This is a very difficult post to write. Michael E. Patunas was my colleague at Lite DePalma Greenberg, LLC for more than fifteen years. He was my partner for a good portion of that time. Mike died, too young, on August 30, 2018. This is an appellate law blog, so it’s necessary to cite appeals […]
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The proliferation of paid sick leave laws has arrived in New Jersey. On May 2, 2018, New Jersey Governor Phil Murphy signed into law the New Jersey Paid Sick Leave Act, which takes effect October 29, 2018. The Act, which applies to nearly all employers and employees in the Garden State, guarantees that almost every person employed in New Jersey will accrue paid sick leave. Given its breadth of coverage, record keeping and notice requirements, and the potential penalties for breach and noncompliance, Employers must prepare for this new legislation. Here are some of the basics.
The Act applies to any person or entity having employees in the State of New Jersey, regardless of the employer’s size. The terms “employer” and “employee” are defined broadly to include all employers and employees, with limited exceptions. This includes temporary help service firms and small businesses.
Under the Act, Employers have two options:
Under either method, employers are under no obligation to allow an employee to accrue, use or carry forward more than forty (40) hours of earned sick leave. At the end of a benefit year, an employee may carry forward their earned sick time or have it purchased by the employer.
Employers should note, however, that the Act’s provisions governing the employer’s payment (or buy back) of employee earned sick time versus an employee’s carryover of sick time from one benefit year to the next are confusing and depend on which method or process (accrual versus frontloaded) the employer chooses to implement paid sick leave for its employees.
Employers may require that employees provide up to seven (7) days advance notice of the need to use earned sick leave, where reasonably foreseeable. Employers may prohibit employees from exercising foreseeable sick leave on certain days or where it “unduly disrupts” the employer’s operations.
Employers may require “reasonable documentation” for absences of three (3) or more days; thus, an employer may not demand supporting documentation – or proof – for an employee’s use of less than three consecutive days, unless the employee uses earned sick leave on a prohibited date.
On the flip side, employers must post a notification of employee rights under the Act in a conspicuous place. Employers also must provide written notice to their employees of their rights under the Act, including within thirty days after the department has issued a model notice, at the time of hiring, and upon request by an employee. Employers also must track their employees’ hours worked, earned sick time accrued, and sick time used, and must maintain those records for five (5) years under the Act.
Importantly, employer compliance with these requirements will be subject to audit by the New Jersey Department of Labor and Workforce Development.
Employers having existing paid time off (PTO) policies that satisfy the Act’s minimum requirements and includes personal days, vacation days, and sick days, will comply with the Act so long as:
Employers should review their PTO policies to confirm their compliance.
Section 3 of the Act includes a list of reasons employees may use earned sick time. The list includes, but is not limited to, the following:
The most important takeaway here for employers is the recognition that the sick leave law is not limited to an employee’s use for “sick” leave.
Unless otherwise required by company policy, employment contract, or collective bargaining agreement, the Act does not require that unused accrued sick leave be paid to an employee at separation.
Employers should fear enforcement under the Act. Employers can be prosecuted in different ways and for different reasons. This includes but is not limited to private rights of action by employees for discrimination, retaliation and violations of the Act, and for recordkeeping violations.
An employer that violates the Act will be subject to the penalties and remedies afforded to employees under the New Jersey Wage and Hour Law, which includes monetary damages and attorneys’ fees and costs, plus liquidated damages in an amount equal to the unpaid leave.
Furthermore, the Act prohibits an employer from taking discriminatory or retaliatory action against an employee who exercises their rights under the Act. Importantly, the Act creates a rebuttable presumption of retaliation when an employer takes adverse employment action against an employee within ninety (90) days of when that employee engaged in certain protected conduct as provided in Section 4(b) of the Act. Additionally, the protections against retaliation apply to any employee who “mistakenly but in good faith alleges violations of this act.”
This summary of the Act is merely the tip of the iceberg. Given the potential exposure to liability and other consequences arising from violations and lack of compliance, employers should revisit their employee handbooks and review their employee PTO, attendance, leave, and disciplinary policies.
Employers also should reevaluate their recordkeeping requirements to confirm compliance with the Act and should advise their managers and supervisors of the change in the law and train/educate them accordingly. Employers also have several decisions to make, including whether to implement an accrual or annual method of earning sick leave, the applicable benefit year, and the increments in which employee leave may be taken.
Additionally, employers should also prepare to post the appropriate notice in the workplace and deliver the appropriate disclosures to their employees.
When in doubt, consult with their labor and employment attorney to ensure compliance with the Act.
Balducci v. Cige, ___ N.J. Super. ___ (App. Div. 2018). This opinion by Judge Nugent today affirmed a trial level decision, after a plenary hearing, that voided a retainer agreement between the defendant attorney and the plaintiff client for defendant to bring suit under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“LAD”). […]
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Cona v. Township of Washington, ___ N.J. Super. ___ (App. Div. 2018). In Timber Glen Phase III, LLC v. Hamilton Tp., 441 N.J. Super. 514 (App. Div. 2015), the Appellate Division ruled that a local ordinance that required landlords to obtain a license before any unit could be leased and pay an annual fee for […]
The post Unlike Municipal License Fees for Landlords, Municipal Fees to Defray Costs of Inspecting Apartment Units Are Authorized appeared first on Appellate Law NJ Blog.
