Edward T. Kang Archives — Page 8 of 11

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.

Legal Intelligencer: Borrowing Statute: NY’s Bar to the Unsuspecting, Out-of-State Investor

September 7, 2018 | Edward T. Kang

In the September 6, 2018 edition of The Legal Intelligencer, Edward Kang, Managing Member of Kang Haggerty, and Tianna Kalogerakis, Associate of Kang Haggerty, co-authored “Borrowing Statute: NY’s Bar to the Unsuspecting, Out-of-State Investor.”

Despite the plaintiff-friendly pleading standards for securities fraud outlined by the Supreme Court in Merck & Co. v. Reynolds, 130 S. Ct. 1784 (2010), out-of-state investors need to be particularly vigilant in pursuing fraud-related common law claims in New York, being careful not to become blocked by the borrowing statute.

New York City is home to the world’s largest stock exchange, the New York Stock Exchange, and is host to financial service providers. This concentration of wealth and financial expertise has enticed many out-of-state investors to place their money in securities with New York-based financial institutions in the prospect of riches; however, coupled with the influx of these out-of-state investments is the potential for legal action by each dissatisfied or defrauded investor. New York developed the “borrowing statute” to protect its residents and deter actions by nonresidents including out-of-state investors in securities and commodities. Despite the plaintiff-friendly pleading standards for securities fraud outlined by the Supreme Court in Merck & Co. v. Reynolds, 130 S. Ct. 1784 (2010), out-of-state investors need to be particularly vigilant in pursuing fraud-related common law claims in New York, being careful not to become blocked by the borrowing statute.

Legal Intelligencer: Should an Arbitrator Determine Arbitrability Where a Claim Is ‘Wholly Groundless’?

July 26, 2018 | Edward T. Kang and Kandis Kovalsky

In the July 26, 2018 edition of The Legal Intelligencer, Edward Kang, Managing Member of Kang Haggerty, and Kandis Kovalsky, Associate of Kang Haggerty, co-authored “Should an Arbitrator Determine Arbitrability Where a Claim Is ‘Wholly Groundless’?”

While arbitration clauses are often a topic of concern in the consumer context, they can also be a major issue in sophisticated party transactions as well—the agreements where the arbitration clause is the least of everyone’s worries.

While arbitration clauses are often a topic of concern in the consumer context, they can also be a major issue in sophisticated party transactions as well—the agreements where the arbitration clause is the least of everyone’s worries. In these transactions, whether they be in the employment context or otherwise, arbitration clauses are often treated as a throwaway for which a simple copy-and-paste will do. At that forward-looking time, arbitration seems like a sensible method of dispute resolution between two like-minded people, and it is given little emphasis. When the relationships break down later, as they often do, arbitration clauses become a major issue. Too often, one side wants to be in court while the other does not. They argue whether their dispute is subject to arbitration.

Legal Intelligencer: Self-Authentication of ESI Under Federal Rule of Evidence 902

June 27, 2018 | Edward T. Kang and Kandis Kovalsky

In the June 21, 2018 edition of The Legal Intelligencer, Edward Kang, Managing Member of Kang Haggerty, and Kandis Kovalsky, Associate of Kang Haggerty, co-authored “Self-Authentication of ESI Under Federal Rule of Evidence 902.”

In a recent annual Federal Bench Bar Conference in Philadelphia, a U.S. District Court judge warned of the perils of allowing clients to perform their own data and document collection.

In a recent annual Federal Bench Bar Conference in Philadelphia, a U.S. District Court judge warned of the perils of allowing clients to perform their own data and document collection. As the judge wisely pointed out, this can be problematic as the lawyers owe a duty to the court to represent truthfully and accurately. If, for example, a client performed the data collection without proper supervision, the lawyer could not accurately represent that all responsive documents have been collected and produced. The 2015 amendments to Federal Rule of Civil Procedure 37 provide dire consequences for failing to preserve electronically stored information (ESI), including monetary sanctions, dismissal of a claim, judgment in favor of the prejudiced party, suppression of evidence and adverse inference instructions. The recent changes to Federal Rule of Evidence 902, which addresses self-authenticating evidence, and is routinely relied on by civil trial lawyers, raises additional concerns with clients performing their own data collection.

