Miscellaneous Category Archives — Page 3 of 8 — Kang Haggerty News Published By Kang Haggerty LLC

COVID-19 UPDATES: CARES Act Forgivable Loans

March 30, 2020 | Jacklyn Fetbroyt

Illustration of hand completing loan application on clipboard

Friday brought us significant federal legislation in response to the COVID-19 crisis in the form of the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). In today’s update, we focus on the (likely significant) relief the Act may afford to our small business clients by opening up, and possibly forgiving repayments of, loans under Section 7(a) of the Small Business Act.

In an effort to incentivize businesses to keep employees on their payrolls during the pandemic, despite an unprecedented number of health-related business closures, the CARES Act provides Continue reading ›

COVID-19 UPDATES: Remote Meetings Authorized; Remote Notary on the Horizon

March 26, 2020 | Jacklyn Fetbroyt

Two computer monitors facing each other with hands sticking out. One hand is holding a spreadsheet and the other is holding a file. In light of the increasing spread of COVID-19, lawmakers continue to push legislation to allow the conduct of remote business despite the pandemic and various shelter-in-place and similar restrictions. As we have experienced, the use of teleconferencing platforms such as Zoom has exploded over the last weeks, with everyone from students, business people, and government officials using these platforms to communicate with others while respecting the needs for social distancing, isolation and even quarantine. In the last week, the State of New Jersey has passed two such bills, A3861 and A3850, which allow important meetings to be held via remote communication methods, as well as introduced another, bill A3903, which would allow remote notarial acts if it is passed into law. Continue reading ›

COVID-19 UPDATES: N.J. Suspends Elective Medical Procedures as of Friday

March 25, 2020 | Jacklyn Fetbroyt

Nurse holding patient file and on the phone net to patient in hospital bed with cast on foot On Monday March 23, 2020 Governor Murphy issued Executive Order 109 introducing additional preventive measures to limit the spread of COVID-19 and simultaneously seeks assistance from the private healthcare community to increase the stock of PPE.

By Friday, March 27th at 5:00 p.m., all medical or dental “elective” surgeries and “elective” invasive procedures performed on adults to be suspended. An “elective” or invasive procedure is defined as “any surgery or invasive procedure that can be delayed without undue risk to the current or future heath of the patient as determined by the patient’s treating physician or dentist.”

Healthcare providers must consider post-operation complications when determining which operations qualify as “elective” and must coordinate post-operation care with ambulatory surgery centers or hospitals that have the resources to address post-operation complications. To that end, each hospital or ambulatory surgery center is required to establish written guidelines to ensure compliance and provide a copy to the Department of Health. All elective surgeries or invasive procedures already scheduled after 5:00 pm on Friday March 27, 2020 are to be cancelled or postponed indefinitely, and facilities must notify patients who will be affected by EO-109.

COVID-19 UPDATES: Non-Life Sustaining Business Waiver from March 19 Order of Pennsylvania Gov. Wolf Directing Massive Closures

March 24, 2020 | Jacklyn Fetbroyt

Illustration of office building with two trees out front. All windows are darkened but one, which shows the the figure of one person. With the current outbreak of COVID-19, each day creates a new normal. Government officials are adjusting to the new pandemic and implementing different policies to help protect the community’ s public health. On Thursday, March 19, 2020 Governor Tom Wolf issued an order mandating that all non-life-sustaining businesses close their physical locations by Thursday at 8 PM. Specifically, the order provides:

No person or entity shall operate a place of business in the Commonwealth that is not a life sustaining business regardless of whether the business is open to members of the public. This prohibition does not apply to virtual or telework operations (e.g., work from home), so long as social distancing and other mitigation measures are followed in such operations. Continue reading ›

COVID-19 UPDATES: Delay for Tax Day

March 23, 2020 | Jacklyn Fetbroyt

Corporate woman in suit sitting at computer, cactus also on desk
After a few false starts, the IRS announced over the weekend that the federal income tax filing due date is automatically extended to July 15, 2020. Mid-week, the IRS, acting in accordance with the President’s emergency declaration pursuant to the Stafford Act, originally extended only the time for certain tax payments, but not filings. Now, the IRS has clarified that both tax returns and tax payments originally due to be filed April 15th are extended three months.

Taxpayers can defer federal income tax payments due without penalties and interest, regardless of the amount owed; the latter is an important change from the earlier announcement as it related to corporations, which were only originally permitted to defer a certain amount. Now, this deferment applies to all taxpayers, including individuals, trusts and estates, corporations and other non-corporate tax filers.

Taxpayers do not need to file any additional forms or call the IRS to qualify for this automatic federal tax filing and payment relief. Taxpayers who need additional time to file beyond the July 15 deadline can request a filing extension by filing Form 4868 (individual) or Form 7004 (businesses).

COVID-19 AND CONTRACT MANAGEMENT: Performance Obligations and Force Majeure

March 19, 2020 | Jacklyn Fetbroyt

Graphic shows two hands. One holding a contract that shows Force Majeure and the other hand signing. As a commercial transactional lawyer, I often speak to my clients and colleagues about contract management. While I am usually heavily involved in many stages of the contract lifecycle – most notably, negotiations, drafting, closings and amendments – the real work (and most problems) arise during contract performance, which is the time the contracting company is typically “on its own.” I stress to my clients that competent management of contracts post-execution is critical: your management team needs to know its contractual obligations: due dates and milestones, payment terms, and areas of performance. Who’s doing what, when, and for how much? I recommend companies appoint a contract manager to maintain each contract and its pertinent information, and create a database of performance, payment, and other obligation information, along with applicable deadlines and a “tickler” system.