This time of the year there are slim pickings in terms of published opinions of the Supreme Court of New Jersey or the Appellate Division. Even unpublished Appellate Division opinions slow to a trickle. And, of course, the Supreme Court of the United States is in its summer recess. But this is a particularly fertile […]
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The European Union (EU) has long recognized the importance of privacy as a human right. In 1980, the Organization for Economic Cooperation and Development (OECD) issued the “Recommendations of the Council Concerning Guidelines Governing the Protection of Privacy and Trans-Border Flows of Personal Data,” which laid out seven principles governing the OECD’s recommendations for protection of private personal data. These principles were then incorporated into the EU’s Data Protection Directive, which regulated the processing of personal data and was officially adopted in 1995. The principles included:
In 2012, the European Commission (EC) announced their plans to unify data protection law with goals which included: the harmonization of 27 national data protection regulations into one unified regulation; the improvement of corporate data transfer rules outside the EU; and the improvement of user control over personal identifying data. This proposed legislation was the General Data Protection Regulation 2016/679 (the “GDPR”), which was adopted by the EU in April of 2016, with a set implementation date for the end of May 2018.
This new update superseded the existing language in the Data Protection Directive, and added requirements and provisions to the processing of “data subjects” and their personally identifiable information. One of the largest changes was the new directive that the legislation would “apply for all non-EU companies without any establishment in the EU, provided that the processing of data is directed at EU residents.”
This meant that GDPR applies to all companies or organizations inside the European Union as well as those outside of the EU that collect, store, process, or use EU residents’ data. Thus, any U.S. based business that interacts with EU residents is affected by this legislation. Specifically, any and all companies that have clients (or believe they may have clients) with EU residents are subject to the GDPR. Any business that does not comply with GDPR regulations could find themselves hit with a fine of up to 4% of their global annual revenue. In order for any U.S. company to comply, they must have policies in place that comply with GDPR’s policies, including:
Additionally, and most significantly, each person must provide explicit “opt-in” consent in order for a business to process and obtain that person’s personal data and be allowed to revoke this permission at any time. Furthermore, any processor of personal data must disclose any data collection, the purpose for the data processing, how long the data is being retained, and whether or not it is being shared with any third-party organizations outside of the EU.
Not surprisingly, an Austrian privacy attorney has filed multibillion-euro seeking complaints against several global platforms, including Google, Instagram, Facebook, and WhatsApp, only days after the General Data Protection Regulation (GDPR) went into effect on May 25. These suits will be some of the first cases to test the reach of the new regulation and accuse the companies of seeking “forced consent” in their terms of service and seek the maximum penalties against Google in French courts, Instagram in Belgium, WhatsApp in Germany, and Facebook in Austria, for a total of 7.5 billion euros.
The complaints allege that these platforms pressured users to comply by “bombarding” them with pop-up windows online or in applications, and often threatened that the service could not be accessed without consent.
Many more suits are anticipated now that the GDPR is in full effect.
I know, I know. Summer is coming to an end and despite how much torrential rain we have had, it is still sad to see it fade off into the sunset as the days get shorter and colder. Having just returned from a shore trip with my family, it is incredible to reflect on hours and hours of planning that go into even a small vacation.
For divorced parents, the level of detail and coordinating necessary to schedule vacations often increases ten-fold, as you not only have to worry about when the kids potentially get home from sleepaway camp, when school starts, when school sports/activities start (mid to late August sounds just about right so that going on vacation is ever that much harder), but also when the other parent is going on vacation, how the children will react to separate vacations, scheduling calls with the other parent during the vacation, and so much more.
With that in mind, here are five tips for scheduling vacations:
While every divorced family has its own set of wrinkles and hurdles to overcome in planning the best possible vacation time with the kids, hopefully these tips will help ensure that you are more worried about getting in as much sun as possible than anything else.
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Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey. He can be reached at (973) 994-7526, or repstein@foxrothschild.com.
Connect with Robert: 
*photo attributed to jmesquitaau
Getting a divorce can be a scary proposition. How are you going to support yourself? How are you going to take care of your children? Going through an endeavor like divorce never comes with easy answers. What you may end up finding is that you were financially better off staying married. However, all of the other problems that went along with being married to this particular individual will continue to fester, leading to unhappiness or worse.
The United States Securities and Exchange Commission’s (SEC) Office of Compliance Inspections and Examinations (OCIE) are now conducting examinations of investment advisers concerning “crypto-assets,” which they define to include crypto-currency, initial coin offerings, distributed ledger technology, blockchain or any related products, and pooled investment vehicles investing in these assets or technology.
The examinations are focused on gathering information about an investment adviser’s policies and procedures as it relates to these investments. Specifically, OCIE’s examiners are requesting information about:
A copy of the most recent request list is available here.
Stark & Stark has experience with crypto-assets, investment adviser supervision and compliance and remains available to advise on the SEC’s new initiative. Contact Max Schatzow in the firm’s Investment Management and Securities Practice Group at mschatzow@stark-stark.com or (609) 219-7450.
Alloco v. Ocean Beach and Bay Club, ___ N.J. Super. ___ (App. Div. 2018). This opinion by Judge Leone focuses on the business judgment rule and its applicability in the context of a planned residential community. As Judge Leone showed, the business judgment rule protects governing bodies of such developments just as it does corporate […]
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Due to travel over most of the past two weeks (and getting “back in the game” once having returned), there have been no posts here. But the courts have been active during that time. Here, in brief, are some of the key published decisions of the Supreme Court, the Appellate Division, and the Third Circuit: […]
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Last week, 
Aretha Franklin passed away at 76 due to advanced pancreatic cancer. This week, reports have been coming in claiming that the Queen of Soul had died without a Will or Trust. According to her long-standing attorney, Don Wilson, he had requested that she establish a trust numerous times, but she never got around to creating one.
