Recent Blog Posts

    • Protocol for Broker Recruiting
      Thomas B. Lewis, Shareholder of Stark & Stark's Employment and Litigation groups, authored the article Protocol for Broker Recruiting: How a Financial/Investment Advisor Can Use the Protocol to Transition Accounts for the September/October 2008 edition of the Investment Management Consultants Association's Investments & Wealth Monitor.   The article gives a brief history of the origination of the Protocol for Broker Recruiting in 2004, and includes a question and answer section for recruiting and a list of do's and don'ts to follow under the Broker Protocol. You can read the full article here. (PDF) ....
    • Identifying When Your Trademark Has Been Infringed Upon
      Martin P. Schrama and Michael T. Pidgeon, members of Stark & Stark's Litigation group, authored the article Identifying When Your Trademark Has Been Infringed Upon for the October 13, 2008 edition of the New Jersey Law Journal.   The article discusses several pieces of statewide legislation designed to ensure trademark protection and the federal Lanham Act, which is the most comprehensive piece of trademark legislation. The article states that only through the selection and establishment of a strong trademark under the Lanham Act, will owners of a mark be able to determine when its trademark has been infringed upon.   You can read the full article here. ....
    • Preventing Employee Theft
      Kevin M. Hart, Shareholder of Stark & Stark's Litigation group, authored the article Preventing Employee Theft: How to take appropriate steps to address the problem for the August 18, 2008 issue of the New Jersey Law Journal.   Mr. Hart discusses several common myths associated with employee theft, which will help employers understand the nature of the problem, and ways employers can alleviate the problem in their  company. You can read the full article here. (PDF) ....
    • Equal Protection: A State Employee Is Not a "Class-of-One"
      In an opinion by Chief Justice Roberts, the Supreme Court on June 9, 2008, held that the “class-of-one” theory of equal protection does not apply to state employees. The Equal Protection Clause of Fourteenth Amendemnt to the U.S. Constition, upon which the class-of-one theory is based, provides, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Constit. amend. XIV, § 1 (emphasis added). In Engquist v. Oregon Department of Agriculture, 128 S.Ct. 2146 (2008), a public employee alleged that she had been “arbitrarily treated differently from other similarly situated employees,” and that such treatment gave rise to a class-of-one equal protection claim. The Supreme Court ultimately rejected Engquist’s position that a previous Supreme Court decision, Village of Willowbrook v. Olech, 528 U.S. 562 ....
    • Claim of Undue Influence Resolved by Court Before Death of Testator
      A will is obviously prepared when a individual is still alive.  A will contest usually comes about after the individual dies.  However, a California Appellate Court has recently decided that when a conservator secures Court approval of an estate plan while the individual is still alive, any challenge to the will must be made at that time and not after the individual dies. In the case of Murphy v. Murphy, in the Court of Appeal of the State of California, First Appellate District, Docket No. A115177, a dispute arose between siblings after their father had a stroke and could no longer operate his business.  The son was concerned that his sister was exercising undue influence over the father, and, with Court approval, hired a conservator to wind down the business and deal with the father's assets.  At that time the son learned that his father's will left all assets to his sister and none to him. The conservator sought Court approval, through a ....
    • Proper Registration of Fabric Dresses Sufficient to Defeat Fraud on the Copyright Office Claims
      Deposits with the copyright office of pictures depicting dress designs, as opposed to specimens of the actual fabric designs, are usually sufficient to protect those designs.  See Blue Fish Clothing, Inc. v. Kat Prints, 1991 WL 71113 at *3 (E.D.Pa. 1991) (Designs displayed in clothing catalogs properly registered); see, also, Winfield Collection, Ltd. v. Gemmy Industries, Corp., 147 Fed.Appx. 547 (6th Cir. 2005) (citing King Features Syndicate v. Fleischer, 299 F. 533 (2d Cir.1924); Geisel v. Poynter Prods. Inc., 295 F.Supp. 331 (S.D.N.Y. 1968); Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc., 5 F.Supp. 808 (S.D.N.Y. 1934)) (copyright protection for two-dimensional photographs or drawings encompasses three-dimensional depictions that are substantially similar). A party seeking to establish fraud on the copyright office in order to rebut the presumption of copyright validity of a registered dress design, bears the heavy burden of proving deliberate misrepresentation (This same ....
