Thursday, February 28, 2019

Don’t Call it a Comeback: Toys “R” Us Returning After Bankruptcy?

About a year after filing for Chapter 11 bankruptcy, Toys “R” Us appears to be making a return to the retail market as a national chain.

After the former toy retail giant liquidated its business last year, its lenders took control of the company’s intellectual property, which includes the Toys “R” Us, Babies “R” Us, and Geoffrey brand names.

In late January 2019, several former Toys “R” Us executives started running a new company called “Tru Kids” to manage those brands.

The new company is located in Parsippany, New Jersey, only about a 20 minute drive for Toys “R” Us’ former headquarters in Wayne, New Jersey.

Currently, Tru Kids is weighing a variety of options before starting to roll out an official business plan, including stand-alone stores, pop-up shops, or partnerships with other retailers like Amazon. Tru Kids is attempting to avoid some of the pitfalls attributed to its predecessor’s demise, specifically a failure to fully embrace the popularity of online shopping.

The company’s primary focus at the moment is reestablishing and growing the Toys “R” Us brand within the U.S. market.

Whether Tru Kids will learn from the mistakes of the former entity is yet to be seen. For instance:

  • Will they have smaller stores, as opposed to the warehouse locations of the former company?
  • Will there actually be a “fun zone,” as opposed to just aisles of shelved toys?
  • Will there be departments run by different vendors like is done at places like Best Buy?

Toys “R” Us continues its operations throughout 900 across the globe, and generated more than $3 billion in overall retail sales in 2018.

For more information on the Toys “R” Us case or ways to protect your leases, contact Stark & Stark’s Shopping Center & Retail Development Group.

Our attorneys regularly represent landlords throughout the country with a host of legal issues, including leasing, buying and selling properties, 1031 Exchanges, tax appeals, as well as enforcement is state and federal courts, including 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 or Joseph Lemkin at (609)791-7022 or jlemkin@stark-stark.com.



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Wednesday, February 27, 2019

Going All in On Alimony

Alimony is the court determined amount of money the court chooses to have one partner pay the other during and after a divorce. It's intended purpose is to allow both halves of the couple to maintain the lifestyle that was established during the relationship. To determine how much will be paid out, New Jersey uses 14 different points to calculate what alimony is entitled to:

Tuesday, February 26, 2019

In Wrongful Death Cases, No Expert Testimony is Needed to Establish the Value of the Services of a Loved One

Dutton v. Rando, ___ N.J. Super. ___ (App. Div. 2019).  In Lesniak v. County of Bergen, 117 N.J. 12 (1989), the Supreme Court stated that expert testimony is not required to establish the value of services such as advice, guidance, and companionship of a loved one in the context of a wrongful death case.  Today, […]

The post In Wrongful Death Cases, No Expert Testimony is Needed to Establish the Value of the Services of a Loved One appeared first on Appellate Law NJ Blog.



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Monday, February 25, 2019

The Meaning of “Is Violating” or “Is About to Violate the Law” Does Not Cover Past Violations

Federal Trade Commission v. Shire Viropharma, Inc., ___ F.3d ___ (3d Cir. 2019).  A former President of the United States famously uttered the statement that, in interpreting his testimony under oath, “it depends on what the meaning of ‘is’ is.”  Today’s opinion by Chief Judge Smith addressed whether the Federal Trade Commission Act, 15 U.S.C. §53(b), […]

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It’s Not Just About the Alimony – 2019 and the Current Tax Laws

Towards the end of 2018, all talk was about the 2018 Tax Cuts & Jobs Act and its changes to the treatment of alimony. The deductibility of alimony for payors (and the inclusion of alimony in income for the recipients) ended in 2018. There were rushes to the courthouse in order to complete divorces. Attorneys were burning the midnight oil to finish settlement agreements, and judges were staying late, often forgoing planned vacations in order to accommodate litigants who settled prior to the New Year.

Now that 2018 is over, it is time to focus on the other changes to the tax code which significantly impact family law cases. These were sometimes overlooked as the focus of the last 12 months was alimony. But the other changes in the law have equally, and in some cases more, important repercussions for families.

Mind you, this blog is in no way a substitute for sound advice from an accountant. It is, however, intended to open eyes to issues which should be raised in a family law case.

Gone are any “rules of thumb” that have been talked about in prior times. Indeed, the new regulations, and how they are to be implemented are still being written by the IRS!

