Insights

NRH Partner Gerardo J. Hernández included in 2019 edition of The Best Lawyers in Puerto Rico

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We are very proud to announce that our Partner, Gerardo J. Hernández, was recently included in the 2019 edition of The Best Lawyers in Puerto Rico in the area of litigation.  Recognition by Best Lawyers is based entirely on peer review utilizing the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area.

To access his profile at the Best Lawyers website, please visit www.bestlawyers.com/lawyers/gerardo-j-hernandez/171558.

 

Partner  Gerardo J. Hernandez
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Governor Backs Off from Expanding Labor Reform

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On March 28, 2018, Governor Ricardo Rosselló withdrew his latest labor reform proposal.   The announcement was made in response to the Puerto Rico Financial Oversight and Management Board’s rejection of the Government’s latest financial plan.  Gov. Rosselló’s latest labor reform proposal included a series of initiatives to further expand the labor reform rolled out in late January of 2017.  The proposal included, among other measures, the reduction of vacation time accrual, the elimination of the Christmas’ Bonus and the severance pay for wrongful discharge, as provided under Law 80 of 1976, as amended.

As the Government’s development of a financial plan is an ongoing process, it is likely that these proposals and cost cutting measures that may impact the private employment area will continue to be revisited.  We will keep you posted.

For more information, please contact attorneys Carmen Lucía Rodriguez and Gerardo Hernández.

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Governor Announces Intent to Expand Labor Reform

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Earlier this week, Governor Ricardo Rosselló announced a series of initiatives he seeks to present to the Island’s House of Representatives and Senate, which include measures directed to further expand the labor reform rolled out in late January of 2017. In essence, the Governor’s proposal will further transform the labor landscape of the Island, as it takes upon the core principles of our current system.

The reform as proposed will have a direct impact upon the employment of private sector employees, as it calls for:

  • The elimination, within the next three (3) years, of Puerto Rico Act 80, which provides protection to private sector employees against unjustified termination of their employment;
  • A reduction of the vacation and sick leave from fifteen (15) days a year to only (7) seven days per year;
  • The elimination of the Christmas bonus requirement for private entities employees;
  • An increase in the minimum salary, which would start in in 2019 from $7.25 to $7.75;
  • An additional increase of 50 cents in the minimum salary is projected to take place, two years later, on 2021, raising the minimum salary up to $8.25

For more information on the proposed amendments to Puerto Rico employment laws, please contact attorneys Carmen Lucía Rodriguez and Gerardo Hernández.

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NRH Partner Gerardo J. Hernández included in 2018 Best Lawyers for Puerto Rico

News Admin

We are very proud to announce that our Partner, Gerardo J. Hernández, was recently included in the 2018 edition of The Best Lawyers in Puerto Rico in the area of litigation. Recognition by Best Lawyers is based entirely on peer review utilizing the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area.

To access Mr. Hernández’s profile at the Best Lawyers website, please visit www.bestlawyers.com/lawyers/gerardo-j-hernandez/171558.

Please join us in congratulating Gerardo on this achievement.

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Legal Update February Vol. 2018

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PR ACT 28-2018 GRANTS SPECIAL PAID LEAVE FOR EMPLOYEES SUFFERING FROM SEVERE ILLNESS OF CATASTROPHIC NATURE

PR Act 28, known as “Ley de Licencia Especial para Empleados con Enfermedades Graves de Carácter Catastrófico”, was recently signed into Law in Puerto Rico.

The purpose of this law is to provide employees who suffer severe illness of catastrophic nature, as defined by the law, additional paid leave to tend to their treatment and medical appointment and to minimize the employees’ concerns that their employment might be affected when they take time to attend these treatments and appointments.

Act 28 provides a special paid leave of six (6) days per year for employees who qualify and who suffer from a catastrophic illness as defined by the Law. To qualify for this special leave, the employee must have worked for the company for at least twelve (12) months, must have worked a minimum of at least one hundred and thirty (130) hours monthly, and must have used up all their sick leave. The employer cannot require the employee to use this special leave until they have used all their sick leave.

