Kang Haggerty News

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.

JFRE Hosts Mayor Kenney

April 12, 2018 | Kang Haggerty LLC

Image from Hines, Owner & Developer

On Wednesday, March 14, 2018, the Jewish Federation of Greater Philadelphia’s Real Estate affinity group (JFRE) hosted Mayor Kenney and Seth Shapiro, COO of The Goldenberg Group and Chairman of the Board of Philadelphia Gas Works, to discuss the City of Philadelphia’s 2019 fiscal Budget and its impacts on the City’s businesses and real estate industry. The event took place at the brand new luxury apartment building located at 1213 Walnut Street. Shapiro and Kenney discussed the following:

Improving educational outcomes and workforce readiness
Improving the Philadelphia school system and increasing wages
Increasing Philadelphia property taxes
Increasing Philadelphia’s realty transfer tax

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.

Change in Municipal Land Use Law in New Jersey

February 20, 2018 | Kang Haggerty LLC

On February 20, 2018 Kang Haggerty 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.

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.

Kovalsky Appointed to Federal Court Committee and State Civil Litigation Section Liaison Roles

January 18, 2018 | Kang Haggerty LLC

Kang Haggerty Associate Kandis Kovalsky was recently appointed to two Young Lawyer Division (YLD) leadership positions within the Pennsylvania Bar Association (PBA) and the Philadelphia Bar Association. She will serve as the liaison between the Federal Courts Committee and the YLD of the Philadelphia Bar, and as liaison between the YLD and State Civil Litigation sections of the PBA.
In her capacity as liaison to these committees, Kovalsky will attend governing counsels, participate in events, and interact with leadership of these committees within the statewide and city bar associations. She is expected to serve in an important two-way communications role in keeping young lawyers informed of important work in the Federal Courts and statewide civil litigation issues, and providing the committee with insight as to concerns of young attorneys in Philadelphia and Pennsylvania.

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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.

Kandis Kovalsky Joins Kang Haggerty

December 4, 2017 | Kang Haggerty LLC

Philadelphia, PA (December 4, 2017): Kang Haggerty LLC, a business litigation boutique with offices in Philadelphia, PA and Cherry Hill, NJ, is pleased to announce that Kandis L. Kovalsky has joined the firm as an associate.

Kandis earned her J.D. from the Washington University in St. Louis School of Law. She graduated with a B.A. from the University of Delaware. Prior to joining Kang Haggerty, she was an associate at Weir & Partners in Philadelphia.

A native of Newtown Square, PA, Kandis is an accomplished business lawyer representing both corporate and individual clients in a broad range of complex commercial litigation matters. She is admitted to the practice of law in Pennsylvania and New Jersey.

Legal Intelligencer: What Rights Do I Have as a Limited Partner Against a General Partner?

November 15, 2017 | Edward T. Kang

ETK-full-body-200x300-1 In the November 9, 2017 edition of The Legal Intelligencer, Edward T. Kang, managing member of the firm, writes on limited partnerships and the rights afforded to the limited partners when the general partner deviates from its duty of care.

Limited partnerships offer an attractive option over the general partnership form–namely, the benefits of a partnership arrangement, but with limited liability like that enjoyed by the owners of a corporation or limited liability company. With that limited liability, however, also comes limited input into the management and operation of the company. The general partner(s) manage the company, while limited partners typically have no right to manage or otherwise direct the affairs of the partnership. That means, absent a specific agreement between the partners and the partnership, a limited partner is treated like a shareholder of a public corporation–that is, a limited partner’s right is limited to voting and distribution and must trust that the general partner will manage and operate the partnership in the best interest of the partnership.

But what rights do limited partners have, especially when the general partner deviates from its duty of care or duty of loyalty owed to the partnership? Does a limited partner have the right to bring a direct action against another partner or the partnership itself? In a corporation setting, typically, a corporate officer/director owes fiduciary duties not to shareholders/owners, but to the entity itself. And if a dispute occurs with officers or directors, a shareholder must usually file a derivative action on behalf of the company to address a breach of fiduciary duty by its officers and directors.

Legal Intelligencer: Could Lawyers Be Held Liable to Nonclients for Negligence in Pa.?

November 6, 2017 | Edward T. Kang

ETK-2017-Head-Shot-200x300-1 In the November 2, 2017 edition of The Legal Intelligencer, Edward T. Kang, managing member of the firm, writes on the liability attorneys face in regards to nonclients.

In Pennsylvania, traditionally, if lawyers or other professionals, such as accountants, performed their professional duties negligently, they could only be held liable to those with whom they were in direct contractual privity—in other words, their clients. Others who may have suffered damage because of that negligence—for example, a party to a transaction relying on the other party’s lawyer’s faulty opinion letter, or a bank relying on an opinion letter prepared by a borrower’s lawyer while extending credit to the borrower—would be without a claim in tort.

In much of the country, however, courts will extend the liability of professionals to cover nonclient third parties injured by the negligence of professionals in certain situations. This liability is typically found under a theory of negligent misrepresentation, adopted from Section 522 of the Restatement (Second) of Torts. Section 522(1) provides: “One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.”

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