Deductions for Children

For families with older children, this is an area that is having a significant impact on divorces. The good news is that the childcare credit has increased for qualifying children. For example, in 2017 a taxpayer was able to claim a $1000 credit on their income tax return for each child under 17 who qualified. That deduction has doubled to $2000 per qualifying credit and the refundable portion can go up to $1400.

For families with older children, however, the news is not as good. That’s because prior to the new tax law, taxpayers could claim an exemption for themselves as well as their eligible dependents. For parents with children in college, this typically meant the college student could still be claimed as a dependent (which was often alternated by the parents).

Now, however, all personal and dependent exemptions for tax years 2018 through 2025 have been suspended. There is a higher standard deduction, but this may not make up for the fact that a parent can no longer take a dependent exemption for a college student.

529 Accounts

Beginning in tax year 2018, parents can use up to $10,000 per year of distribution from a 529 account not only for college but for elementary and secondary schools. For some families, this may make a significant difference in being able to pay for private school education post-divorce or split up.

Mortgage Interest Deductions

Limits on mortgage interest deduction is going to affect some families. Under the new law, the portion of a mortgage on which you can deduct interest is limited to $750,000 as compared to the prior limit of 1 million. This becomes important, particularly for instances in which homes equity is used to make an equitable distribution payment.

SALT (State and Local Taxes)

The state local and property tax deduction is now limited to $10,000 (combined). In New Jersey, this is having a significant effect on homeowners, and in turn, parties to a divorce who expect to keep the marital home.

Self Employed Individuals

There have been significant and drastic changes in the tax code that is going to make substantial changes in the amount of taxes that will be paid by self-employed individuals. Individuals who work in a personal service industry will be treated differently than other business owners. It is going to be imperative to make sure that cases with a party who is self-employed or who is the owner of a business receive special attention.

To make things even more complicated, certain states such as New York and New Jersey are considering legislation and in some cases still operating under the scenarios by which deductions can be taken under the old scenario. As a result, what is good for the goose (federal) is not necessarily good for the gander (state) and all of these issues have to be considered when negotiating an overall settlement, or preparing for trial in which the court needs to understand what the tax ramifications will be for any decision.

The upshot of all of this is that far more attention has to be paid to the tax consequences of any settlement scenario in family matters. We will also see more cases in which attorneys are using the services of accountants to run scenarios in order to assist in coming to the best possible resolution. This is new territory for all of us, and a team approach is the best answer.



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Alfonso Ribeiro Denied Copyright for the “Carlton Dance”

The United States Copyright Office has denied a copyright submission over the “Carlton dance,” which was a routine first popularized on the hit 90s show, “The Fresh Prince of Bel-Air.”

Alfonso Ribeiro, the actor who played Carlton on the show, submitted three copyright applications over his dance routine to the U.S. Copyright Office. So far, two of the applications have been rejected and one is still under consideration.

In recent months, several performers have sued video game makers alleging that the companies committed copyright theft by including the individual performers’ dances within their video games as purchasable content.

These performers include the rapper 2 Milly, who also submitted a request for copyright on his “Milly Rock” dance and was denied.

Mr. Ribeiro sued Epic Games, the maker of Fortnite Battle Royale, as well as Take-Two Interactive Software, which makes NBA 2K16.

However, the copyright office denied the registration, under the basis that Mr. Ribeiro’s choreographic claims were deemed “a simple routine” and not complex enough to clear the bar and qualify as copyrightable.

That being said, courts are not bound by the U.S. Copyright Office’s decision, and could still reach a different conclusion in the lawsuit. The copyright office’s determination would be taken into consideration in determining a ruling.

There were already concerns regarding the true ownership of the dance prior to the copyright office’s decision. The creative license could go to NBC, which was the station that originally aired “The Fresh Prince of Bel-Air,” rather than Mr. Ribeiro.

Mr. Ribeiro’s attorney has said he plans to ask the U.S. Copyright Office to reconsider their decision, because even if the individual movements of the routine are “simple,” the way his client arranged the movement should be considered a choreographic work.