The six (6) days per year special leave can be used annually and it cannot be accumulated nor transferred to the following year. Upon the employee’s employment termination, voluntary or involuntary, the leave or any remaining portion of it, will not be paid out to the employee. The special leave can be used through divided, flexible or intermittent schedules. The use of this special leave will be considered as time worked for accrual purposes of other employee benefits.

The Act defines “catastrophic illness” to include AIDS, Tuberculosis, Leprosy, Lupus, Cystic Fibrosis, Cancer , Hemophilia, Aplastic Anemia, Rheumatoid Arthritis, Autism, Post-Organ Transplant, Scleroderma, Multiple Sclerosis, Amyotrophic Lateral Sclerosis (ALS), and Chronic Kidney Disease in levels 3-5.

The employer cannot take into consideration the employees’ use of this special leave for purposes of disciplinary actions, evaluations and other employment related decisions.

The employer can require a medical certificate certifying that the employee suffers from a catastrophic illness covered by the Law and that he/she continues to receive medical treatment for said illness. Any request for medical information under Act 28 must comply with HIPAA.

Employees who comply with the requirements of Act 28 can use the special leave granted immediately once the Law becomes effective.

Act 28 applies to governmental employees and to private employers as defined by PR Law 4-2017. The Act becomes effective on February 20, 2018.

Act 28 grants authority to the Secretary of Labor and Human Resources to investigate, receive and file claims and impose penalties for failure to comply with the Law.

For additional information and/or assistance in complying with Act 28, please contact attorney Carmen Lucía Rodríguez Vélez (clrodriguez@nrhlawpr .com) and/or Gerardo Hernández (ghernandez@nrhlawpr.com).

PUERTO RICO SUPREME COURT DETERMINES THAT STRICT PRODUCT LIABILITY DID NOT APPLY BECAUSE A SHRIMP CONTAMINATED WITH SAXITOXIN WAS NOT “MANUFACTURED” AS IT BECAME CONTAMINATED WITHOUT HUMAN INTERVENTION

In the case of Gonzalez Caban v. JR Seafood, Civil Case No. 14-1507 (GAG), the United States District Court for the District of Puerto Rico certified the following question upon the Puerto Rico Supreme Court:

“Under the principles of product liability, is a supplier/seller strictly liable for the damages caused by human consumption of an extremely poisonous natural toxin found in a shrimp, even if said food product (and its “defect”) are not a result of manufacturing or fabrication process? If the previous question is answered in the affirmative, would it make a difference if the “defect” of the food product is readily discoverable scientifically or otherwise?”

This question was presented to resolve the complaint filed under diversity jurisdiction by Plaintiff against JR Seafood Inc., Integrand Insurance Company, Packers Provisions of Puerto Rico Inc., Ramón Gutiérrez, Evaristo Rivera Berrios d/b/a Restaurante El Nuevo Amanecer, and Cooperativa de Seguros Múltiples.

In the complaint, Plaintiff alleged that on February 19, 2004, he got intoxicated after consuming a toxic shrimp at Restaurante El Nuevo Amanecer, in Coamo, Puerto Rico and that he is entitled to compensation in damages. Plaintiff claimed that the consumption of the shrimp made him suffer paralytic shellfish poisoning that permanently deteriorated his health to the point of incomplete quadriplegia, which bound him to a wheelchair.

The sellers and supplier of the shrimp filed a Motion to Dismiss Plaintiffs’ complaint under Rule 12 (b)(6) where they argued that they could not be held strictly liable to a restaurant diner who allegedly had sustained permanent injury from eating shrimp contaminated with a natural toxin because the shrimp was not a “manufactured product”. Because there was no precedent, the US District Court concluded that said matter constituted an unsettled issue of Puerto Rico law which should be resolved by the Puerto Rico Supreme Court.

The Puerto Rico Supreme Court answered the question by ruling that strict liability did not apply because a shrimp contaminated with saxitoxin was not “manufactured” because it became contaminated without human intervention. Using this principle in the present case, the district court concluded that the diner’s strict liability claims could not proceed.

For additional information please contact attorney Nestor J. Navas (nnavas@nrhlawpr.com) and/or Fred Gautier Lugo fgautier@nrhlawpr.com).

ARE YOU TAKING ADVANTAGE OF ALL TOOLS AVAILABLE TO MAXIMIZE YOUR EARNINGS?

