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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 →

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Emoji overload? Billions of emojis are sent each day by family, friends, colleagues, co-workers and companies. With nearly 3,000 emojis in the Unicode Standard, it is difficult to stay fluent in emoji, which some experts have described as “the birth of a new language.” Edward T. Kang, Managing Member of Kang Haggerty & Fetbroyt LLC (“KHF”) and Kandis L. Kovalsky, Associate at KHF are working to shed light on the significance of emojis in business and in law.

At the end of September, Edward, Kandis and Jacklyn Fetbroyt, Member of KHF, joined hundreds of other lawyers at the 2018 Annual Meeting of the National Association of Minority and Women Owned Law Firms (“NAMWOLF”) to promote diversity in the legal profession through meetings, sessions and CLEs.  KHF presented a hit CLE to a full room titled “Emojis Speaking Louder Than Words? The Import of Emojis, Emoticons and Hashtags as Evidence at Trial and Beyond #😊.” Joined by five other panelists and a moderator, Edward discussed evidentiary and ethical issues involving emojis, social media and technology and why lawyers should care about emojis and hashtags.

By explaining how emojis can be used as critical evidence at trial, Edward and the other panelists helped practicing lawyers from all over the country understand that emojis are in more than a millennial’s social media feed. Emojis have found their way into courts through a variety of suits. Continue reading →

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

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 →

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In the November 29, 2018 edition of The Legal Intelligencer Edward Kang, Managing Member of KHF and Kandis Kovalsky, Associate of KHF, 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 →

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

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 →