Unfortunately, Aretha Franklin is far from the first notable individual to pass without establishing a Will or Trust, many of whom often happen to be significant celebrities and musicians. Perhaps immense fame comes with a sense of immortality. But, the sad truth is that two-thirds of estates are administered without a Will or a Trust.
The process of signing a document that identifies your beneficiaries, your executor, and the guardian for your minor children—if you have them—is not particularly difficult or overly time consuming. If anything, taking the time now will save you and your loved ones a lot of stress in the long run. Failing to properly establish this document means that you are choosing to allow state law to make those decisions for you.
While few people can match Ms. Franklin’s reported $80 million net worth, federal and state estate inheritance taxes are assessed on much smaller estates. Aretha Franklin resided in Michigan, and under Michigan state law, if an unmarried person dies without a will, his or her assets are divided equally among any children. Furthermore, the finances of all Ms. Franklin’s assets will now have to become public in Oakland County Probate Court because of the absence of a will.
Having an estate plan in place can minimize tax liability and limit the costs of administering your estate. It can also prevent your estate from being depleted by intra-family disputes about the distribution of your estate. In this instance, Ms. Franklin’s four sons have since filed a document listing themselves as interested parties in her estate, and her niece has asked the court that she be appointed a personal representative of the estate.
As Ms. Franklin’s attorney Mr. Wilson so aptly put it, “Any time they don’t leave a trust or will, there always ends up being a fight.”
Estate planning can also utilize Trusts to protect the inheritance of minor beneficiaries and those with special needs, including developmental disabilities, substance abuse issues, and financial difficulties.
Perhaps most importantly, a comprehensive estate plan allows you to communicate your precise wishes and instructions so that your family is not left guessing when you are no longer able to guide them.
If you still need to establish a Will or Trust, or need to update an existing Will or Trust, it is strongly recommended that you seek experienced estate planning attorney.
As you may have read in our last article, a color or a color scheme can sometimes fall under a company’s trademark if they can prove its distinctiveness. However, what isn’t enough to meet the trademark threshold?
General Mills sought registration of the predominant, yellow color of its well-known Cheerios boxes by attempting to prove the sunny yellow alone was distinctive to their brand. They argued that under Section 2(f) of the Lanham Act, the color yellow had acquired distinctiveness because consumers have come to identify the color yellow, when used in connection with toroidal, oat-based breakfast cereal, as coming specifically from the Cheerios brand, as evidenced through consumer surveys and expert reports. The United States Patent & Trademark Office (USPTO), however, refused registration of the color mark on the grounds that the General Mills had failed to demonstrate acquired distinctiveness.
Federal trademark law designates trademarks in categories along with a spectrum of distinctiveness. The USPTO will register “distinctive” trademarks and service marks that uniquely differentiate the products or services that the word or symbol appears on or in connection with. Once the USPTO approves the trademark, it is published on the Principal Register. If no other mark owner contests the mark, the mark will vest in its owner an exclusive property right to use that mark on packaging, advertisements, commercials, websites, and merchandise. One important aspect of trademark rights, is the ability to exclude others from using identical or confusingly similar marks.
General Mills appealed, and the Trademark Trial and Appeal Board (TTAB) affirmed the registration denial. To answer the question of whether the yellow color had achieved acquired distinctiveness in the relevant consumers’ minds, the TTAB considered the circumstances under which General Mills’ proposed mark was used, the number of product competitors, and customary marketing practices. Evidence of 23 cereal products offering their product in packaging similar to Cheerios’s yellow color was presented to General Mills. The TTAB found, “the presence of products of this type in the marketplace interferes with the development among relevant customers of a perception that the color yellow on packaging indicates that Applicant is the source of goods (or that there is any single source of such goods).”
General Mills tried to argue that third-party use was irrelevant because other cereal boxes implemented completely different marks and color schemes, but since General Mills only sought to trademark the yellow background color and not the multi-element trade dress of the cereal box in its entirety the TTAB rejected General Mills’ contentions. There was no evidence that purchasers selected their cereal based on the box’s color. The record showed how commonplace it was to incorporate bright colors into cereal box packaging, and “scores of competing products can be found in a single aisle of a supermarket.” With General Mills left unable to show the yellow background acquired distinctiveness under Section 2(f), the TTAB upheld the registration denial.
The law recognizes two types of distinctive marks—inherently distinguishing marks and marks that have acquired distinctiveness. Arbitrary, inherently distinguishing marks are completely unrelated to the good or service they are used in connection with such as Apple for computer products or Subway for a restaurant. “Coined” or “fanciful” inherently distinctive marks are words created for the sole purpose of differentiating a product or service and carry no additional meaning such as Exxon for gasoline and Clorox for bleach. The last category of inherently distinctive marks is “suggestive” marks which allude to but do not explicitly describe, an aspect of a good or service such as Mustang for a car and Coppertone for tanning lotion.