    • Patterns, Lace and Fabric Designs Incorporated Into Dresses are Copyrightable
      It is well established that utilitarian or useful articles, such as dresses or the functional components of dresses, are not the proper subjects of copyright registration and protection.  However, decorative patterns, lace and fabric designs incorporated into dresses “are considered ‘writings' for purposes of copyright law and are accordingly protectible.”  See Eve of Milady v. Impression Bridal, Inc., 957 F.Supp. 484, 489 (S.D.N.Y. 1997) (citing Knitwaves, Inc. v. Lollytogs Ltd, 71 F.3d 996, 1002 (2d Cir. 1995); Folio Impressions, Inc. v. Byer California, 937 F.2d 759, 763 (2d Cir.1991)).  Moreover, The level of originality and creativity in fabric designs that must be shown is minimal, only an “unmistakable dash of originality need be demonstrated, high standards of uniqueness in creativity are dispensed with.” Folio Impressions, 937 F.2d at 765 (citing Weissmann v. Freeman, 868 F.2d 1313, 1321 (2d Cir. 1989); Feist Publications, Inc. v. ....
    • Minority Oppression Claims: A Primer on Acting, Standing, Remedies and Valuation
      Scott I. Unger, Shareholder of Stark & Stark's Litigation group authored the article Minority Oppression Claims: A Primer on Acting, Standing, Remedies and Valuation for the June 16, 2008 edition of the New Jersey Law Journal. The article addresses what constitutes actionable minority oppression, who has standing to assert minority oppression claims, the remedies available to oppressed parties and the meaning of “fair value” with respect to a court-ordered buyout of a minority shareholder’s interest in the closely held company. You can read the full article here. ....
    • Case Questions Retroactivity of Change to Offer-of-Judgment Rule
      Craig S. Hilliard, Shareholder and member of Stark & Stark's Litigation group was quoted in the article Case Questions Retroactivity of Change to Offer-of-Judgment Rule in the May 12, 2008 edition of the New Jersey Law Journal. Mr. Hilliard believes that courts typically resist the retroactive application of new legislation and applying new laws to past acts is disfavored, either on constitutional grounds -- such as due process or, in the criminal context, ex post facto constraints -- or under a "manifest injustice" test. Mr. Hilliard states, "The New Jersey Supreme Court historically has tested the fairness of applying new legislation to past acts by asking whether it is manifestly unjust to apply the law. But the Offer of Judgment rule in New Jersey is a court rule of procedure. In evaluating procedural rules, courts usually apply the "time of decision" rule, which means that the rule in effect at the time of the court's decision applies, even if it has ....
    • Stark & Stark Shareholder Wins $699,000 Verdict in Breach of Contract and Copyright Infringement Case
      Mon Cheri Bridals, Inc. v. Wen Wu et al, Civil Action No. 04-1739 (AET) Mon Cheri Bridals, a large wholesale manufacturer of wedding dresses and social occasion dresses, brought suit in U.S. District Court in Trenton, New Jersey against a competitor, Wen Wu and various companies he owned and controlled, alleging that Mr. Wu and his companies infringed on Mon Cheri’s copyrights in its dress designs, and breached a 1999 contract between the companies. The initial dispute arose in August of 1998 between Mon Cheri and Wu concerning dress designs. Mon Cheri discovered that Wu was marketing his dresses using photographs of more expensive versions that Mon Cheri manufactured and sold. Wu signed an affidavit swearing that he, and the other companies he owned and controlled, would not infringe upon Mon Cheri’s rights in the future. Mon Cheri later learned that Wu continued to sell dresses that infringed upon Mon Cheri’s copyright and trade dress rights.   The case went to ....
    • Recent Revisions to the Trademark Trial and Appeal Board Rules
      Martin P. Schrama and Melissa D. Doogan authored the article Recent Revisions to the Trademark Trial and Appeal Board Rules for the New Jersey Law Journal's April 14, 2008 Intellectual Property & Life Sciences Supplement. The article discusses the impacts the substantial rule changes set forth by the Trademark Trial and Appeal Board and the United States Patent and Trademark Office will have on trademark opposition and cancellation actions. You can read the full article here. ....
    • Can A Message Board Violate New Jersey's Consumer Fraud Act?
      The March 24, 2008, edition of the New Jersey Lawyer reported that the New Jersey Attorney General is investigating whether or not it’s Division of Consumer Affairs should assert fraud or Consumer Fraud claims against JuicyCampus.com, a free website which allows individuals to post anonymous opinions to "often nonsensical and sometimes vicious discussions" about who’s the most overweight student on campus, or who on campus has the most morally casual attitude? This invites the following question: can the New Jersey Attorney General successfully assert claims against this website? Probably not. The New Jersey Consumer Fraud Act. New Jersey enjoys one of the strongest consumer protection statutes in the United States.  New Jersey Courts have consistently emphasized that like most remedial legislation, the New Jersey Consumer Fraud Act ("CFA") is to be construed liberally in favor of consumers. Although initially designed to combat "sharp ....