Hurricane Maria changed Puerto Rico and created a new reality for those doing business within the Island’s jurisdiction. The challenges encountered in today’s commercial landscape have required that many businesses and corporate entities doing business in Puerto Rico, reevaluate their structure, corporate configuration and personnel operations.

Understanding a company’s operational needs is essential to develop a corporate structure that can maximize earnings by taking advantage of Puerto Rico’s current laws and situation.

At NRH we are prepared to assist you in evaluating your corporate structure to provide those recommendations that will lead to maximization of earnings, while complying with Puerto Rico’s current legal landscape.

Do not hesitate to contact us to set up a meeting and discuss how to improve your business.

For additional information please contact attorney Nestor J. Navas (nnavas@nrhlawpr.com) and/or Fred Gautier Lugo fgautier@nrhlawpr.com).

NRH HUMAN RESOURCES CONSULTING SERVICES

The challenges encountered in today’s commercial landscape require that all entities doing business in Puerto Rico reevaluate their corporate structure and personnel needs to maximize earnings. In doing so, the figure of the Human Resources Manager becomes of instrumental value to a company.

At NRH we recognize that not all small businesses can afford to have a human resource manager or department. Considering the aforementioned, we offer our clients the advantage of outsourcing the work performed by a company’s human resources department in a cost-effective way.

At NHR we have experienced human resources specialists, who as attorneys, have both the experience and expertise for effectively managing your employment matters offsite, at a reduced rate.

If you wish to inquire into the possibility of outsourcing your HR needs, please do not hesitate to contact us to set up a meeting to discuss how we can assist you in reducing your operational costs while assisting you on these matters.

For additional information please contact attorney Carmen Lucía Rodríguez Vélez (clrodriguez@nrhlawpr.com) and/or Fred Gautier Lugo (fgautier@nrhlawpr.com)

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Legal Update February 2018

Publications Admin

Amendment to Puerto Rico Minimum Wage, Vacation, and Sick Leave Act

On January 27, 2018 Act No. 60 became law and amended Article 6 of Puerto Rico Minimum Wage, Vacation and Sick Leave Act, Act No. 180 of July 27, 1998. This amendment granted greater protection to non-exempt employees in the private sector covered by the law, by prohibiting employers from taking into consideration the employees’ valid use of their sick leave for disciplinary actions and/or performance evaluation purposes. The amendment added subparagraph “p” to Article 6 to state that no employer, supervisor or their representative, can use, as part of the company’s administrative process or as their policy, the justified sick leaves, as criteria of an employees’ efficiency for purposes of their evaluation process, salary increase or promotions. The amendment further states that the employer cannot consider the employees’ absences due to illness and charged correctly to his/her sick leave, to justify disciplinary actions such as employment suspensions and terminations.

The reasoning behind this amendment is that it is contradictory that the very Law that grants an employee the right to sick leave, allows employers to penalize the employee for using such sick leave. The legislators find that it is a violation of this right granted by law, that an employer establishes an internal policy where they consider justified absences under the Law as irresponsible absences, and that they will be used as criteria which could negatively impact and employees’ performance evaluation, promotion and/or salary increases. Moreover, the legislators further state in their reasoning that allowing an employee to go to work in adverse health conditions could violate the employees’ constitutional and civil rights. As to instances when an employee might misuse this right, the Law’s motive states that employers have mechanisms, such as investigating the veracity of the medical certificate or getting a second medical opinion, to verify that the employee is using correctly the right granted by law. This amendment became effective immediately.

For additional information please contact attorney Carmen Lucía Rodríguez Vélez (clrodriguez@nrhlawpr.com) and/or Gerardo Hernández (ghernandez@nrhlawpr.com).

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Legal Update November 2017

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Puerto Rico: A Month After Hurricane María

On Tuesday September 19, 2017, we thought we had done everything within our control to prepare for Hurricane María.  After September 20, 2017, we realized that nothing could have prepared us for the devastation and sheer horror that Hurricane María left in our island.  Besides leaving us with no power and water, for most of Puerto Rico still to date, Hurricane María took away thousands of homes, left many with no food, and took away years of developments and improvements at the Island.  At Navas Rodríguez & Hernández, we were fortunate that our office suffered no physical damage and are doing our part to bring Puerto Rico back.