As such, an applicant seeking to register a “descriptive” mark that merely states the name, qualities, or geographic origin of a product or service will not be granted federal registration unless the mark has obtained “acquired distinctiveness.” Acquired distinctiveness is also referred to as secondary meaning. Thus, if a consumer has attached a new and additional meaning to a non-inherently distinctive word or symbol and uses that word or symbol to identify and distinguish a single commercial source, then that mark has acquired distinctiveness and can obtain federal registration. Section 2(f) of the Lanham Act accepts “proof of substantially exclusive and continuous use thereof as a mark by the applicant in commerce for the five years before the date on which the claim of distinctiveness is made” as evidence of acquired distinctiveness of the mark in question. Examples of marks that have acquired distinctiveness include Sharp for televisions or Holiday Inn for hotel service providers. Lastly, generic marks that merely name the category of products or services they fall under are not likely candidates for federal trademark registration.
Sorry General Mills, but your yellow alone isn’t unique enough for the USPTO.
Max Schatzow, Esq., on behalf of Stark & Stark’s Investment Management & Securities Practice Group, submitted a comment letter to the U.S. Securities & Exchange Commission (“SEC”) in response to the SEC’s proposed interpretation of the standard of conduct under the Investment Advisers Act of 1940.
While Stark & Stark largely agreed with the SEC’s proposed interpretation of the standard of conduct, it took issue with its characterization of the duty of care owed by investment advisers. As a general matter, investment advisers owe their clients both a duty of care and a duty of loyalty. Stark & Stark generally agreed with the SEC’s framework surrounding the duty of loyalty. However, the SEC’s proposed interpretation of the duty of care would require “the duty to act and to provide advice that is in the best interest of the client.”
This overly restrictive interpretation would complicate nearly a century of settled jurisprudence, which instead historically required an investment adviser to collect relevant information and investigate what action is appropriate under the circumstances. The SEC’s proposed interpretation could limit an investment adviser’s ability to disclose away conflicts of interest relating to its advice. With this interpretation, this may suggest that an investment adviser focused exclusively on asset management may have to become a financial planner. The shift in the standard would require extensive new guidance from the SEC in determining which activities fall under each of the duty of care and loyalty. Instead, Stark & Stark believes that the duty to provide advice in the best interest of the client should continue to be viewed under the duty of loyalty.
The SEC’s interpretation also suggests that advice about whether to rollover a retirement account that results in the investment adviser managing that account should be viewed under the duty of care. This appears to require an investment adviser to only recommend a rollover when they can substantiate it with data that the recommendation is in the client’s best interest as opposed to disclosing away the potential conflict of interest. This interpretation seems to track the intent of the recently rescinded Department of Labor’s Fiduciary Rule.
Furthermore, Stark & Stark commented on the SEC’s proposals regarding investment adviser representative licensing, the delivery of account statements and potential financial requirements.
You can click here to download a PDF of the full letter to the SEC, or you can view the document below.
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In the last few days, hundreds of bankruptcy complaints against trade creditors were filed by bankrupt Chapter 11 debtor VRG Liquidating, LLC (formerly EMS) (docket 16-10971). The crux of the complaints that many businesses will be shortly served concern “preferences,” requesting the return of money received from bankrupt debtors 90 days prior to the bankruptcy filing of April 18, 2016 for goods or services sold. However, before you go writing a check to return hard earned money, you should know that you may have defenses that can be asserted.
A preference is a payment received from a debtor, made within 90 days of the bankruptcy filing. Bankruptcy Code section 547(b) allows a bankruptcy trustee or debtor-in-possession (here, VRG) to avoid these payments, if the transfers were to or for the benefit of a creditor on account of an antecedent debt, while the debtor was insolvent. When Congress enacted the Bankruptcy Code, the policy behind preferences was to level the playing field for all creditors by not allowing a creditor to receive more than it would have within the debtor’s bankruptcy case.
Once the complaint is served, there is a tight deadline of 30 days to respond. If you’re a trade creditor that did work with VRG Liquidating, LLC (formerly EMS), it’s advisable that you alert your billing, reception and other departments of this important pleading. You don’t want it sitting on someone’s desk who may be out on vacation and miss the opportunity to defend yourself.
Although the Bankruptcy Code gives the power to recover these transfers, your business may have certain defenses. These defenses include: 1) payments made within the ordinary course of business; 2) new value for payments; payments made outside of the 90 day preference period (here the filing date was April 18, 2016); 3) settlements during the bankruptcy case; and/or payments made via C.O.D.
To determine if you have any defenses and the proper response, it is critical to analyze your situation bankruptcy counsel. A review of the full payment history at least a year before the bankruptcy filing is key. This information includes:
It is critical to properly analyze this information and formulate a corresponding defense.
For more information on defending a preference action, or other bankruptcy issues, please feel free to contact Stark & Stark’s Bankruptcy & Creditors’ Rights Group: Marshall Kizner at (609)219-7449 or via email at mkizner@stark-stark.com, Joseph Lemkin at (609)791-7022 or via email at jlemkin@stark-stark.com, or Thomas Onder at (609) 219-7458 or via email a tonder@stark-stark.com.
The laws surrounding Marijuana in New Jersey, both recreational and medical, have been evolving rapidly. We have heard at least once a week during the last month or so, of new landmark cases and legislation going before the courts around the state. Last week was no different, as a potential disability discrimination suit was dismissed by U.S. District Judge Robert Kugler on August 10th.
During a divorce, many topics are covered in the Marital Settlement Agreement, and many more when the divorcing couple have children together. This can include child support as well as future college contributions. Depending on the agreement, the divorcing parties may specifically determine the percentages that each will pay for college costs, or will—if the child or children are young—defer setting any percentages until the child is in their senior year of high school. Within these agreements, there is often language that stipulates the children are required to apply for any available financial aid, grants and/or loans. However, does this mean children must be forced to take out loans for an obligation that is intended to part of their parents’ obligation?
