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On October 17, 2018, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility (the “Committee”) issued Formal Opinion 483 (the “Opinion”) entitled Lawyers’ Obligations After an Electronic Data Breach of Cyberattack.

On October 16, 2018, in Deutsche Bank National Trust Company Americas v. Janet Spinelli (Docket No. A-3642-16T4), New Jersey’s Appellate Division affirmed a trial court decision that granted Plaintiff’s motion for summary judgment and to strike defendant’s answer, and denied defendant’s cross-motion to dismiss the complaint. 

Posted in General Matters

The United States District Court for the District of Massachusetts recently granted a motion to dismiss an action against U.S. Bank National Association, as trustee and Select Portfolio Servicing, Inc., brought by a borrower alleging wrongful foreclosure, violation of the state’s consumer protection statute, violation of Fair Debt Collection Practices Act, unenforceability of a note based on the Uniform Commercial Code’s (“UCC”) six-year statute of limitations, and violation of a bankruptcy discharge injunction.  Duplessis v. U.S. Bank National Association and SPS, 2018 WL 4907526 (Oct. 9, 2018).

Earlier this year, in the case of Dynamex Operations West, Inc. v. Superior Court, the California Supreme Court rejected the “all circumstance” standard, and held that the “ABC” test is to be used to determine whether workers are employees or independent contractors.  Under the suffer or permit to work standard in California’s wage orders, an individual worker who has been hired by a company can properly be treated as an independent contractor only if the worker is the type of traditional independent contractor who would not reasonably be viewed as working in the hiring business. 

On September 30, 2018, California Governor Jerry Brown signed California Senate Bill 826, amending the California Corporations Code to generally require publicly held corporations, whose principal executive offices are located in California, to have at least one woman on their board of directors by close of the 2019 calendar year.   Specifically, the new law mandates, no later than the close of the 2019 calendar year, that “a publicly held domestic or foreign corporation whose principal executive offices, according to the corporation’s SEC 10-K form, are located in California shall have a minimum of one female director on its board.” 

In Estate of Caldwell Jones, Jr. v. Live Well Financial, Inc., the Eleventh Circuit Court of Appeals opined on whether 12 U.S.C. § 1715z-20 could be construed to prevent foreclosure under a reverse mortgage contract that, by its terms, permits the lender to demand repayment immediately following a borrower’s death, even if his or her non-borrowing spouse continues to live in the mortgaged property.  The Court ultimately determined that the statute could not be so broadly construed, because the statute addresses the types of mortgages that HUD may insure, but does not alter or affect the rights that a lender possesses under a reverse mortgage contract.

On October 1, 2018, Massachusetts’ new noncompete law for employers and employees goes into effect.  This law significantly limits the use of noncompete agreements within the Commonwealth, and incorporates additional unique wholesale changes.  Below are highlights of certain provisions of the new law, along with recommendations on how employers can address their existing and future noncompete agreements to comport with the new law. 

On August 28, 2018, in Young Man Kim et al. v. M&T Bank, Civil Action No. 17-11810 (ES) (MAH), the United States District Court for the District of New Jersey (Hon. Esther Salas, U.S.D.J.) issued a Memorandum and Order granting PIB Law’s motion to dismiss a putative class action filed by multiple plaintiffs against M&T Bank.

Recently, several New York Courts have rendered decisions addressing whether Statute of Limitations concerns affect whether a party can maintain an action, or whether a dismissal was merited.

On July 2, 2018, a federal judge in California denied a defendant’s motion to dismiss a federal government’s wire fraud indictment on the basis that it was time-barred. See United States v. Bogucki, 18-cr-00021. The defendant, Bogucki, a trader at Barclays Bank, was alleged to have deceived Hewlett Packard in a 2011 options trade.  In January 2018, the government filed an initial indictment charging Bogucki with one count of conspiracy to commit wire fraud and six counts of substantive wire fraud.  In filing the original indictment, the government relied upon a tolling order it had obtained from the Court pursuant to 18 U.S.C. 3292 based upon the government’s assertion that evidence the government needed was in a foreign country. Thereafter, the Department of Justice closed its investigation of Barclays in return for certain conditions in a Declination Letter.  In consideration for the government’s agreement not to prosecute, Barclays agreed to pay over $12 million in combined restitution and disgorgement.  The government subsequently filed a superseding wire fraud indictment against Bogucki. In filing the superseding indictment, the government dropped its reliance on the tolling order and instead stated that it was solely relying on the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), 18 U.S.C. 3293(2), which provides for a 10-year statute of limitations for wire fraud charges “if the [charged] offense affects a financial institution.” 

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