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The National Law Forum - Page 471 of 753 - Legal Updates. Legislative Analysis. Litigation News.

Same-Sex Divorces in New Jersey

On September 27, 2013, in a landmark case for the state, Garden State Equality v. Dow, New Jersey Superior Court Judge Mary Jacobsonruled that the state must allow same-sex couples to marry. While Governor Chris Christie immediately stated that his administration would be appealing the ruling, he eventually withdrew his appeal, and the first same-sex marriages in the state were performed just after midnight on October 21, 2013. Prior to this date, same-sex couples were only allowed to enter into civil unions in the state, which were not recognized by the federal government.

Same-sex couples in New Jersey now have the same rights as opposite-sex couples. These rights are most frequently recognized during the divorce process; namely with regards to the equitable distribution of assets acquired during the marriage and alimony that may be paid to the dependent spouse. Both of these concepts are dealt with by the court and determined through application of a variety of factors. One of the most important factors at issue with same-sex divorces is the length of the marriage. Obviously, same-sex marriages are likely to be shorter in duration than heterosexual marriages simply because same-sex couples were not legally allowed to marry until almost two years ago, and were only permitted to enter into civil unions since 2007 when The Civil Union Act was signed into law by then-Governor Jon Corzine.

However, because same-sex marriage is a relatively new concept in New Jersey, there have been significantly fewer same-sex divorces in the state and, therefore, case law addressing the award of alimony and equitable distribution in same-sex divorces are in infancy and not yet developed.

N.J.S.A. 2A:34-23(b) provides for different forms of alimony and requires the court to consider a variety of factors, one of which is the duration of the marriage, in awarding alimony to one party. However, this is the exact scenario in which same-sex couples are more disadvantaged then heterosexual couples because they only received the right to marry.

Consider a hypothetical situation in which a couple is divorcing in 2015. They have been together as if they were a married couple since 2008, but were only officially married in 2014. How should the court address the “length” of the couple’s marriage? In reality, they have only been married for a year, but the relationship itself has lasted much longer. If the court took the “length of marriage” factor literally, construing it from the day of actual marriage (one year ago), the dependent spouse could be awarded a comparatively minimal amount of alimony, considering the relationship has existed longer than just one year. The dependent spouse could potentially argue that they should be awarded a greater alimony award because the court should consider the fact that they were not legally allowed to get married and this is why the marriage is technically so short. Again, same-sex marriage and thus, same-sex divorce, is in its infancy in the Garden State, so it is impossible to know precisely how a court will rule in a scenario like this.

Another issue is cohabitation. Same-sex couples in New Jersey have had no other option but to live together without legal recognition. While there have not been cases that have addressed pre-marital cohabitation in regards to same-sex couples, this issue has been addressed for the purposes of alimony as it relates to heterosexual couples. In McGee v. McGee, the New Jersey Superior Court, Appellate Division held that the “extent of actual economic dependency, not one’s status as a spouse, must determine the duration of support.” Therefore, because pre-marital cohabitation may be considered for the purposes of alimony in an opposite-sex divorce, it is likely that such cohabitation, especially for individuals who could not get married, will be a factor in same-sex divorces.

The argument regarding the “length” of a same-sex marriage in New Jersey is further complicated by the fact that civil unions have existed in New Jersey since 2007. In Lewis v. Harris, the New Jersey Supreme Court held that the State must provide the same rights and benefits of marriage to committed same-sex couples that were given to opposite-sex couples. The reason why this complicates the equitable distribution of assets and the award of alimony in same-sex marriages is because it weakens the dependent spouse’s argument that the marriage would have been longer had New Jersey permitted same-sex marriage to be performed. The supporting spouse could argue that marriage-like status (civil union) was available to the couple and they did not take advantage of the civil union because they did not have a desire to and, therefore, the “length of marriage” should be calculated from the date of the actual marriage, rather than the beginning of the relationship.

Just like the calculation of alimony, the equitable distribution of assets attained while in a same-sex relationship is also analyzed considering a factor of “length of marriage.”