A recent New Jersey Appellate Division opinion tackled this complicated question in the matter of M.F.W. v. G.O. In the case, the parties divorced in 2003 when their daughter was 5 years old, and their settlement included an agreement to pay for college and included language requiring that the daughter “…shall apply for all loans, grants, aid and scholarships available to her, the proceeds of which shall be first applied to college costs.”
When their daughter came of age to apply for and attend college, she was accepted into Georgetown University, which came at a cost of over $66,000 per year. The mother sought the father’s contribution for both the college and pre-college costs, but the issue wasn’t resolved and an enforcement motion was eventually filed. One of the father’s defenses against the college contribution was that his daughter should have been required to obtain student loans before he agreed to contribute. That being said, in the time since the couple had divorced in 2003, the father’s net yearly income had increased from approximately $80,000 per year to approximately $217,000 at the time of the motion.
The trial judge rejected the father’s request to enforce the “loans” portion of the agreement and require his daughter to obtain student loans, and noted that it was “unfair and unjust” and “repugnant” that the father would seek to do so. The judge also noted that the daughter “should not be bound to a contract which she is not a party to” because her parents “have a legal obligation to support her.” This is extremely noteworthy because previously, such “loans and grants” provisions have been standard in divorce agreements for decades, and had not caused a legal stir until M.F.O.
The father appealed this ruling, arguing among other things that the trial court should have enforced the parties’ agreement regarding loans and the Appellate Division affirmed the decision. The Appellate Division noted that agreement are usually enforced and should not be disturbed, unless there is a change of circumstances, i.e. in regards to the parties’ increased income. Accordingly, they held that “the court found ‘unfair and unjust’ the provision that required [the daughter] to apply for loans and financial aid because it was the parents’ obligation to pay for college and they had the ability to do so.”
Furthermore, the Appellate Division observed that the father “acknowledged that ‘[t]he parties both have significant financial resources and can afford to send their daughter to Georgetown University.’ The court did not err by not enforcing this position.”
Needless to say, this ruling changes the landscape for divorced parents in New Jersey, as well as their college-bound children.
Every day I represent people who believe that they are never going to move on from their divorce. These incredibly strong people have a difficult time understanding that there is, in fact, a light at the end of the tunnel because the divorce has understandably become the primary focus of their everyday existence. One of the hardest parts of the divorce process is oftentimes not getting to the end, but, rather, coming to a question of what to do next? As you go through the divorce process, there are a few people who can help you make your way once the divorce is finalized and can help you find that light at the end of the tunnel.
The therapist – For you, for the kids, or perhaps for the entire family, a licensed and well-trained therapist with whom you are comfortable can be critical to helping you/your kids move beyond the divorce. A therapist can also help you work through what happened during the marriage, the divorce, and how to adapt to a brand new future.
The divorce coach – Different from a therapist in many ways, a divorce coach is trained to help you get through the divorce process and move forward with your life from a more practical perspective. A good divorce coach can assist you in developing a positive, forward-looking and goal-oriented strategy either early on in the divorce process, in the midst of its occurrence, or even after its completion.
The parenting coordinator – No one said co-parenting after a divorce is easy, and a parenting coordinator can help transition parents into more workable co-parenting roles or, in cases where high acrimony exists render recommendations on anything from where the parenting time exchanges should occur to when there should be make-up parenting time, and so much more. For those parents who have seen their parenting role minimized by the other parent, the parenting coordinator’s existence and recommendations on these types of issues can help preserve your ability to have a say, and ideally protect your relationship with the children.
The accountant and the financial advisor – After years of the other spouse handling the household finances and making financial decisions, you are now faced with having to tackle these issues on your own. The situation may be even more complicated if you were not involved in the financial decisions and do not have an understanding of your monthly expenses, assets and any debts you were left with. A sharp accountant and financial advisor can help put your mind at ease as you try to figure out where to go from here.
The personal support system – Ultimately, your family and friends will be your strongest support system both during the divorce process and after its conclusion. Never hesitate to turn to those with whom you feel comfortable to help get you through what may be a very difficult, but finite time in your life.
Everyone has their own way of moving on once the divorce is over. How you get to where you want to be at the end of that tunnel, however, is ultimately up to you.
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Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey. He can be reached at (973) 994-7526, or repstein@foxrothschild.com.
Connect with Robert:
Within the last week, two (2) retailers filed for Chapter 11 bankruptcy protection, Heritage Home Group LLC and Real Mex Restaurants. Heritage originally emerged after a 2013 bankruptcy of the Thomasville, Broyhill, and Lane furniture brands, and Rex Mex operates Chevys Fresh Mex, El Torito, and other full-service restaurant brands. Both filed in the United States Bankruptcy Court District of Delaware, cases 18-11736 and 18-11795 respectively.
Additionally, Reuters and CNBC are reporting that Mattress Firm Inc., the largest U.S. mattress retailer, is also contemplating Chapter 11 filing.
Both Heritage Home Group and Real Mex previously filed for Chapter 11 bankruptcies within the last seven (7) years, reducing their store numbers. Heritage sold its Lane-branded lines of business late last year, and plans for the Chapter 11 proceeding launched on Sunday include at least one auction and sale of the rest of the brands. Heritage already has a $17.45 million offer for its luxury line of brands, and it appears that they are trying to sell the non-luxury core brands of Thomasville, Broyhill, and Lane to a single buyer.
