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In the September 5, 2019 edition of The Legal Intelligencer, Edward T. Kang, Managing Member of KHF 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.

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In the June 20, 2019 edition of The Legal Intelligencer, Edward Kang, Managing Member of KHF 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 →

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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?

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Tianna Kalogerakis, Associate at KHF

It takes time for a new attorney to gain the experience necessary to be competent on specific areas of law.  Once new attorneys gain that experience, often they are the least senior voice on a given topic and public speaking opportunities are afforded to more tenured attorneys with expertise.

A lack of expertise on a subject matter does not however, preclude newer attorneys from participating in public speaking events.  Namely, newer or junior attorneys need not be experts to competently moderate a panel discussion or publicly interview an expert on a given subject area, and these opportunities can raise the profile of a newer attorney.  These opportunities are of particular significance for minorities who are often underrepresented in the legal profession.  Seasoned attorneys who are mentors or sponsors to junior attorneys should seek to “place” their mentees in these moderator or interviewer roles to increase a group’s recognition of the new attorney as these roles often are accompanied by promotional materials or articles summarizing the event and can be featured on the junior associate’s profile.

I have twice had the opportunity to moderate panel discussions; once as a member of the Temple Law Alumni Women’s Leadership Initiative, and a second time at the 2019 Philly SHRM Symposium.  Both times, these opportunities were presented to me through my longtime sponsor and friend Sheryl Axelrod, Esquire who is a diversity expert. Continue reading →

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In the April 11, 2019 edition of The Legal Intelligencer, Edward Kang, Managing Member of KHF 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 →

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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 →

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In the March 21, 2019 edition of The Legal Intelligencer, Edward Kang, Managing Member of KHF 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

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32891617344_251b416fd3_o-1024x512Social media continues to grow as the powerhouse of information flow in modern times, and while it often seems no one is policing the content and fact and fiction are often indistinguishable, the SEC is policing the statements of at least one social media influencer, Elon Musk.  After Musk tweeted in August of 2018 that he had secured financing to take Tesla private at $420 per share, the SEC filed a complaint alleging that his tweets comprised a series of “false and misleading statements” to his millions of followers. The resulting court-approved settlement, reached in October, stipulated that Musk had to seek pre-approval of any written communications – including social media posts – that contained or reasonably could contain information material to Tesla or its shareholders.  In connection with the settlement, Tesla and Musk were each required to pay $20 million to the SEC.

Just days ago, Musk was back under scrutiny, having tweeted, “Tesla made 0 cars in 2011, but will make around 500k in 2019” without pre-approval from his counsel and for that, the SEC filed an enforcement motion seeking to have Musk held in contempt.  Continue reading →

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In the January 24, 2019 edition of The Legal Intelligencer, Edward Kang, Managing Member of KHF 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.”

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In the January 3, 2019 edition of The Legal Intelligencer, Edward Kang, Managing Member of KHF 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 →