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Last week, the NFL sought to end the political controversy surrounding some players kneeling during the national anthem by enacting a policy fining teams if players kneeled during the Star-Spangled Banner.

Under the new policy, players could stay in the locker room while the national anthem of the United States is played. Shortly, thereafter, players wrongfully asserted that the new policy violates their First Amendment protection of “freedom of speech.”

The problem with the players’ constitutional argument is that the Constitution only applies to “State actors.” The state action requirement stems from the fact that the constitutional amendments protecting individual rights are mostly phrased as prohibitions against government action. The First Amendment to the United States Constitution sets forth, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or the press, or the right of the people peacefully to assemble, and to petition the Government for a redress of grievances.” The Fourteenth Amendment, which was ratified after the Civil War, made most of the liberties set forth in the Bill of Rights applicable to the States.


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The termination of a shareholder’s employment may constitute oppression under N.J.S.A. 14A:12-7(b)(1)(c). That is because a person who holds a share in a closely held corporation often does so “for the assurance of employment in a closely-held corporation in the business.” Muellenberg v. Bilkon Corp., 143 N.J. 168, 180-181 (1996). That is because, a shareholder may have a “reasonable expectation” of continued employment. See, Brenner v. Berkowitz, 134 N.J. 488, 508 (1993).

When representing the minority, it is important to develop why the employee/shareholder had a reasonable expectation of continued employment. Of course, when representing the corporation or majority, counsel should present evidence that the employee/shareholder did not have a reasonable expectation of continued employment.


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On July 5, 2016, the United States District Court of Appeals for the Ninth Circuit issued a decision in the case entitled United States v. Nosal. The case involved a former employer and others using the password of another employee to hack into his former employer’s database in order to access and take information which belonged to his former employer.

The decision has gained a lot of attention and press because Mr. Nosal’s criminal conviction was based upon his use of another employee’s passwords. There are a large number of articles and blog posts warning that the holding in the case could result in the criminal prosecution of an individual who uses a friend’s Netflix or HBO GO password to access those sites. While that could be one result of the decision, I believe the holding in the Nosal case does not currently go that far. Per the Ninth Circuit, “this appeal is not about password sharing. Nor is it about violating a company’s internal computer use policies.” Rather, the case revolves around accessing a protected computer with the intent to defraud as defined in the Computer Fraud & Abuse Act (CFAA), 18 U.S.C. § 1030.


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Several months ago, I blogged about the Rodriguez v. Raymours Furniture Co., 436 N.J. Super. 305 (Super. Ct. 2014)case. The case addressed an important issue – whether or not an employee’s could enter an agreement to shorten the statute of limitations period from 2 years to six months to assert an employment discrimination claim pursuant to New Jersey’s Law Against Discrimination (LAD). Yesterday, the New Jersey Supreme Court held that the statute of limitations period could not be reduced by agreement.
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Martin Shkreli, the controversial CEO of Turning Pharmaceuticals, and his attorney were indicted in an alleged securities fraud scheme. On December 14, 2015, a grand jury paneled in Brooklyn, New York, returned a seven-count indictment against Martin Shkreli. Mr. Shkreli is charged with seven counts of securities fraud and conspiracy. His attorney, Evan L. Greebel is charged with a single count of wire fraud conspiracy. Greebel and Shkreli also face a United States Securities and Exchange Commission (“SEC”) civil complaint. The SEC commenced an eight-count civil suit against Shkreli, and contains a single aiding and abetting count against Greebel. Shkreli is accused of running a Ponzi scheme that allegedly funneled money from Retrophin, Inc. to deceived investors in a series of ailing hedge funds. Attorney Greebel is charged with aiding the alleged scam.
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Last week, former University of Southern California Head Football Coach Steve Sarkisian filed a 31-page lawsuit in Los Angeles Superior Court against his former employer. The lawsuit alleges that Coach Sarkisian’s employment was unlawfully terminated. Furthermore, Coach Sakisian alleges that USC discriminated against him by not making a reasonable accommodation to address his disability – alcoholism. The former USC coach is seeking damages in excess of $30,000,000, plus the reinstatement of his employment.

Coach Sarkisian’s employment with USC was terminated on October 12, 2015, after taking an indefinite leave of absence. Coach Sarkisian took this leave of absence in order to seek treatment for alcoholism.

Alcoholism is a recognized disability under both California’s Fair Employment and Housing Act (FEHH) and the federal American’s with Disabilities Act (ADA). The law prohibits employers from discriminating against employees with disabilities that limit a major life activity. Employers are required to make “reasonable” accommodations in order to help the disabled employee overcome their recognized disability. Often Courts find that an accommodation is unreasonable if it substantially disrupts the employer’s business practice or requires an alteration to any essential job responsibilities.


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Recently, the New Jersey Supreme Court decided an important case that further protects employers from disloyal or “faithless” employees. The central issue in Kaye v. Roseflelde is whether “a Court may order the equitable remedy of disgorgement of an employee’s compensation when the employee has breached their duty of loyalty to the employer, but the employer had not sustained any economic loss.” The Kaye decision is an extension of Cameco Inc. v. Gedicke, 157 N.J. 504(1999), which allowed Courts to disgorge (or give back) compensation earned if the employee caused their employer to suffer damages.

The facts of Kaye are fairly simple and straightforward. Kaye hired his former attorney, Mr. Roseflelde, to work directly for his timeshare companies. During the course of a twenty-plus day trial, Kaye was able to demonstrate that Mr. Roseflelde committed many serious acts of misconduct during working hours when he acted on his own behalf instead of his employer’s best interests.


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On March 17, 2015, the Appellate Division issued an important decision which provides guidance to New Jersey Trial Courts asked to judicially expel a member of a Limited Liability Company. IE Test, LLC v. Kenneth Carroll (App. Div. 2015)

N.J.S.A. 42:2B-24(b)(3) permits the expulsion of a member of a New Jersey Limited Liability Company under