Overall, alimony and equitable distribution in same-sex marriages is new territory in New Jersey. Because there is no case law on point explaining whether same-sex marriages will be calculated based on the length of the relationship, or the definite day of marriage, careful review of the specific facts of each case will be necessary to accomplish and fair and reasonable outcome for the divorcing parties. That is why it is recommended that you speak with an attorney to discuss the specifics of your case.

ARTICLE BY Megan E. Smith of Stark & Stark
COPYRIGHT © 2015, STARK & STARK

Gone, But Not Forgotten – A Deactivated Facebook Account Can Be Discoverable

Courts have long grappled with social media in a legal context. The struggle to understand social media issues — and to craft coherent applicable legal policy — renders Crowe v. Marquette Transportation Co. Gulf-Inland, LLC amusing to show how the less-than-honest actions of an employee-plaintiff can make these difficult legal questions fairly simple for a court.

In May of 2014, Brannon Crowe sued Marquette Transportation, his employer, for an injury to his knee that he claimed to have suffered in an accident at work. Interestingly, however, Crowe allegedly sent a co-worker a message on Facebook which stated that he received the injury during a fishing trip, and not at work. When confronted with the message to the co-worker by opposing counsel during a deposition, Crowe stated the account the message was sent from was Brannon “CroWe,” and it couldn’t be his because he didn’t have a capital “W” in his last name.

Facebook e-discovery in employment litigationAt the deposition, Crowe also said that he no longer had an account after the previous October, and his response to a discovery request for the contents of his account was that, in addition to such a request being vague, overbroad and unduly burdensome, he didn’t presently have a Facebook account. The court ordered Crowe to provide the contents of his account for the court to review in camera to determine if the contents of the account should indeed be discoverable. Later, however, Crowe’s counsel submitted to the court 4,000 pages of Facebook account information from the Brannon CroWe account, with an interesting wrinkle – the records of the account indicate that the account was deactivated – not deleted – four days after the discovery request for the account’s contents.

The court was understandably unamused, and suggested that the in camera review of 4,000 pages of Facebook account information would be a waste of time since this account information should have been produced earlier in response to Marquette’s request. The contradiction with Crowe’s testimony alone was enough to render the account information discoverable. Rather than review the documents fully in camera, the court ordered Crowe to turn over every single page of the Facebook account history to Marquette, as well as any login information for any Facebook accounts Crowe had at that time or in the past, and Crowe was ordered to consent to any authorization for Marquette to subpoena his Facebook information.

In effect, Crowe made the contents of the account discoverable through his attempts to keep it from being discovered, and that made the court’s decision on the issue clear. Luckily for Crowe, he only deactivated the account rather than deleted it, since he had a duty to preserve evidence in litigation. Spoliation of evidence is the negligent or intentional destruction or alteration of evidence that may be required in a lawsuit. Even though the evidence doesn’t look good for Crowe in the present case, had he deleted the account entirely, he would have been subject to the spoliation inference, which is a negative evidentiary inference in favor of the opposing party. A showing that a party has destroyed relevant evidence can lead to punitive sanctions against him as well.

Social media provides an abundant resource of data about a litigant, and both employers and employees alike should be a wary of even private messages sent to others in that context. When employees raise issues against employers in a legal setting, their interactions with coworkers on social media may be discoverable. This case also raises questions about how far those involved in legal proceedings can or should go to protect themselves with regard to their social media accounts. As courts become increasingly comfortable with the legal implications of social media and technology, issues such as evidence spoliation through deactivation and deletion will become more and more prominent as a trap for the unwary.

ARTICLE BY Brittany Blackburn Koch of McBrayer, McGinnis, Leslie and Kirkland, PLLC

© 2015 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.

Kimble v. Marvel – Supreme Court Sticks With Brulotte Rule on Royalty Payments

In a rather breezy opinion filled with Spiderman puns and references, Justice Kagan, writing for a 6/3 Court, affirmed that Brulotte v. Thys Co., 379 U.S. 29 (1964) controlled the outcome of this dispute over Marvel’s decision to halt royalty payments on a web-slinger toy that it had apparently agreed to make “for as long as kids want to imitate Spider-Man (doing whatever a spider can).” Slip op. at 2. (A copy of the opinion is found at the end of this post.)

