Publications Category Archives — Page 9 of 14 — Kang Haggerty News Published By Kang Haggerty LLC

NJ Law Against Discrimination Affects Drafting and Enforcement of Some NDAs

April 11, 2019 | Jacklyn Fetbroyt

We are often asked by our clients for non-disclosure and confidentiality agreements (often referred to as NDAs) in the transactional setting as well as in litigation settlement agreements – but what if the employment contract or settlement includes provisions regarding a discrimination claim?

Effective as of March 18, 2019 in New Jersey, lawyers must be wary of employment or settlement agreements that include any provision that “has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation or harassment.” If a provision is contained in a settlement agreement to which the New Jersey Law Against Discrimination (NJLAD) applies, it is unenforceable against the employee. If the employee chooses to reveal claim specifics in a way that the employer is “reasonably identifiable,” the employer may likewise reveal formerly confidential information. In fact, such settlement agreements must contain a bold, prominently placed notice that “although the parties may have agreed to keep the settlement and underlying facts confidential, such a provision in an agreement is unenforceable against the employer if the employee publicly reveals sufficient details of the claim so that the employer is reasonably identifiable.” Continue reading ›

Edward Kang writes on finding a Niche Defending against Business Betrayals for the ABA’s Law Practice Today

March 15, 2019 | Kang Haggerty LLC

“As part of my business divorce practice, I often represent one owner against other owners. People who may have once been close friends or family members now turn into ugly, bitter enemies. What started as a company with shared goals and vision has dissipated into a pool of litigation,” writes Kang Haggerty managing member Edward T. Kang in the March 2019 edition of the American Bar Association’s Law Practice Today (LPT) webzine. In Finding a Niche Defending against Business Betrayals, Kang discusses his firm’s niche practice representing Officers and Directors in these often-complicated business disputes. Continue reading ›

Legal Intelligencer: IT Security and Policy: Why All Lawyers Must Care About It

March 15, 2019 | Edward T. Kang

In the March 21, 2019 edition of The Legal Intelligencer, Edward Kang, Managing Member of Kang Haggerty wrote “IT Security and Policy: Why All Lawyers Must Care About It.”

Several years ago, my insurance broker suggested I get cybersecurity insurance for my firm. It seemed a cybersecurity insurance policy was unnecessary, not much different from having an undercoating for a new car. That was then. Now, the benefits of having a cybersecurity insurance policy are not reasonably in dispute these days. In addition to having the security of insurance, another (and more important) benefit of getting a cybersecurity insurance policy was the requirement that I have an IT security and breach policy that deals with how to prevent a security breach and what to do if there is a security breach. While getting a cybersecurity insurance policy may still remain an option for many, having an IT security policy describing detailed procedures to protect against a cybersecurity attack (and what to do when the system is breached) is a must.

Need for Cybersecurity Measures

Legal Intelligencer: US Supreme Court Settles the ‘Wholly Groundless’ Exception. Or Has It?

January 24, 2019 | Edward T. Kang

In the January 24, 2019 edition of The Legal Intelligencer, Edward Kang, Managing Member of Kang Haggerty wrote “US Supreme Court Settles the ‘Wholly Groundless’ Exception. Or Has It?”

In a recent article I co-authored, I discussed the “wholly groundless” exception to delegation clauses under the Federal Arbitration Act, “Should an Arbitrator Determine Arbitrability Where a Claim Is ‘Wholly Groundless’?” The Legal Intelligencer (July 26, 2018). There, I discussed the circuit split on this issue and that the U.S. Supreme Court would soon decide this issue for good. And the court has.

On Jan. 8, writing for a unanimous court in his first written opinion, Justice Brett Kavanaugh held that the wholly groundless exception to arbitrability is inconsistent with the FAA and, therefore, no such exception exists, see Henry Schein v. Archer & White Sales, ___ S.Ct. ___, 2019 WL 122164 (Jan. 8, 2019). The court held “when the parties’ contract delegates the arbitrability question to an arbitrator, a court may not override the contract, even if the court thinks that the arbitrability claim is wholly groundless.” In concluding this, the court stated, “the act contains no ‘wholly groundless’ exception, and we may not engraft our own exceptions onto the statutory text.”

