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Herten, Burstein, Sheridan, Cevasco,
Bottinelli, Litt, Toskos & Harz, LLC
REPORT FROM COUNSEL
WINTER 2004/2005 ISSUE
NEWS FROM HERTENBURSTEIN.COM
- We're growing, growing, growing. Our founding
member, Tom Herten, has added Wyeth, an international
pharmaceutical manufacturer, to the ever expanding list of
prestigious clients served by the firm. With 15 new hires,
consisting of lawyers and paralegals, office space was at a
premium. Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt,
Toskos & Harz solved this problem by taking additional space. We
are now located on both the sixth and second floors of 25 Main
Street in Court Plaza North.
- Check us out at our new website at http://www.herten
burstein.com. Although we are still in the process of adding the
new attorney hires to our website, feel free to visit our website
and familiarize yourself with the firm's attorneys and expertise.
- The eight equity members hosted our Founder's
Day event on October 16, 2004 at Pegasus Restaurant in the
Meadowlands Race Track. It is an annual get together for the
office staff to celebrate the founding of the firm. The first race
was named after Eleanore Barnes, a long-time employee who recently
passed away at age 87. The trophy was presented to the winning
jockey by Patrick Papalia, Jason Shafron and their wives. Over 90
people attended and all left "winners".
- Congratulations to our former summer
associates. Lawrence Calli is a judicial clerk with the Honorable
Brian R. Martinotti of the Bergen County Superior Court. Jason
Tuvel is a judicial clerk for the Honorable Harriet Farber Klein
in the Essex County Superior Court. Jason was also congratulated
by the firm on his engagement to Lauren Michele Kesler, another
attorney who is presently a law clerk for the Honorable Bruce A.
Gaeta.
- Congratulations to our present law clerks,
Anthony S. Bocchi, Mark A. Fantin and Lauren Ricigliano. This
year's class of Herten Burstein law clerks have all landed
judicial clerkships following graduation. Anthony will be clerking
for the Honorable Jonathan N. Harris at the Bergen County Court
House. Judge Harris is assigned the prerogative writ litigation
which are cases involving municipalities and their land use
boards. Mark will be joining Anthony at the Bergen County Court
House as he will be the law clerk for the Honorable Daniel P.
Mecca, the Civil Part Presiding Judge. Lauren will be located in
Somerset County where she will clerk for the Honorable Graham T.
Ross who is the overall Assignment Judge of that county. We would
also like to congratulate Anthony on his engagement to Jennifer
Lauren Casatelli.
- On October 6, 2004 Steven B. Harz and Jodi L.
Campbell of our Labor Department spoke before the Commerce &
Industry Association of New Jersey. The seminar they gave dealt
with the new United States Department of Labor overtime
regulations. The seminar was well received and is another example
of our support of legal education programs.
- In recognition of his efforts in the
development of a judicial mediation and arbitration program, Terry
Bottinelli was re-appointed by the Chief Justice to the New Jersey
Supreme Court Advisory Committee on mediation and arbitration.
Terry has been in the forefront in the development of this area of
the law. The Court's mediation/arbitration programs have been
credited with reducing much of the case backlog in the New Jersey
court system.
- One way of learning the "ins and outs of court"
is to be accepted into the Justice Morris Pashman Inns of Court in
Bergen County. This prestigious group consists of mentors,
barristers, and pupils. Among the new pupils being welcomed into
the group for this session are Herten Burstein associates Craig
Bossong, Marina Hoppas and Damon Kamvosoulis. In the Barrister
category is our own Dan Gielchinsky while serving as Masters are
Al Burstein and Tom Herten. We are also proud to note that the
Justice Robert L. Clifford Inns of Court in Passaic County has
accepted Herten Burstein associate Holly Peterson as a pupil.
- In addition to his extensive legal work, Tom
Herten remains actively involved in service to the Bar. He
recently lectured to the Inns of Court pupils on the subject of
Ethics. Simultaneously, Tom chairs the Ethics Committee IIB on
behalf of the New Jersey Supreme Court, and the Bergen County Bar
Association Judicial Appointments Committee. As a result, Tom
tells us that his golf game has gone to "seed."
- Our commercial real estate department completed
a very complicated transaction. Arnold Litt, Chairman of the Real
Estate Department teamed up with Patrick Papalia and both were
assisted by commercial paralegal Nicoletta Newkirk in closing a
multi-million dollar warehouse acquisition in New York for client
Mamma Says. Mamma Says is a company which manufactures and sells
cookies and other food products.
- Congratulations to Dave Polizzotto on his
promotion to "Director of Operations" of Herten, Burstein,
Sheridan, Cevasco, Bottinelli, Litt, Toskos & Harz. We also want
to congratulate Dave on being awarded a scholarship to attend the
Regional 1 Conference of the Association of Legal Administrators
in Orlando, Florida this November.
