Articles Posted in Commercial Litigation

Over the past few weeks several landlord clients called and asked the same question, “My tenant bolted and left some of his junk behind. Can I throw it out?” The answer to each landlord was slightly different but came from the same source – 68 P.S. § 250.505a – better known as Pennsylvania’s “Disposition of Abandoned Personal Property Act.” This Act became effective a little more than a year ago in December 2014 and actually is the second attempt by the Pennsylvania legislature to provide guidance to both commercial and residential landlords on how to properly get rid of property that has been left behind.

The Act starts off by identifying five distinct circumstances when personal property remaining on leased premises may be deemed abandoned.

(1) The tenant has vacated the unit following the termination of a written lease.

(2) An eviction order or order for possession in favor of the landlord has been entered and the tenant has vacated the unit and removed substantially all personal property.

(3) An eviction order or order for possession in favor of the landlord has been executed.

(4) The tenant has provided the landlord with written notice of a forwarding address and has vacated the unit and removed substantially all personal property.

(5) The tenant has vacated the unit without communicating an intent to return, the rent is more than fifteen days past due and, subsequent to those events, the landlord has posted notice of the tenant’s rights regarding the property.

If any of the five (5) situations described above applies, the property will be deemed abandoned. Before a landlord may remove or dispose of abandoned property, the landlord must provide written notice of the tenant’s rights regarding the property. The written notice will look very similar to this:

“Personal property remaining at [address] is now considered to have been abandoned. Within 10 days of the postmark date of this notice, you must retrieve any items you wish to keep or contact [name of landlord] at [telephone number and address] to request that the property be retained or stored. If you request that we store your abandoned property, we will do so for up to 30 days from the postmark date of this notice at a place of our choosing, and you will be responsible for costs of storage.”

Under the Act, the landlord is required to exercise ordinary care in handling and securing the tenant’s property. In addition, the Act requires that landlords provide tenants with reasonable access to retrieve their property.

These are the basic rules of the game. If a landlord violates these rules, the Act provides that the tenant is entitled to treble damages and attorneys’ fees. Additionally, to the extent there is an inconsistency between the Act and the terms of a written lease, the terms of the written lease control. With any law, there are always exceptions and this Act is no different. For example, there is a different notice period if a protection from abuse order is in effect. If the tenant has died the Act does not apply at all and disposition of the personal property owned by the decedent will be governed by the laws and jurisdiction of the Orphans’ Court.

The take away here if you are a landlord is really quite simple. If you don’t like any of the definitions of abandoned property or the manner in which you are required to store it and how costs will be allocated-change it. The Act gives you this right so modify your lease to set forth how you want to deal with this issue. If you have any questions regarding this or any other aspect affecting your real estate portfolio, please feel free to contact Doug Leavitt at Danziger Shapiro & Leavitt.

This entry is presented for informational purposes only and does not constitute legal advice.

Last September Deputy Attorney General Sally Yates authored a six point Memorandum that identified how the Department of Justice would more effectively go after individuals responsible for corporate wrongdoing. The theory behind the new found emphasis on going after individuals being that corporations only act through individuals. Please click here for a detailed entry I wrote last year on this blog about the Yates Memo.

From an officer or director’s point of view in light of the Yates Memo, they need to take a critical review of the indemnity provisions that are currently in place. By this I mean, what is their employer’s obligations to them if the officers, directors or even high level employees are accused of corporate wrongdoing by either an outside entity like the Justice Department, a disgruntled shareholder in the form of a derivative lawsuit, or perhaps even an internal company investigation? Hiring an independent lawyer to protect your interest in any of these situations is expensive so it is better if the company will pay your legal expenses and even better if your company will advance your legal expenses. Click here for a blog entry I wrote two months ago that explains why it is important to have your own lawyer represent you during these investigations.