The toy was patented by Kimble, and the patent expired in 2010. The ninth circuit affirmed the district court’s grant of S.J. confirming that, in accord with Brulotte, a patentee cannot receive royalties for sales made after his/her patent’s expiration. Cert. was granted and the Court affirmed that stare decisis was operable to keep Brulotte as controlling law, particularly since the dispute involved statutory interpretation – [as opposed to, e.g., first amendment rights?] – and that Congress had rejected attempts to amend the law.

I posted on the “back-story” earlier – see here– so a lot of repetition seems unnecessary, but the Court spent some time discussing various work-arounds to the Brulotte bar. These include deferred royalty payments, licensing non-patent rights and alternative “business arrangements,” that universities and other developers of early stage technology might use to temper the loss of patent protection prior to the generation of maximum income from the patented technology. Slip op. at 5-6. Nonetheless, as Justice Kagan wrote: “Patents endow their holders with certain superpowers but only for a limited time.”

Click here to read the Supreme Court Decision in Kimble v. Marvel

ARTICLE BY Warren Woessner of Schwegman, Lundberg & Woessner, P.A.
© 2015 Schwegman, Lundberg & Woessner, P.A. All Rights Reserved.

Part Three: An Overview of the Legal Mechanisms for Challenge and Redress by Those Potentially Affected by the Early Closure of the Renewables Obligation

In the first two parts of this series, we considered how the RO operates, possible plans to close the RO in 2016, and the potential impact of those plans upon the onshore wind industry. In this final post, we outline two possible legal avenues for challenge and redress by those who may be affected by the early closure of the RO: through the national courts and under international investment treaties.

windmill vertical

The first possibility is to challenge the Government’s actions through the national courts. This route recently has been used by the solar industry, with mixed results. In 2012, the Supreme Court refused the Government’s appeal to cut solar feed-in-tariffs before the completion of a consultation on the matter. However, in November 2014, the High Court refused an application for judicial review against the Government’s decision to close the RO to ground and building mounted solar photovoltaic capacity above 5 megawatts in 2015 rather than 2017.

Affected investors could also consider commencing international arbitration proceedings under an investment treaty. If successful, an investor could obtain compensation for the loss of their investment as a result of measures introduced by the Government. However, this option would only be available to foreign investors from member States that have an investment treaty in place with the UK, and who have made a qualifying investment in the UK, as defined by the applicable treaty.

A number of European states, including Spain, are currently being sued by foreign investors under the Energy Charter Treaty as a result of changes to national solar subsidies. Marcus Trinick QC, representing Renewables UK, has warned Energy Minister Amber Rudd to “be aware of the dangers of state aid discrimination and look at what is happening in international energy arbitration across Europe. In such a position we could not afford not to fight, especially if action is taken to interfere retrospectively.”

Media reports suggest that, given the extent of industry opposition, DECC is delaying an announcement to allow for further refinement of the proposed measures and their impact, in order to reduce the scope for legal challenges. Marcus Trinick QC has emphasised the need for dialogue between the industry and the Government before action is taken, which could reduce the risk of legal challenges arising.

The message from industry representatives is clear: the early closure of the RO would be a major blow to the future of onshore wind in the UK, which could spark a legal battle with the UK Government. As Maf Smith, deputy chief executive of RenewableUK, has stated, “[t]he industry will fight against any attempts to bring in drastic and unfair changes utilising the full range of options open, including legal means if appropriate.”

Part One: An Overview of the Renewables Obligation and Plans for Its Early Closure

Part Two: How Would the Renewables Obligation’s Early Closure Affect the UK Onshore Wind Industry?

ARTICLE BY William Lowery & Catherine Karia of Covington & Burling LLP

© 2015 Covington & Burling LLP

Part Two: How Would the Renewables Obligation’s Early Closure Affect the UK Onshore Wind Industry?