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Wednesday, February 20, 2019

Filing a Criminal Complaint as a Means of Collecting on an Invoice is an Unconscionable Commercial Practice That Warrants Attorneys’ Fees Under the Consumer Fraud Act

Jacobs v. Lindsay and Son Plumbing and Heating, Inc., ___ N.J. Super. ___ (App. Div. 2019).  The defendant in this appeal, Mark Lindsay and Son Plumbing & Heating, Inc. (“MLSP”) has had “a history of instituting criminal actions as a means of collecting its unpaid invoices,” as Judge Fuentes stated in today’s opinion for the […]

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Additional Considerations for Landlords Leasing to a Cannabis Related Business

As more and more states continue to legalize cannabis for medicinal and/or recreational purposes, new issues are seemingly arising for landlords who wish to lease their property to businesses for the purpose of growing, manufacturing and/or selling cannabis. This blog discusses some issues landlords need to consider when leasing their premises for cannabis related activities.

As discussed in a prior blog, a landlord must ensure that the lease does not violate any of the landlord’s pre-existing contractual obligations. Of particular concern, it needs to ensure that the lease with the cannabis business does not violate any provisions that the landlord has in financial documents with banks and/or its policies with its insurance carrier.

A significant, yet sometimes overlooked issue relates to environmental concerns. If manufacturing is being done on the premises, does the landlord understand what is being produced as well as how it is being produced? Does the landlord understand what products/chemicals are involved?

A landlord can request a copy of the tenant’s standard operating procedure and/or other relevant cultivation planning documents to determine how waste disposal and other environmental concerns are being addressed. Many companies may already have this information available.

What happens when the tenant vacates the premises is also an important consideration when assessing environmental concerns. After the lease expires or terminates, what reporting and/or remediation responsibilities exist for the property. The landlord and tenant should negotiate who is responsible for what reporting/remediation activities before the lease is executed. A landlord should also be concerned about making sure the tenant has the resources to perform its obligations.

Security is another potential concern. It is possible that significant sums of cash may be on the tent’s premises and a landlord should determine if this presents any additional type of risk. A prospective landlord may wish to contemplate additional security measures such as cameras or security guards.

Landlords should also appreciate that sometimes business and laws evolve. The lease should explicitly state what activities can and cannot be conducted on the premises. If only selling is permitted, that should be clearly stated in the lease.

Conversely, if no retail sales are permitted, that should also be articulated. One does not want to be in a position where activities that are not lawfully allowed on the premises today are made legal in the future and the tenant is claiming a right to engage in those activities. It is impossible for anyone to accurately determine how and when the laws relating to cannabis will change. However, a lease should try and anticipate as best as possible how new legislation, which will probably be more lenient, will impact the tenant’s business, and in turn the lease.

The Landlord must account for the risks involved and have appropriate indemnification language. This would include language relating to general liability as well as environmental indemnification. In addition to indemnification language, the lease should contain appropriate language for default, termination and depending on the state, confession of judgment for possession and/or rent.

Ultimately, the landlord needs to balance all of the above referenced concerns with the fact that it is obtaining a tenant for its property often times at a higher rental than a typical tenant.

For more on our cannabis real estate and business practice, please click here.



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Limits to Confidentiality: A Potential Divorce Mediation Pitfall

What are the limits to confidentiality at divorce mediation? This issue is of growing interest given the rise of mediation as a sensible and cost-effective alternative to divorce litigation.

Earlier this year, a New Jersey Appellate court held that a written Memorandum of Understanding (MOU) prepared and signed by the parties’ mediator is unenforceable. The MOU is a nonbinding agreement between two (or more) parties which outline the details of an agreed upon understanding, which includes each parties’ requirements and responsibilities.

In this case, the court did not need to reach the issue of whether the MOU was accurate, but determined that absent both parties’ signatures it was simply a confidential part of the mediation process.

Further, the court stated that if both parties had chosen to waive the confidentiality privilege, no problem would exist. In this specific instance, one party was now denying that a settlement had been achieved, which meant the MOU was inadmissible as evidence at trial.

This is an important lesson for all persons involved in mediation to learn. You must always cross your t’s, dot your i’s, and always sign the MOU.



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Franchisor of Popular Frutta Bowls Chain Lands In Chapter 11 Bankruptcy

The wave of retail bankruptcy filings has crash landed on the burgeoning fruit bowl industry. Frutta Bowls Franchising, LLC, the franchisor for the popular “Frutta Bowls” chain filed a voluntary petition for Chapter 11 bankruptcy protection in the District of New Jersey on February 15th (Case No.: 19-13230). According to its website, Frutta Bowls is the fastest growing superfoods café with healthy alternatives to traditional fast food, including options such as Açai, Pitaya, and Kale bowls.

