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Category: Outside General Counsel

  • New Jersey Strengthens Its Consumer Protection Laws

    New Jersey Strengthens Its Consumer Protection Laws

    A few days ago, Gov. Murphy signed a new law that is designed to protect shoppers from surprise credit card fees, and prevent businesses from making a profit off of credit card fees. This change should help ensure that New Jersey’s historically strong consumer protection laws keep pace with changes in consumer behavior.

    What’s New?

    New Jersey businesses have always been able to pass the fees they are charged by credit card processing companies on to consumers who choose to pay via credit card. 

    But some businesses have not been telling customers that they will be paying these fees. And other businesses are actually turning a profit when customers use credit cards by charging the customer a credit card processing fee that is greater than the one the business is paying. A4284/S3508 puts a stop to both of these practices. 

    Starting immediately, any New Jersey business that passes credit card surcharges and fees on to their customers must clearly state that they are doing so. 

    Businesses must provide “clear and conspicuous” notifications to consumers at a business’ entrance and at the point of sale, if they pass on credit card processing fees to their customers. Restaurants must put these notifications on their menus. 

    If fees will be charged through a telephone transaction, a verbal notice must be given. Consumers should know exactly how much they are going to be charged before they agree to a purchase or have their card swiped. 

    Businesses must also ensure that the credit card processing fees they charge consumers are less than or equal to the fees they themselves are being charged. It is now against the law to profit off of credit card transaction fees. 

    Safeguarding Consumers  

    In his statement marking the law’s enactment, Gov. Murphy spelled out his reasons for championing this legislation:

    “As our post-pandemic economy continues to grow and evolve, we too must adapt to best safeguard New Jersey consumers against unfair practices. All residents and visitors doing business in New Jersey deserve the utmost transparency with respect to their transactions, especially given the affordability challenges experienced by our low- and moderate-income families. Today’s legislation marks yet another step New Jersey is taking to ease those pressures and put well-earned money back in the pockets of hardworking New Jerseyans.”

    Ensuring Compliance & Enforcing the Law

    Consumers who believe a business is violating the new law can file a complaint with the Consumer Affairs or reach out to the The Law Offices of Andrew Dressel LLC team for assistance. Our attorneys have experience bringing consumer complaints on behalf of individuals and groups of plaintiffs who together file a class action. 

    We are also here to help businesses who must comply with this and other consumer protection laws identify the regulations that apply to them and interpret their meaning. The Law Offices of Andrew Dressel LLC serves as outside general counsel for a number of New Jersey businesses that count on us to help them comply with our state’s ever-changing laws. 

    Please contact The Law Offices of Andrew Dressel LLC today if we can be of assistance.

  • How Outside General Counsel Can Assist In-House Counsel

    How Outside General Counsel Can Assist In-House Counsel

    Even companies with established in-house counsel may have a need to hire outside general counsel to cover unforeseen or uncharted circumstances. Often outside general counsel is called upon to help with supplemental assistance to in-house counsel, as well as internal investigations and litigation. Here’s how we at The Law Offices of Andrew Dressel LLC are here to support.

    Supplemental Help from Experienced Attorneys

    In-house counsel often has projects that exceed the work capacity of the internal team. When that happens, we are here to step in and “pinch hit” to get you through. Whether it be advice on specific transactions, opinions on discrete legal issues, document review, contract drafting, and negotiation—we do it all.  Or, if you just need some extra-legal help on a term basis, we can do that too. Moreover, bringing in outside counsel can mean far more than an extra set of hands at the table, it also means a fresh perspective to your business and your legal issues. Whether brought on to receive and work on delegated tasks or to offer different or additional experience and perspective, outside general counsel can supplement the efforts of in-house counsel for the benefit of the business.

    Internal Investigations and Litigation Attorneys

    Allegations of corporate wrongdoing are a serious threat to any company’s future, and the steps you take, and when, matter. Whether it is an internal investigation or public litigation, outside general counsel brings specific experience to help navigate the process, as well as—in the context of an investigation—a heightened perception of independence and credibility. Often it makes sense to retain specialized counsel for these unique and trying events as these efforts always require quick decision-making, delicate efforts, and a uniquely thoughtful approach that is the hallmark of our attorneys.

    The outside general counsel will work with in-house counsel on such matters too:

    • Determine the scope of the investigation, and develop capabilities within a given budget to work to achieve the best solution.
    • Gather and assess the facts in a manner that will help to uncover all necessary and relevant information within the budget, time, and resource constraints.
    • Assign an oversight committee, where necessary, to establish a credible and objective slate of independent directors who are not implicated in the alleged wrongdoing.
    • Consider and implement remedial actions, which must be carefully considered and executed.
    • Aggressively defend the matter, in court, where it becomes necessary to do so.
    • Work with our public relations team to shape the narrative in the court of public opinion.