    • Minority Oppression in Relation to "Fair Value" of Stock
       The Honorable Gerald C. Escala of the Superior Court of New Jersey, Chancery Division, Bergan County issued an interesting decision which provides additional guidance on the legal issue of minority oppression along with the calculation of “fair value” of the minority owners stock. In Venturini v. Steve’s Steak House, 2006 WL 445059, two nephews who collectively owned fifty percent of Steve’s Steak House filed a complaint against their aunt, Marie Damiani (“aunt” or “Marie”) alleging that they were oppressed minority shareholders. The nephews, Steve Venturini, III (“Steve III”) and Gregg Venturini (“Gregg”) collectively obtained fifty percent ownership in the corporation when their father, Steve Venturini, II, died in or about 2001. Around the time of their father’s death, Marie offered to purchase Steve III and Gregg’s interest in Steve’s Steak House, Inc. (“the corporation” ....
    • Supporting the Right to Obtain a Disability Carrier's Underwriting Manuals
      Shore Orthopaedic v. The Equitable is an important case in a policyholder’s arsenal - supporting the right to obtain a disability carrier’s underwriting manuals to challenge a claim denial. The Appellate Court decided on January 24, 2008 that a $50,000 counsel fee award by the trial judge in favor of plaintiff was the proper sanction, after the disability carrier, Equitable, delayed producing its underwriting manual.  One of Shore Orthopaedic’s practitioners became disabled and unable to pay his share of the overhead expenses of the medical group.  The practice owned a disability policy through Equitable intended to pay the practice benefits to reimburse for overhead expenses the doctor, insured under the policy, was unable to pay.  The policy provided that the benefits would be paid directly to the medical practice as the owner of the policy. During discovery, Shore demanded a copy of Equitable’s underwriting manuals.  The trial judge ....
    • Internal Investigations: Currnet Issues, Practical Guidance
      Kevin M. Hart, Shareholder and member of Stark & Stark 's Litigation group, was a participant in the September 2007 legal roundtable for GC Mid-Atlantic, titled Internal Investigations: Current Issues, Practical Guidance. The panelists discussed various issues a company will face when the decision has been made to conduct an internal investigation of a corporation. Some of the topics discussed include the initial issues a company will face when conducting an investigation, deciding who will conduct the investigation, maintaining the integrity of the investigation, what kind of reports to provide once the investigation has concluded, and a discussion on compliance programs. You can read the full report of the legal roundtable here. ....
    • Mediator Privilege
      The New Jersey Supreme Court has adopted New Jersey Rule of Evidence 519 entitled “Mediation Privilege” to become effective July 1, 2008.  It provides that a mediation communication is privileged and shall not be subject to discovery or admissible in evidence in a proceeding unless waived or precluded under limited circumstances further defined in the amendment. However, evidence or information that is otherwise admissible or discoverable does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation. The parties to a mediation may expressly waive the privilege, and in the case of the privilege of a mediator, it may be expressly waived by the mediator. Among the exceptions, where the privilege does not apply are the following: 1.    Communications made during a public mediation; 2.    A threat or statement of a plan to inflict bodily injury; 3.    Communications sought or ....
    • A Nutshell on Marketability & Minority Discounts in New Jersey
      In most cases, the single most important issue in a minority shareholder oppression dispute is the valuation of the complaining shareholder’s interest in subject closely held company. One important sub-issue is the applicability of marketability and minority discounts in valuing a less than controlling interest in the subject closely held corporation. Before considering whether or not these discounts are applicable, a general understanding of the marketability and minority discounts and the rationale behind them is important. Generally, a minority discount is an adjustment which could be applied based upon the minority shareholder’s lack of control over the closely held business entity. The theory behind the minority shareholder discount is that non-controlling shares of non-publicly traded stock are not worth their proportionate share of the firm’s value because the minority owner lacks voting power to control the corporation’s actions.  The marketability ....
    • Litigation Gets Personal
      Thomas B. Lewis, Chair of Stark & Stark's Employment Group, and Shareholder of Stark & Stark's Litigation Group, was quoted in the August 6, 2007 issue of the National Law Journal, in the article, Litigation Gets Personal. You can read the full article here. ....
    • Californian Can Be Sued in NJ for Alleged Libel on Internet
      Paul W. Norris, Shareholder and member of Stark & Stark's Litigation Group, was quoted in Friday's New Jersey Law Journal Article, Californian Can Be Sued in NJ for Alleged Libel on Internet. The article discusses the recent decision in Goldhaber v. Kohlenberg, which states that making libelous statements in a web-based forum can be grounds for suit in New Jersey, because the material was "targeted" toward a New Jersey Audience. You can read the full story here. ....
    • New Jersey Legal Update - Podcast # 66
      This week's New Jersey Legal Update podcast is a follow-up to a previous podcast on minority oppression discussing who can file a minority oppression lawsuit, and what one can expect if they do. This podcast will follow up with a discussion of one of the most important parts in a minority oppression lawsuit - valuation This week's New Jersey Legal Update podcast is presented by Scott Unger, Shareholder of Stark & Stark's Litigation Group. You can download the New Jersey Legal Update Podcast # 66 here. (5.9 MB) ....