Author: 
Kersten Kortbawi
Partner, Litigation Department
Greenbaum, Rowe, Smith & Davis LLP

What You Need to Know:

• The New Jersey Appellate Division has issued a decision that fundamentally reshapes the interpretation of arbitration clauses in commercial contracts.
• The ruling carves out an exception to the New Jersey Supreme Court's landmark ruling in Atalese, which required parties to explicitly waive their ability to seek relief in court.
• In its practical application, the ruling will result in the inconsistent enforcement of arbitration provisions in different contexts, with the standard for enforceability now dependent on the nature of both the contract and the parties involved in the dispute.

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On February 8, 2023, the New Jersey Appellate Division issued a published decision that fundamentally reshapes the interpretation of arbitration clauses in commercial contracts. In County of Passaic v. Horizon Healthcare Services, Inc., the court held that where a contract is between two sophisticated parties, or where the contracting parties have equal bargaining power, an arbitration clause does not need to articulate that the parties are giving up their right to go to court in order for the clause to be enforceable. The ruling represents a significant divergence from the New Jersey Supreme Court’s 2014 landmark holding in Atalese v. U.S. Legal Services Group, L.P., which required arbitration clauses to include an explicit waiver of the parties’ rights to seek relief in a court of law as a prerequisite to enforceability.

In County of Passaic, the plaintiff county contracted with the defendant healthcare organization to manage its self-funded health benefit plan. Two years after the contract expired, the county filed a lawsuit alleging the defendant had breached the contract by failing to implement certain reimbursement rates. The defendant successfully moved to compel arbitration based on language in their agreement that simply stated that all disputes between the parties would be submitted to binding arbitration with the American Arbitration Association. Conspicuously absent from the clause was any explanation that the parties were waiving their rights to seek relief in court or an explanation of how arbitration differs from a judicial proceeding. 

In affirming the trial court’s decision to compel arbitration, the Appellate Division opined that the holding of Atalese focused on the unequal relationship between the contracting parties and the “adhesional nature” of the agreement and was therefore only applicable to consumer contracts and employment contracts. Since the plaintiff county was a sophisticated commercial litigant represented by counsel during the course of contract negotiations, and its multi-year relationship with the defendant, the consumer protection concerns underlying the Atalese requirements were irrelevant.

In its practical application, the new rule declared by the Appellate Division in County of Passaic will result in the inconsistent enforcement of arbitration provisions in different contexts. For instance, an individual who signs an employment contract with an employer, or a consumer contract with a cable provider, will enjoy the protections of Atalese. However, if that same individual signs a commercial contract in their capacity as the member of a limited liability company, or as a board member of a condominium association, the vulnerability to arbitration set forth in County of Passaic will likely apply.  
Moving forward, parties to commercial contracts must closely review with their counsel the precise terms of arbitration clauses, and the relationship between the parties, when interpreting the enforceability of arbitration provisions. 
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Please contact the author of this alert with questions or to discuss your specific circumstances at [email protected]  or 732.476.2648

By: David H. Nachman, Esq., Ludka Zimovcak, Esq., Snehal Batra, Esq.
and Samantha Oberstein, Esq.
Nachman, Phulwani, Zimovcak (NPZ) Law Group, P.C.

​The in-house counsel frequently needs to deal with numerous visa issues. These issues can be about the I-9 audit, deciding to move in an employee from a foreign corporation, or forming strategies to handle the expiration of a work permit for graduates. The laws around immigration are complex and full of acronyms. For an average person, it is like trying to navigate a labyrinth.

However, as an in-house counsel, you must often make sense of the chaos and provide quality legal advice. You need to ensure that your company follows the law and complies with all regulations.

Purpose of Entry

One crucial question to understand the visa category is to identify the purpose for the entry. For instance, a person may enter to reunite with their family, work on temporary assignments, attend school, make an investment, or move in for a permanent job, just to name a few. Should the nature of the travel be temporary, the individual must be able to demonstrate this at both the consulate and at entry.

Non-Immigrant Visas

The non-immigrant visas are typically provided to those who wish to enter the United States for a temporary stay. They are typically for a finite period, and the entrant is not eligible remain in the U.S. permanently.

For in-house counsels, it is important to understand the requirements for each of these non-immigrant visas. Here are some essential categories:

Non-Immigrant Business Visitor

The business visitor visa is specially designed for those intending to enter the US for a short-term stay. The entrant should not be involved in any form of employment or remuneration, and their visit should be strictly limited to attending conferences, business meetings, and other similar activities.

Non-Immigrant Temporary Employment

This visa is designed for those who wish to enter the US for a temporary and specific purpose. There are two categories for this type of visa. The H1-B visa is for those deemed to possess ‘specialty occupations,’ while the L1-A visa is for those at higher designations, such as managers or executives that are being transferred to the U.S. from a foreign affiliate or branch office.