    Whose House?

    Whatever your needs, we can structure an outside general counsel relationship to fit your needs. Whether a matter is beyond the scope or capabilities of in-house counsel, or there just aren’t enough hours in the day to get it all done, we are here to help and provide the experience, resources, and assistance to deal with your issues. To discuss how The Law Offices of Andrew Dressel LLC can offer outside general counsel services to assist your in-house counsel in New Jersey or New York, call us at 848-202-9323 or fill out our contact form right away.

  • 6 Ways Outside General Counsel Makes Life Easier

    6 Ways Outside General Counsel Makes Life Easier

    1. Less Headaches

    Less headaches are the #1 way outside general counsel makes life easier for our clients. With great outside general counsel—ideally hired before problems arise—the client gets professional, experienced catastrophe prevention. Outside general counsel will draft airtight contracts, make sure the business avoids any obvious problems, and set the business up to deal with issues quickly and professionally. You might not always see the benefit of hiring outside general counsel, but your head will for sure feel it if you don’t.

    2. Confidentiality

    Clients can rest assured that they can obtain legal advice and discuss legal issues knowing that those conversations will be protected by the attorney-client privilege. Freedom to work through sensitive issues confidentially ensures the safety of your business.

    3. Business First

    The outside general counsel’s primary focus is working for the success of your business. This makes life easier during partnership disagreements, executive conflicts, or board negotiations. Your outside general counsel is there to protect the security and longevity of the business.

    4. No News Is Good News

    Another benefit of obtaining outside general counsel is they can act as the business’s registered agent. This allows the outside general counsel to receive legal mailings directly and review them, saving only the most important matters for the attention of the owners. This frees up time and energy to focus on other things, all while knowing your interests are being cared for behind the scenes.

    5. Mischief Managed

    The best business lawyers make their clients’ lives so easy that the lawyers seem unnecessary. With an attorney filtering your legal materials, often an issue is handled and resolved before the business owner even knows it happened. This can prevent stress, decrease decision fatigue, and lighten the overall burden on the business owner and executive team.

    6. Year After Year

    Great outside general counsel develops a working relationship that continues throughout the many phases of the business. In a flat-fee annual arrangement, we conduct an initial audit to get to know you, your business, and your legal needs at the beginning of the attorney-client relationship. We also conduct an annual audit process to anticipate and evaluate potential legal and regulatory issues.

    To find out exactly all the ways outside general counsel can make your life easier and your business better, use the Contact form to talk to one of the partners at The Law Offices of Andrew Dressel LLC. Call us at 848-202-9323 or email us at andrew@dressellaw.com for more information.

  • New Jersey Marijuana Legalization: What Employers + Employees Need to Know

    New Jersey Marijuana Legalization: What Employers + Employees Need to Know

    After some delay, Governor Murphy finally signed legislation to legalize recreational marijuana in New Jersey. While this is a historic moment and something of an end to what has been a long legislative saga, questions still remain about the impact this legislation will have on employers and employees, including the most important question: can someone be fired for cannabis use? Unfortunately, this is still something of an open question, and therefore a question both employers and employees should approach with great caution.

    Why is this uncertain?

    The cannabis legalization legislation makes clear that employees cannot be fired for exercising what is now a right under the New Jersey constitution. But they can be fired if it is proven that the employee was under the influence at work, proof which must be provided in the form of both an actual test for THC and expert examination and testimony regarding signs that the employee was working under the influence.

    However, legislation is just the first step and there are still a host of rules and regulations for the New Jersey Cannabis Regulatory Commission to work out on how such a testing regime would work. Given the length of time, it took just to put together the basic legislation, those rules and regulations are unlikely to be finalized any time soon. Another area where regulations need to be clarified is how expert witnesses will be licensed and trained.

    What do employers need to know?

    Employers need to keep in mind that the enacting legislation signed this week contains employee protections that should not be taken lightly. While the legislation states the regulatory framework needs to be in place for employment protections to be “operational,” the employment protections are “effective” immediately. As to what the difference is between “operational” and “effective” protections are, one can only guess at what the legislature was thinking. But as an employer, I would be hesitant to ignore employment protections that have been declared “effective.” Employers should be treating off-hours use of cannabis as a private right that employees can enjoy. That is unless the employer in question is the federal government, in which case private, off-hours cannabis use is still grounds for dismissal.

    What do employees need to know?