Started in New Jersey with two locations in 2016, Frutta Bowls has grown at a rapid pace, and appears to now operate in 14 states, with approximately 50 locations. Frutta Bowl’s fast and furious approach to growth may provide a cautionary tale to both franchisors and franchisees. Although, according to documents filed with the bankruptcy court, Frutta Bowls attributes its troubles to its prior legal counsel’s lack of familiarity with franchise law and due to the recent “global economic downturn.”

Faced with over fifteen demand letters from franchisees, Frutta Bowls was compelled to voluntarily seek bankruptcy relief. The overwhelming majority, if not all, of the creditors listed in Frutta Bowl’s bankruptcy petition appear to be individuals with “disputed” claims for franchisee fees, for never opened locations.

The interplay of bankruptcy and franchise law can be a minefield for the unwary. In bankruptcy cases, debtors may seek to reorganize as a going concern or to liquidate, including through the sale of substantially all of the Debtor’s assets. Protecting and preserving rights under valuable franchise agreements must be addressed with caution. Parties must be able to maneuver around the automatic stay imposed immediately upon a bankruptcy filing before proceeding with existing litigation or otherwise enforcing available remedies.

Issues such as whether or not a franchise agreement can be assumed and potentially assigned and/or whether franchisor trademarks can be used be used by a franchisee, are made more complex given the interaction of federal bankruptcy law with other applicable state and federal laws. Franchisors and franchisees may also have to deal with issues concerning the enforcement of non-compete agreements, following the rejection of a franchise agreement in bankruptcy. Taking action without proper court authorization may leave parties subject to damages and potentially sanctions being imposed by the Bankruptcy Court.

If you are addressing issues in the context of a franchisor or franchisee bankruptcy, it is important to know your rights. Chapter 11 debtors typically seek to re-negotiate agreement terms and/or seek to assign contracts to third parties.

Stark & Stark’s bankruptcy and franchise group can help. Our bankruptcy attorneys regularly represent contituents in cases throughout the country, including recently in the District of New Jersey, Southern District of New York, District of Delaware, District of Minnesota, and the Western and Eastern Districts of Pennsylvania, regarding a variety of issues. Most recently, our Group has represented constituents in the Sears, Toys R Us, Mattress Firm, David’s Bridal, Lancaster Fine Foods, Payless, Eastern Mountain Sports, Golfsmith, RadioShack, Radio Shack, Gander Mountain, A&P, Joyce Leslie, rue21, Central Grocers and Sports Authority chapter 11 bankruptcy cases. For more information on how Stark & Stark can assist you, please contact shareholder Joseph Lemkin at 6091-791-7022 (jlemkin@stark-stark.com).



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Tuesday, February 19, 2019

Volunteer Firefighter Injured in the Line of Duty Need Not Have Other Employment in Order to Receive Disability Payments

Kocanowski v. Bridgewater Tp., ___ N.J. ___ (2019).  As discussed here, the Appellate Division in this case held that in order for a volunteer firefighter to receive temporary disability payments after being injured in the line of duty, the firefighter needs to have had outside employment at the time of the injury.  Today, in a […]

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Monday, February 18, 2019

After a Lull, The Supreme Court Grants Review in Six Cases

It had been nearly one month, since January 18, 2019, since the Supreme Court last added cases to its docket.  However, the Court has now announced grants of certification in six cases. In Minsavage v. Board of Trustees, Teachers’ Pension & Annuity Fund, the question presented, as phrased by the Supreme Court Clerk’s office, is […]

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Friday, February 15, 2019

The Casino Reinvestment Development Authority Cannot Condemn Land for Potential Use in the Indefinite Future

Casino Reinvestment Development Authority v. Birnbaum, ___ N.J. Super. ___  (App. Div. 2019).  On January 7, 2019, the Appellate Division decided Borough of Glassboro v. Grossman, ___ N.J. Super. ___  (App. Div. 2019), as discussed here.  The key takeaway from that opinion was that, under the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -149 […]

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Wednesday, February 13, 2019

The Two-Court Rule

In reading an unpublished Appellate Division decision recently, I learned about the “two-court rule.”  That rule, which dates back at least as far as a 1949 Supreme Court of the United States decision, Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271 (1949), states that an appellate court will not “undertake […]

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Monday, February 11, 2019

Fee for Filing Documents Electronically in a County Register’s Office Was Not Authorized by Statute or Otherwise

