Legal Intelligencer Tag Archives — Page 4 of 8

Legal Intelligencer: Pa. Supreme Court to Review Veil-Piercing Appeal Based on Enterprise Theory

November 5, 2020 | Edward T. Kang

Org-Chart-1024x576 In June, the Pennsylvania Supreme Court granted an appeal that could radically alter existing state law on corporate liability based on the veil-piercing theory. The case, arising from a dram shop tort action, is poised to test Pennsylvania law’s “strong presumption” against piercing the corporate veil.

In the November 5, 2020 edition of The Legal Intelligencer Edward T. Kang, managing member of Kang Haggerty wrote “Pa. Supreme Court to Review Veil-Piercing Appeal Based on Enterprise Theory.”

In June, the Pennsylvania Supreme Court granted an appeal that could radically alter existing state law on corporate liability based on the veil-piercing theory. The case, arising from a dram shop tort action, is poised to test Pennsylvania law’s “strong presumption” against piercing the corporate veil. Hoping to recover damages from an affiliated corporation that was not a defendant at trial, the plaintiff in Mortimer v. McCool, was granted an appeal on the basis of the so-called “single business enterprise” or “single entity” theory. See Mortimer v. McCool, Nos. 20 MAL 2020, (Pa. June 22, 2020). Not currently adopted in Pennsylvania, the theory may be applied to allow a plaintiff to reach the assets of one or more affiliated corporations of the debtor when those “corporations share common ownership and are, in reality, operating as a corporate combine.” See Miners v. Alpine Equipment, 722 A.2d 691,695 (Pa. Super. 1998). Courts discussing or adopting the enterprise theory have found its rightful target to be corporate entities that have integrated business ownership and assets to achieve a common business purpose. Thus, in an important sense, by operating what is essentially a “single business enterprise” split into multiple affiliated entities (often purely for the sake of avoiding liability), owners of such enterprises open the door for the courts to impose shared liability. In the past, I have written about veil-piercing in Pennsylvania generally, as well as in specific regard to LLCs and the “alter ego” theory. This column addresses the implications of the Mortimer appeal and the “enterprise” theory for Pennsylvania corporate liability law.

Legal Intelligencer: Business-Interruption Claims in the COVID-19 Era: Litigators Find Hope

October 29, 2020 | Edward T. Kang

The courts have, in turn, opened their ears (and maybe their hearts, too) to the plight of American businesses that have suffered on a truly historic scale.

Drawing of business meeting, participants wearing masks
In the October 15, 2020 edition of The Legal Intelligencer Edward T. Kang, managing member of Kang Haggerty wrote “Business-Interruption Claims in the COVID-19 Era: Litigators Find Hope.”

While the coronavirus itself may be novel, business interruption insurance lawsuits are not. Accordingly, in the initial wave of lawsuits arising from the pandemic, both business owners and courts throughout the country seemed trapped in a fixed mindset about this new type of case. Reeling from loss and damage, business owners assumed that since their businesses had been interrupted by COVID-19, their claims had merit. Courts, meanwhile, reading insurance policies narrowly, dismissed claims related to the virus for lack of tangible alteration to business property. In recent months, however, litigators have embraced more creative arguments to persuade the courts to hear their cases. The courts have, in turn, opened their ears (and maybe their hearts, too) to the plight of American businesses that have suffered on a truly historic scale.

Legal Intelligencer: The Future of Business Contracts Post-COVID-19

July 6, 2020 | Edward T. Kang

While it is likely that businesses will think to add force majeure clauses to future contracts, there is also reason to believe the specific language of these clauses could be modified. Likewise, there are other changes to be expected in post-pandemic contracts.

In the July 2, 2020 edition of The Legal Intelligencer Edward T. Kang, managing member of Kang Haggerty wrote “The Future of Business Contracts Post-COVID-19.”

Recently, I authored a column on force majeure clauses. In that space, I explained how many businesses have recently been turning to force majeure clauses in their contracts for protection in light of the COVID-19 pandemic. While it is likely that businesses will think to add force majeure clauses to future contracts, there is also reason to believe the specific language of these clauses could be modified. Likewise, there are other changes to be expected in post-pandemic contracts.