- The Township of Teaneck for the first time in
30 years has undertaken a revision of its rent leveling ordinance.
Concerned landlords of Teaneck have retained Arnold Litt of our
commercial real estate department to represent their interests
before the Mayor and Council. Arnold will be heading a task force
of attorneys from the commercial real estate department and
municipal department. Among those are Manny Toskos and Craig
Bossong.
- Congratulations to Manny Toskos who was
appointed Chairman of the New Jersey Supreme Court District IIB
Fee Arbitration Committee. The Committee consists of two attorneys
and one non-attorney. It hears and decides fee disputes between
clients and their attorneys.
E-MAIL PRIVACY IN THE WORKPLACE
Richard was an independent insurance agent who
sold policies for a major insurer on an exclusive basis. After a
period in which there was some dissatisfaction and acrimony on both
sides of the relationship, the company terminated its agreement with
Richard. In subsequent litigation brought by Richard, the parties
disagreed as to the reason for the termination. The company's
position was that it had fired Richard for disloyalty. How the
company came by its evidence of disloyalty led to a separate element
of the ensuing lawsuit.
When other events raised suspicions about Richard,
an attorney for the company and a systems expert searched the
company's main file server for any e-mail to or from Richard that
caught their attention because of the e-mail headers. There, they
claimed to find two messages from Richard to a competing insurance
company that essentially asked if the competitor might be interested
in acquiring some clients who supposedly were unhappy with Richard's
company.
Richard argued to no avail that his former company
violated his rights under the federal Electronic Communications
Privacy Act (ECPA). First, he asserted that there was a violation of
that part of the law that prohibits "intercepts" of electronic
communications such as e-mails. However, courts, including the one
hearing his case, have reasoned that an intercept can only occur
contemporaneously with the electronic transmission. The company did
not access Richard's e-mails as he was sending them, but read them
later, so it did not "intercept" them.
The second claim was brought under a different
part of the ECPA, which creates liability for intentionally
accessing without authorization a facility through which an
electronic communication service is provided, and thereby obtaining
access to a communication while it is in electronic storage.
"Storage" in this context means temporary, intermediate storage, or
backup storage. A related part of the law makes an exception from
liability for the person or entity providing the communications
service. Since Richard's e-mails were stored on a system controlled
and administered by his company, the company could not be liable for
accessing the e-mails.
OSCAR WILDE AND COPYRIGHT LAW
Nineteenth-century writer Oscar Wilde had not yet
produced the works for which he is best known when he came to the
United States in 1882 for a lecture tour to promote a touring opera.
He clearly was a celebrity in the making, however, and that is what
brought him to the attention of Napolean Sarony. Sarony was making a
name for himself, and lots of money, in the still emerging field of
photography. He took photographs of the rich and famous, to whom he
paid large sums in return for the exclusive right to distribute the
photographs.
Wilde posed for 27 pictures taken by Sarony. When
the most famous of these was used in an advertisement without
Sarony's permission, he sued. The defendant was a lithographer who
was said to have reproduced many thousands of copies of the image.
Sarony alleged a violation of his copyright in the photograph. The
defense was that Congress had the power to protect authors'
writings, but not authors' photographs, which were described as mere
reproductions of nature created by the operator of a machine.
The case went all the way to the United States
Supreme Court (which itself was later the subject of a formal
photographic portrait by Sarony). In a decision that has been
valuable to photographers and copyright seekers ever since, the
Court ruled that Sarony's photograph did indeed have copyright
protection. The photograph was deemed a work of art and the product
of the photographer's "intellectual invention," no different in
nature from a novel. Rebutting the argument that taking a photograph
has nothing to do with imagination, the Court described Sarony, as
an art critic might have done, as having set up his subject "so as
to present graceful outlines, arranging and disposing the light and
shade, suggesting and evoking the desired expression."
The essential holding in Sarony's case is no less
valid today, but more than a century later there are added layers of
legal analysis to consider in our copyright jurisprudence. For
example, in a recent case, a photographer took pictures of a blue
vodka bottle for use in the vodka producer's marketing. The company
then had other photographers take similar photos of the bottle and
ended up using them in its advertising campaign. The first
photographer sued for copyright infringement in his photographs. He
reached back into the 19th century to cite the Sarony case, but
lost.
The problem was not that the photographs were
unworthy of copyright protection. Everyone agreed they were.
However, under a doctrine that is now well established in copyright
law, courts will not protect a copyrighted work if the idea
underlying it can be expressed only in one way, such that the idea
and the expression of it "merge." The basic question in the case
was, "How many ways are there to create a `product shot' of a blue
vodka bottle?" The court's answer was "not very many."