New Jersey Land Title Association v. Rone, ___ N.J. Super. ___ (App. Div. 2019).  May a County Register or Clerk charge a surcharge or convenience fee when a document is filed electronically?  That was the question that today’s opinion by Judge Gilson had to answer.  Applying de novo review to this purely legal issue, the […]

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Amazon 2-Day Free Shipping to Serve Divorce Papers: The Bezos Divorce through the Lens of New Jersey Law

Earlier this month, Amazon founder Jeff Bezos and his wife Mackenzie announced their plans to divorce, setting off speculation as to what would occur with their estimated $138 billion in net worth.

From a first glance, you may assume that the Bezos divorce would be much more acrimonious and hard fought than a case involving the typical John and Jane Doe case as the thought may be that there is more to fight for financially.

However, wealth in these incredibly high net worth cases actually removes many of the most challenging issues in divorce like payment of legal and expert fees or trying to continue the lifestyle for both parties with insufficient income from both parties to same to occur. The world’s richest couple will not have these challenges.

Instead, high net worth divorces have a whole different set of challenges that middle-class families typically do not need to consider.

First, the logical step-wise process in any division of assets and debts in a divorce is to ascertain, account for and value all of the assets and debts owned by either or both parties. For the Bezoses and other high net worth divorcees, this will likely be a complex, incredibly time-consuming process.

Beyond typical assets like cash, brokerage accounts, and retirement assets, parties like the Bezoses likely have ownership interests in many separate enterprises, corporations, partnerships, subsidiaries, investment trusts, along with extensive real estate, private equity holdings, and even art and jewelry collections all of which need to be accounted for and valued. Trusts and incredibly complex ownership structures will need to be investigated, digested and analyzed.

The Bezoses are going to need all sorts of professionals supervising and drafting documents to make sure that any kind of asset transfer will be well drafted and will protect both parties. If we do find any details about the Bezoses settlement (which I expect to remain private, as further outlined below), it will not likely be completed for years to come.

The most expensive part of the divorce process is not likely to be legal fees, but rather fees and costs for experts and appraisers who must figure out how to divide up the largest tranche of personal assets in the world.

Privacy is paramount in cases dealing with prominent figures and celebrities such as the Bezoses. Millions are chomping at the bit to hear about what they have, how it will be divided, and whether the fight will get ugly. In fact, this blog relies on the assumption that those of you reading this have at least some interest as to their personal lives and the theater of their divorce.

For this reason, it is very unlikely that the Bezos divorce ever sees a courtroom. It’s all but guaranteed that the divorce will be resolved through a private negotiated settlement, mediation or a private arbitration, or some combination all held behind closed doors with gag orders and strict confidentiality.

Lastly for this article, Jeff Bezos’ majority stakeholder status at Amazon brings about its own challenges, as would any high net worth divorcee with controlling interest in a business enterprise. Since the vast majority of Bezos’ wealth is tied up in his ownership stake in Amazon, which he started after marrying his wife, providing for equitable distribution may need to become creative.

Jeff and Mackenzie Bezos are based in the state of Washington, which is a community property state. This means that each spouse equally owns all of the assets either party has acquired over the course of their marriage, including their corporate shares. This differs from equitable distribution states like New Jersey, where division of the assets and debts of spouses are determined by a host of statutory factors meant for a fair allocation, which may not be an equal allocation.

Jeff Bezos, according to Forbes, owns 16% of Amazon, by far the largest shareholder. With major stockholders in a divorce, you want to be sure to effectuate division of the assets in such a way that does not divest control from that shareholder. For example, in the Bezos case, Mackenzie may be entitled to 50% of the total shares (remember, they live in a community property state where 50/50 splits are the presumption).

However, if 50% of Jeff Bezos’ shares are conveyed to Mackenzie and she liquidates a portion, shareholder control of Amazon could be significantly affected and the Bezos may lose their controlling stake. This could stagnate the family fortune which would benefit the Bezos’ children and legacy, which is unlikely to be MacKenzie’s goal or desire.

Instead, what is more likely is that Mackenzie will get “constructive ownership” of 50% of the shares, with Jeff retaining control of the business enterprise. Mackenzie will get the dividends from her portion of the shares and if there is a liquidity event, she might get bought out, but there would not likely be an actual transfer that would divest the family of control of Amazon.

