Publications — Page 6 of 47 — Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events

Confidentiality and Privilege in the Mediation Process

Published on: October 26, 2022 | by Nicole A. Kobis and Honorable Katherine Dupuis, (Ret.)

Imagine you attended a mediation in a hotly contested matter which turns out to be a total waste of time because your adversary was late, unfamiliar with the file or unwilling to entertain settlement discussions. Is it permissible to tell the trial judge about your adversary’s failure to act in good faith? What if you are able to reach an agreement but one side later refuses to acknowledge that agreement? Is there any recourse?

Imagine you participate in a mediation which is unsuccessful. Your adversary files a motion wherein it is disclosed that your client was willing to waive alimony at mediation. You, of course, are furious at this misrepresentation because that is only part of the story. What has been omitted is that your client was only wiling to waive alimony in exchange for receiving 100% of the property in equitable distribution. How do you respond?

The General Rule

Inheriting & Bequeathing Firearms in New Jersey: How to Lawfully and Responsibly Transfer Possession

Published on: October 19, 2022 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

According to the Giffords Law Center to Prevent Gun Violence, New Jersey has the second strictest gun laws in the nation behind California. As demonstrated this past summer, that legal landscape is ever-changing. While much attention was paid to the U.S. Supreme Court’s June 23rd ruling expanding the right to carry concealed handguns outside the home, many families have given little thought to the implications raised by the transfer of a firearm following a death. This article will discuss the appropriate way to bequeath and inherit firearms in New Jersey and help current gun owners continue their legacy of responsible ownership beyond their passing.

Is a Firearms ID Card or Handgun Purchase Permit required?

Under typical firearm transfers, the receiving party must be a federally licensed dealer (“FFL”) or have a valid Firearms Purchaser Identification Card (“FPID”) and the parties must complete a Certificate of Eligibility. In the case of handgun transfers, the receiving party must obtain a Handgun Purchase Permit (“HPP”). These requirements exist even in transfers between family members.

Can a Last Will and Testament Require that Beneficiaries Arbitrate their Disputes?: In a case of First Impression, New Jersey Court says No.

Published on: October 18, 2022 | by Elizabeth Engert Manzo

Whether a Testator can compel beneficiaries of an Estate to arbitrate potential disputes regarding the enforcement, interpretation, and administration of a Last Will and Testament by including a mandatory arbitration provision is a novel legal issue which, until recently, had not been considered by the courts in New Jersey. For those hoping that an arbitration provision could be used when drafting a Last Will and Testament to bar litigation in court and thereby reduce the possible time and expense of estate disputes, a recent New Jersey decision dashed such hopes and held that arbitration provisions in a will are unenforceable.

In the case of In Re Estate of Hekemian, the plaintiff, Richard E. Hekemian, one of the Decedent’s four sons and a beneficiary of his Estate, filed a lawsuit seeking compensation from two of his brothers, Peter S. Hekemian and Edward G. Imperatore, in their capacities as Co-Executors of their late father’s Estate. Upon notice of the litigation, the defendants filed a motion to compel arbitration based on an arbitration provision in the Decedent’s Will. In turn, the plaintiff opposed the motion claiming that the arbitration provision in the will is invalid under New Jersey.

While noting that the State of New Jersey, as a matter of public policy, generally favors arbitration as a dispute resolution mechanism, the New Jersey Superior Court determined that an arbitration provision in a Decedent’s Last Will and Testament was unenforceable. The court began its analysis by noting the hallmark principle that a testator’s intent should be honored and upheld. To wit, the court cited to the statute at N.J.S.A. 3B:3-33.1 which states that “the intention of a testator as expressed in his will controls the legal effects of his dispositions”.

The NLRB is Once Again Set to Expand Joint Employer Liability

Published on: October 13, 2022 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

On September 6, 2022, the National Labor Relations Board (NLRB) released a Notice of Proposed Rulemaking (NPRM) addressing the standard for determining joint-employer status under the National Labor Relations Act. Under the proposed rule, two or more employers would be considered joint employers if they “share or codetermine those matters governing employees’ essential terms and conditions of employment.” If finalized, the rule would explicitly rescind the NLRB’s most recent overhaul of the joint employer standard that raised the bar to attain joint employer status and will undoubtedly result in many more joint employer situations.

The Joint Employer Standard’s Seesaw History

Over the past decade, joint employer status has been gone back and forth dramatically as the composition and political control of the Board has shifted.

Why Employers Need Consistent Records of Employee Performance

Published on: September 9, 2022 | by Joshua L. Weiner

In an example of how informal management can come back to haunt employers, a U.S. District Court judge recently ruled that a former Starbucks regional manager had sufficiently demonstrated that a jury could determine that the justification Starbucks provided in terminating her was pretext for unlawful discrimination.

Plaintiff Shannon Phillips, who is Caucasian, claims that Starbucks discriminated against her and other white employees to repair its public image after drawing negative media attention for the 2018 arrest of two Black men at a Starbucks in Philadelphia, alleging reverse discrimination under Title VII of the Civil Rights, and the New Jersey Law Against Discrimination. Starbucks denies engaging in discrimination, alleging that Plaintiff was terminated for failing to lead and perform her role as a regional manager and, more specifically, was aloof, overwhelmed by the position, and failed to perform the essential functions of her job.