    You have a right not to face adverse employment consequences for private, off-hours marijuana use. But don’t show up to work high. Your employer needs only to have reasonable suspicion that you are under the influence of marijuana to require a physical drug test and evaluation by an “expert” on whether you are exhibiting signs of intoxication. Given how long THC stays present in the bloodstream, and the lack of any guidelines on “expert” training, there is still plenty of leeways for employers to find that an employee was high on the job. Also, employers are still permitted to require drug tests as part of pre-employment screening and as part of a regular drug screening program. In short, if your employer really wants to know about your marijuana use, they will. Given that most employment is “at-will” anyway, the employment protections signed into law this week may amount to small comfort.

    The attorneys at The Law Offices of Andrew Dressel LLC are monitoring the progress of legalization legislation and stand prepared to advise our clients on legalized cannabis in New Jersey. If you are interested in starting a business in the New Jersey cannabis industry please reach out to our attorneys by either calling at 848.202.9323 or contacting us through email at andrew@dressellaw.com. We look forward to helping you with whatever inquiries you may have.

  • Why You Should Always Hire Counsel to Draft Your Contracts

    Why You Should Always Hire Counsel to Draft Your Contracts

    Leave the Contract Drafting to the Attorneys

    Nowhere is the old saw “an ounce of prevention is worth a pound of cure” truer than in the realm of contract drafting. As a commercial litigator, time and again I have seen companies spend millions on litigation because they failed to take the necessary steps years earlier to ensure that their contracts were properly drafted and sufficiently clear. And almost always the reason the contracts were not sufficiently clear and detailed is because the parties thought they could save some money doing things without a lawyer. These are just some of the common pitfalls I’ve seen.

    Failure to Set Forth Consideration

    A promise is made, and a promise is broken, certainly the courts will enforce that promise in the event you decide to sue, right? Not so fast. Unless the contract at issue sets forth obligations flowing both ways, i.e., a “promise for a promise,” the broken promise may not be legally enforceable. This is called “consideration,” and unless both parties’ consideration is set forth in the contract, it may not be a legally binding contract.

    Failure to Name the Parties

    More and more business organizations involve multiple entities. Corporations, limited liability companies, a manifold of partnership types—the world of business organizations is incredibly complex. Unless a contract specifically sets forth exactly what entities have what obligations, you may find yourself with an unenforceable contract, or just as bad, a defendant that may have no assets with which to satisfy any judgment you might obtain.

    Failure to Define Terms

    As a litigator, ambiguity is often my friend, but in a properly drafted agreement, there should not be much ambiguity for me to work with. Nailing down what each term means makes your contracts clear and strong and prevents clever lawyers from trying to find wiggle room on undefined terms when matters break down.

    Failure to Include the Boilerplate

    Many a business owner has sighed looking at the lengthy document prepared by their counsel. Surely, they think, the contract did not need to be this long. But all that boilerplate at the end serves very important purposes. Items like a merger clause, which confines the parties’ agreement to the language contained within the contract, a dispute resolution clause, which sets forth how and where disputes between the parties are to be resolved, a choice of law, which sets forth the set of laws to be used in interpreting a contract, are all likely to be overlooked by a non-lawyer drafting their own agreement but are vital to the outcome of any future disputes between the parties. And, although much of it can seem to be rote or obvious, that is exactly the point—to avoid surprises later.

    Failure to Consider the Contract from a Non-Party’s Point of View

    The drafters of an agreement have often discussed the subject of the agreement at length and may have understandings about the agreement that do not ultimately make it into the language of the agreement.  This can be a fatal error. Having someone who was not part of these discussions actually put pen to paper is helpful because those individuals will seek to describe the agreement in its entirety, making every aspect of the agreement explicit.

    Failure to Consider the Worst Case

    Experienced counsel will have seen all the ways contracts can eventually “go wrong” and will endeavor to create a contract that puts you in the best possible position in the event the parties end up in a dispute. Most parties think things will always be smooth sailing, that everyone will live up to their obligations, and that present conditions will simply continue. However, being well positioned in the event things do not go well is important. Experienced counsel will set terms so that when a dispute arises you are well-positioned in that dispute.

    Whenever you or your business find yourself negotiating a contract of importance, it is key to hire experienced counsel who can recognize the subtleties that can lead to unintended consequences down the road. The Law Offices of Andrew Dressel LLC is a sophisticated firm with the skills necessary to both avoid unfortunate surprises in your agreements, as well as to negotiate the most favorable terms possible for you and your business. Whether you are seeking counsel for a “one off” contract or to engage an outside general counsel on a regular basis, please contact us through our online form, or by calling us at (848) 202-9323.