Part One of this series outlined the RO scheme and the expected announcement to close the RO earlier than anticipated. In this second post, we consider the potential impact of such measures upon the onshore wind industry.

Until the consultation with devolved authorities (Scotland and Northern Ireland) is completed, and detailed proposals are published, the timing and nature of the impact on the industry will be uncertain.

There are currently around 3,000 new turbines with a combined capacity of more than 7 gigawatts seeking planning permission, many of which would have been expecting to secure accreditation under the RO. Bloomberg Energy Finance has estimated that, if the RO closes to new generating capacity in 2016 and onshore wind was not eligible for public subsidy under the Contracts for Difference scheme, less than half the capacity of projects in advanced stages of planning would benefit from subsidies.

The majority of the planned projects are due to be located in Scotland. Given the apparent tension between the Scottish First Minister and Prime Minister over the future of onshore wind (referred to in our first post in this series), there is currently uncertainty as to whether or not the applicable RO in Scotland would close in 2016. This is an important consideration regarding the possible impact of any proposed measures.

It is unclear whether there would be a ‘grace period’ in relation to the changes, which could enable projects that already have planning permission to be included under the RO scheme, and closing the RO for those that do not. Ian Marchant, chairman of wind developer Infinis Energy, said: “The Government’s alleged plans to close down the Renewable Obligation-regime early for onshore wind beggar belief. . . . If the RO is terminated early without reasonable grace periods in place, not a single energy or large scale infrastructure project in the UK will be safe going forward.”

The potential impact of such measures is giving rise to considerable uncertainty and concern over the future of the onshore wind industry. In our final post in this series, we will consider what action could be taken by industry participants who may be affected by the early closure of the RO.

Part One: An Overview of the Renewables Obligation and Plans for Its Early Closure

Part Three: An Overview of the Legal Mechanisms for Challenge and Redress by Those Potentially Affected by the Early Closure of the Renewables Obligation

ARTICLE BY William Lowery & Catherine Karia
Covington & Burling LLP

© 2015 Covington & Burling LLP

The Uncertain Future of the UK Renewables Obligation: A Three-Part Series

In early June 2015, the UK Department for Energy & Climate Change (“DECC”) was expected to announce plans to close the existing subsidy scheme for onshore wind, the Renewables Obligation (“RO”), to new generating capacity a year earlier than expected. This announcement has been delayed amid concerns that it could spark potential legal challenges from the industry and lead to a dispute with the Scottish Government over the future of onshore wind.

In this three-part series, we outline how the RO operates, the potential impact of the early closure of the RO upon the onshore wind industry, and the possible routes for challenge and redress for industry participants who may be affected.

Part One: An Overview of the Renewables Obligation and Plans for Its Early Closure

How does the RO operate?

The RO is designed to support renewable electricity projects in the UK. It obliges UK electricity suppliers to source a proportion of the electricity that they supply to customers from eligible renewable sources. The RO is currently set to close to all new generating capacity of any technology on 31 March 2017.

Ofgem, which administers the scheme, issues Renewable Obligation Certificates (“ROCs”) to electricity generators for the eligible renewable electricity they generate.  The ROCs are sold, either directly or indirectly, to electricity suppliers, who can use the ROCs to demonstrate their compliance with their annual obligations (i.e., “redeem” the ROCs against their RO). If a supplier does not present sufficient ROCs to meet its RO, it must pay a penalty known as the buy-out price. The funds collected by Ofgem from the buy-out price are redistributed on a pro-rata basis to suppliers who redeem ROCs.

What are the proposed changes to the RO?

Before winning the UK general election, the Conservative party pledged that it would end “any new public subsidies” for onshore wind farms on the basis that they “often fail to win public support and are unable by themselves to provide the firm capacity that a stable energy system requires”.

DECC is expected announce that it will close the RO to new generating capacity in April 2016, instead of April 2017. Such a move has been described as “going further” than the Conservative party’s pre-election pledge, by ending an existing subsidy a year earlier than expected. At present, DECC has reportedly declined to confirm the precise nature of the proposals.

