Edward T. Kang Archives — Page 8 of 11

Legal Intelligencer: Attorney-Client Privilege and Abuse of Privilege

April 15, 2019 | Edward T. Kang

In the April 11, 2019 edition of The Legal Intelligencer, Edward Kang, Managing Member of Kang Haggerty 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 ›

Edward Kang writes on finding a Niche Defending against Business Betrayals for the ABA’s Law Practice Today

March 15, 2019 | Kang Haggerty LLC

“As part of my business divorce practice, I often represent one owner against other owners. People who may have once been close friends or family members now turn into ugly, bitter enemies. What started as a company with shared goals and vision has dissipated into a pool of litigation,” writes Kang Haggerty managing member Edward T. Kang in the March 2019 edition of the American Bar Association’s Law Practice Today (LPT) webzine. In Finding a Niche Defending against Business Betrayals, Kang discusses his firm’s niche practice representing Officers and Directors in these often-complicated business disputes. Continue reading ›

Legal Intelligencer: IT Security and Policy: Why All Lawyers Must Care About It

March 15, 2019 | Edward T. Kang

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

Legal Intelligencer: US Supreme Court Settles the ‘Wholly Groundless’ Exception. Or Has It?

January 24, 2019 | Edward T. Kang

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

Legal Intelligencer: Defending Officers and Directors From a Lawsuit by the Company

January 7, 2019 | Edward T. Kang

In the January 3, 2019 edition of The Legal Intelligencer, Edward Kang, Managing Member of Kang Haggerty 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 ›

Have the Courts Made Room for Inevitability Under the Defend Trade Secrets Act?

November 29, 2018 | Edward T. Kang and Kandis Kovalsky

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

Legal Intelligencer: When Noncompete Agreements Involve Competing Laws

November 8, 2018 | Edward T. Kang and Kandis Kovalsky

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

These days, it is common for companies headquartered or principally located in one city and state to have multiple offices and employees throughout many cities and states in the country, and even the world. Companies in this position will often require their employees to sign contracts with both forum selection clauses and choice of law provisions. The forum selected is usually where the company is headquartered or principally located. Likewise, the choice of law provision often calls for application of the laws of the forum state. Companies have a strong interest in uniformity and predictability when it comes to legal disputes. Litigating matters in different courts throughout the country under different laws is not something that is desirable or productive.

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 ›

Legal Intelligencer: Why Lawyers Should Care About Emojis

October 18, 2018 | Edward T. Kang and Kandis Kovalsky

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

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.

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.

Legal Intelligencer: Borrowing Statute: NY’s Bar to the Unsuspecting, Out-of-State Investor

September 7, 2018 | Edward T. Kang

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

Legal Intelligencer: Should an Arbitrator Determine Arbitrability Where a Claim Is ‘Wholly Groundless’?

July 26, 2018 | Edward T. Kang and Kandis Kovalsky

In the July 26, 2018 edition of The Legal Intelligencer, Edward Kang, Managing Member of Kang Haggerty, and Kandis Kovalsky, Associate of Kang Haggerty, co-authored “Should an Arbitrator Determine Arbitrability Where a Claim Is ‘Wholly Groundless’?”

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.

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.