There also may be a division based on exchanging values, meaning that perhaps an agreement is made wherein Mackenzie receives a much larger share or the entirety of other assets that would equal the value of her potential portion of her 50% right to the Amazon shares. However, this option appears to be less likely given that the majority of the Bezos net worth is tied to their Amazon holdings. Depending on how diversified they are, perhaps Jeff can convey more of some other assets and less of Amazon.

Time will tell whether we will ever know the result of the Bezos divorce, but we can be assured that the world will be watching to see what we can in regard to the world’s highest net worth divorce on record.



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Construction Litigation Jurisdiction in Federal Court or State Court

In the context of construction litigation, a question may arise whether a matter should be initiated in state court or federal court. Each Court might have jurisdiction to hear the matter under several different theories. Discussed below are the principal manners in which it is determined whether a state court or federal court has jurisdiction to hear a dispute.

In general, if the case involves a federal construction project, then the state court does not possesses jurisdiction to hear the dispute. This may involve a Federal Miller Act claim, as well as other federal claims pursuant to which the federal courts would have exclusive jurisdiction to hear the dispute. These matters cannot be initiated in state court.

The other way in which federal court may have jurisdiction to hear a matter is if there is complete diversity amongst the parties in the matter and the amount in dispute exceeds $75,000. It should be noted that while an action can be commenced in federal court if the amount exceeds $75,000, and there is complete diversity amongst all the parties, these same type of actions can often times could be filed in state court instead.

With regard to state court jurisdiction, if the matter does not involve a federal cause of action, state court will have jurisdiction to hear almost any dispute amongst contractors. In fact, if the matter involves a state project or municipal project, state court is often the preferred venue.

Additionally, if both parties work in the state in which the dispute is centered, then in that event, federal court would not have jurisdiction to hear the dispute unless it involved a federal construction project or a federal cause of action.

During the course of litigation, a party may seek to remove a matter to federal court even though it is initially filed in state court. That typically would not occur unless it involved a federal cause of action, or if the above criteria with regard to diversity of citizenship, and the value of the claim is applicable.

At times, a contractor has the ability whether to choose to file in state court or federal court. The parties should carefully consider which court best meets their needs, provides the best possible remedy, and would be most cost effective.

Attorneys at Stark & Stark are well versed to determine which court would be the preferred venue to bring an action, as each venue has certain benefits as well as certain shortcomings.



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Barring Owner of Two-Family Home From Leasing Both Units to Renters is Unlawful

Tirpak v. Borough of Point Pleasant Beach, ___ N.J. Super. ___ (App. Div. 2019).  This per curiam opinion, issued today by a panel consisting of Judges Sabatino, Haas, and Sumners, affirms a decision of Judge Marlene Lynch Ford of the Law Division, Ocean County, substantially for the reasons that Judge Ford gave.  The issue was […]

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Friday, February 8, 2019

The Appellate Division Confesses Error

State v. Berisha, ___ N.J. Super. ___ (App. Div. 2019).  None of us likes to admit our mistakes.  That includes judges, of course, though judges sometimes do change their minds, as discussed here. Yesterday, Judge Fisher issued a panel opinion in this post-conviction relief appeal involving a claim of ineffective assistance of counsel.  He unabashedly […]

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Thursday, February 7, 2019

Things Remembered Files for Chapter 11 Bankruptcy Protection

53 –year old gift engraver and retailer, Things Remembered Inc., filed on Wednesday for Chapter 11 bankruptcy protection in the District of Delaware docket #19-10234. The chain operates more than 400 locations, nationally, and expects to close about 250 stores in its initial efforts to reorganize under the Bankruptcy Code.

Enesco, the giftware and home and garden décor company, is the stalking horse bidder to take approximately 130 of Things Remembered leases in the bankruptcy case with court approval. The stalking horse bid is $17.3 million.

This filing comes of the heels of the Charlotte Russe Holding, Inc. (“Charlotte Russe”) Chapter 11 bankruptcy filing also in Delaware docket #19-10234, earlier this week.

As more chains try to navigate the new world of omnichannel that encompasses online, direct mail, and B2B retail business, and brick and mortar stores, Chapter 11 filings are rising to address issues in one forum.

If you have a Charlotte Russe and Peek Children’s lease in your center, Stark & Stark’s Shopping Center & Retail Development Group can help.

