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 →
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 →
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 →
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 →
On February 20, 2018 Kang Haggerty and Fetbroyt LLC published a memorandum on the New Municipal Land Use Law.
On January 15, 2018, New Jersey Governor Chris Christie signed into law Senate Bill No. 3233, effective immediately, which reforms requirements under N.J.S.A. 40:55D-1 et seq., also referred to as the Municipal Land Use Law (MLUL). The amendments under the MLUL modify the requirements for performance and maintenance guarantees required for developers. Under the new, more developer-friendly law, “the developer shall furnish a performance guarantee in favor of the municipality in an amount not to exceed 120% of the cost of installation of only those improvements required by an approval or developer’s agreement, ordinance, or regulation to be dedicated to a public entity, and that have not yet been installed.”
In the past, the municipality had expansive authority to require performance guarantees for improvements deemed “necessary or appropriate.” N.J.S.A. 40:55D-53. Additionally, the list of improvements subject to performance guarantees from developers (and in favor of the municipality) are now limited to the following: streets, pavement, gutters, curbs, sidewalks, street lighting, street trees, surveyor’s monuments, water mains, community septic systems, drainage structures, public improvements of open space, and any grading necessitated by the preceding improvements.
What is a bulk sale clearance certificate, and how is a bulk sale clearance certificate related to a Pennsylvania real estate transaction? In Pennsylvania, a bulk sale clearance certificate must be obtained in all transactions involving the sale of fifty-one or more percent of the assets of a business, including real estate. Because it is common for property owners to create single purpose entities to own the real estate, bulk sale clearance certificates are required in many real estate transactions, since the real estate represents the sole asset (i.e., 100%) of the assets owned by such SPE. A bulk sale clearance certificate from the Pennsylvania Department of Revenue verifies that a particular entity satisfied all tax obligations due to the Commonwealth of Pennsylvania, including taxes, interest, penalties, fees, charges and any other liabilities up to and including the date of transfer.
Moreover, under 69 P.S. § 529, every corporation, joint-stock association, limited partnership or company organized under the Commonwealth of Pennsylvania or any other state that engages in business in the Commonwealth of Pennsylvania which sells in bulk fifty-one percent or more of any stock of goods, wares or merchandise of any kind, fixtures, machinery, equipment, buildings, or real estate, shall give the Department of Revenue ten days’ notice of the sale, prior to the completion of the transfer of such property.
To provide proper notice and comport with Pennsylvania law, the seller must file form REV-181, the Application for Tax Clearance Certificate, with the Pennsylvania Department of Revenue and the Pennsylvania Department of Labor and Industry ten days before the closing of the sale. A copy of the agreement of sale and preliminary settlement statement should be included with the Application for Tax Clearance Certificate. (Note, however, that the Department of Revenue often requests re-submission post-closing so that all closing information and interim tax returns through the date of closing may be submitted). In addition, all such entities must file all state tax reports with the Department of Revenue to the date of the proposed closing on the transfer of property and pay all taxes and unemployment compensation contributions due to the Commonwealth of Pennsylvania through the date of closing. If all state tax reports have been filed and if all state taxes and unemployment compensation contributions are paid up to the date of the proposed transfer, the State issues a clearance certificate to the seller, which is then provided to the buyer.
On September 1, 2017, a federal court issued an order permitting a putative class action lawsuit against Craft Brew Alliance, the owner of the Kona Brewing Company beer brand, to move forward. The lawsuit, Broomfield v. Craft Brew Alliance, No. 17-cv-01027-BLF (N.D. Cal. Filed Feb. 28, 2017), alleges that Craft Brew Alliance engaged in unfair and deceptive trade practices by packaging beer sold under the Kona Brewing Company name in a manner that led the plaintiffs to believe they were purchasing beer brewed in Hawaii, when in actuality, the beer was brewed in the continental United States. Broomfield v. Craft Brew Alliance, 2017 WL 383843 (N.D. Cal. 2017). Specifically, the plaintiffs allege that the outer packaging of six and twelve packs of Kona beer, which includes Hawaiian imagery, the statement “Liquid Aloha,” a map of Hawaii with the location of the Kona brewery marked, the address of Kona’s Hawaii brewery, and the statement “visit our brewery and pubs whenever you are in Hawaii” can lead a reasonable consumer to believe that the beer was brewed in Hawaii. Id. at *1. While the address listed on the packaging is the address for Kona’s brewery, only the draft Kona beer sold in Hawaii is brewed there—all bottled and canned Kona beer is brewed in Oregon, Washington, New Hampshire, and Tennessee. Id. The plaintiffs allege that they paid a premium for Kona beer believing it to be Hawaiian and brought claims for violations of California’s consumer protections laws, breach of warranties, fraud, and misrepresentation. Id. at *2.
