The Impact of the Uber Ruling and Issues of Employment Misclassification

Posted in Employment

Uber – the transportation networking company which, through the use of its technological platform and smart phone application, connects consumers (passengers) with transportation providers (private vehicle drivers) and facilitates the ride sharing service – may be the next victim of the continuing wave of employee misclassification lawsuits sweeping the nation. On June 3, 2015, in Berwick v. Uber Technologies, the California Labor Commissioner ruled that an Uber driver in California is an employee, and not an independent contractor, of the ride-hailing company. In relevant part, the labor commission found that “the minimal degree of control that [Uber] exercised over the details of the work was not considered dispositive because the work did not require a high degree of skill and it was an integral part of the employer’s business” and that, in reality, Uber is “involved in every aspect of the operation.” As a result, Uber was ordered to reimburse its driver’s legitimate, reimbursable expenses pursuant to California Labor Code § 2802.

Though the decision of the California Labor Commission is not binding – Uber already has appealed – the lawsuit and underlying decision are significant. The decision is symbolic in that it jeopardizes Uber’s contractor-based business model. Uber maintains that it is “nothing more than a neutral technological platform, designed simply to enable drivers and passengers to transact the business of transportation.” Given the Commissioner’s ruling and the overarching and virtually universal presumption of employment, courts may not agree with Uber.

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Stark & Stark Names Five New Shareholders

Posted in Stark News

Stark & Stark is pleased to announce that attorneys Stefanie Colella-Walsh, Stephen Di Stefano, Dolores Kelley, Cary Kvitka and Megan Smith have been elected as Shareholders of the firm.

Stefanie Colella-Walsh is a member of Stark & Stark’s Litigation, Insurance Coverage & Liability, Intellectual Property and Mass Torts Groups where she concentrates her practice in complex litigation with a focus in mass tort and pharmaceutical litigation.

Stephen Di Stefano is a member of the firm’s Personal Injury Group in the Marlton, New Jersey office. He joined the firm in 2007 and is certified by the Supreme Court of New Jersey as a Civil Trial Attorney. Stephen represents plaintiffs in personal injury matters, representing clients who have suffered catastrophic, life-changing injuries in motor vehicle collisions or fall-down incidents. Additionally, he has extensive experience in representing clients who have sustained serious injuries resulting from dog bites, product liability, assault and other cases of general liability.

Dolores Kelley is a member of Stark & Stark’s Business & Corporate, Real Estate, Zoning & Land Use and Beer & Spirits Groups, where she concentrates her practice in the representation of start-up and emerging companies and non-profit organizations on a variety of issues including corporate formation, financing, licensing, acquisitions employment agreements and intellectual property law. Ms. Kelley also handles a wide range of matters for the real estate industry, including commercial, transactional, leasing and condominium and homeowner association formation and registration with the New Jersey Department of Community Affairs.

Cary Kvitka is a member of Stark & Stark’s Securities Group, where he focuses upon counseling financial service entities including investment advisers, broker-dealers, public and private investment companies (e.g., mutual funds, hedge funds, etc.), insurance brokers/agents, CPA firms and their employees, about registration, compliance, liability, and litigation issues.

Megan Smith is a member of Stark & Stark’s Divorce Group and located in the Marlton, New Jersey office. Her practice is concentrated in divorce, dissolution of civil unions, termination of domestic partnerships, custody, parenting time, child support, alimony, equitable distribution and pre-nuptial planning as well as related post-judgment issues, such as emancipation, support enforcement, and implementation of settlement agreements. She continues to specialize in family law and the developing area of LGBT law as it relates to children and families.

Affordable Housing A Critical Component of New Jersey’s Economic Growth

Posted in Commercial, Retail & Industrial Real Estate, Real Estate, Stark News

Stark & Stark Shareholder Gary Forshner, member of the firm’s Real Estate, Zoning & Land Use Group, authored the article “Affordable Housing a Critical Component of N.J.’s Economic Growth,” which was published on June 26, 2015, by the The Star Ledger. The article discusses how the March 10th New Jersey Supreme Court ruling on affordable housing can impact the state’s economic growth.

The landmark decision will give affordable housing oversight back to the trial courts and will require municipalities to zone for more affordable housing projects in order to provide a variety of housing options for households of all income levels. Municipalities have been able to hide from these requirements because they have not been properly regulated by the executive branch. Gary points out, that since 1999, “no administration – neither Republican, nor Democratic – has proposed regulations to comply with the Mt. Laurel decision and the Fair Housing Act.”