Self-authenticating evidence under Rule 902 is evidence that requires no extrinsic evidence to prove that it is what it purports to be. Common examples of self-authenticating evidence include newspapers, periodicals, signed and sealed public documents, and official publications. While the amendments to Rule 902 were created to address the unnecessary expense and inconvenience associated with having live testimony from multiple witnesses solely to authenticate electronic evidence, they also provide guidance on ESI collection and resolving authentication issues relating to ESI before trial.

Legal Intelligencer: Key Points in Negotiating and Preparing Settlement Agreements and Releases

May 17, 2018 | Edward T. Kang

In the May 17, 2018 edition of The Legal Intelligencer, Edward Kang, Managing Member of Kang Haggerty, writes Key Points in Negotiating and Preparing Settlement Agreements and Releases.

With fewer and fewer cases going to trial, lawyers must be competent in settling claims and preparing settlement documents that accurately capture the terms of the settlement.

With fewer and fewer cases going to trial, lawyers must be competent in settling claims and preparing settlement documents that accurately capture the terms of the settlement. While settlements often bring a sigh of relief from lawyers and their clients, getting from the point of settlement to execution and payment—this article is written from mostly the plaintiff’s perspective—can take months, and sometimes requires court-intervention. This usually happens, as stated in more detail below, when one side wants to renegotiate the material terms of a settlement agreement; and the main reason for seeking to renegotiate is often the other side was not adequately prepared going into and during settlement negotiations. This is particularly true in complicated cases involving multiple parties and claims.

Most litigators, if not all, have negotiated settlements and prepared many settlement documents. And there are many articles written about the “dos and don’ts” of negotiating a settlement or preparing a settlement document. This article focuses on a few additional points for practitioners to consider when negotiating a settlement or preparing a settlement document. Continue reading ›

Legal Intelligencer: Court Provides Guidance on the Authentication of Social Media Posts, Or Does It?

April 13, 2018 | Edward T. Kang

In the April 12, 2018 edition of The Legal Intelligencer, Edward Kang, Managing Member of Kang Haggerty, writes Court Provides Guidance on the Authentication of Social Media Posts, Or Does It?

Facebook has been making headlines lately over claims it shared personal data on more than 87 million people to the political data firm, Cambridge Analytica for use in the 2016 presidential election. In the midst of the Cambridge Analytica chaos, the Pennsylvania Superior Court provided long-overdue guidance on the authentication of posts from Facebook and other social media platforms.

Facebook has been making headlines lately over claims it shared personal data on more than 87 million people to the political data firm, Cambridge Analytica for use in the 2016 presidential election. In the midst of the Cambridge Analytica chaos, the Pennsylvania Superior Court provided long-overdue guidance on the authentication of posts from Facebook and other social media platforms. In the criminal case of Commonwealth v. Mangel, 2018 PA Super 57 (Mar. 15, 2018), a case of first impression in Pennsylvania, the Superior Court held that Facebook posts are not admissible without evidence, whether direct or circumstantial, substantiating the authorship of the messages, see Daniel E. Cummins, “Authentication in the Digital Age: In Recent Cases, Old and New Collide,” The Legal Intelligencer, April 5, 2018, and Zack Needles’ “Superior Court Adopts Standard for Authenticating Social Media Posts,” The Legal Intelligencer, March 21, 2018, for excellent discussions on the Mangel case.

Legal Intelligencer: The Forgotten and Often Misunderstood Sections of RICO

March 22, 2018 | Edward T. Kang

My last article, dated Jan. 25, visited the RICO pleadings requirement in light of the class action RICO lawsuit filed against Harvey Weinstein. The Weinstein RICO action is brought under the most popular section—Section 1962(c). In the article, I discussed the stringent requirements of pleading and proving civil RICO claims and outlined some of the obstacles for plaintiffs.

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The complexity with RICO (the Racketeer Influenced and Corrupt Organizations Act), however, does not end there. Almost all RICO lawsuits filed are brought under Section 1962(c) (note: violation under Section 1962(d) relating to conspiracy to violate a substantive section is routinely asserted whenever there is a violation of a substantive section). But, what about Sections (a) and (b)? Why are these sections rarely used? Is it because these sections are generally inapplicable? While the specificity of Sections 1962(a) and (b) compared to the breadth of Section 1962(c) is a reason these sections are not commonly used, it is also because they are more difficult to understand, and often misunderstood. In effect, these sections have become virtually forgotten. While many lawyers have an understanding—ranging from basic to advance—of Section (c), far fewer understand (a) and (b).

