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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 →

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

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.

 

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In the September 2018 edition of the National Association of Minority and Women Owned Law Firms (“NAMWOLF”) Newsletter, Jacklyn Fetbroyt,  Member of KHF, 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 →

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In the September 6, 2018 edition of The Legal Intelligencer, Edward Kang, Managing Member of KHF, and Tianna Kalogerakis, Associate of KHF, 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.

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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.

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In the June 21, 2018 edition of The Legal Intelligencer, Edward Kang, Managing Member of KHF,  and Kandis Kovalsky, Associate of KHF, 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.

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