Shareholder Kevin M. Hart Published Article on

Posted in Publications

Stark & Stark Shareholder Kevin M. Hart, member of the Litigation, Corporate Investigations & White Collar, Shareholder & Partner Disputes, and Insurance Coverage & Liability Groups, authored the article ‘Tis the Season for Employee Theft: Protecting Your Small Business from Within, which was published on on November 9, 2015.

The article details the risks to small businesses that come with employee theft. Approximately $50 billion a year is lost courtesy of this theft, and it is a problem which affects all types of businesses. Theft most often occurs in the form of embezzling, which can include “false bank accounts, false bank records, false billing statements, false receivable records, and even false computer records.”

Depending on the total sum of stolen funds, the criminal case will most likely be brought to the county prosecutor’s office. Instead, Mr. Hart recommends, “A far more effective response is to retain either an attorney or accountant that specializes in this area,” to better protect yourself against this theft. “If you believe your company has been a victim of internal fraud or employee theft, you should seek legal counsel immediately.”

You can read the full article by clicking here.

Shareholders Timothy P. Duggan & Jeffrey M. Hall Hold Two Presentations

Posted in Condemnation & Eminent Domain, Real Estate Tax Appeals, Stark Events

This past week, Timothy P. Duggan, Chair of Stark & Stark’s Bankruptcy & Creditors’ Rights, Tax Appeals, and Eminent Domain Groups, held two presentations for the Mercer County Bar Association and the New Jersey State Bar Association.

Mr. Duggan’s first presentation was collaborated with fellow Shareholder Jeffrey M. Hall, member of the Eminent Domain Group, called Public Utilities and Condemnation, which was done alongside the Mercer County Bar Association. This seminar, held on November 17, 2015, discussed how public utilities are regarded when condemnation becomes necessary. Additionally, Mr. Duggan and Mr. Hall shared their in-depth knowledge of state and federal law to provide tips and strategies for protecting property owners who have been confronted with pipeline projects, including the PennEast Pipeline.

Mr. Duggan’s second presentation, Taxing Issues for Condominium Associations and HOAs: Real Estate Tax Assessments of Common Elements and Real Estate Tax Liens, for the 2015 Community Association Law Summit and was on November 18, 2015. This was a seminar for CLE credits alongside the NJICLE, the branch of the New Jersey Bar Association which handles CLE accreditation. This presentation provided tactics and solutions for a variety of tax issues that are currently impacting condominium and homeowners’ associations.

Divorce Arbitration Update

Posted in Arbitration, Divorce

Divorce arbitration is being used much more frequently by divorcing persons in lieu of protracted and fragmented court proceedings. As a certified family law arbitrator, I can vouch for the advantages to those who decide to arbitrate instead of litigate their cases. Recently, I posted an article concerning the “nuts and bolts” of divorce arbitration. This follow-up article is intended to provide a brief update based on a significant addition to the New Jersey Rules of Court, which now specifically reference the availability of divorce arbitration.

Under the new Rules, effective September 2015, divorce cases can be sent to arbitration and thereby removed from the court’s schedule for up to twelve months. Such “official” recognition of divorce arbitration is a testament to the reality of overburdened judges, clogged court calendars and piecemeal trial days. As a result, there is no doubt that an increasing number of divorce cases will be arbitrated moving forward.

If you are considering divorce arbitration, the first step is to discuss it with a family law attorney who can recommend an arbitrator who has been certified by the American Academy of Matrimonial Lawyers and is a member of the New Jersey Divorce Arbitrators Association.

Mobile Home Valuations – For Once Location Doesn’t Matter

Posted in Bankruptcy & Creditor's Rights, Real Estate

It is common knowledge that in the real estate market, the selling price for a mobile home is almost always dependent upon where is located. Yet, in a recent Chapter 11 case in the district of Delaware, Boomerang Tube LLC, the debtors relied upon a decision by Bankruptcy Judge Shannon, In re George Welch Sr. (Bankr. D. Del. October 19, 2015).

In that Chapter 13 setting, the debtor suggested that the replacement value of the equipment was the proper valuation for purposes of the cramdown sought in their Plan. In this Plan, the chapter 13 debtors’ sought to assume the ground lease, retain the mobile home, and cramdown the secured creditor’s claim to value the of the mobile home as determined in the NADA Retail Value Guidebook for Manufactured and Mobile Homes.

