Edward T. Kang Archives — Page 7 of 11

Legal Intelligencer: A Piece of the Tort(e): Tortious Interference With Expectancy of Inheritance

October 17, 2019 | Edward T. Kang

In the October 17, 2019 edition of The Legal Intelligencer Edward T. Kang, managing member of Kang Haggerty wrote “A Piece of the Tort(e): Tortious Interference With Expectancy of Inheritance.”

While recently gaining traction in both the public eye and the legal field, the claim of tortious interference with expectancy of inheritance is actually quite old and its interpretations vary among different jurisdictions, including in Pennsylvania.

Recently, a potential client came to me with the claim that his sibling was guilty of tortious interference with expectancy of inheritance. Although I decided not to take on the client for several reasons, his correspondence brought to my attention a twist in the traditional tortious interference claim. While recently gaining traction in both the public eye and the legal field, the claim of tortious interference with expectancy of inheritance is actually quite old and its interpretations vary among different jurisdictions, including in Pennsylvania. Continue reading ›

Legal Intelligencer: ‘T.M. v. Janssen Pharmaceuticals’—Lessons on Standards of Evidence

September 6, 2019 | Edward T. Kang

In the September 5, 2019 edition of The Legal Intelligencer, Edward T. Kang, Managing Member of Kang Haggerty wrote “‘T.M. v. Janssen Pharmaceuticals’ – Lessons on Standards of Evidence.”

The value of the reinstatement of T.M. v. Janssen for lawyers is that it clarifies laws about evidence, how courts determine evidence’s reliability, and general lessons on procedural law.

Last month, the Pennsylvania Superior Court reinstated a case concerning the drug Risperdal, which had initially been dismissed mid-trial in 2016. Johnson & Johnson subsidiary Janssen Pharmaceutical’s drug, Risperdal, is currently the subject of thousands of suits alleging that the drug directly caused gynecomastia in many young men.

Legal Intelligencer: Piercing the Corporate Veil Under Pennsylvania Law

June 26, 2019 | Edward T. Kang

In the June 20, 2019 edition of The Legal Intelligencer, Edward Kang, Managing Member of Kang Haggerty wrote “Piercing the Corporate Veil Under Pennsylvania Law.”

In its simplest form, the piercing of the corporate veil is an equitable remedy available to the creditors of corporate entities to request the court to hold their owners liable for the corporate debts. The underlying cause of action against the corporate entity could be a contract or tort action, none of which is attributable to its owners. For the creditors, the veil-piercing is desirable as their last resort to recover their damages while for the owners, it is detrimental as it exposes them to the type of liability that they wished to exonerate themselves from by forming a company in the first place. These two competing interests drive the forces behind the state laws on substantive elements and procedural requirements for veil-piercing: the more favorable the state policy is toward preserving limited liability, the harder it is under the state law for the court to disregard corporate entity, and the other way around. Pennsylvania law adopted a “strong presumption” against veil-piercing, see Stephen B. Presser, “Section 2:42.Pennsylvania, in Piercing the Corporate Veil,” (last updated July 2018).

Substantive Elements

Pennsylvania state and federal courts applying Pennsylvania law has long listed a vast set of factors that the court may consider in its decision to disregard the corporate shield, including, among others, using the corporate form as a sham to pursue fraudulent or illegal activities or to cause injustice, ignoring corporate formalities, undercapitalizing the company and exerting control to influence the corporate decisions and actions for personal interests. Continue reading ›

Legal Intelligencer: Do Directors of a Board Have Access to the Company’s Privileged Materials?

May 16, 2019 | Edward T. Kang

What happens when a dispute is between or among directors of the same company? Can the company use the attorney-client privilege to shield corporate materials, including any attorney-client privileged materials against a director?

Legal Intelligencer: Attorney-Client Privilege and Abuse of Privilege

April 15, 2019 | Edward T. Kang

In the April 11, 2019 edition of The Legal Intelligencer, Edward Kang, Managing Member of Kang Haggerty wrote “Attorney-Client Privilege and Abuse of Privilege.”

The attorney-client privilege, the oldest evidentiary privilege known to the common law, is an exception to one of the main policies behind the paramount rule of evidence that relevant evidence is admissible at trial. In this regard, the attorney-client privilege is an obstruction to the search for the truth. The privilege protects confidential attorney-client communications made for the purposes of obtaining legal advice. While many attorney-client communications are confidential, they are not privileged unless they were made for obtaining legal advice. The attorney-client privilege is designed to facilitate free attorney-client communications without the fear of unwanted disclosure so that clients can receive competent legal advice from their lawyers. 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 ›

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 ›