Real Mex, meanwhile, agreed to sell its assets to Z Capital Group and to facilitate the sale it voluntarily filed for Chapter 11 bankruptcy protection. Reuters reports that this filing will allow the Z Capital Group, which is a co-owner of Real Mex, to take total ownership of the brand through asset sale.
Asset sale/auction is expected to be held within the next 60 days for both companies.
For the time being, Mattress Firm is considering a potential bankruptcy filing, as well as shuttering some of the 3,000 stores open across the country. Reportedly this is another side effect of brick and mortar stores no longer being able to keep up with e-commerce websites like Amazon.com.
Mattress Firm’s South African parent company, Steinhoff International Holdings, has been working on a deal to restructure the debt of some of its subsidiaries with its creditors. This came after a recent account scandal, which has since snowballed into a class-action lawsuit. Steinhoff originally acquired Mattress Firm in 2016.
These companies are part of a wave of other retailers with heavy debt loads looking for relief in Chapter 11 bankruptcy.
If you are a landlord with any of these stores it is important to know your rights, now. Stark & Stark’s Shopping Center & Retail Development Group can help. Our bankruptcy attorneys regularly represent landlords throughout the country, including recently in the District of Delaware, Eastern District of Missouri, District of New Jersey, Southern District of New York, District of Minnesota and Eastern District of Pennsylvania on a variety of issues.
Most recently, our Shopping Center Group has represented landlords and trade creditors in the Charming Charlie, Toys R Us, Macaroni Grille, Joe’s Crab Shack, Payless, Eastern Outfitters (EMS Part 2), EMS, Golfsmith, RadioShack, General Wireless (RadioShack Part 2), Gander Mountain, and A&P, Chapter 11 bankruptcy cases.
For more information on how Stark & Stark can assist you, please contact Thomas Onder, Shareholder, at (609) 219-7458 or tonder@stark-stark.com. Mr. Onder writes regularly on commercial real estate issues and is an active member of ICSC and Chair of the ICSC PA/NJ/DE Conference and Deal Making Show for 2018 in Philadelphia this September.
For those following New Jersey's fight for the decriminalization and one day the legalization of marijuana it's been a tumultuous few weeks. Full of infighting and
Communications Workers of America, AFL-CIO v. New Jersey Civil Service Commission, ___ N.J. ___ (2018). In one of the biggest constitutional decisions of the current term, an unusually divided Supreme Court today modified and affirmed the decision of the Appellate Division in this Legislative Review Clause case. The Appellate Division’s decision, which was reported at […]
The post A Big (In Every Way) Decision Under the New Jersey Constitution’s Legislative Review Clause appeared first on Appellate Law NJ Blog.
The average consumer has probably heard of terms like “trademark” and “copyright” before, but what falls under trademark? Do colors or color schemes fall under the category of a trademark? The answer may surprise you.
Trademarks and service marks are “any word, name, symbol, or device, or of any combination thereof” that identify and distinguish a mark owner’s goods or services from those manufactured or sold by others. They act as source indicators of the goods or services provided by the mark owner. See 15 U.S.C. § 1127. Dilution occurs when an infringer uses a mark similar to that of a famous trademark, thereby lessening or reducing a consumer’s ability to differentiate between the goods and services of each.
A particular color or color scheme can be deemed protectable if the mark owner can show that consumers have come to associate the color(s) with the origin of the goods. In Deere & Company v. Fimco Inc., 239 F. Supp. 3d 964 (W.D. Ky. 2017), a manufacturer of tractors and agricultural equipment sued a manufacturer of lawn sprayers for using Deere’s inherently distinctive green and yellow color combination and pattern. Deere held three trademark registrations pertaining to their recognizable green and yellow color scheme for: (1) “agricultural tractors, lawn and garden tractors, trailers, wagons, and carts” specifically with green bodies/frames and yellow wheels; (2) green and yellow “wheeled agricultural, lawn and garden, and material handling machines”; and (3) “tractor-towed agricultural implements,” including “fertilizer spreaders” and “nutrient applicators.”
FIMCO, which primarily manufactures lawn and garden sprayers, sold agricultural equipment in multiple colors, including green and yellow. Deere sought a permanent injunction ordering FIMCO to cease using yellow tanks or wheels in connection with wheeled agricultural equipment having green vehicle bodies. FIMCO asserted that all three of Deere’s registered trademarks referenced only a green body and yellow wheels, but did not mention anything about yellow tanks; and because all of Deere’s product depictions indicated green bodies with yellow wheels, Deere had no right to the exclusive use of yellow tanks. Deer countered that the focus of the analysis should be on whether the use of identical shades of green and yellow on similar equipment creates a likelihood of confusion. They stated that although its trademark registration was silent on the color of the tanks, this did not prove that FIMCO did not infringe on Deere’s trademark rights. The court agreed with Deere and stated that for a likelihood of confusion or dilution claim, FIMCO’s use of the green and yellow marks need not be identical to Deere’s—it just had to be similar enough.
After a week-long bench trial in October 2017, the District Judge held that FIMCO intentionally infringed and diluted Deere’s trademark rights through its use of the green and yellow color scheme in order to create an association with Deere’s brand. The Judge found that the tractors and sprayers were closely related and sold in the same marketing channels, and evidence showed actual consumer confusion about whether Deere manufactured or endorsed the FIMCO agricultural equipment. At trial, FIMCO’s CEO even referred to the color combination as “the John Deere colors.” The court also found that the yellow and green scheme had become sufficiently famous since the late 1960s to allow Deere’s trademark dilution claim to succeed (a famous mark is a prerequisite for a dilution claim).