To determine what your company will or will not indemnify requires a review of the company’s by-laws. Additional places indemnity provisions can be found are in an employment agreement and not surprisingly, an indemnity agreement. The best protection for an officer or director is actually to have a separate indemnity agreement. Too often I see my clients come to me with their problems but say, “I am not worried, I have indemnification. Look at the by-laws I brought.” Don’t get me wrong, this is a good start, but that is all it is. Do the by-laws require indemnification or is it permissive and require a vote of the board of directors? Even if it is required, are legal fees advanced or only paid after you are found not to have violated your fiduciary duties? Even if the by-laws state it is required and legal fees are to be advanced, what is the process for advancing legal fees? Will the company and its insurance carrier be able to hide behind a convoluted process to delay payments? Does the employer have the ability to restrict your choice of counsel? As you can see there are a myriad of issues even when it seems clear. Even if you have D&O Insurance, keep in mind that the carrier’s policy has exclusions. For example, a typical D&O policy will not cover attorneys’ fee in an internal corporate investigation. Also, D&O policies change year to year as companies are always shopping for better prices so what coverage you have in year one may not be what you have in year two and beyond. However, a well drafted indemnity agreement will require the company to cover all expenses, including legal, incurred in connection with your position as an officer or director of the company to the fullest extent permitted by law and will not change in scope from year to year. These are big differences.

The takeaway – As an employee or an employer review your by-laws, employment agreements and D&O policies and indemnity agreements if you have them. Perhaps it is time to change your by-laws to make what once was permissive indemnification to mandatory? Alternatively, perhaps you only want to offer mandatory indemnification to certain individuals so indemnification agreements are the better approach? If you are an employee, you may want to negotiate for additional protections when the opportunity arises. Whatever course of action you decide, please feel free to call Doug Leavitt, one of the attorneys with Danziger Shapiro & Leavitt, P.C. to discuss this and other governance issue affecting you or your company.

This entry is presented for informational purposes only and is not intended to constitute legal advice.

Earlier this year a Pennsylvania federal district court decided that a defendant could invoke his Fifth Amendment right to avoid self-incrimination by refusing to provide production of his smartphone passcode. In this case, the court denied a motion filed by the Securities and Exchange Commission (SEC) asking the Court to compel the defendant to produce his passcode. The Court held that the production of the passcode was personal in nature thus the defendant properly invoked his Fifth-Amendment rights.

The SEC tried to argue that because the smartphone was not the defendant’s personal property but rather the property of his employer, combined with the fact that the documents the SEC were interested in reviewing were company records, the employee was more akin to a custodian of records. Based upon this, the SEC argued that compelling the employee to produce his passcode was not a communication subject to the Fifth Amendment. The Court did not buy into the SEC’s argument.

The Court stated that the SEC’s reliance on the underlying documents was misplaced. The application of the Fifth Amendment does not turn on the nature or character of the underlying documents but rather on the production of the documents themselves. In this case, the production of the documents required testimony (in that he needed to provide the password) and could not be characterized by a “physical act”. The Court stated that where an act requires the use of the contents of a person’s mind or personal thought process… it cannot be “fairly characterized as a physical act”. Based on this, the Court held that the Fifth Amendment was properly invoked to preclude the defendant from being ordered to provide his passcode to his company smartphone.

Query how this holding would apply if the passcode had been a fingerprint ID scan? Smartphones, IPads and similar electronic devices have this security option (touch ID technology) as well. Swiping a thumb print in not the same as one’s “thought process” and would not require testimony. Applying the Court’s logic in the instant case seems to suggest that this Court would compel the defendant to produce the sought after records and not allow the invocation of the Fifth Amendment. However, this seems out of sync with the history behind the Fifth Amendment. Unfortunately what I think didn’t stop a court in Virginia last November from deciding just that. Namely, a finger swipe for a password was not entitled to protection by the Fifth Amendment. Time will tell what different courts will decide as technology advances. If you have any questions, please feel free to call Doug Leavitt, one of the attorneys with Danziger Shapiro & Leavitt, P.C. to discuss this and other self-incrimination Fifth Amendment concerns in greater detail.