Legal Intelligencer: Defending Officers and Directors From a Lawsuit by the Company

January 7, 2019 | Edward T. Kang

In the January 3, 2019 edition of The Legal Intelligencer, Edward Kang, Managing Member of Kang Haggerty wrote “Defending Officers and Directors From a Lawsuit by the Company.”

When a corporate director or officer is sued by a third party for alleged misconduct carried out in her capacity as director/officer, the company generally indemnifies the director/officer by defending her against the lawsuit. The company’s duty of indemnification arises from both the law and governing corporate documents (e.g., articles of incorporation, bylaws or employment agreement). While there are limited exceptions to the company’s duty of indemnification—e.g., the director/officer acted in her personal capacity or that she acted in bad faith against the interest of the company—the duty of indemnification is broad. The company must defend the director/officer, at least until the court determines otherwise. What protection does a corporate director/officer have, however, if the person suing her is the company itself?

A company sues its officer or director more frequently than many people think. The company could bring a direct lawsuit against an officer or director for a breach of fiduciary duty (e.g., alleged self-dealing). Sometimes, a shareholder could bring a derivative lawsuit under the company’s name against the officer or director. Continue reading ›

Legal Intelligencer: Pa. Law Firms Must Learn From the Past to Improve Diversity in the Future

December 12, 2018 | Kang Haggerty LLC

In the December 11, 2018 edition of The Legal Intelligencer, Tianna K. Kalogerakis, Associate of Kang Haggerty authored “Pa. Law Firms Must Learn From the Past to Improve Diversity in the Future.”

After nearly 175 years, there is still much progress to be made in law firm diversity. The Philadelphia legal community should not underestimate the impact changing institutions has on creating opportunity for individuals.

A mere four years after The Legal Intelligencer’s founding in 1843, the story of blacks seeking admission to the legal profession in Pennsylvania began. Despite nearly 175 years of black Pennsylvania lawyers overcoming obstacles to entry of the legal profession, institutional barriers persist, leaving blacks and other minorities in the state still in search of meaningful access in the legal profession. In 2018, law firms that are not intentional about cultivating diversity may be unintentionally discriminating against diverse candidates.

To tell the story of diversity in the legal profession—specifically when discussing the black lawyer—one must first acknowledge the role of slavery in America. People of color were held in bondage for decades against their will and the ownership of humans by other humans was sanctioned by the laws of this country. Enslavement and discrimination of individuals based on their skin color was codified into our federal and state systems of government and dictated the daily interactions of individuals. These codifications and the resulting caste system became the foundations of the institutional barriers minorities continue to face today. Continue reading ›

Have the Courts Made Room for Inevitability Under the Defend Trade Secrets Act?

November 29, 2018 | Edward T. Kang and Kandis Kovalsky

In the November 29, 2018 edition of The Legal Intelligencer Edward Kang, Managing Member of Kang Haggerty and Kandis Kovalsky, Associate of Kang Haggerty, co-authored “Have the Courts Made Room for Inevitability Under the Defend Trade Secrets Act?”

The Defend Trade Secrets Act (DTSA), 18 U.S.C. Section 1836, et seq., which was enacted on May 11, 2016, after a Senate vote of 87-0, is the first federal law to protect trade secrets. The rare unanimous vote was unsurprising given the stunning report by the Commission on the Theft of American Intellectual Property that outlined how theft of intellectual property costs U.S. businesses more than $300 billion a year.

The DTSA highlighted Congress’ goal of aligning the federal law closely with the Uniform Trade Secrets Act (UTSA), which has been adopted in some form in almost every state. Just as the Lanham Act, which coexists with state trademark law, the DTSA coexists with state trade secret law. As such, it is important to understand this interplay and what it is likely to look like going forward. Continue reading ›

Legal Intelligencer: When Noncompete Agreements Involve Competing Laws

November 8, 2018 | Edward T. Kang and Kandis Kovalsky

In the November 8, 2018 edition of The Legal Intelligencer, Edward T. Kang, Managing Member of Kang Haggerty and Kandis Kovalsky, Associate of Kang Haggerty, co-authored “When Noncompete Agreements Involve Competing Laws.”