Due to poor regulation, there are few viable affordable housing options availabe, and Gary opines that the lack of affordable housing has negatively impacted New Jersey’s economic growth. One point he makes is that more people than ever are moving back home to live with their parents, or out of state, because they cannot afford their own housing in New Jersey. He also argues that businesses may pass on locating in New Jersey because they would need to pay their employees more because the affordable housing options are so limited. He asks, “Why would a company locate in New Jersey when the housing costs are so high and their workers are unable to afford decent housing?”

You can read the full article by clicking here. For more information about this recent landmark decision, please click here.

34 Stark & Stark Attorneys Recognized by Super Lawyers

Posted in Stark News

The law firm of Stark & Stark is pleased to announce that 24 of its attorneys have been selected for inclusion in the list of 2015 New Jersey Super Lawyers, which recognizes only the top 5% of attorneys in the state. Nine attorneys have been included on this list for more than ten years. The firm also had ten attorneys selected for inclusion in the list of 2014 New Jersey Rising Stars.

“Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The patented selection process is multi-phased and includes independent research, peer nominations and peer evaluations.” “The selection process for the Rising Stars list is the same as the Super Lawyers selection process, with one exception: to be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger or in practice for 10 years or less.” Only 2.5% of attorneys in the state receive this recognition. (

To see the full list of New Jersey Super Lawyers, please click here. For more information about our attorneys, please visit us at our main Stark & Stark website.

Judgments Entered by Confession are Enforceable in New Jersey

Posted in Bankruptcy & Creditor's Rights

In a reported decision issued June 19, 2015, Ewing Oil, Inc. v. John T. Burnett, Inc., the Appellate Division rejected a challenge to enforcement in New Jersey of a judgment entered by confession in Maryland and held that such judgments must be enforced by New Jersey courts pursuant to the Full Faith and Credit clause of the United States Constitution. While judgments by confession are generally disfavored in New Jersey, if a judgment is properly entered in a state which authorizes such judgments, the judgment creditor may register and enforce the judgment in New Jersey.

The plaintiff, Ewing Oil Co., Inc., entered into a commercial supply agreement (“CSA”) with John T. Burnett, Inc. (“JTB, Inc.”) to supply gasoline and other petroleum products to JTB, Inc. The obligations of JTB, Inc. under the CSA were guaranteed by John T. Burnett, Henry A. Jackson, and C & H Tire Service, Inc. The Guaranty contained provisions whereby the Guarantors consented to the entry of judgment against them in Maryland. JTB, Inc. breached the CSA. Plaintiff obtained a judgment against JTB, Inc. and the Guarantors in Maryland on December 6, 2011. The judgment was served on the defendants. The Maryland judgment was recorded in New Jersey on July 24, 2012. John T. Burnett died on August 13, 2012. His executrix moved to vacate the foreign judgment pursuant to Rule 4:50-1(d), challenging its validity and enforceability.

The trial court denied the motion, finding that the Maryland judgment was entered in accordance with Maryland procedure and law, that Burnett had a fair opportunity to challenge the validity of the judgment in Maryland, after its entry, but failed to timely do so and, in light of the Full Faith and Credit clause, New Jersey’s recognition of the foreign judgment would not violate due process.

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Whistleblower Roulette: The Impact of State v. Saavedra on Whistleblower Litigation in New Jersey

Posted in Employment

On June 23, 2015, the Supreme Court of New Jersey issued its first of two expected landmark decisions this term concerning the rights of and protections afforded to whistleblowers. New Jersey employees enjoy great protection under whistleblower laws that are among the broadest, most robust and comprehensive in the country, including the Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq., and the Law Against Discrimination, N.J.S.A. 10:5-1 to -42. The State Supreme Court’s decision in State v. Saavedra, 2015 N.J. LEXIS 641 (A-68-13) (073793) (2015), however, may curtail those protections.

In Saavedra, the State Supreme Court affirmed the trial court’s denial of the Saavedra’s motion to dismiss her indictment, where the defendant-employee had taken into possession hundreds of pages of confidential student educational and medical records (protected by federal and state privacy laws), which she intended to use in her employment discrimination case against her employer, the North Bergen Board of Education (the “Board”). Somewhat ironically, the criminal indictment upheld by the Supreme Court originated from a civil suit filed by Saavedra against the Board alleging claims of employment discrimination and retaliation. Through discovery in that civil action, Saavedra, through counsel, produced copies of the documents she had copied or removed from the Board’s files. The Board reported the alleged theft and misappropriation of these documents to the county prosecutor, who pursued the matter. The grand jury indicted Saavedra for official misconduct and theft by unlawful taking, largely due to the privacy implications triggered by her appropriation and use of the documents.