This entry is presented for informational purposes only and is not intended to constitute legal advice.

One day you may find yourself unexpectedly involved in a grand jury investigation as a target, subject or witness. Before I explain the important differences between these legal distinctions I want to briefly cover the grand jury basics.

The grand jury is a group of individuals as a collective legal body whose function is to determine if criminal charges (an indictment) should be brought against a particular person or entity. Federal grand juries are comprised of between 16-23 individuals. What happens in a grand jury is kept secret. This is done for two purposes. First, it encourages witnesses to talk freely. Second, if the grand jury decides not to indict, the potential defendant’s reputation is not harmed. There is no judge in a grand jury and thus it is more relaxed than a typical court room. The prosecutor will explain the law to the grand jury and present witness testimony and exhibits for the jury to consider. The rules of evidence that pertain to the introduction of exhibits and testimony are relaxed at this stage and the grand jury has the ability to see and hear much more than what a typical jury would be allowed to consider. The prosecutor is able to compel individuals to give testimony at the grand jury by serving a subpoena-an Order of the Court that compels the individual to appear and testify. Remember, the grand jury does not decide guilt, but only if the prosecutor should bring the criminal charges in the first instance. The jury in a criminal trial is different group of individuals from the grand jury and the jury trial typically does not have the ability to consider everything the grand jury did.

TARGET

There are three different types or classifications of grand jury witnesses: Target – Subject- Witness. If you receive a letter in the mail from the Department of Justice (DOJ) that you are a target, you have been formally notified by the DOJ that they intend to call you before a federal grand jury to testify regarding criminal activity the DOJ believes you participated in. You need to immediately contact a white collar criminal defense attorney. This is very serious and you need to take immediate steps and take action to protect yourself. Chances are the government has been investigating the criminal activity at issue and you for months and possibly years. The absolute worst thing you can do is pick up the telephone and call the DOJ believing you can explain to them why this is a mistake. Please resist the urge to pick up the phone and call them! Most likely, anything you say to the U.S. Attorney will be used against you and you are more likely to hurt your case than help. Contact a white collar criminal defense attorney and follow their directives.

Below is a sample target letter taken right from the U.S. Attorneys’ Criminal Resource Manual:

This letter is supplied to a witness scheduled to appear before the federal Grand Jury in order to provide helpful background information about the Grand Jury. The Grand Jury consists of from sixteen to twenty-three persons from the District of ___. It is their responsibility to inquire into federal crimes which may have been committed in this District.

As a Grand Jury witness you will be asked to testify and answer questions, and to produce records and documents. Only the members of the Grand Jury, attorneys for the United States and a stenographer are permitted in the Grand Jury room while you testify.

We advise you that the Grand Jury is conducting an investigation of possible violations of federal criminal laws involving, but not necessarily limited to _______*. You are advised that the destruction or alteration of any document required to be produced before the grand jury constitutes serious violation of federal law, including but not limited to Obstruction of Justice.

You are advised that you are a target of the Grand Jury’s investigation. You may refuse to answer any question if a truthful answer to the question would tend to incriminate you. Anything that you do or say may be used against you in a subsequent legal proceeding. If you have retained counsel, who represents you personally, the Grand Jury will permit you a reasonable opportunity to step outside the Grand Jury room and confer with counsel if you desire.

Cordially,

If you receive the “target” letter the U.S. Attorney believes that there is substantial evidence linking you to a crime. However, with skillful lawyering it is not inevitable that the receipt of a target letter results with your indictment.

TARGET versus SUBJECT

If you are the subject of a grand jury investigation you have been identified by the U.S. Attorney as someone who has information that would be helpful to the U.S. Attorneys’ investigation. One’s status may change from “subject” to “target” during an investigation so do not take it lightly if you are called before a grand jury to testify as a subject. A quick way to elevate your status from subject to target is to destroy evidence or lie to the U.S. Attorney. This is what is referred to as obstruction of justice and will not help you in any way.