Our bankruptcy attorneys regularly represent landlords throughout the country, including recently in the Eastern District of Missouri, District of New Jersey, Southern District of New York, District of Delaware, District of Minnesota and the Western and Eastern Districts of Pennsylvania regarding a variety of issues.

Our Group has been counsel to landlords and trade creditors in the Mattress Firm, Toys “R” Us, Payless, Eastern Outfitters (EMS Part 2), EMS, Golfsmith, RadioShack, General Wireless (RadioShack 2), Gander Mountain, A&P, Joyce Leslie, rue21, Central Grocers and Sports Authority 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 or Joseph Lemkinat (609)791-7022 or jlemkin@stark-stark.com.



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Interested Parties in Probate Litigation

During a Will contest, a question may rise as to who is an interested party with regard to an estate. This question is not quite as simple as it may appear at first sight. In fact, the interested parties may be substantially greater than the party initiating the Will contest might have anticipated. As discussed below, interested parties are not merely those who are listed under the Last Will and Testament.

In general, all of the Decedent’s family members are either interested parties or actual parties during a Will contest whether they are named as beneficiaries under the Last Will and Testament or not. As such, all surviving family members are potentially interested parties. In addition to these parties, all parties who are listed under the current Last Will and Testament, which has been offered for probate, are also interested parties to the litigation.

This group is easy to define as they are listed in the Will that is being challenged, and thus, are directly interested parties. In addition to the parties listed under the Last Will and Testament which has been offered for probate, if a previous Will exists than the individuals listed under the previous Will could also be interested parties who would have standing to participate in the litigation. As such, when initiating a Will contest, the Petitioner must determine who the interested parties are under any previous Last Will and Testament aside from family members, as they may also be interested parties.

It is important in the context of Probate litigation that the person contesting a Will, as well as the person defending a Will, determine who the interested parties are. This is because these parties have to be placed on notice and given an opportunity to participate in the litigation should they choose to do so.

The probate litigation attorneys at Stark & Stark are well versed in determining who are the potentially interested parties are, and whether they should be added as parties to the litigation.



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Tuesday, February 5, 2019

Charlotte Russe Files for Chapter 11 Bankruptcy Protection

Charlotte Russe Holding, Inc. (“Charlotte Russe”), the women’s fashion retailer filed for Chapter 11 bankruptcy protection in the District of Delaware docket #19-10201. The chain operates more than 500 locations, nationally, and is closing about 90 stores in its initial efforts to reorganize under the Bankruptcy Code.

CNN reports that it secured $50 million for initial bankruptcy funding to continue running about 400 Charlotte Russe and Peek Children’s stores for the next few months.

Court pleadings cite that the company plans to liquidate, if it cannot find a buyer by February 17, 2019.

The filing comes on the heels of last year’s falling sales – $928 million in 2017 to $795 million in 2018.

If you have a Charlotte Russe and Peek Children’s lease in your center, Stark & Stark’s Shopping Center & Retail Development Group can help.

Our bankruptcy attorneys regularly represent landlords throughout the country, including recently in the Eastern District of Missouri, District of New Jersey, Southern District of New York, District of Delaware, District of Minnesota and the Western and Eastern Districts of Pennsylvania regarding a variety of issues.

Our Group has been counsel to landlords and trade creditors in the Mattress Firm, Toys “R” Us, Payless, Eastern Outfitters (EMS Part 2), EMS, Golfsmith, RadioShack, General Wireless (RadioShack 2), Gander Mountain, A&P, Joyce Leslie, rue21, Central Grocers and Sports Authority 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 or Joseph Lemkin at (609)791-7022 or jlemkin@stark-stark.com.



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What Income is Used to Determine Alimony & Child Support in New Jersey?

The fairness of the calculation of alimony and child support depends on the accuracy of both party’s respective incomes. Both alimony and child support are calculated using each party’s gross income.