The majority Conservative Government disclosed in late May 2015 that it would “be announcing measures to deliver this soon”, after conducting a consultation with the devolved administrations (Scotland and Northern Ireland) over the nature of the changes. However, at the time of writing, an announcement has not yet been made.

The basis for delaying the announcement of these measures appears to be twofold.

First, the Conservative Prime Minister, David Cameron, and Scottish First Minister and SNP leader, Nicola Sturgeon, have opposing opinions over the future of onshore wind. While Cameron has stated that “enough is enough” for onshore wind subsidies,  Sturgeon has demanded a veto on the Conservative’s plans. Energy Minster Amber Rudd stated that the consultation with devolved authorities would continue “until we have arrived at a firm policy”, and MPs would have to “bear with us a little longer”.

Second, trade bodies representing the onshore wind industry have vocally opposed the Conservative’s plans, due to their potentially significant effect on the future of onshore wind in the UK. The possible impact on the industry is considered in part two of this series.

Part Two: How Would the Renewables Obligation’s Early Closure Affect the UK Onshore Wind Industry?

Part Three: An Overview of the Legal Mechanisms for Challenge and Redress by Those Potentially Affected by the Early Closure of the Renewables Obligation

ARTICLE BY William Lowery & Catherine Karia of Covington & Burling LLP
© 2015 Covington & Burling LLP

June 24th – Healthcare Quarterly Update: Cybersecurity and Health Data Privacy by Bloomberg BNA

Washington, DC

Join Bloomberg BNA for this essential event that explores concerns relating to cyber-security and health data privacy. Healthcare industry experts Kirk Nahra and David Holtzman will join HHS’s Iliana Peters for a comprehensive examination of:
• Big data in the healthcare sector and how to protect information
• Protecting patient and organization information
• Federal enforcement of HIPAA Privacy, Security, Data Breach rules
• Practical up to date information on current issues
• And so much more.

Click here to register today!

Identify actionable issues, secure your organization, and earn CLE credits.

A breakfast panel with accomplished scholars and an HHS representative. This conversation will address practical considerations for ensuring that patient’s data is being properly handled in full compliance with all regulations and ethical responsibilities. Healthcare practitioners are increasingly required to address concerns of Data privacy and Cyber-security; attending this panel will assist you in identifying actionable points in the law common to many legal practices.

Key Elements of Lawyers’ Professional and Personal Satisfaction Identified

George Washington Law Review has published “the first theory-guided empirical research seeking to identify the correlates and contributors to the well-being and life satisfaction of lawyers.” A New York Times blog boiled it down: “Lawyers With Lowest Pay Report More Happiness.”

In short, a lot of lawyers were surveyed in a scientific way. The ones with the prestigious jobs and the high incomes reported lower senses of well-being and satisfaction than less “successful” peers in public service roles. Outrageously, making law review was reported to have ZERO correlation with happiness in later life.

Three elements in professional life were most closely identified with life-satisfaction. They are a sense of competence, a sense of autonomy and a sense of connectedness to others. The study says that for many lawyers (most, I suppose), careers in larger law firms do not deliver these.

Competence, autonomy and connectedness, are the pillars of Self-Determination Theory, a field of study among psychologists for more than 40 years. This new study is the first to test lawyers as a group. Turns out, lawyers test the same as everybody else. They are happiest in settings where they experience competence, autonomy and connectedness. (Disappointingly, we are no different from “non-lawyers.”)

The three factors themselves are worth attention. Notice how they line up with (i) the core principles of legal ethics, (ii) commonly encountered values of many law firms, (iii) often-identified 21st Century social skills, (iv) the capabilities of 21st Century technology, (v) attributes of Millennials in the workplace, and – mirabile dictu – (vi) observations that might be made about North Carolina lawyers practicing in the 19thCentury.

This causes me to hold up these elements as “design principles” for next-generation law firms. That is, they might be taken as elements to be fostered in the law firms we will need in the aftermath of the Great Unbundling of legal services now under way. They also suggest directions for thinking about lawyer retirements.