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A Joint Account Seemed Like a Good Idea at the Time – Part I

Posted in Trusts & Estates

In this blog and in an upcoming blog, I am going to cover some of the tax and allocation problems created by joint accounts. The focus of this blog is on some tax related matters involving joint accounts.

Many clients believe that joint accounts make great estate planning tools. In reality, joint accounts often complicate the estate administration, cause delay, and result in unnecessary expenses. Joint accounts limit the estate’s ability to address estate taxes, and may create obstacles for effective estate tax planning. Problems result from the limited survivorship rights associated with joint accounts. If one of the joint owners dies the account passes to the surviving joint tenant(s) unless special action is taken. Furthermore, the surviving joint tenant takes the entire account, leaving limited options for passing the account to other beneficiaries. These issues are particularly acute for joint accounts between spouses. The amount of assets held in joint accounts should be limited, particularly for married couples who can hold their assets in separate accounts.

Joint accounts often encourage the surviving spouse to take the entire account, so it cannot be used to fund a credit shelter or other estate tax saving distribution. While transferring the entire account to a surviving spouse may sound like a good idea, it complicates effective use of the deceased spouse’s estate tax credits. In New Jersey the estate tax credit is only $675,000, and if the deceased spouse’s credit is not utilized, then it is lost.

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Recent Affordable Housing Ruling Creates Opportunity for Developers and Owners

Posted in Real Estate, Stark News

Stark & Stark Shareholder Gary Forshner, member of the firm’s Real Estate, Zoning & Land Use Group, authored the article “Affordable Housing Ruling Creates Opportunity for Developers, Owners,” which was published on June 22, 2015, by the Real Estate Weekly.

The article discusses the recent NJ Supreme Court affordable housing ruling on March 10th, which transferred the responsibility to determine affordable housing allocation and how those obligations are to be met by municipalities back to the courts. The new obligations can be achieved by 100% affordable housing projects or, alternatively, “municipalities can meet their obligations by zoning for inclusionary developments whereby developers set aside a percentage of the new homes for deed restricted affordable housing.”

This ruling took effect on June 8th, opening a 30-day window for municipalities to file any necessary declaratory judgment actions. In the article, Gary reviews what property owners and developers should be doing in reaction to this decision and says, “Municipalities should be put on notice that property owners or developers are interested parties and… are willing to develop their suitable property for affordable housing. Developers and landowners should offer and… sit down with municipal officials to propose their site for affordable housing.”

You can read the full article by clicking here. For more information about this recent landmark decision, please click here.

Same-Sex Divorces in New Jersey

Posted in Divorce

On September 27, 2013, in a landmark case for the state, Garden State Equality v. Dow, New Jersey Superior Court Judge Mary Jacobson ruled 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.

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Amendment to the New Jersey Uniform Commercial Code

Posted in Bankruptcy & Creditor's Rights, Business & Corporate, Collections, Stark News

The New Jersey Uniform Commercial Code (the “UCC”) was amended, effective May 11, 2015, imposing new requirements on the filing of a financing statement to perfect a security interest in collateral within the scope of Article 9 of the UCC. The amendment provides that in order to be sufficient, a financing statement must state that the collateral listed in the financing statement falls within the scope of Article 9 of the UCC, pursuant to N.J.S.A. 12A:9-102 and 12A: 9-109. Furthermore, the name of the secured party listed on the financing statement must be the legal name of the secured party or the legal name of its representative.

While the purpose of the amendment is to prevent fraudulent filings, a failure to comply, even if there is no fraudulent intent, could result in an ineffective filing, a restraint of collection or enforcement, an alternative disposition of the collateral and in some instances statutory damages, attorneys fees and/or an injunction from filing any future liens, encumbrances or claims against the debtor (or any other persons specified by the court) without court approval. In addition, for some creditors, the filing office can refuse to file a financing statement that does not comply with the new requirements. The amendment is applicable to all financing statements filed on or after May 11, 2015.

If you have filed a financing statement since May 11th or intend to file a financing statement, you should consult an attorney to ensure your filing complies with the strict requirements set forth in the newly enacted amendment. If any financing statement filed on or after May 11th is not in compliance, an amendment should be filed immediately.