On October 20, 2017, the Island underwent its first 30 days following Hurricane María. To date, a significant amount of municipalities in the Island continue to be without power and with limited access to the internet.  Moreover, most land line phone service is down as well.  While running water is available at most municipalities, some of the remote areas continue to lack any utility services. While the U.S. Postal Service has been in operation since early October, it is significantly delayed. Express courier service such as UPS and Fed Ex are overwhelmed with the amount of packages to distribute and are experiencing significant delays as well.  Most businesses as well as government agencies that are open are working on reduced schedules to offset costs associated with operating on power generators, deal with heavy traffic and to ensure safety. Courts will resume hearings on civil matters after starting operations on criminal and family matters in October.

At NRH, we have been operating from a temporary location since early October and should be ready to move back to our office as soon as power is restored. Published reports state that tests are underway for the main power generating plant in the San Juan metropolitan area to start serving customers this week. Shortly before and following the hurricane, we attended the Annual Meeting of the National Association of Minority and Women Owned Law Firms (NAMWOLF) in New York and rolled out our upgraded website and social media sites in Linked In and Facebook.  We are indeed open for business and determined to do our part in building back our Island.

Following the passing of Hurricane María. most developments of legal relevance have been related to consumer protection orders by the Department of Consumer Affairs (DACO) to further keep its freeze on prices of goods of need during the emergency, actions by the Puerto Rico Department of Treasury to allow exempt status to aid received by individuals from third parties, including disaster aid payments from employers.  Also, an opinion was issued by the Secretary of Labor on the payment of wages to exempt and non-exempt employees during hurricanes.


DACO Issues Order Extending Price Freeze Over Goods of Need

On September 3, 2017, the Department of Consumer Affairs issued Order 2017-004, which set forth a price freeze over goods of need    (i.e. canned and fresh food, water, medication, power generators, etc.) due to the imminent passage of Hurricane Irma. Following several extensions of said order to respond to the emergency caused by Hurricane María, including one which set forth an approval process for price increases for goods of need by wholesalers and retailers, on October 18, 2017, DACO issued Order 2017-018, to automatically approve price increases over goods of need as long as the business notifies DACO of the price increase by a supplier and it maintains the same or lower profit margin it had prior to the increase. Said order also sets forth the applicable mechanism for pricing and profit margins of new goods brought in to substitute goods of need previously sold by a merchant or for a merchant who sells goods of need for the first time.  For additional information and details over this Order please contact attorney Fred Gautier Lugo (fgautier@nrhlawpr.com)


PR Treasury Department Issues Administrative Determination on Disaster Aid Payments to Employees by Employers

In order to adequately offer guidance to employers and other entities on the tax treatment of disaster aid payments, the Puerto Rico Department of Treasury issued on October 5, 2017, Administrative Determination DA-17-21, which sets forth the rules for exempt disaster aid payments to employees.  In essence, employers are authorized to make tax exempt payments to employees for up to $1,000 per month to assist them with damages sustained from Hurricane María.  This payment must be in addition to the compensation ordinarily received by the employee and cannot be attributed or related to the employee’s position or salary.  Moreover, employers are also allowed to provide interest free loans to employees for up to the total amount of $20,000.  Aid payments are to be made between September 21, 2017 to December 31, 2017.  Please contact us if you are interested in learning of all requirements set forth by PR Treasury in order to comply with the law. For additional information please contact attorney Carmen Lucía Rodríguez Vélez (clrodriguez@nrhlawpr.com) and/or Gerardo Hernández (ghernandez@nrhlawpr.com).


PR Secretary of Labor Issues Opinion on Payment of Wages to Employees due to Days Not Worked as Result of the Passage of a Hurricane

In order to offer guidance to employers on the payment of salaries to employees stemming from days not worked due to the passage of  a hurricane, on October 17, 2017, the Puerto Rico Secretary of Labor issued an opinion (2017-001) which, in essence, confirms the long-standing interpretation that an employer has no legal obligation to pay a non-exempt employee for time not worked as the result of a natural disaster.  Nonetheless, the Secretary urged employers to be sensitive of the situation and allow employees to be paid from accrued vacation time so that they can adequately respond to needs stemming from the state of emergency caused by the passage of hurricanes Irma and María.