Legal Intelligencer: Piercing the Corporate Veil of Corporate Groups to Establish Alter Ego Jurisdiction

June 24, 2020 | Edward T. Kang

When nonresident members of a corporate group, usually the parent company, should expect to be subjected to the jurisdiction of Pennsylvania courts when one of the entities, usually the subsidiary, is based or does business in the state.

In the June 18, 2020 edition of The Legal Intelligencer Edward T. Kang, managing member of Kang Haggerty wrote “Piercing the Corporate Veil of Corporate Groups to Establish Alter Ego Jurisdiction.”

Last June, in this space, I authored a column about Pennsylvania law on substantive and procedural aspects of piercing the corporate veil of companies to reach the assets of their shareholders or the assets of a parent company in corporate groups. In early January 2020, I wrote a column about the development of Pennsylvania law on establishing personal jurisdiction over registered nonresident businesses since the Supreme Court’s decisions in. In this case, I address the intersection of those two related columns in cases involving corporate groups. That is, when nonresident members of a corporate group, usually the parent company, should expect to be subjected to the jurisdiction of Pennsylvania courts when one of the entities, usually the subsidiary, is based or does business in the state.

Legal Intelligencer: Force Majeure During a Pandemic and Potential Contractual Disputes

May 15, 2020 | Edward T. Kang

Many businesses have now turned to the force majeure clauses present in their contracts—invoking the idea that the COVID-19 pandemic is an unforeseeable “act of God” that has hindered the ability of parties to perform their duties as agreed.

In the May 14, 2020 edition of The Legal Intelligencer Edward T. Kang, managing member of Kang Haggerty wrote “Force Majeure During a Pandemic and Potential Contractual Disputes”

In light of the ongoing COVID-19 pandemic, businesses and individuals alike have struggled with following through on contracts that were agreed upon long before the novel coronavirus was even discovered, let alone foreseen as the cause of a worldwide health crisis. Many have now turned to the force majeure clauses present in their contracts—invoking the idea that the COVID-19 pandemic is an unforeseeable “act of God” that has hindered the ability of parties to perform their duties as agreed. For those who do not have such clauses present in their contracts, can the same concept be invoked in a court of law?

Legal Intelligencer: When to Hire Outside Lawyers to Conduct an Internal Investigation: Revisited

April 9, 2020 | Edward T. Kang

Magnifying glass
In the April 9, 2020 edition of The Legal Intelligencer Edward T. Kang, managing member of Kang Haggerty wrote “When to Hire Outside Lawyers to Conduct an Internal Investigation: Revisited”

In early November 2019, I wrote an article about the high-profile women who had called on Comcast to conduct an internal investigation regarding the alleged widespread culture of sexual harassment within the company. I discussed this issue and the rising calls for internal investigations within many industries and companies and their importance.

Since that article was published, Comcast has not been able to leave the spotlight on this issue. If anything, the calls for an internal investigation have only grown stronger. For example, four Democratic presidential candidates (Cory Booker, Kamala Harris, Bernie Sanders and Elizabeth Warren) called on the Democratic National Committee to make a formal demand on Comcast to perform an investigation regarding sexual misconduct before the November debate which was hosted by Comcast-owed MSNBC. Also, in November, Comcast went before the U.S. Supreme Court in an appeal of a U.S. Court of Appeals for the Ninth Circuit decision permitting a $20 billion racial discrimination suit to proceed against the company. Though the Supreme Court has not yet ruled on the matter, you should keep an eye out for its decision in Comcast v. National Association of African American-Owned Media.

Legal Intelligencer: Time to Reconsider Remote Depositions in the Age of COVID-19

March 20, 2020 | Edward T. Kang

Back of head facing screen In the March 19, 2020 edition of The Legal Intelligencer Edward T. Kang, managing member of Kang Haggerty wrote “Time to Reconsider Remote Depositions in the Age of COVID-19”

Remote depositions allow the deposition to proceed even though the witness is not in the same room as some or all of the other participating counsel and other persons entitled to be present.

As social distancing, travel limitations and working from home have become the norm due to the coronavirus (COVID-19), lawyers should give renewed consideration to conducting depositions by remote means. Remote depositions allow the deposition to proceed even though the witness is not in the same room as some or all of the other participating counsel and other persons entitled to be present.