Craft Beer Alliance filed a motion to dismiss the complaint arguing that the statements on the Kona packaging are at most “mere puffery” and that reasonable consumers cannot interpret the packaging to mean that the beer was brewed in Hawaii, as well as that the claims fail to state a sufficient claim upon which relief can be granted because the labels of the bottles and cans identify all five locations that Kona is brewed. Id. at *6. The court, however, found that the statements and imagery on the packaging, particularly the map of Hawaii identifying the Kona brewery, the Hawaii address of the brewery, and the invitation to visit the Hawaii brewery could possibly lead a reasonable consumer to believe that the beer was brewed in Hawaii. Id. at 7. The court also stated that the identification of all five breweries on the labels of the bottles and cans is insufficient to eliminate any potential confusion because consumers are not required to remove bottles and cans from their outer packaging to ascertain whether the representations on the packaging are misleading. Id. The court therefore denied Craft Beer Alliance’s motion to dismiss.
The court’s ruling differs from other recent rulings in lawsuits against the makers of Foster’s (Nelson v. MillerCoors, LLC, 2017 WL 1403343 (E.D.N.Y. 2017)), Red Stripe (Dumas v. Diageo PLC, 2016 WL 1367511 (S.D. Cal. 2016)), and Sapporo (Bowring v. Sapporo, 234 F.Supp.3d 386 (E.D.N.Y. 2017)), all of which dismissed similar putative class action claims because the labels identified that the beers were brewed in the United States, not in the foreign countries from which the plaintiffs contended they were lead to believe the beer was produced. The ruling, however, is not unprecedented. In Marty v. Anheuser-Busch Companies, LLC, 43 F.Supp.3d 1333 (S.D. Fla. 2014), a class action claim against the maker of Becks, Anheuser Busch, for marketing that allegedly deceived the plaintiffs into believing Becks was brewed in Germany, not the United States, was permitted to proceed despite the labels stating that the beer was brewed in the United States. Anheuser Busch eventually settled the lawsuit for $20 million.
In an opinion handed down on August 22nd of this year, the Pennsylvania Supreme Court held that, unlike other contracts formed under Pennsylvania law, limited partnership agreements formed under the pre-Act 170 version of the Pennsylvania Revised Uniform Limited Partnership Act, do not contain the implied covenant of good faith and fair dealing.
The Pennsylvania legislature amended the state’s Revised Uniform Limited Partnership Act in late 2016 as a provision of Act 170, which altered the formation and operation of corporations, limited liability companies, limited partnerships, and other business forms. As part of its revisions to the PRULPA, Act 170 provided that a limited partnership agreement could not change or do away with the contractual obligation of both limited and general partners to discharge their duties under the agreement in accordance with the contractual obligation of good faith and fair dealing.
The case, Hanaway v. The Parkesburg Group, LP, involved a dispute among members of a limited partnership (Parkesburg) that had been formed to invest in and develop several parcels of real estate. The plaintiffs, who were among Parkesburg’s limited partners, sued the corporation’s general partner, alleging that he sold Parkesburg’s assets to a new partnership he had formed, so that the new partnership could develop the real estate in question without the plaintiffs.
Restrictive covenants are contractual clauses that limit an employee’s post-employment activities for a specified length of time and geographic area. Their enforceability varies by state and by profession. For example, restrictive covenants are unenforceable in the legal profession but are enforceable in the medical profession. The American Medical Association, however, discourages restrictive covenants between physicians. Yet it deems them ethical unless they are excessive in geographic scope or duration, or fail to reasonably accommodate patients’ choice of physician.
The determination of whether a restrictive covenant is reasonable is a factual one that is assessed on a case-by-case basis: courts weigh the competing interests of the employee versus the employer, and typically the burden is on the employer to demonstrate that the restrictive covenant protects the employer’s interests without posing an undue hardship on the employee.
In Pennsylvania, restrictive covenants are enforceable if they are incident to an employment relationship between the parties, the restrictions imposed by the covenant are reasonably necessary for the protection of the employer, and the restrictions imposed are reasonably limited in duration and geographic extent. Hess v. Gebhard & Co. Inc., 808 A.2d 912 (Pa. 2002).