On the other hand, the Secretary is of the opinion that employers are legally obligated to pay exempt employees for time lost due to a business closing that is less than a full week of work.  However, no such obligation exists when no work whatsoever is performed during a full week.

However, regardless of the Secretary’s opinion, those employers who have a policy in place that allows for payment in the event of business closures caused by a natural disaster, will be legally bound to comply with their own policies.  We remain at your disposal should you need any assistance in complying with said opinion.  For additional information please contact attorney Carmen Lucía Rodríguez Vélez (clrodriguez@nrhlawpr.com) and/or Gerardo Hernández (ghernandez@nrhlawpr.com).


PR Department of Labor issues new regulation to manage PR Law No.148 of 1969 on Christmas Bonus for Private Employers

On September 18, 2017, the PR Department of Labor and Human Resources issued an updated regulation for private employers to manage the payment of the Christmas bonus.  The new regulation essentially updated the prior regulation to include rules applicable to the changes made to the bonus payment to employees hired after the labor reform contained in PR Law 4 of 2017 which reduced the amount of the bonus payable to new hires, among a series of other changes, including an increase to the amount of hours worked needed to be eligible to the bonus.

If you need further assistance with this new regulation, please contact attorney Carmen Lucía Rodríguez Vélez (clrodriguez@nrhlawpr.com) and/or Gerardo Hernández (ghernandez@nrhlawpr.com).

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NRH Arrives at NAMWOLF’s Annual Meeting and Law Firm Expo

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On September 17, 2017, Gerardo Hernández arrived in New York City to be among the participants at the Annual Meeting and Law Firm Expo of the National Association of Minority and Women Owned Law Firms (NAMWOLF) which will run until September 20, 2017.   NAMWOLF, headquartered in Chicago, was founded in 2001, and is a nonprofit trade association comprised of minority and women-owned law firms and other interested parties throughout the United States. NAMWOLF’s Law Firm Membership is comprised of AV-rated firms across the nation which represent major corporate clients.  NAMWOLF assists its Law Firm Members in developing strategic alliances, coalitions, and affiliations with corporations, in-house counsel, and other legal trade associations. Through these efforts, NAMWOLF helps ensure the long-term survival of minority and women-owned law firms.

NRH is the only NAMWOLF firm in Puerto Rico.

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NRH Unveils Its Upgraded Website

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On September 17, 2017, Navas Rodríguez & Hernández with the assistance of one of our valued clients, C Cubed, unveiled our newly remodeled website.  In addition to updated Firm content, visitors will now have access to the latest Firm news, publications and a subsequent blog to be hosted by the Firm’s attorneys.   The site will also offer direct links to the Firm’s Facebook page and the Linked In profile of our attorneys and the Firm.

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Legal Update Volume 2017, Number 3

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NAVAS RODRIGUEZ & HERNANDEZ OBTAINS SIGNIFICANT DEFENSE JUDGMENT ON APPEAL

On Appeal on behalf of the Municipality of Carolina, attorneys Fred Gautier Lugo and Nestor J. Navas D’Acosta obtained Judgment from the Puerto Rico Court of Appeals, whereby the award for damages imposed by the Court of First Instance was determined to exceed the limits of statutory provisions, thus diminish the exposure of the Municipality.

For additional information please contact attorney Fred Gautier Lugo or Nestor Navas D’Acosta. (fgautier@nrhlawpr.com/nnavas@nrhlawpr.com).


MEDICAL MALPRACTICE UNDER PUERTO RICO LAW

Under Puerto Rico law, three elements comprise a prima facie case of medical malpractice: a party must establish (1) the duty owed; (2) an act or omission transgressing that duty; and (3) a sufficient causal nexus between the breach and the harm. Otero v. United States, 428 F.Supp.2d 34, 45-46 (D.P.R.2006) (citing Rivera v. Turabo Med. Ctr. P’ship, 415 F.3d 162, 167 (1st Cir.2005)).