NEW BANKING RULES AFFECT CHECKING ACCOUNTS
We Americans write about 40 billion paper checks
each year. In addition, for the first time that number recently was
eclipsed by the annual number of automated transactions involving
checking accounts. Checking account transactions are such a
widespread part of our lives that consumers of banking services are
well advised to become acquainted with major changes affecting
banking laws. Federal legislation called the Check Clearing for the
21st Century Act, or "Check 21" for short, went into effect on
October 28, 2004.
The Dangers of "Floating"
Check 21 will allow financial institutions to
process "substitute" checks--high-quality paper reproductions
created from electronic images of both sides of an original check.
In time, check processing will be faster, and this is where there
will be ramifications for check writers and depositors.
While it has always been prudent to have enough
money in your account to cover a check the moment you write it, who
has not used the lag time in check processing to make a necessary
deposit? That will soon become a riskier strategy as electronic
check processing becomes more prevalent. It will also be more
important than ever to keep checkbooks up to date, especially
bearing in mind deductions for ATM withdrawals, bank fees, and
debit-card purchases. (Another downside to faster check processing
is that you may have less time to place a "stop payment" on a check
that you have written.)
As a last resort, there are overdraft services,
including overdraft lines of credit. They have their place, but
remember that each use of an overdraft service is essentially a
loan, usually with interest charges or other fees.
Electronic Substitute Checks
Today, most banks do not return customers' actual
checks with their monthly statements. Under Check 21, even your bank
may not receive your original check but, rather, an electronic
substitute check created by the bank where the check was deposited.
As long as the substitute check meets standards established under
Check 21, it should be just as effective as the original for a
customer who needs to prove a disputed payment. Of course, long
before the enactment of Check 21, images of checks, rather than the
real thing, have enjoyed widespread acceptance as proof of payment.
Even if the substitute check falls short in some way, Check 21
provides warranties and remedies to protect the parties to a
transaction.
Expedited Recrediting
Erroneous or fraudulent payments are largely the
domain of state laws, which can vary greatly. Usually, a bank can be
held liable to its customer if it charges the customer's account for
a check that is not "properly payable." Check 21 has provisions for
"expedited recrediting" in the event of improper payment.
A bank customer can make a claim for expedited
recrediting from the bank holding the customer's account if the
customer asserts in good faith that the bank improperly charged the
account for a substitute check. The customer must show that
producing the original check, or a better copy of it, is necessary
to determine the validity of the charge to the account. A claim for
expedited recredit must be made within 40 days of delivery of the
relevant bank statement to the customer, or the date when the
substitute check is made available to the customer, whichever is
later.
TELECOMMUTERS AND THE HOME OFFICE TAX
DEDUCTION
The benefits of working from your home for an
employer make telecommuting appealing to many people. In most cases,
however, the plus side may be confined to subjective,
hard-to-measure factors. What is it worth to you to avoid rush-hour
traffic jams or to wear whatever you want while working?
If you are counting on an income tax benefit in
the form of a home office deduction, you should understand that most
telecommuters do not meet the demanding requirements for the
deduction. Still, you will not know how you stand unless you first
know the rules. If you do qualify, worthwhile tax breaks are
available, consisting of deductions for such items as property
taxes, mortgage interest, and utilities.
To qualify for the home office deduction, a
taxpayer must meet several requirements relating to the business use
of a dwelling. For example, as to the portion of a dwelling in
question, it must be used exclusively and regularly for the purpose
of carrying on a trade or business. When part of the dwelling is
used for business by someone who is an employee, there is an
additional requirement that has proved to be a stumbling block for
many individuals seeking to claim a deduction. It sounds simple
enough, but, as interpreted by the courts, it is a formidable legal
hurdle. For an employee at home, the business use of the dwelling
must be for the "convenience" of the employer.
Employer Convenience
There is no cut-and-dried formula for determining
if office work at home is for the convenience of an employer. The
answer depends on the facts and circumstances of each case. However,
there are three alternative situations in which the employer
convenience requirement may be met: (1) where maintaining the home
office is a condition of employment--that is, the employer requires,
not merely allows, the employee to maintain the office and to work
there; (2) where the home office is necessary for the functioning of
the employer's business; or (3) where the home office is necessary
to allow the employee to perform his or her duties properly.
Unfortunately for taxpayers hoping for the deduction, it is not
enough that working at home for an employer is appropriate or even
helpful to everyone involved.
If an employer does not make work space available
to an employee at some fixed location, the practical effect is that
the employee is required to work at home, even if the employer has
no written policy stating such a requirement. In this situation,
which is still relatively unusual today, the employee should get it
in writing from the employer that the employee has no choice but to
work at home.
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