  • Outside General Counsel for Your Small-To-Midsize NJ Business

    Outside General Counsel for Your Small-To-Midsize NJ Business

    Small to midsize companies usually don’t have the budget for a full-time in-house general counsel. Yet, securing ongoing real-time legal advice is vitally important for any business, and can help manage risk and exposure. We are here to provide dedicated legal services at a fraction of the cost of a dedicated in-house team, and on a scale that meets your particular business needs.

    Indeed, salaries for a full-time general counsel are generally pretty high, and can start at $200 to $250K per year. Add another 40% for benefits, office space, and supporting staff and the cost is considerable, if not prohibitive. The reality is that most small to mid-sized companies cannot afford, and likely do not even need, a full-time dedicated attorney to provide legal services. Hence, many companies opt to hire an outside general counsel for just a small percentage of the cost of adding an employee. Most outside or outsourced general counsel are lawyers in private practice with a significant amount of general business experience, as well as experience managing litigation.

    The Case for Working with an Outside General Counsel

    Outside general counsel services–also referred to as outsourced general counsel–are provided by lawyers in private practice that will work hand-in-glove with the president and management team as the company’s general counsel. The only difference is that the lawyer doesn’t generally “live” at the company full-time. Rather, he or she provides real time, on-demand advice to the company, serves on the management team, weighs in on the legal implications of important decisions, and manages any litigation the company is facing–from an office outside the company.

    The outside general counsel serves as a remote extension of the company, working with your management team on strategic business planning, contract review and negotiation, employment issues, and any other day-to-day legal matters which occur when operating a business. Outside general counsel generally have a vast network of other lawyers who can be brought in when a legal specialist is required in areas like real estate, insurance, securities, and if the company needs to defend itself in litigation or initiate a lawsuit of its own.

    Outside General Counsel Can Work for Larger Companies Too

    For companies with established legal departments, an outsourced general counsel can be pulled in to handle overflow tasks, fill-in for someone on leave, or tackle a project that the legal department just hasn’t had time to complete. An outside general counsel can provide an extra set of eyes on a specific matter or can bring a unique perspective on a complex legal issue facing the company.

    For companies without established legal departments, an outside general counsel is an economical option to handle various expected and unexpected legal needs with the same level of service as an in-house attorney. This provides your business with more flexibility and financial stability while addressing the important legal needs of your company.

    Affordable Business Legal Options

    The beauty of the outside general counsel arrangement is the balance it strikes between business needs and cost. Whether working within an hourly, retainer, or project-based pricing structure, outside general counsel provide businesses with just the right amount of legal assistance, and through the most sensible and affordable business relationship.  This allows the company to meet its needs without over-extending their financial resources, and provides a scalable legal resource to fit any specific set of needs.

    Moreover, outside general counsel attorneys are skilled in adapting to different corporate environments. They can work on-site at your business as needed, but usually deliver their services remotely from their offices. These options allow outside general counsel to work efficiently providing legal solutions as well as exceptional value.

    Outsourced, Flexible Legal Planning

    Outside general counsel attorneys are experienced and can rapidly onboard into their role as outsourced general counsel. Your outside general counsel will hit the ground running on both long- and short-term projects, and will be able to use their past experience to create a custom legal plan for your business. Working with an outside general counsel will free up the time of the business owner–or in house legal department–to direct their time towards other high priority matters.

    On-Demand Business Advisors and Protection

    Outside general counsel can help you set up or evaluate your business agreements and structure them to prevent legal battles and prevent any disastrous missteps before they occur. An outside general counsel can also help your company carefully craft any employment, partnership, compensation, vendor, or lease agreements which can make or break your company at crucial points of growth or transition. Outside general counsel can provide guidance at all aspects of operating your business including:

    • Business formation
    • Contract drafting and negotiation
    • Governance and compliance
    • Mergers and acquisitions
    • Executive compensation
    • Intellectual property protection and licensing
    • Employment matters
    • Internal investigations
    • Real estate agreements

    Should the need arise, outside general counsel can also be retained to assist or oversee litigation on behalf of your business, should it arise.

    Experienced New Jersey Outsourced General Counsel Attorneys

    At The Law Offices of Andrew Dressel LLC, our services range from serving as your company’s outside general counsel, to working within established corporate legal departments to handle special projects or fill in for attorneys on leave. We have specific, locally-informed knowledge of the systems in which your businesses operate and can assist you in navigating those systems to advise and protect you and your objectives.