Puerto Rico courts have explained the duty owed to a patient as that level of care which, recognizing the modern means of communication and education, meets the professional requirements generally acknowledged by the medical profession. Otero, 428 F.Supp.2d at 46; see also *149 Rivera v. Turabo Med. Ctr. P’ship, 415 F.3d 162, 167 (1st Cir.2005) (citing Lama v. Borrás, 16 F.3d 473, 478 (1st Cir.1994)) (quoting Oliveros v. Abreu, 1 P.R. Offic. Trans. 293, 101 P.R. Dec. 209, 226 (1973)).

The standard is considered national and should generally be proven through expert testimony. Otero, 428 F.Supp.2d at 46.In Puerto Rico to establish causation, a plaintiff must prove by a preponderance of the evidence, that “the [medical provider’s] negligent conduct was the factor that ‘most probably’ caused harm to the plaintiff.” Rivera v. Turabo Med. Ctr. P’ship, 415 F.3d 162, 168 (1st Cir.2005).

Causation usually cannot be found based on mere speculation and conjecture. Expert testimony is generally essential in order to clarify complicated medical issues that are more prevalent in medical malpractice cases than in standard negligence cases. Otero, 428 F.Supp.2d at 46.Thus in Puerto Rico, the decision to prevent the plaintiff’s expert from testifying equals the dismissal of a case as Plaintiff cannot prove a doctors negligence, without an expert witness.

For additional information please contact attorney Nestor Navas D’Acosta (nnavas@nrhlawpr.com).


DEFENDING A MEDICAL MALPRACTICE CLAIM

 

For most doctors facing a medical malpractice lawsuit can be an extremely frustrating experience, in terms of their personal liability and their professional reputation. Furthermore, a medical malpractice suit places the doctors in position to answer questions from lawyers who have never set foot in medical school and who probably do not understand their actions.

Notwithstanding, it is imperative for a doctor to properly handle a medical malpractice suit and to do so he has to be prepared to handle said claim, whenever it appears. To do so, we recommend that each doctor have a lawyer available at any time, since the assistance of the lawyer can aide the doctor through the process of being sued and most importantly can be essential in the preparation of a proper defense against the suit.

Key issues for a doctor to keep in mind when en or she is sued for medical malpractice:

  1. It is not personal;
  2. Being sued for malpractice certainly does not mean that the doctor did anything wrong or will be held liable for medical negligence.
  3. For a medical malpractice defense to be properly developed and be implemented, it is important that the doctor has the necessary patience to allow the lawsuit process to work.
  4. The doctor should know that most medical malpractice cases last 2-5 years. That can be a long time for a malpractice claim to be hanging over a doctor’s head, but there is little a doctor can do to accelerate the process.
  5. The doctor should always remember that a medical malpractice case is a judicial process with an established set of rules and procedures
  6. Assuming the doctor carries medical malpractice insurance, the insurance company’s lawyer will handle most of the heavy lifting throughout the case, but there are four major things that the doctor should expect to do during the course of the case.
  7. A doctor should always hire an attorney to handle the portions of his liability that is in excess of his policy limits.

For additional information please contact attorney Ignacio Gorrrin Maldonado or Nestor Navas D’Acosta. (igorrin@nrhlawpr.com/nnavas@nrhlawpr.com).


COMMENCEMENT OF AN ACTION UNDER TITLE VI OF THE PUERTO RICO OVERSIGHT, MANAGEMENT, AND ECONOMIC STABILITY ACT,

On May 16, 2017, Hon. Aida M. Delgado-Colón, in her position as Chief United States District Judge informed that the United States District Court for the District Court of Puerto Rico adopted new Local Civil Rule 3.1. Said Rule will govern the filing and docketing of any civil action which is commenced by the presentation, as an initial document, of an application for approval of a Qualifying Modification, as defined in the Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”). Specifically, Civil Rule 3.1 reeds:

“A civil action for relief under section 601(m)(1)(D), 48 U.S.C. § 2101(m)(1)(D), of Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”), is commenced by filing an application for approval of a Qualifying Modification as define in PROMESA, and as provided in section 601(m)(1)(D).

The application shall be filed with the clerk of the court, and the clerk shall open a docket for the action. “

For additional information please contact attorney Ignacio Gorrrin Maldonado or Nestor Navas D’Acosta. (igorrin@nrhlawpr.com/nnavas@nrhlawpr.com).

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