Pleading and Proving a RICO Violation Under Section 1962(a)— Investment of Income

Section 1962(a) is primarily concerned with money laundering activity. This section makes it unlawful for “any person who has received any income derived … from a pattern of racketeering activity … to use or invest … any part of such income … in acquisition of an interest in … any enterprise ….” Here, the RICO enterprise is the “prize” of the racketeers whereas the RICO enterprise is the “instrument” of the racketeers under Section 1962(c).

Section 1962(a) prohibits investing any income derived from a pattern of racketeering activity to acquire any interest in an enterprise. The section prohibits a person from using “dirty money,” for instance, to buy a membership interest in a legitimate business. As stated above, money laundering is typically the most common goal of the racketeers under this section. By investing dirty money into a legitimate business and, in turn, using the business to write checks to themselves (or affiliates), the racketeers complete the money laundering cycle.

Legal Intelligencer: How RICO Plays a Role in the World of Harvey Weinstein and #MeToo

January 25, 2018 | Edward T. Kang

In the January 25, 2018 edition of The Legal Intelligencer, Edward Kang, Managing Member of Kang Haggerty, writes on How RICO Plays a Role in the World of Harvey Weinstein and #MeToo.

Overcoming Obstacles

Who in civil litigation does not love a good RICO claim? Its boundaries are seemingly endless, and in the case of Harvey Weinstein—perhaps one of the most vilified defendants on the planet right now—there is the possibility of catastrophic implications, as if being the face of an entire movement (#MeToo) is not bad enough.

Civil claims under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Sections 1961-1968 (RICO Act), are highly desirable for plaintiffs and their attorneys because, if successful, they provide for treble damages, plus attorney fees and costs of litigation. Very few plaintiffs succeed on a RICO claim, however, so the decision to file one should not be made lightly. Many plaintiffs fail during the pleadings stage, and their claims are dismissed under Rule 12(b)(6). For defendants, like Weinstein, the possible implications of RICO can be disastrous. This potential implication is why defendants of civil RICO claims are eager to settle if the claim survives a motion to dismiss and shows a strong likelihood of surviving a motion for summary judgment. For example, in 2016, Trump University did just that—it settled a civil RICO suit for $25 million, which paled compared to its potential exposure of $170 million.

Background

The RICO Act was passed in 1970 as part of the Organized Crime Control Act of 1970 to combat large organized crime operations led by the American Mafia and their growing infiltration of legitimate businesses and organizations. Although the RICO Act was drafted to bring down gangsters, it is certainly not limited to that purpose and has evolved into a mechanism to confront business fraud and corruption over the last half-century. This is evidenced by the recent high-profile civil RICO lawsuit filed against Harvey Weinstein.

Legal Intelligencer: A Primer on International Chamber of Commerce Arbitration for Litigators

January 5, 2018 | Edward T. Kang

In the January 5, 2018 edition of The Legal Intelligencer, Edward Kang, Managing Member of Kang Haggerty, writes A Primer on International Chamber of Commerce Arbitration for Litigators.

Arbitration, whether compulsory or voluntary, is commonplace these days as a less expensive and more efficient resolution to litigation than trial. Litigators in Pennsylvania are familiar with the Court of Common Pleas Compulsory Arbitration Program for cases with an amount in controversy of $50,000 or less. For cases with a larger amount in controversy, parties will often agree to arbitrate with a company offering a private arbitrator, such as AAA, JAMS and ADR Options.

In cases involving international disputes, the arbitration venues commonly found in contract include, the London Court of International Arbitration (LCIA), Hong Kong International Arbitration Centre (HKIAC), Swiss Chamber’s Arbitration Institution (SCAI), Singapore International Arbitration Centre (SIAC), German Institution of Arbitration (DIS), Stockholm Chamber of Commerce (SCC), Vienna International Arbitration Center (VIAC), International Centre for Settlement of Investment Disputes (ICSID), and the International Court of Arbitration for the International Chamber of Commerce (ICC).

The number of international arbitrations has been increasing due largely to the growing number of courts in foreign countries recognizing and enforcing foreign arbitral awards. An ICC arbitral award, for instance, can now be enforced in China, where its courts refused to recognize and enforce foreign arbitral awards against its citizens on many occasions. It is becoming increasingly likely for practitioners to face a dispute over a contract providing for arbitration before one of these international forums. This is true even with smaller cases involving an amount in controversy under $50,000.