    With The Law Offices of Andrew Dressel LLC, companies benefit from our years of specific experience handling business issues for clients in New Jersey, New York, and surrounding areas. We have a passion for local companies and have worked with all sizes of businesses, as well as with several facets of state and municipal governments.

    Find out more about The Law Offices of Andrew Dressel LLC’s Outsourced General Counsel services and let a qualified team of outside general counsel allow you to focus on growing your business, while we focus on handling your pressing legal issues.

  • A Circuit Split Emerges on the Application of Arbitration Clauses to Affiliated Companies

    A Circuit Split Emerges on the Application of Arbitration Clauses to Affiliated Companies

    Spam phone calls have become an unfortunate part of everyday life, even if you have put yourself on a “no call” list. But would you expect that your cell service contract can prevent you from taking the spam callers to court? Well, depending on who your carrier is, who is calling, and what part of the country you are living in, that may very well be the case.

    In a somewhat unique turn of events, two federal courts of appeal, considering virtually the same fact pattern, came to completely opposite conclusions about the reach of an arbitration provision in a cell service contract, about a month apart from each other. The arbitration provision is found in an AT&T wireless agreement and requires customers to arbitrate “all disputes and claims” between the customer and any of AT&T’s “subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns.” The dispute at issue, however, involved purported spam phone calls from DirectTV, a subsidiary of AT&T, and claims under the Telephone Consumer Protection Act. Are such claims arbitrable? Apparently, this now rests on which circuit you happen to be filing suit in.

    The Fourth Circuit’s View-Mey v. DirectTV LLC

    In an August 2020 decision, the Fourth Circuit Court of Appeals held that these claims were in fact subject to arbitration. Noting the broad rule that federal courts are directed, under the Federal Arbitration Act, to construe arbitration clauses in a way that favors arbitration, the court held in its decision in Mey v. DirectTV LLC, that DirectTV clearly was a subsidiary of AT&T, that the parties had clearly agreed to a very broad arbitration provision that would include “all disputes and claims,” and that therefore the claims had to be arbitrated. The fact that the average consumer would not have contemplated that a cell service contract would be applied to a television provider or would know the byzantine corporate history that made DirectTV a subsidiary of AT&T was of no consequence. Indeed, as the court noted, the arbitration provision also applied to successors and assigns, two groups that could not possibly be known at the time of contracting. The parties agreed to a broad arbitration provision, one that could include disputes wholly unrelated to the contract containing the arbitration provision, and therefore the arbitration clause should be read to encompass the TCPA suit.

    The Ninth Circuit’s View-Revitch v. DirectTV LLC

    However, confronted with the exact same fact pattern, the Ninth Circuit Court of Appeals took a completely different tack. In Revitch v. DirectTV LLC, the Ninth Circuit court held that the TCPA suit was not encompassed by the arbitration provision. The Ninth Circuit court held that because DirectTV was not affiliated with AT&T at the time the cell service contract was entered into, the customer could not reasonably have anticipated that he would be agreeing to arbitrate disputes with DirectTV. Per the Ninth Circuit, it would be an absurd interpretation of the word affiliate to include companies not affiliated, or anticipated to be affiliated, with AT&T at the time the contract was entered into. My own view is that the Fourth Circuit likely has the better of this particular argument. As the Fourth Circuit court correctly pointed out, successors and assigns are per se unknown at the time a contract is consummated, but it is not absurd to say they fall within the ambit of an arbitration provision.

    The better argument may be the one adopted in a concurrence written by Judge O’Scannlain in concurrence with the majority opinion (also written by Judge O’Scannlain). In his concurring opinion, Judge O’Scannlain writes that the DirectTV suit is simply outside the scope of the arbitration provision because it does not “aris[e] out of” the cell service contract, as required by the Federal Arbitration Act. The lawsuit regarding DirectTV’s purported spam phone calls has no relation to a contract for cell service. This seems to me to be a much better way of squaring the broad arbitration provision agreed to and the intuitive sense most people have that a cell service contract should not create an agreement to arbitrate disputes with what was, at the time of formation, an unrelated company.

    These cases highlight the importance of careful drafting when putting together and negotiating a contract, particularly with regard to dispute resolution clauses. Whenever you or your business find yourself negotiating a contract of importance, it is key to hire experienced counsel who can recognize the subtleties that can lead to unintended consequences down the road. The Law Offices of Andrew Dressel LLC is a sophisticated firm with the skills necessary to both avoid unfortunate surprises in your agreements, as well as to negotiate the most favorable terms possible for you and your business. Whether you are seeking counsel for a “one off” contract or to engage an outside general counsel on a regular basis, please contact us through our online form, or by calling us at (848) 202-9323.