The creditor objected based upon an appraisal it had obtained, which valued the mobile home at $80,000 “in place.” The creditor reasoned that since the debtor decided to assume the underlying ground lease and use the mobile home as a residence, the creditor was entitled to a higher figure – the true value of the living accommodation if sold as it stood. Comps in the creditor’s appraisal had relied upon the location of comparable mobile homes in order to establish value.

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Shareholder Thomas D. Giachetti Published Article in Investment Advisor

Posted in Securities Compliance & Arbitration, Stark News

Shareholder Thomas D. Giachetti, Chair of the Securities Practice Group, authored the article SEC Clarifies RIAs’ Cybersecurity Obligations, which was published in the November issue of Investment Advisor.

The article explains how the Securities and Exchange Commission’s (SEC) recent cybersecurity focus will affect RIAs. The SEC’s Office of Compliance Inspections & Examinations (OCIE) released a Risk Alert in the spring of 2014, which announced that it would “conduct examinations of more than 50 financial institutions, including RIAs, focused on: cybersecurity governance; identification and assessment of cybersecurity risks; protection of networks and information; risks associated with remote customer access and funds transfer requests; risks associated with vendors and other third parties; detection of unauthorized activity; and experiences with certain cybersecurity threats.”

Most recently, in September 2015, OCIE released a follow-up Risk Alert which better elaborated on the “areas of focus” that would be examined during the cybersecurity process. Some of these areas would include “an RIA’s governance and risk assessment, access rights and controls, data loss prevention, vendor management, staff training and incident response.”

As a result, Mr. Giachetti recommended three steps that RIAs should take immediately in relation to the OCIE’s Risk Alert. This includes consulting with the business’s IT staff or IT vendors to ensure that the highest level of protection is or has been implemented, as well as adopting a proper cybersecurity policy that specifically addresses these recent Risk Alerts.

For more information, read the full article.

Stark & Stark Recognized in 2016 “Best Law Firms” Rankings

Posted in Stark News

U.S. News & World Report and Best Lawyers recently announced the 2016 “Best Law Firms” rankings, and Stark & Stark has been recognized on Metropolitan Tiers 1, 2 & 3 in New Jersey. Stark & Stark is ranked in Tier 1 for Commercial Litigation, Family Law, Construction Litigation, Personal Injury Litigation for Plaintiffs, Real Estate Law and Workers’ Compensation for Claimants; in Tier 2 for Bankruptcy and Creditor Debtor Rights/Insolvency & Reorganization Law and Corporate Law; and in Tier 3 for Bankruptcy Litigation, Trusts & Estates Litigation, Personal Injury Litigation for Defendants and Trusts & Estates Law.

“We are very honored and pleased with our 2016 rankings by U.S. News & World Report,” said Lewis J. Pepperman, a senior partner and chair of the firm’s Business practice group. “These rankings underscore our dedication to client service and commitment to providing best in class legal services, across the board.”

According to Best Lawyers, the “2016 rankings are based on the highest number of participating firms and highest number of client ballots on record. To be eligible for a ranking, a firm must have a lawyer listed in The Best Lawyers in America, which recognizes the top 4 percent of practicing attorneys in the US. Over 21,000 attorneys provided almost 700,000 law firm assessments, and over 8,000 clients provided more than 47,000 evaluations.”

Additionally, “Ranked firms, presented in tiers, are listed on a national and/or metropolitan scale. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism and their integrity.”

For more information about the selection process, please click here.

Fresh & Easy, LLC Files for Chapter 11 in Delaware – Another Grocery Store Bankruptcy

Posted in Bankruptcy & Creditor's Rights, Commercial, Retail & Industrial Real Estate

The healthy but affordable grocery store chain, Fresh & Easy, filed for Chapter 11 bankruptcy protection in Wilmington, Delaware on Friday. The chain operates 97 stores in Arizona, California and Nevada. This, like the recent Great Atlantic & Pacific Tea Co. (“A&P”) bankruptcy case, is the company’s second Chapter 11 filing in recent years.