On Starbucks’ motion for summary judgment, the judge determined that Plaintiff had presented sufficient evidence allowing a reasonable jury to conclude that the company discriminated against her and other white employees. The judge further found, however, that Starbucks presented a legitimate, non-discriminatory reason for Plaintiff’s termination. As part of the burden-shifting analysis conducted in discrimination claims, when an employer produces sufficient evidence of legitimate, non-discriminatory reasons for the employee’s termination, the employee must then provide evidence that the employer’s reasons were pretext for discrimination. As it applied to Plaintiff’s claim of discrimination, the judge found that she had presented sufficient evidence creating a genuine dispute of material fact that Starbucks’ stated rationale for terminating her constituted pretext.

New Jersey Employers: Time To Update Your Workplace Postings!

Published on: August 30, 2022 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

The New Jersey Division on Civil Rights (DCR) recently adopted new and amended regulations concerning the “Display of Official Posters of the Division on Civil Rights.” Under these regulations, covered employers must display revised posters advising employees of their rights under the New Jersey Law Against Discrimination (“LAD”) and the New Jersey Family Leave Act (“FLA”). Both the LAD and FLA posters must be printed on 8 ½” by 11″ paper (or larger) and contain text that is fully legible. The official posters can be found on the DCR’s website located here and here. Employers should immediately replace their now outdated LAD and FLA posters with the updated ones.

New electronic posting option: The new regulations now expressly allow employers to satisfy the posting requirement by displaying posters electronically on an internet or intranet site accessible to all employees. Additionally, the new regulations require employers to distribute the updated posters annually on or before December 31st and upon an employee’s first request.

Additional posting requirements: As a reminder, the New Jersey Department of Labor and Workforce Development also requires employers to display posters regarding child labor, workers’ compensation, wage and hour rules, payment of wages, unemployment insurance, temporary disability benefits, the Conscientious Employee Protection Act (CEPA), family leave insurance, records, the SAFE Act (if you have 20 or more employees), gender equity (if you have 50 or more employees), paid sick leave, and worker misclassification.

Kerry Cahill, Esq. featured in Plastic Surgery Practice’s Podcast – Setting Up a New Location? Tips for Leasing or Buying

Published on: August 29, 2022 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

As a featured guest on Plastic Surgery Practice’s podcast, Setting Up a New Location? Tips for Leasing or Buying, Kerry Cahill, Esq. discusses her thoughts on the establishment of new sites for healthcare practitioners.

Sellers want to maximize their profit on the sale of the property, and, as a result, the practitioners must make competitive offers. For the practitioners who are receiving financing, the mortgage obligations may commence before the practice is physically up and running. As a result, the practitioners must ensure they have enough capital during the fit out period to cover any mortgage, tax, insurance, utility, and repair obligations.

Listen to the full podcast on Plastic Surgery Practice.

Nicole A. Kobis, Esq. featured in Lawline’s Lawyers Who Lead Podcast

Published on: August 23, 2022 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Be open and listen. The skill of opening the ears, putting down the phone, and actually listening is something that we all can work on…

Nicole A. Kobis, Esq., partner in Lindabury’s Divorce and Family Law Practice Group, discusses her thoughts on how to lead and succeed in today’s constantly evolving world as a featured guest on Lawline’s Lawyers Who Lead Podcast, with host Sigalle Barness.

The Best Lawyers in America® Names Lindabury Attorneys to 2023 Listing

Published on: August 18, 2022 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Lindabury, McCormick, Estabrook & Cooper, P.C. is please to announce that 15 of the firm’s have been selected for inclusion in The Best Lawyers in America 2023.

Steven Backfisch was recognized as Best Lawyer in America for Litigation in Labor & Employment.
John R. Blasi was recognized as Best Lawyer in America for Trust & Estates.

American Hospital Association v. Becerra: The Economics of Healthcare

Published on: August 8, 2022 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

COVID-19, inflation, politics, and an impending recession: it is indisputable that the last two years have had an indelible effect on the healthcare industry. Acute care providers, in particular, have faced a plethora of economic challenges, including increasing costs for drugs and medical devices. However, on June 15, 2022, in American Hospital Association v. Becerra, Secretary of Health and Human Services, 142 S.Ct. 1896 (2022), the American Hospital Association (AHA) secured a win for 340B hospitals—often referred to as safety net hospitals—by successfully challenging the Department of Health and Human Services’ (DHHS) calculation of reimbursement rates. As a result, the Becerra court affirmed that DHHS was not statutorily authorized to vary reimbursement rates for different hospital groups; DHHS’s power to increase or decrease the price is distinct from its power to set different rates for different groups of hospitals. Id. As a result, the Becerra decision has far-reaching implications for acute care providers who provide services to uninsured, underinsured, and rural communities.

Legislative Backdrop

In order to appreciate the impact of Becerra, it is imperative to have a general understanding of the evolution of the regulatory landscape for healthcare providers. During the nineteenth century, acute care was generally provided in the homes of the wealthy or through benevolent institutions, including voluntary, religious, and public or governmental institutions. Generally, the Wilson-Gorman Tariff Act of 1894 applied to these early acute care providers, which provided that charitable organizations should enjoy tax-exempt status, provided they operate for charitable purposes.