Community.njsba.com

Defining Respectful Conduct in Employment Mediation Settlement Agreements

by Patrick R. Westerkamp

Employment mediators may be asked to resolve conflicts between current co-workers, or

between an employee and a supervisor each of whom will continue to work together. Often the real issue

is a lack of mutual respect. This said, describing respectful, future behavior in a settlement agreement can be a puzzle. An approach that I sometimes use is to suggest discussing whether a generalized commitment to demonstrate respect could be supplemented by including promises governing:

1. Acting with civility and courtesy;

2. Greeting each other at the beginning of the workday, and saying goodbye on leaving the job;

3. Acknowledging promptly and courteously the other’s request for information or assistance;

4. Listening without interrupting before responding;

5. Keeping our voices at an appropriate level;

6. Disagreeing with deference by focusing on the issue, not by attacking the other person;

7. Asking for the other person’s opinion about solving an issue, i.e., “What would you do in my place?”;

8. Never using sarcastic, abusive, threatening, or profane language;

9. Apologizing when wrong;

10. Honoring commitments to the other, i.e., “Keeping my word”; and

11. Using appropriate channels to raise any workplace issue that remains a source of concern.

Community.njsba.com

Creative Currency: Dalian Wanda Group’s Film Incentive Program

by Ross A. Carbone

It is no secret that the film business is becoming increasingly complex and competitive. As movie budgets grow and the stakes become higher, more players enter and shape the marketplace.

Dalian Wanda Group (“Wanda”) is an example of a company that is changing the filmmaking landscape through its financial creativity. Wanda’s founder recently announced its plan for “a $150 million annual incentive program—jointly funded by Wanda and the Qingdao municipal government—that will subsidize up to 40% of a production’s costs.” Furthermore, “the Qingdao incentive, which will cover up to $18 million per production, will be administered by a 10-member panel—five from Wanda, and five from the Qingdao government. Applicants will be considered on a first-come, first-served basis,”

The Qingdao incentive is interesting because it offers a hybrid alternative to traditional funding programs, drawing from private and government funds alike, as opposed to state-only sources (e.g., those commonly found in the United States). Furthermore, Wanda’s program is interesting because it serves as a reminder of the financing alternatives potentially available to filmmakers.

nmmlaw.com

Foreign Companies (India) Establishing U.S. Subsidiaries—Some Jurisdictional Considerations (New Jersey)

by Steve Karg and Bob Gabrielski.

Last week, a first-level appellate court in New Jersey issued an opinion for publication discussing the potential grounds for finding jurisdiction over a foreign parent corporation when its wholly owned subsidiary has its principal place of business in New Jersey. In FDASmart v. Dishman Pharmaceuticals and Chemicals Limited, App. Div. Docket No. A-2800-15T3, the plaintiff sued an Indian parent company and its wholly owned New Jersey subsidiary in the Superior Court of New Jersey. The Indian parent company moved to dismiss the case against it based upon a lack of personal jurisdiction. Fortunately for the Indian parent in this case, the appellate panel found that personal jurisdiction did not exist.

The New Jersey Appellate Division opinion gives some insight into how a New Jersey court may analyze whether personal jurisdiction exists over a foreign parent when a wholly owned subsidiary has its principal place of business in New Jersey. In FDASmart, the panel first confirmed that the Indian parent was not “at home” in New Jersey, because it was neither incorporated in New Jersey, nor did it have its principal place of business here. Next, the panel reviewed whether “the activities of [the subsidiary] in New Jersey should be attributed to its [Indian parent] for jurisdictional purposes under an alter ego theory.” The panel noted that mere ownership of the subsidiary was not enough to impute its contacts to the parent. The panel then examined whether the subsidiary might be considered an “alter ego” of the parent (a “flip-side” analysis) for the purpose of imputing its New Jersey contacts to the parent. The panel noted that, to find the subsidiary to be an alter ego of the parent, the Plaintiff had to establish that (1) “the parent so dominated the subsidiary that it had no separate existence, but was merely a conduit for the parent,” and (2) “adherence to the fiction of separate corporate existences would perpetrate a fraud or injustice, or otherwise circumvent the law.” (citation omitted).

Community.njsba.com

Buzzfeed Sued Over Bogus News Allegations

by Stacey Lee Trien

Back in January of 2016, Michael Leidig and Central European News (“CEN”) filed an $11 million defamation lawsuit against Buzzfeed, an internet-based news site partly owned by NBCUniversal, after the site posted a story entitled “The King of Bullsh*t News” on August 24, 2015, featuring Leidig and including various alleged fake and outlandish stories (some too outrageous to describe in an EASL blog!).

Leidig and CEN contend that they do not publish fake news and, after providing limited and arguably deficient discovery responses, filed a motion for partial summary judgment seeking a determination that Buzzfeed’s article is false and defamatory, and that Leidig is not a public figure, as the term is defined under United States libel law. Yesterday, Buzzfeed fought back with a direct and well-written Opposition and Motion to Compel. BuzzFeed’s attorney Katherine Bolger argues that Leidig’s motion is improper, as Plaintiffs have “refused to engage in any real discovery.” Additionally, Bolger notes that Plaintiffs have only provided “(1) a self-serving declaration from Plaintiff Leidig himself in which he states that he believes that five out of the fifteen Disputed Stories are true, and (2) a declaration from Leidig’s former colleague that admits that the Naked Lunch story was false but claims it was ‘inspired’ by some unspecified Russian news coverage.” Buzzfeed ultimately argues that (1) Plaintiffs cannot establish that Buzzfeed’s “Bullsh*t News” article was false and (2) Michael Leidig and Central European News are public figures, because they have “significantly greater access to the channels of effective communication” and, therefore, “a more realistic opportunity to counteract false statements than private individuals normally enjoy.”