Federal Rule of Civil Procedure 30(b)(4) and similar state rules authorize remote depositions by stipulation of the parties or court order. Having conducted several depositions through remote means recently, including expert depositions, our firm attorneys believe the benefits of taking remote depositions far outweigh the perceived limitations. Continue reading ›

Legal Intelligencer: Beyond the Courts: The Potential Future of Arbitration

January 23, 2020 | Edward T. Kang

In the January 23, 2020 edition of The Legal Intelligencer Edward T. Kang, managing member of Kang Haggerty wrote “Beyond the Courts: The Potential Future of Arbitration”

This recent decision has implications for how practitioners understand the court system and arbitration system to usually work, as well as raising already-existent questions about the fairness of arbitration clauses and its applicability for various types of claims.

In a recent decision from the U.S. Court of Appeals for the Third Circuit, we saw a rare event—the court affirmed the district court’s decision to vacate an arbitration award in Monongahela Valley Hospital v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC, ___F.3d___ (3d Cir. Dec. 30, 2019). This case exemplified one of the rare situations in which the courts have decided to exercise authority and “correct” arbitration awards that have appeared to be blatantly unfair, which could arise from a variety of reasons. This recent decision has implications for how practitioners understand the court system and arbitration system to usually work, as well as raising already-existent questions about the fairness of arbitration clauses and its applicability for various types of claims.

Monongahela Valley Hospital involved a dispute between the hospital and one of its “bargaining unit” employees who are members of the union under a collective bargaining agreement (CBA). About half of the employees of the hospital are supervisors who are not bargaining unit employees. The CBA governed the relationship between the hospital and the bargaining unit employees. The grievances centered around the hospital’s denial of a unit bargaining employee’s request for vacation due to a non-unit bargaining employee’s request for the same time off. The hospital denied the unit bargaining employee’s request because her supervisor, a nonbargaining unit employee, had requested the same week off and both could not be away at the same time. Using its authority to have the “final” say in the matter, the hospital denied the bargaining unit employee’s request. Continue reading ›

Legal Intelligencer: Five Years After ‘Daimler’: It’s All in the Specifics

January 2, 2020 | Edward T. Kang and Kandis Kovalsky

In the January 2, 2020 edition of The Legal Intelligencer Edward T. Kang and Kandis L. Kovalsky co-authored “Five Years After ‘Daimler’: It’s All in the Specifics.”

Major cases such as 2014’s Daimler AG v. Bauman have refined the requirements for, and in many senses restricted, the establishment of personal jurisdiction over parties. This goes for both the exercise of general and specific jurisdiction.

The exercise of personal jurisdiction is fundamentally connected with the constitutional right to due process. The question of whether it is fair and procedurally proper to subject a person to a forum state’s jurisdiction has been refined by the U.S. Supreme Court multiple times in the past decades, and especially in recent years. Major cases such as 2014’s Daimler AG v. Bauman have refined the requirements for, and in many senses restricted, the establishment of personal jurisdiction over parties. This goes for both the exercise of general and specific jurisdiction.

The basic notion behind general jurisdiction is that the defendant has to have, to quote directly from the well-known International Shoe v. State of Washington opinion, “continuous and systematic” affiliations with the forum state to reasonably expect that state’s jurisdiction over her, no matter the issue at stake (as opposed to specific jurisdiction, where the issue in question is the only reason one could expect to land up in another state’s court). But, what does “continuous and systematic” mean? Continue reading ›

Legal Intelligencer: Changing Consumer Data and Protection Regulations for Companies and Their Counsel

November 27, 2019 | Edward T. Kang

In the November 27, 2019 edition of The Legal Intelligencer Edward T. Kang, managing member of Kang Haggerty wrote “Changing Consumer Data and Protection Regulations for Companies and Their Counsel.”

Although a European regulation, the GDPR has affected American companies and, as it appears, has also begun to shape American law and policy. GDPR’s strict regulations and rules do not simply apply within the EU and the European economic area—it affects anyone who does business with a person living in those countries.

Last year, I wrote an article that discussed the implications of the European Union’s (EU) General Data Protection Regulation (commonly referred to as GDPR), which came into effect last May. GDPR’s goal was to create and to ensure the rights of European Union and European economic area citizens to protect their personal data. In the wake of numerous data breaches and many company’s morally gray handling of their customers’ personal data, the implementation of the GDPR gives people the chance to understand better and control the dissemination and use of their personal data. The regulation also insists upon a high level of care from any data handler so that personal information is better protected.