WITNESS

The third category is that of a “witness”. A witness is someone who the government believes has helpful information but did not do anything wrong. Think of the person walking on the sidewalk and sees a bank robber leaving the bank. While in all likelihood you will be fine, but you don’t want to have something you say misinterpreted.

If you are the target, subject or witness of a grand jury investigation, please call our offices. The attorneys at Danziger Shapiro & Leavitt, P.C. will be happy to discuss the grand jury process with you and explain what options you have going forward. Call us and do not make the mistake of contacting or meeting the U.S. Attorney without your attorney present. We will not charge you for our initial meeting and want to help.

This entry is presented for informational purposes only and is not intended to constitute legal advice.

In today’s business climate we cannot seem to go a few weeks without the next big company fraud that has been foisted upon the public. The current scandal du jour is Volkswagen and tomorrow it will be who knows. At some point however, either as a result of a whistleblower or anonymous tip, a corporation will conduct an internal investigation to (1) uncover the facts surrounding the current problem and (2) advise management, including the board of directors, of the potential liability and suggest a course of action. It is a “best practice” that when conducting an internal investigation, that a company retain an outside law firm specifically for the investigation to show that the directors of the company are zealously discharging their fiduciary duties to investigate suspected wrongdoing. While these outside attorneys will undoubtedly have access to all company documents and emails, including servers, a large part of the investigation will center upon these attorneys and their interviews with company employees.

If you find yourself in the situation where you are about to be interviewed in connection with a company investigation you need to ask yourself two questions. Do I need a lawyer? Who pays? If you truly played no role in what the company is investigating you don’t need a lawyer. However, if you are a key insider who has information that will shed important details on what transpired you certainly would want to retain your own lawyer. There are many reasons why and I will address them below.

First, consider that earlier this year the Department of Justice set forth a Memorandum that identified that it would go after the individuals responsible for corporate wrongdoing and work its way inward towards the corporate hub. In addition, Justice conditioned any corporate cooperation credit that a corporation could hope to receive would be conditioned upon the disclosure of all corporate wrongdoings and all of the individuals that performed them. Think about this for a second. If the company you are working for is the subject of an investigation and wants in effect what is leniency in its “corporate sentence,” it must turn you over to Justice.

Second, before any interview begins, you must understand that the lawyer is NOT YOUR LAWYER. The lawyer is the company lawyer and therefore there is no guarantee that what you say will remain confidential. To avoid an employee raising an allegation that the interviewing attorney has a conflict of interest because the employee believed that the attorney was also representing him, all interviews begin with the Upjohn Warning.

The Upjohn Warning originated from a case before the United States Supreme Court. The Court found that while there is an attorney client privilege covering communications between counsel and the employee, the privilege belongs to the employer and not the employee. Therefore, the employees or key insiders always run the risk that the company will waive the privilege and share the results of the interview with government investigators and/or prosecutors. In fact, based upon the recent DOJ Memo discussed above, you can almost be certain that what you say will be turned over to the appropriate authorities.

In 2009 the ABA White Collar Crime Committee produced a sample Upjohn Warning. It reads as follows:

I am a lawyer for or from Corporation A. I represent only Corporation A, and I do not represent you personally.

I am conducting this interview to gather facts in order to provide legal advice for Corporation A. This interview is part of an investigation to determine the facts and circumstances of X in order to advise Corporation A how best to proceed.

Your communications with me are protected by the attorney-client privilege. But the attorney–client privilege belongs solely to Corporation A, not you. That means that Corporation A alone may elect to waive the attorney-client privilege and reveal our discussion to third parties. Corporation A alone may decide to waive the privilege and disclose this discussion to such third parties as federal or state agencies, at its sole discretion, and without notifying you.