Community.njsba.com

Defining Respectful Conduct in Employment Mediation Settlement Agreements

by Patrick R. Westerkamp

Employment mediators may be asked to resolve conflicts between current co-workers, or

between an employee and a supervisor each of whom will continue to work together. Often the real issue

is a lack of mutual respect. This said, describing respectful, future behavior in a settlement agreement can be a puzzle. An approach that I sometimes use is to suggest discussing whether a generalized commitment to demonstrate respect could be supplemented by including promises governing:

1. Acting with civility and courtesy;

2. Greeting each other at the beginning of the workday, and saying goodbye on leaving the job;

3. Acknowledging promptly and courteously the other’s request for information or assistance;

4. Listening without interrupting before responding;

5. Keeping our voices at an appropriate level;

6. Disagreeing with deference by focusing on the issue, not by attacking the other person;

7. Asking for the other person’s opinion about solving an issue, i.e., “What would you do in my place?”;

8. Never using sarcastic, abusive, threatening, or profane language;

9. Apologizing when wrong;

10. Honoring commitments to the other, i.e., “Keeping my word”; and

11. Using appropriate channels to raise any workplace issue that remains a source of concern.

Community.njsba.com

Creative Currency: Dalian Wanda Group’s Film Incentive Program

by Ross A. Carbone

It is no secret that the film business is becoming increasingly complex and competitive. As movie budgets grow and the stakes become higher, more players enter and shape the marketplace.

Dalian Wanda Group (“Wanda”) is an example of a company that is changing the filmmaking landscape through its financial creativity. Wanda’s founder recently announced its plan for “a $150 million annual incentive program—jointly funded by Wanda and the Qingdao municipal government—that will subsidize up to 40% of a production’s costs.” Furthermore, “the Qingdao incentive, which will cover up to $18 million per production, will be administered by a 10-member panel—five from Wanda, and five from the Qingdao government. Applicants will be considered on a first-come, first-served basis,”

The Qingdao incentive is interesting because it offers a hybrid alternative to traditional funding programs, drawing from private and government funds alike, as opposed to state-only sources (e.g., those commonly found in the United States). Furthermore, Wanda’s program is interesting because it serves as a reminder of the financing alternatives potentially available to filmmakers.

nmmlaw.com

Foreign Companies (India) Establishing U.S. Subsidiaries—Some Jurisdictional Considerations (New Jersey)

by Steve Karg and Bob Gabrielski.

Last week, a first-level appellate court in New Jersey issued an opinion for publication discussing the potential grounds for finding jurisdiction over a foreign parent corporation when its wholly owned subsidiary has its principal place of business in New Jersey. In FDASmart v. Dishman Pharmaceuticals and Chemicals Limited, App. Div. Docket No. A-2800-15T3, the plaintiff sued an Indian parent company and its wholly owned New Jersey subsidiary in the Superior Court of New Jersey. The Indian parent company moved to dismiss the case against it based upon a lack of personal jurisdiction. Fortunately for the Indian parent in this case, the appellate panel found that personal jurisdiction did not exist.

The New Jersey Appellate Division opinion gives some insight into how a New Jersey court may analyze whether personal jurisdiction exists over a foreign parent when a wholly owned subsidiary has its principal place of business in New Jersey. In FDASmart, the panel first confirmed that the Indian parent was not “at home” in New Jersey, because it was neither incorporated in New Jersey, nor did it have its principal place of business here. Next, the panel reviewed whether “the activities of [the subsidiary] in New Jersey should be attributed to its [Indian parent] for jurisdictional purposes under an alter ego theory.” The panel noted that mere ownership of the subsidiary was not enough to impute its contacts to the parent. The panel then examined whether the subsidiary might be considered an “alter ego” of the parent (a “flip-side” analysis) for the purpose of imputing its New Jersey contacts to the parent. The panel noted that, to find the subsidiary to be an alter ego of the parent, the Plaintiff had to establish that (1) “the parent so dominated the subsidiary that it had no separate existence, but was merely a conduit for the parent,” and (2) “adherence to the fiction of separate corporate existences would perpetrate a fraud or injustice, or otherwise circumvent the law.” (citation omitted).

Community.njsba.com

Buzzfeed Sued Over Bogus News Allegations

by Stacey Lee Trien

Back in January of 2016, Michael Leidig and Central European News (“CEN”) filed an $11 million defamation lawsuit against Buzzfeed, an internet-based news site partly owned by NBCUniversal, after the site posted a story entitled “The King of Bullsh*t News” on August 24, 2015, featuring Leidig and including various alleged fake and outlandish stories (some too outrageous to describe in an EASL blog!).

Leidig and CEN contend that they do not publish fake news and, after providing limited and arguably deficient discovery responses, filed a motion for partial summary judgment seeking a determination that Buzzfeed’s article is false and defamatory, and that Leidig is not a public figure, as the term is defined under United States libel law. Yesterday, Buzzfeed fought back with a direct and well-written Opposition and Motion to Compel. BuzzFeed’s attorney Katherine Bolger argues that Leidig’s motion is improper, as Plaintiffs have “refused to engage in any real discovery.” Additionally, Bolger notes that Plaintiffs have only provided “(1) a self-serving declaration from Plaintiff Leidig himself in which he states that he believes that five out of the fifteen Disputed Stories are true, and (2) a declaration from Leidig’s former colleague that admits that the Naked Lunch story was false but claims it was ‘inspired’ by some unspecified Russian news coverage.” Buzzfeed ultimately argues that (1) Plaintiffs cannot establish that Buzzfeed’s “Bullsh*t News” article was false and (2) Michael Leidig and Central European News are public figures, because they have “significantly greater access to the channels of effective communication” and, therefore, “a more realistic opportunity to counteract false statements than private individuals normally enjoy.”