Bankruptcy documents filed on Friday named Amir Agam of FTI Consulting Inc. as the Chief Restructuring Officer. The documents listed the debtor’s assets as between $10 and $50 million, with debts between $100 and $500 million.

This recent filing should serve as a warning to property owners. Landlords need to ensure that their claims are assets and are protected in the bankruptcy case. Like the A&P case, there will most likely be a number of auctions and discrete sales of the leases. It is vital that landlords contact counsel and develop a plan for their next steps.

Stark & Stark regularly represents landlords and trade creditors in Chapter 11 proceedings across the country, including filings in New York and Delaware. Whether or not you contact our Commercial, Retail, Industrial and Multi-Family Practice Group, landlords and trade creditors are strongly encouraged to contact legal counsel immediately.

New Jersey’s Legalized Sports Betting Law

Posted in Stark News

Bryan M. Buffalino, member of the Litigation and Employment Groups, authored the article Third Circuit Plans to Revisit New Jersey’s Legalized Sports Betting Law, which was published on on November 2, 2015.

The article discusses the latest news regarding the State of New Jersey’s battles with legalized sports betting. The United States Court of Appeals for the Third Circuit announced that there would be a rehearing, en blanc, and thereby vacated the previous August 2015 decision in favor of the major professional and amateur sports leagues. “An en banc is a session where a case is heard before all of the judges of a court, or before the entire bench, rather than a panel selected from among them.”

In 2012, Governor Chris Christie signed legislation legalizing sports betting in New Jersey casinos and racetracks. In response, the “NFL, NBA, NHL, Major League Baseball and the NCAA” challenged this legislation in August 2012, and sued the State of New Jersey.

As Mr. Buffalino further explains, “Currently, the Professional and Amateur Sports Protection Act of 1992 (PASPA) prohibits state-sponsored sports betting in all but four states: Nevada, Delaware, Oregon and Montana. New Jersey is trying to evade the ban by arguing that, so long as the state does not regulate the betting, the federal law does not prevent private casinos and racetracks from allowing sports betting in their facilities.”

You can read the full article by clicking here.

Radio Shack Creditors Preferred? – Not If New Value Was Provided

Posted in Bankruptcy & Creditor's Rights

On October 29th, the the liquidating trustee of the Radio Shack liquidating trust filed lawsuits in the United States Bankruptcy Court for the District of Delaware seeking to claw back “preferential” payments made by Radio Shack to its creditors. These payments were made within the 90 days of its bankruptcy filing on February 15, 2015.

The creditors sued in these cases include, among others, landlords, utility providers, banks, logistics companies and providers of electronic goods. All totaled, approximately 200 creditors were sued for allegedly being “preferred.” These creditors undoubtedly provided valuable services and goods that Radio Shack accepted and used prior to filing for bankruptcy protection.

Additionally, many of these creditors likely had outstanding receivables as of the date Radio Shack filed for bankruptcy, which may never be paid. Under these circumstances, it is easy to understand why vendors might feel outraged upon receipt of a preference complaint. Continue Reading

Radio Shack Preference Lawsuit – Ordinary Course Defense

Posted in Bankruptcy & Creditor's Rights

During the last week of October, the liquidating trustee of the Radio Shack liquidating trust filed lawsuits in the United States Bankruptcy Court for the District of Delaware. The lawsuits were seeking to avoid “preferential” payments made by Radio Shack to its creditors within 90 days of the filing of its bankruptcy petition (the “Preference Period”), which took place on February 15, 2015.

There were approximately 200 creditors sued for allegedly being “preferred” by Radio Shack, including commercial landlords, utility providers, banks, logistics companies and providers of electronic goods, among other trade creditors. It is important that the creditors receiving these complaints understand that there are defenses to these actions.

One of the strongest defenses for a creditor being sued is the ordinary course of business defense. To prove this defense, evidence of business custom and practice is considered. Under 11 U.S.C. 547(c)(2), the obligation being paid must be incurred in the ordinary course of business or financial affairs of the debtor, and the payment must have been made in the ordinary course of business of both the debtor and creditor (subjective test) or the payment was made under “ordinary business terms” (objective test). Thus, there are two standards that can be proved by a creditor to successfully defend a preference action under this defense. Providing either one will allow the creditor to prevail in its defense. Continue Reading