In order for this discussion to be subject to the privilege, it must be kept in confidence. In other words, with the exception of your own attorney, you may not disclose the substance of this interview to any third party, including other employees or anyone outside of the company. You may discuss the facts of what happened but you may not discuss this discussion.

Do you have any questions?

Are you willing to proceed?

Now, very simply put, if you are a key employee and receive this warning placed in front of you and are asked to sign it, don’t you think you might want your own attorney present during this interview?

Obviously retaining your own independent lawyer can be expensive. However, in certain instances the company may or even be required to advance you the attorneys’ fees you incur. For instance, the company by-laws might require the advancement of your legal fees if you are an officer or director subject to repayment if it is found that you committed fraud. Other times such advancement of legal fees might be required under your employment agreement. Understandably it is certainly better to have an advancement of legal fees subject to repayment rather than a reimbursement of legal fees after a determination that you did not commit fraud. Whether or not you have one outcome or the other may very well depend on if you had competent counsel assisting you at the times these documents were created.

There are countless more issues to consider that are beyond the scope of this short article. If you should find yourself in the situation where you are going to be interviewed in connection with a company investigation, please feel free to call Doug Leavitt at Danziger Shapiro & Leavitt, P.C. We would be happy to discuss your situation and develop a plan to minimize your exposure.

This entry is presented for informational purposes only and is not intended to constitute legal advice.

 

 

Last month a friend reached out and in passing told me things were going great with the technology he was developing. He also mentioned that he was in the process of raising $5M in exchange for an equity interest in his company. “Great”, I said and casually asked if he had filed anything with the Securities and Exchange Commission (SEC). My friend told me, “No, this is a private placement so I don’t need to register.” I then asked him how he found the investor. The response- “I used a consultant and he gets a small percentage of the money raised.”

This short conversation raises two of the most common mistakes made by early stage companies when they try and raise money. First, a company may not offer or sell its securities to third parties unless the securities have first been registered with both the SEC or there is an exemption from registration that applies. If you don’t make the required filings, you are exposing yourself to serious consequences that include not only an investor’s right to rescission (get their money back) but also fines, penalties and criminal actions against you on an individual basis. Most start-up or early stage companies can avoid this by making the appropriate filing under Section 4(2) of the Securities Act of 1993 and the corresponding safe harbor provisions under Regulation D. There are also corresponding state law security filings too under state “Blue Sky” laws. The point here is that the security laws are complicated and you should not play “security lawyer.”

The second problem mentioned in the scenario described above is that my friend paid a finders’ fee to an unregistered broker-dealer. If the “consultant” was a registered broker-dealer and my friend otherwise made the appropriate Reg D filings he would have been fine. However, by providing compensation to an unregistered broker-dealer, my friend was also violating Section 29 of the Exchange Act which also provides for among other things, the right of rescission. Paying finders’ fees to unregistered broker-dealers has been a recent hot topic for the SEC and the Reg D form filing was updated in 2008 to specifically request information directly to this point (See Item 12 of Form D).

The take away here is that raising capital requires compliance with complicated securities laws. Entrepreneurs can avoid running into these issues by focusing on what they know best, their company, and allowing their lawyers to assist them so they do not make mistakes that are all too common in the capital raising world. If you have any questions regarding this or any other aspect affecting your business, please feel free to contact Doug Leavitt at Danziger Shapiro & Leavitt.

This entry is presented for informational purposes only and is not intended to constitute legal advice.

Bank of New York Mellon recently learned the hard way that doing a favor for a client can run afoul of the Foreign Corrupt Practices Act (“FCPA”). How hard was the lesson? The SEC entered an Order that imposed, among other sanctions, a 14.8 million dollar fine merely for the bank hiring three interns who were relatives of foreign officials. In a nut shell, two unnamed officials of a foreign wealth fund put pressure on BNY Mellon to hire three interns who were not otherwise qualified for the BNY Mellon intern program. The bank understood that if they failed to hire these interns, the fund’s investments with the bank would be at risk. It apparently did not matter that the interns did not otherwise meet the requirements for the internship or that they were paid more than the other more qualified interns.