Now, in the wake of COVID-19 and its tremendous impact on businesses, it is important to pull out those databases, and update them with information particular to the current state of operations – yours and your contracting partners. Continue reading ›

Change in Municipal Land Use Law in New Jersey

February 20, 2018 | Kang Haggerty LLC

On February 20, 2018 Kang Haggerty LLC published a memorandum on the New Municipal Land Use Law.

On January 15, 2018, New Jersey Governor Chris Christie signed into law Senate Bill No. 3233, effective immediately, which reforms requirements under N.J.S.A. 40:55D-1 et seq., also referred to as the Municipal Land Use Law (MLUL). The amendments under the MLUL modify the requirements for performance and maintenance guarantees required for developers. Under the new, more developer-friendly law, “the developer shall furnish a performance guarantee in favor of the municipality in an amount not to exceed 120% of the cost of installation of only those improvements required by an approval or developer’s agreement, ordinance, or regulation to be dedicated to a public entity, and that have not yet been installed.”

In the past, the municipality had expansive authority to require performance guarantees for improvements deemed “necessary or appropriate.” N.J.S.A. 40:55D-53. Additionally, the list of improvements subject to performance guarantees from developers (and in favor of the municipality) are now limited to the following: streets, pavement, gutters, curbs, sidewalks, street lighting, street trees, surveyor’s monuments, water mains, community septic systems, drainage structures, public improvements of open space, and any grading necessitated by the preceding improvements.

Avvo, LegalZoom, Rocket Lawyer Products Prohibited in NJ

July 12, 2017 | Kang Haggerty LLC

Three New Jersey Supreme Court committees have recently prohibited three online services that allow clients and lawyers to interact for a small fee. Certain Avvo, LegalZoom, and Rocket Lawyer products have been deemed to be in violation of ethical standards in the state and are currently blacklisted. Moreover, Avvo is under fire for its improper fee-splitting.

In the Joint Opinion issued by the Advisory Committee on Professional Ethics, Committee on Attorney Advertising and Committee on the Unauthorized Practice of Law (ACPE Opinion 732, CAA Opinion 44, UPL Opinion 54), the committees state that “New Jersey lawyers may not participate in the Avvo legal service programs because the programs improperly require the lawyer to share a legal fee with a nonlawyer…”

On the other hand, it adds, “The Committees further find that LegalZoom and Rocket Lawyer appear to operate legal service plans through their websites but New Jersey lawyers may not participate in these plans because they are not registered with the Administrative Office of the Courts…” While these two services are permissible under RPC 7.3(e)(4), they are off limits due to the lack of registration.

U.S. Supreme Court Clarifies the ‘First-to-File’ Rule Under the False Claims Act

May 29, 2015 | Kang Haggerty LLC

In Kellogg Brown & Root Services, Inc., et al. v. United States ex rel., __, 575 U.S. __ (2015), two questions were presented before the U.S. Supreme Court: first, whether the Wartime Suspension of Limitations Act (WSLA) suspends the already generous statute of limitation under the False Claims Act (FCA); second whether the FCA’s “first-to-file” rule, which states generally that if more than one whistleblowers file the actions on the same fraud, only the first to file survives and others are dismissed, bars later filed whistleblower actions if the first filed action has been dismissed.

Reversing the Fourth Circuit Court’s decision to extend the WSLA to civil offenses, the Supreme Court unanimously held in that the WSLA only applies to criminal offenses, meaning the WSLA does not suspend the statute of limitation for an individual action brought under the FCA. The Supreme Court further held that the False Claim’s Act’s first-to-file bar applies only while related claims are active. Once the first filed case is settled or dismissed, the bar does not apply.

In 2005, the whistleblower, Carter, filed a qui tam complaint alleging that his former employer fraudulently charged the U.S. government for water purification services inadequately or fraudulently performed during the Iraq War. Nearing trial, the complaint (Carter I) was dismissed under the first-to-file rule based on an earlier filing with similar claims in United States ex rel. Thorpe v. Halliburton Co., No. 05-cv-08924 (C.D. Cal., filed Dec. 23, 2005).

Superior Court of Pennsylvania Finds Trial Court Erred in Bad Faith Claim

April 29, 2015 | Kang Haggerty LLC

The Superior Court of Pennsylvania found that the court erred in a bad faith claim in Mohney v. American General (2030 & 2046 WDA 2013). The Court reasoned that the insurer acted in bad faith by having no reasonable basis for terminating the plaintiff’s benefits.

Mohney purchased life insurance from U.S. Life (now succeeded and represented by American General) in October 1991 and September 1992. A year later, the plaintiff suffered an injury as a result of a traffic accident preventing him from returning to work. U.S. Life found Mohney to be totally disabled under the definition of their policy and disbursed insurance benefits on a monthly in basis. In February 1995 U.S. Life suddenly terminated Mohney’s benefits alleging that Mohney no longer met “the covered criteria for total disability as stated in [his] certificates” and was “able to perform regular duties of an occupation for which [he was] qualified”.

The plaintiff immediately initiated civil action against the defendant, and in June 1997 filed a complaint for fraud, breach of contract, violation of the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), and insurance bad faith. During the following four years, U.S. Life’s objections were granted by the court. In 2001, U.S. Life filed a motion for summary judgement which was granted in part with the exception of Mohney’s breach of contract claim. The trial court found Mohney to be “totally disabled under the terms of the insurance contract” and awarded the plaintiff $20,772.58. Upon appeal the Superior Court affirmed the trial court’s breach of contract judgement, but remanded for a trail on the bad faith matter. In October 2013 the trial court ruled in favor of U.S. Life prompting Mohney to appeal the bad faith ruling which is the central consideration of the present memorandum.