Interestingly, FIMCO attempted to assert a defense of “aesthetic functionality” arguing that it should not be held liable for using the Deere color scheme because using those colors was required to satisfy the needs of its customers who wanted to match their product purchases to their Deere tractors. Rejecting that argument, the court found that FIMCO failed to explain why consumers would not be able to view another color scheme as a comparable alternative. The court stated that “[Defendant’s] intent to create an association with John Deere green and yellow tractors due to farmers’ ‘desire to match’ is precisely one of the factors the Court finds weighs in favor of a finding of likelihood of dilution in this case.” The court concluded that because it is only the combination of green and yellow together that is protected, FIMCO could use the colors green or yellow independently or combined with other colors, but was permanently enjoined from using the exclusive combination of yellow and green.
Although Deere was successful in trademarking a color combination, such a feat is rare. Consumers must visually equate the specific color or color scheme with that brand, which is often more finite than you would think. While the specific combination of a green chassis with yellow tires was enough to fall under John Deere’s trademark, just yellow tires on farming equipment might not meet the threshold.
Montclair State University v. County of Passaic, ___ N.J. ___ (2018). This case centered on the proper application of Rutgers v. Piluso, 60 N.J. 142 (1972). As discussed here, in connection with the Appellate Division’s opinion in this case, which was reported at 451 N.J. Super. 523 (App. Div. 2017), the Rutgers decision essentially immunized […]
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Personal Service Ins. Co. v. Relievus, ___ N.J. Super. ___ (App. Div. 2018). This opinion, issued by Judge Sumners today for a unanimous panel, concerned “whether a Law Division summary action seeking to vacate an award by a dispute resolution professional (DRP) as well as an appeal award of a three-member DRP panel, which affirmed […]
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The Supreme Court announced late yesterday that it has adopted a number of amendments to the New Jersey Court Rules, effective as of September 1, 2018. The full list of rule changes can be found here. A number of appellate rules, including Rules 2:2-1, 2:2-2, 2:2-4, and others, have been amended, and often re-numbered, to […]
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Cherokee LCP Land, LLC v. Linden Planning Bd., ___ N.J. ___ (2018). The Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. (“MLUL”) confers standing to actions of municipal land use agencies only on those who qualify as an “interested party.” N.J.S.A. 40:55D-4 defines “interested party” as “any person … whose right to use, acquire, or […]
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It is not unusual for parties to address their children’s college education in their Marital Settlement Agreements. If children are college age or close, parties may actually specifically determine the percentages that they will pay for college costs (including pre-college costs such as SAT/ACT preparation, application fees, etc.) If the children are younger, parties often acknowledge their responsibilities and define the types of things will be covered, but defer the determination of their actual percentage shares until the children are in their senior year of high school. Very often, the agreement will provide that the children are required to apply for all available financial aid, grants and loans. Since student loans may be easy to obtain to fund the vast majority of college, at times, parties may limit the loans that they are going to force their children to take to subsidized student loans (e.g. Stafford, Perkins) which are limited vs. private loans where they could borrow vast sums. But if college is a part of support of children in New Jersey, at least children of divorced parents or never married parents (vs. children of intact families that don’t seem to have the same rights), can they be forced to take loans to pay for an obligation that is supposed to be their parents’ obligation?
The issue of student loans was one of the issues addressed in the unreported (non-precedential) Appellate Division opinion in the case of M.F.W. v. G.O. decided today. In this case, the parties divorced in 2003 when their daughter was 5 years old. Their settlement included an agreement to pay for college and also had the typical language requiring that the child, “… “shall apply for all loans, grants, aid and scholarships available to her, the proceeds of which shall be first applied to college costs.” When it became time for the child to go to college, in this case Georgetown, at a cost of more than $66,000 per year, the mother sought the father’s contribution for both college and pre-college costs. When the issue wasn’t resolved, an enforcement motion was filed. One of the father’s defenses was that the daughter should have been required to obtain loans. It should be noted that the father’s net yearly income increased from approximately $80,000 per year at the time of the divorce to approximately $217,000 at the time of the motion.
The trial judge rejected the father’s request to enforce the agreement and require the daughter to seek student loans, finding it to be “repugnant.” As noted by the Appellate Division:
The court found it was “unfair and unjust” to require Jane to apply for “all loans, grants, aid and scholarships available to her” and to apply them first to the college costs because Jane “should not be bound to a contract which she is not a party to” and because the parents “have a legal obligation to support” her “and cannot compromise that obligation even if they both agree.” The court found this provision of the PSA is “repugnant and will not be enforced.”
That is an interesting holding because I have seen these clauses enforced all of the time. Seemingly, this is because the court found that “the parties have the financial wherewithal to meet all of their daughter’s financial needs for college.” But many times I have seen this provision in agreements where the parties seemingly have the financial wherewithal though sometimes I shake my head because unless parties have saved substantially for college, most people can’t afford to pay for college out of income, even at the income levels in this case. Moreover, some people of means include these clauses because one or both believes that the children need to have “skin in the game”, or because their parents didn’t pay for their education, or for any other reason. As noted above, if parents of means in an intact family make their child take out loans for college, that is their prerogative and the children probably have no recourse.