While this may be common practice stateside to grant a favor to a valuable customer by employing his son or daughter, to do so when a foreign official is involved violates the FCPA. The FCPA does not allow a company to influence a foreign official by giving the official “anything of value”. Value is broadly defined and includes cash, gifts, favors and apparently, internships too. While at first blush, this may seem to be a “small favor”. However, the FCPA does not distinguish between “small” or “large” favors only that anything of value were given. In addition, the broadly written FCPA covers any “department, agency or instrumentality” of a foreign government. The foreign wealth fund identified above fell under the “agency or instrumentality” rubric because it was controlled by a foreign government notwithstanding that it operated like any other investment company.

Once again this shows the importance that it is not enough just to have Code of Conduct Policy or an Anti-Corruption Policy without the proper training of the right people in your organization. Training needs to focus not only on the basics but also on the hidden dangers. For example, do changes to the employment application process need to be made? Should an applicant certify that he or she has not been employed as a foreign official or that they do not have a relative or a close personal friend who is a foreign official? If the answer to the foregoing is yes, a strong anti-corruption policy will flag the applicant for further in house review (or legal department) to make the correct determination. This is not a question of discrimination against certain applicants but rather that the correct questions or sensitivities are being looked into so your company does not run afoul of the FCPA. In any event, the point is that your employees need to be trained to look between the trees and make the right determinations when a more nuanced review is needed. The cost of failing to do this is too high and the SEC is bringing the heat.

If you have any questions regarding this entry or the FCPA in general, please feel free to contact Doug Leavitt and the attorneys at Danziger Shapiro & Leavitt. We will be happy to discuss your concerns and assist you with this or any other matter affecting your business.

This entry is presented for informational purposes only and is not intended to constitute legal advice.

A woman living in Staten Island must pay her flooring contractor $1,000. What did she do wrong; a negative review on Yelp.com. While the first amendment (freedom of speech) generally lets you critique your home improvement contractors (and anyone for that matter) and comment upon their quality of work and professionalism, the Judge in this case stated that the home owner went too far when she called her contractor a “con artist” and that he “robs” his customers and it is a “scam”.

Under Pennsylvania tort law, libel is defined as “a maliciously written or printed publication which tends to blacken a person’s reputation or expose him to public hatred, contempt or ridicule, or injure him in his business or profession.” Specifically, in an action for libel a plaintiff in Pennsylvania has the burden of proving each of the following:

  1. The defamatory character of the communication;
  2. Its publication (communicated to a third person) by the defendant;
  3.  Its application to the plaintiff;
  4. The understanding by the recipient of its defamatory meaning;
  5. The understanding by the recipient of the communication as intended to be applied to the plaintiff;
  6. Special harm resulting to the plaintiff from its publication; and
  7. Abuse of a conditionally privileged communication.

I don’t want to get into the intricacies regarding each above element and corresponding defenses and privileges (for example, truth is an absolute defense to any defamation claim or that defamatory statements are allowed in company employee reports). However, I think it is important to recognize that the Judge in this contractor case merely applied the tried and true law of defamation of character in written form and found that the customer defamed her contractor. The mere fact that her “opinion” was posted online did not relieve her of any responsibility for not violating the laws of libel.

In his ruling, the Judge said that her post was “opinion and protected speech,” but several of her comments crossed the line from opinion to libel. “Terms such as ‘scam,’ ‘con artist’ and ‘robs’ imply actions approaching criminal wrongdoing rather than someone who failed to live up to the terms of an agreement,” the Judge said.. While I am sure this case will be appealed, the take away here is be sure not to cross the line when you post anything online. Your opinion is protected free speech but if you go too far, you may be held responsible for your actions. From a business owner perspective, have someone regularly review Yelp and FaceBook and other online forums to see if anyone is posting reviews that might damage your reputation. However, remember that if a review is negative does not mean it is defamation if it is couched as an opinion instead of as a fact.