Immigrant Visas

If an entrant wishes to move into the United States permanently, they must apply for an immigrant visa. This category is designed for those wishing to enter the US to work permanently. The most common types of immigrant visas are:

Immigrant Employment-Based Green Cards

The employment-based green cards are typically provided to those with exceptional skills or qualifications. Every year, 140,000 individuals have the chance to become green card holders if they fall into one of the following categories:

- EB-1-1: Individuals with Exceptional Talents in Business, Science, Education, Arts, or Athletics
- EB-1-2: Exceptional Researchers and Professors
- EB-1-3: Multinational Executives or Managers
- EB-2: Professionals Holding Advanced Degrees
- EB-3: Skilled and Unskilled Workers
- EB-4: Special Immigrants
- EB-5: Investors

PERM

Obtaining a green card primarily involves applying through the Labor Certification process, otherwise known as PERM. Before filing for the green card, the organization must:

- Make credible attempts to hire qualified American workers
- Obtain a Labor Department certification
- Show there are not enough workers in the US who have the skills, desire, qualifications and ability to start work immediately at the workplace

Capital Investment (EB-5)

The Green Card can be applied through capital investment. However, to become eligible, the investment must range between $800,000 and $1,800,000, depending on the investment location and type. Each EB-5 application for the Green Card must ensure ten American jobs have been created through the investments.

Final Thoughts

Understanding the different visa options is important for anyone looking to enter the US on a temporary or permanent basis. Immigration lawyers are experts in helping applicants through the process, ensuring their eligibility, and successfully applying for immigration benefits.

Overall, navigating US immigration policies can be overwhelming, but it can also open up a world of opportunities in the United States.

About Us

If you have any questions about how immigration and nationality laws in the United States may impact you or your clients, please get in touch with our immigration lawyers at NPZ Law Group. We will be happy to supply you with the necessary information regarding the United States or Canadian immigration and nationality laws.

You may email us at [email protected] or call us at 201-670-0006 extension 204. In addition, we invite you to find more information on our website at www.visaserve.com

Author:
Bill Passarotti
Senior Vice President
HUB International

With inflation reaching a 40-year high in 2022, interest rates will remain high and possibly continue to increase in 2023.1 Rising construction costs, as well as more frequent and extensive property claims, will exacerbate market challenges. In 2023, real estate owners and operators who understand their risks and embrace creative market solutions will have better insurance coverage options at lower cost. Heading into 2023, real estate owners and operators should take the following into account when it comes to their profitability, vitality, and resiliency:

• Climbing interest rates have made loans and refinancing more expensive and rates are likely to stay high and increase in 2023.2 Real estate owners and managers will need to plan for further rate hikes and continued high inflation, which will make it more difficult for their commercial and residential lessors to make rent.
  
  
• A Difficult Insurance Market: Various factors such as carriers’ increased scrutiny of insurance-to value, rising construction costs and supply chain disruptions can make an already difficult insurance market even more challenging in 2023, with carriers pulling back on capacity and significantly increasing insurance rates. For example, commercial property-casualty insurance is projected to increase as much as 20% in most geographies. Expect coverage for habitational and multi-family properties to rise about the same amount.

 
There are bright spots for top properties with lower risk profiles. For instance, underwriters are still offering coverage for fire-resistant Class A high-rise office buildings. Best-in-class property risks will find good coverage at a good rate. Carriers are more likely to offer coverage for properties where the owners or operators are actively trying to prevent damage or liability claims. Underwriters will target best-in-class properties and will require current building valuations before even considering risks.

This emphasizes the importance of working with an experienced insurance advisors on initiative-taking strategies and risk management measures to appear as a favorable risk to the marketplace.

• The challenges of a shrinking workforce: Like many other industries, real estate companies are struggling to find capable employees. In today’s era of remote work, half of commercial real estate companies say geographic challenges have become the top issue in hiring.3 The labor shortage also is affecting real estate indirectly as construction companies are facing delays because they can’t find enough workers and vendors for maintenance, security, and cleaning services are also facing staffing shortages. While real estate owners and operators can do little for the overall labor shortage, they can improve their own recruiting and retention through personalized benefits based on data analytics.

Work a seasoned insurance advisor to develop a tailored strategy that will protect your bottom line, support your workforce, and build resiliency for 2023. To explore HUB’s full 2023 Real Estate Industry Outlook, please visit: https://www.hubinternational.com/insights/outlook-2023/real-estate/ 
 
CIANJ member, Bill Passarotti, currently serves as Senior Vice President with leading global insurance brokerage, HUB International. Based out of Summit, NJ, Bill works with businesses in a wide variety of industries on custom-tailored, comprehensive risk & insurance solutions. He can be reached at 908-​666-6200 or [email protected].

1. Bloomberg, “US Inflation Quickens to 40-Year High, Pressuring Fed and Biden,” June 10, 2022.
2. Wall Street Journal, “Fed Raises Interest Rates by 0.75 Percentage Point for Third Straight Meeting,” September 21, 2022.
3. Northspyre, “Commercial Real Estate’s Most Critical Issue: A Labor Shortage,” September 1, 2022.