Gross income may include income from the following sources:

  • compensation for services, including: wages, fees, tips, and commissions;
  • the operation of a business minus ordinary and necessary operating expenses;
  • gains derived from dealings in property;
  • interest and dividends;
  • rents (minus ordinary and necessary expenses);
  • bonuses and royalties;
  • alimony and separate maintenance payments received from the current or past relationships;
  • annuities or an interest in a trust;
  • life insurance and endowment contracts;
  • distributions from government and private retirement plans including Social Security, Veteran’s Administration, Railroad Retirement Board, deferred compensation, Keoughs and IRA’s;
  • personal injury awards or other civil lawsuits;
  • interest in a decedent’s estate or a trust;
  • disability grants or payments (including Social Security disability);
  • profit sharing plans;
  • worker’s compensation;
  • unemployment compensation benefits;
  • overtime, part-time and severance pay;
  • net gambling winnings;
  • the sale of investments (net capital gain) or earnings from investments;
  • income tax credits or rebates (excluding the federal and state Earned Income Credit and the N.J. homestead rebate);
  • unreported cash payments (if identifiable);
  • the value of in-kind benefits; and
  • imputed income.

Since both parties’ gross incomes are used to calculate alimony and child support, the first thing an attorney will do is determine what income to use for each party in the calculations. In some cases, the parties’ gross incomes can be easily determined, such as where both parties earn predictable salaries as W-2 wage earners.

However, the appropriate income to use for either or both parties may also be more complicated, especially when one spouse does not earn an income or in cases that involve incomes that fluctuate from year to year, which usually involve business owners or when one party receives either discretionary bonuses or fluctuating commissions.

In cases where a Court finds that either party is voluntarily unemployed or underemployed, the Court will usually impute income to that party based on their work history, earning capacity, educational background, etc. A Court may look to that party’s previous income, the average earnings for that occupation as reported by the New Jersey Department of Labor, or based on full-time employment at forty (40) hours per week at the New Jersey minimum wage.

In cases where a party’s income fluctuates from year to year, our Courts will generally include all sources of income for each party, including bonuses and commissions, and average that party’s income over a period of three (3) to five (5) years to determine the income for that party for purposes of calculating alimony and child support.

Although our Courts will usually average a party’s income if one or both parties’ income fluctuates, attorneys have the ability to be creative where our Courts do not. Typically, the payor spouse objects to calculating child support and/or alimony utilizing an income averaging approach, since their support obligations will be based on incomes, which may include discretionary bonuses or unpredictable commissions that they may not receive.

One common way attorneys are able to resolve a situation where one party’s income fluctuates is to negotiate a base child support or alimony figure on each party’s base salaries alone. Additionally, there is an additional Supplemental child support and/or alimony figure, which is usually a percentage of the payor’s bonus/commissions.

In any event, if you anticipate a divorce and will need either child support or alimony calculated, it is imperative that you consult with an experienced family law attorney.



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Important Considerations for Leasing Cannabis Related Facilities

For any lease, there are always numerous potential concerns and pitfalls. However, when dealing with a cannabis lease, landlords must flesh out one significant concern that does not exist with traditional leases. This concern stems from the illegality of cannabis at the Federal level.

Typically, a landlord has already entered into many business relationships and documents pertaining to its property, years before contemplating leasing to a cannabis facility. The landlord has likely executed financing and insurance documents, which may be jeopardized by a cannabis lease. As discussed below, a landlord may inadvertently breach provisions in those documents by executing a lease for a cannabis facility.

The loan documents were probably executed well before it was ever envisioned that marijuana (whether medicinal or recreational) would be legal under various states’ laws. Those documents may very well contain a provision noting that the landlord/borrower will not use the property in connection with any illegal activity. As the cultivation and use of marijuana is illegal under Federal law, the mortgagee has an argument that leasing to a cannabis facility automatically breaches the loan documents.

Another possible concern relates to insurance policies. The landlord will generally hold various types of insurance policies related to property damage and liability. Those policies very likely have language excluding or limiting coverage for illegal or non-permitted activities. Therefore, those policies should be thoroughly reviewed and modified through endorsement to ensure full and adequate coverage.

It may also be the case that a landlord has existing leases on the property with other tenants containing certain restrictions or exclusives. Perhaps an existing tenant has a provision in its lease in which the landlord agreed that no illegal activity would be conducted on the property. Again, technically, the activity of having a cannabis facility is illegal under federal law and may give the other tenant the right to rescind or terminate its lease.

Everyone involved in the transaction should thoroughly consider the aforementioned issues before entering into a lease for a cannabis facility. The tenant needs to be aware that it may be required to sign a lease with the landlord in which the tenant remains responsible for any additional costs and liability incurred by the landlord as a result of the cannabis lease.

This is why both cannabis tenants and landlords should have the counsel of an experienced cannabis real estate attorney who can devise and recommend creative and balanced solutions for the legal issues and implications of entering into a cannabis lease.



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