If you have any questions regarding this topic or any other issue affecting your business, please feel free to contact Doug Leavitt at Danziger Shapiro & Leavitt.

This entry is presented for informational purposes only and does not constitute legal advice

On September 18, 2015 the New Jersey Appellate Court issued a decision that should make all employers review their employee handbooks if it contains a mandatory arbitration provision. In the beginning of almost every employee handbook there is a disclaimer provision that says something along the lines that the employment relationship is at-will and that the “provisions of this handbook is not intended to create a contract between the Company and the employee with regard to the matter set forth in the handbook”.

In this case, the New Jersey Appellate Court refused to enforce the mandatory arbitration provision in the employee handbook and stated in part, “the plain language in the handbook the defendant drafted shows, with unmistakable clarity, that Employer did not intend the handbook to create a binding agreement”. The Court went on to state “The employee handbook cannot be a binding agreement with respect to the arbitration provision, and an unenforceable document merely containing “management guidelines” for the rest of its provisions.” Click here to read a copy of this opinion.

In addition to the wording of the handbook being one of the main reasons the Court refused to enforce the arbitration provision, the Court also set forth other “problems” with the handbook that should serve as a guide to HR and in-house legal departments so their handbooks don’t suffer the same fate.

The arbitration waiver must spell out the rights that are being waived. Courts look closely when the constitutional right to bring an employment matter in court is being waived by an employee. Does the waiver spell out the rights being waived? Does the employee understand that he or she is giving up the right to have the case heard by a jury or whether this covers discrimination and other types of claims?

Additionally, there is the matter of the procedure set up by the employer being sufficient to show that the employee unmistakably agreed to arbitrate. Email consent is not enough – where the employee just clicks or agrees that he or she has received a copy of the handbook. Get the employee’s signature to show the employee agreed to the mandatory arbitration provision – assuming you have cured the other issues set forth above.

This case has broad reaching implications and not just in New Jersey. The provisions that caused this failure are common boilerplate protective provisions that are found in most employer handbooks (even if it was drafted by counsel) and therefore makes this cautionary tale relevant to every employer. I also believe this provision will may apply to covenants not to compete and non-solicitation agreements to the extent they too are set forth in employee handbooks and not in separate employment agreements signed by the employee. Be careful however, because merely placing such an agreement in front of your already employed employees to rectify the handbook issue will not work. While the reasons why are beyond the scope of this post, please click here to review an earlier post that addresses these issues.

If you have any questions regarding this employment issue or any other matter affecting your business, please feel free to contact Doug Leavitt at Danziger Shapiro & Leavitt.

This entry is presented for informational purposes only and does not constitute legal advice.

I was driving into work this morning and I heard on the radio a caller complaining that the secret service cancelled her wedding just 8 days short of the big day because of the Pope. So I started thinking, what happened to all the deposit money? Did she lose it all-the money-not her mind. What about the caterer or the photographer? Did she owe more than just the deposit money? And then I thought-is this the ultimate Act of God defense?

In contract law, when party fails to perform according to the terms of the agreement it is viewed as a breach of contract. However, sometimes there are justifiable reasons that will allow or excuse a party from performing according to the terms of their agreement. For example, when Hurricane Sandy destroyed most of the hotels along the Jersey Shore, these hotels were excused from liability based upon their failure to provide accommodations or being able to host wedding receptions. In essence, an act of God may be interpreted as a defense for failure to perform based upon impossibility or impracticality. So I ponder, is the Pope being in Philly the ultimate Act of God defense.

If you have any questions regarding your legal obligations under a contract you are a party to or any other issue affecting your business, please feel free to contact Doug Leavitt at Danziger Shapiro & Leavitt.

This entry is presented for informational purposes only and does not constitute legal advice.