These days, it is common for companies headquartered or principally located in one city and state to have multiple offices and employees throughout many cities and states in the country, and even the world. Companies in this position will often require their employees to sign contracts with both forum selection clauses and choice of law provisions. The forum selected is usually where the company is headquartered or principally located. Likewise, the choice of law provision often calls for application of the laws of the forum state. Companies have a strong interest in uniformity and predictability when it comes to legal disputes. Litigating matters in different courts throughout the country under different laws is not something that is desirable or productive.

In situations where employers also make their employees, or certain employees, agree to restrictive covenants, particularly noncompetes, companies expect the same uniformity and predictability regarding their enforceability as to each employee, regardless of where the employee works or lives. Employees, on the other hand, often expect (as we learned through a recent case) that even with another state’s choice of law provision, they will still be afforded the protection of the laws of their own state. This disconnect is no clearer than where non-California headquartered companies hire California residents as employees and require them to sign noncompetes governed by another state’s law. In California, noncompete agreements are generally unenforceable (with some limited exceptions). This is well-known, particularly by California residents. So, what happens in this situation if the California employee violates their noncompete? Continue reading ›

Legal Intelligencer: Why Lawyers Should Care About Emojis

October 18, 2018 | Edward T. Kang and Kandis Kovalsky

In the October 18, 2018 edition of The Legal Intelligencer, Edward Kang, Managing Member of Kang Haggerty and Kandis Kovalsky, Associate of Kang Haggerty, co-authored, “Why Lawyers Should Care About Emojis.“

Today, there are close to 3,000 emojis in the Unicode Standard. As such, people can communicate a lot more through emojis, if they choose. And, the data shows this is what people are choosing.

Although emojis have been included in smartphone operating systems for more than a decade, they are just starting to make their way into the world of litigation. While Apple’s emoji debut consisted of 54 emojis, made up primarily of different yellow smiley faces, iPhone now offers its users a broad range of hundreds of emojis, representative of different races, genders, cultures and religions. Today, there are close to 3,000 emojis in the Unicode Standard. As such, people can communicate a lot more through emojis, if they choose. And, the data shows this is what people are choosing. Over 10 billion emojis are sent each day throughout the world. Approximately 92 percent of all people who communicate online or through text messages on a smartphone use emojis, with more than one-third of them using emojis daily. Analysts have referred to the uptick in emoji use as “watching the birth of a new language.”

In 2015, emojis were mentioned in 14 federal and state court opinions. This number increased to 25 in 2016 and 33 in 2017. With the rules of the profession (Rules of Civil Procedure, Rules of Professional Conduct, Rules of Evidence) changing—slowly, albeit surely—to address the advent of social media and electronic communications, it is important to understand how emojis fit into the current legal landscape.

Firm FinCEN’s Customer Due Diligence Rule and Implementation

September 21, 2018 | Jacklyn Fetbroyt

In the September 2018 edition of the National Association of Minority and Women Owned Law Firms (“NAMWOLF”) Newsletter, Jacklyn Fetbroyt, Member of Kang Haggerty, writes Firm FinCEN’s Customer Due Diligence Rule and Implementation.

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In 2016, the Financial Crimes Enforcement Network (FinCEN) issued its final rule on customer due diligence and beneficial ownership requirements (the “CDD Rule,” 31 CFR Parts 1010, 1020, 1023, et al.), promulgated under the Currency and Foreign Transactions Reporting Act of 1970, as amended by the USA PATRIOT Act of 2001 and other legislation, which legislative framework is commonly referred to as the ‘‘Bank Secrecy Act.” Notably, the Bank Secrecy Act lacks a requirement that financial institutions know the identity of the beneficial owners of their accounts – i.e., the individuals who control legal entity customers – which therefore allow a shield of anonymity for the beneficial owners. To address this perceived weakness and the limit the money laundering that it enabled, FinCEN issued the CDD Rule on May 11, 2016, and it became effective on July 11, 2016; however, covered financial institutions—including federally regulated banks, federally insured credit unions, mutual funds, brokers and dealers in securities, futures commission merchants, and introducing brokers in commodities—had until May 11, 2018, to come into full compliance with the CDD Rule. Continue reading ›