ARTICLE BY Edward C. Winslow III of Brooks, Pierce, McLendon, Humphrey & Leonard, LLP
Copyright © 2015, Brooks, Pierce, McLendon, Humphrey & Leonard LLP

How to Avoid Being Penalized by Google [Infographic]

Google algorithm updates are usually accompanied by much wailing and gnashing of teeth among marketers, and sometimes it’s for good reason. With one flick of a switch, all that hard work to improve search results can be undone if your site no longer complies with what Google considers to be best practices for your website and blog.

Of course, Google’s intention is not to penalize sites — it’s to improve the user experience. Recently, Internet marketing consulting company QuickSprout developed the infographic below with specifics on what to avoid and strategies for ensuring your sites don’t get penalized by Google.

These tips are easy to understand and not too difficult to implement. The reward of not incurring a Google penalty is well worth your time in becoming educated on current best practices in SEO for Google:

How to Avoid Being Penalized by Google [Infographic]

ARTICLE BY Stephen Fairley of The Rainmaker Institute
© The Rainmaker Institute, All Rights Reserved

DOL’s Upcoming Proposed Revisions to the FLSA’s White Collar Exemption Regulations

This month the Department of Labor is expected to propose, for the first time since 2004, revised regulations concerning the executive, administrative, professional, outside sales, and computer exemptions under the Fair Labor Standards Act. These revisions were prompted by President Obama’s March 13, 2014 memorandum to the Secretary of Labor, which stated that the exemptions “have not kept up with our modern economy” and which “direct[ed] [the DOL] to propose revisions to modernize and streamline the existing overtime regulations.” After the memorandum was issued, the agency began writing proposed regulations and announced on May 5, 2015, that it had completed drafting them and had submitted them (as required by Executive Order 12866) to the Office of Management and Budget for review.

Procedurally, the “proposed rules” will be published in the Federal Register (an action known as a “Notice of Public Rulemaking” or “NPRM”) for public comment following the OMB’s review, and the DOL has stated that it expects to take this step this month. After the public comment period closes, the DOL will consider the public comments in drafting “final rules;” submit them for a final review by the OMB; and then publish them in the Federal Register with an effective date on which they become law. Although implementation of the final rules may not occur until well into 2016, traditionally the final rules do not differ substantially from the proposed rules. Accordingly, employers should get a sense this month of what the future regulatory landscape will look like.

So what can we expect from these revisions? As an initial matter, it’s almost certain that the DOL will raise the $455 minimum salary requirement, which hasn’t changed since 2004. With regard to the other revisions, however, the DOL’s drafting process has been opaque, and official pronouncements have been largely limited to the Presidential Memorandum and the DOL’s description of the regulatory action on its Spring 2015 agenda, neither of which provide any specific detail. Nonetheless, unofficial pronouncements (including the Secretary of Labor’s remarks before the International Association of Firefighters on March 18, 2014) have repeatedly stressed the DOL’s position that the current regulations result in too many employees falling under the exemptions, particularly retail managers who spend a large portion of their time performing non-exempt duties. Accordingly, there is speculation that the DOL may eliminate the “concurrent duties” provision of 29 CFR 541.106, which provides that simultaneously performing both exempt and nonexempt duties will not automatically disqualify an otherwise exempt employee from the executive exemption. There is also speculation that the regulations may impose a set percentage cap on the amount of time an exempt employee may spend on non-exempt duties, similar to exemption provisions under some state laws (such as California and Connecticut) and to some provisions of the pre-2004 FLSA regulations.

In any event, one thing is certain – some employees who are properly classified as exempt under the current regulations will no longer be exempt under the new rules. Employers will shortly have a preview of just how drastic these changes will be, and should begin evaluating their compliance with the regulations well in advance of the implementation of the final rules.

ARTICLE BY Dennis M. Mulgrew, Jr. of Drinker Biddle & Reath LLP
©2015 Drinker Biddle & Reath LLP. All Rights Reserved