Back to M.F.W., the father appealed arguing, among other things not germane to this post, that the trial court should have enforced the parties’ agreement regarding loans and the Appellate Division affirmed the decision. With regard to the student loan issue, the Appellate Division noted that agreements are usually enforced and should not be disturbed, unless there is a change of circumstances. You get the sense that the court was inferring that this is what the trial judge meant in his decision, assuming it was not specifically stated as such. The change of circumstances was the parties increased income. Accordingly, they held that
The court found “unfair and unjust” the provision that required Jane to apply for loans and financial aid because it was the parents’ obligation to pay for college and they had the ability to do so. Defendant acknowledged that “[t]he parties both have significant financial resources and can afford to send their daughter to Georgetown University.” The court did not err by not enforcing this provision.
…
We cannot say, given the parties’ incomes, that the court erred by not requiring Jane to obtain loans or other financial aid where she would be financially obligated to repay the funds in the future. Her parents had agreed to pay for her college expenses under the PSA. This would include any loans to pay those expenses.
There appears to be a contradiction here. Was the loan requirement eviscerated because of the parties’ increased income or because the parties agreed to pay for college and that this would include loans? The latter suggests that it was intended that the agreement to pay for college included the agreement to pay for the loans that the child was going to be required to pay. That certainly is not the standard practice. Moreover, if the court is interpreting the agreement in that way, then there would not be a change of circumstances because they are interpreting the agreement to pay for college to also be an agreement to pay loans too.
Left unsettled by this case is (1) whether you can make your kids take out loans and if so (2) whether that agreement means that you have to pay for the loans your children take out if you agree to pay for college. If nothing else, though not precedential, this case provides ammunition to parents seeking to compel the other parent to pay for college, whether or not their Agreement requires that the children take out loans.
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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.
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The Supreme Court announced today that it has granted certification in three more cases. Two of those are criminal appeals, each involving sentencing issues. The third case presents an issue under the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11, et seq. (“the Spill Act”). Taking the three cases in docket number order, the […]
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In re Accutane Litigation, ___ N.J. ___ (2018). [Disclosure: I argued this appeal, together with co-counsel, on behalf of the plaintiffs. The opinions expressed in this post are mine alone, and are not attributable to or necessarily reflective of the views of other counsel for plaintiffs in the matter.]. Today, in a 6-0 opinion by […]
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On a daily basis, I’ll go online and search for the latest in divorce news to see what people are talking about. Two recent stories were of particular note not for the facts involved but, rather, for the newsworthy legal outcomes. Each story is a reminder that in New Jersey almost every case proceeds on a no-fault basis, even though, on occasion, a spouse may want to proceed on a claim of adultery, extreme cruelty, or another fault-based ground depending on the situation.
U.K. Wife Denied Divorce after Forty Years of Marriage
In the first story out of the United Kingdom, the Supreme Court dismissed an appeal from a woman seeking to divorce her husband after almost 40 years of marriage when they separated in 2015. The husband contested the petition (which apparently does not occur often) on the basis that the marriage was a success and that they still had a “few years” to enjoy together.
The wife’s application was denied because U.K. law provides that a quick divorce cannot be granted unless the party seeking the divorce claims adultery, desertion or “unreasonable behavior” by the other spouse. Otherwise, a divorce can only occur in the U.K. if the parties have lived apart for two years and the parties consent to the divorce, or, if one spouse objects, after five years of separation. In other words, since the husband was contesting the divorce the wife has no choice but to remain separated from him until 2020 for the divorce to occur.
North Carolina Man Ordered To Pay $9 Million to Man with Whose Wife He Had an Affair
The next story involves a boyfriend who was ordered to pay a husband approximately $9 million for having an affair with the husband’s wife. The award was comprised mostly of punitive damages designed to punish the boyfriend, and approximately $2 million in compensatory damages. The husband commenced a lawsuit with claims of criminal conversation, alienation of affection, intentional infliction of emotional distress, negligent infliction of emotional distress, and assault and battery. He specifically claimed that after learning of the affair his business lost both revenue and an employee (the wife).
Wondering how this type of lawsuit can be possible? Well, in North Carolina a person can sue a someone with whom his or her spouse has engaged with outside of the marriage for alienation of affection, and for criminal conversation, which involves extramarital sexual acts. Interestingly, this type of law still remains on the books of five other states. Incredibly, the claims held because there was no proof that the parties’ marriage was failing prior to commencement of the extramarital relationship, and third person being sued need not even have meant to harm the marriage to be found liable.
What Happens in New Jersey?
Had these situations occurred in New Jersey, the results would have been very different. As I mentioned before, most divorces in New Jersey proceed on the no-fault grounds of irreconcilable differences where, after six months of such differences, it is no longer reasonable for the spouses to remain married. As a result, the wife in the first story would have been able to divorce her husband without issue and without having to wait out the five-year separation period. As for the North Carolina man wondering how he is going to pay $9 million to the jilted husband, such claims could not have been brought against him in New Jersey with any sort of legitimacy.
Ultimately, while fault can – on very rare occasions – come into play in a New Jersey divorce, it is almost always an irrelevant factor to the outcome other oftentimes playing a significant role in the spouses’ emotions. New Jersey, like most other states, is more focused on allowing people to move on with their lives without pointing fingers, and without the time and expense involved in having to address these types of issues.
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Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey. He can be reached at (973) 994-7526, or repstein@foxrothschild.com.
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