Phoenix · Portland · San Diego · San Francisco · Tampa · Washington, DC
This presentation should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult counsel concerning your own situation and any specific
legal questions you may have.