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Posts Tagged ‘New Jersey’

Massachusetts Enacts Legislation Authorizing Virtual Notarization During COVID-19 State of Emergency

Posted on: April 30th, 2020

By: Jennifer Markowski

On April 27, 2020, Governor Baker signed into law An Act Providing for Virtual Notarization to Address Challenges Related to COVID-19 (the “Virtual Notarization Act” or the “Act”). In doing so, Massachusetts joins a number of other states, including Rhode Island, Pennsylvania, Connecticut, New Jersey, New York, New Hampshire and Georgia (among others), in adopting temporary measures to permit virtual notarization during the COVID-19 pandemic. The Massachusetts Virtual Notarization Act shall remain in effect until three (3) business days after Governor Baker’s March 10, 2020 declaration of state of emergency terminates and permits a duly authorized notary public to virtually notarize signatures during this time. According to the Act, notaries shall adhere to the following protocols when performing an acknowledgment, affirmation, or other notarial act using real-time video conferencing:

  • Both the notary and the signer must be physically located within Massachusetts and the signer must swear under the pains and penalties of perjury as to his or her location.
  • The notary must observe the signing of the document.
  • The signer must verbally assent to the recording of the video conference.
  • The signer must disclose any other person present in the room and make that person viewable to the notary.
  • The signer must provide the notary with satisfactory evidence of identity per M.G.L. ch. 222, § 1. If the notary is reviewing government-issued identification, the signer must visually display the front and back of the identification to the notary and then send a copy of the identification (front and back) to the notary, which will be maintained securely and confidentially for ten (10) years.
  • The notary must indicate in the notarial certificate that the document was notarized remotely under the Act and indicate the county in which the notary was located at the time the notarial act was completed.
  • After the video conference, the signer must deliver the original executed documents to the notary.
  • The notary must make an audio and video recording of the notarial act and maintain the recordings for ten (10) years.

In addition to the preceding list of requirements, there are two additional steps to be taken for any documents executed in the course of a real estate transaction. If the signer is not personally known to the notary, during the initial video conference the signer must display a second form of identification containing the signer’s name. Another government-issued identification, credit card, social security card, tax or utility bill dated within 60 days of the video conference are acceptable forms of identification.  Additionally, upon receipt of the executed document(s), the notary and signer must engage in a second video conference during which the signer verifies to the notary that the document received by the notary is the same document executed during the first video conference. The signer must again disclose any other person present in the room and make him or her viewable to the notary.

The notary must also execute an affidavit that provides that he or she has:

  • Received a copy the signer’s identification and visually observed it during the video conference with the principal, if applicable;
  • Obtained the signer’s verbal assent to record the video conference;
  • Taken the signer’s affirmation that he or she was physically present within Massachusetts; and
  • Been informed of and noted on the affidavit any person present in the room and included a statement of the relationship of any person to the signer.

The notary shall retain the affidavit for ten (10) years.

The Act does not alter or amend the requirement in Massachusetts that the closing of a transaction involving a mortgage or other conveyance of title to real estate may only be conducted by an attorney duly admitted to practice law in the Commonwealth.

If a notary chooses to notarize documents under the Virtual Notarization Act, it is advisable to confirm with the client that a virtually notarized document is acceptable.  Additionally, it is also advisable to confirm that any applicable errors and omissions policy will cover professional acts involving a virtual notarization.

If you have any questions or would like more information, please contact Jennifer Markowski at [email protected].

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include re-opening the workplace, protecting business interests, shelter in place orders and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

More States are Following New Jersey’s Lead in Enacting Legislation to Require Insurers to Cover COVID-19 Losses

Posted on: March 31st, 2020

By: Erin Lamb and Ben Dunlap

FMG reported extensively after New Jersey began debating a bill that would force insurers to cover Business Interruption losses arising from COVID-19. The New Jersey bill would require courts to ignore virus and bacteria exclusions, or other policy language that might exclude such losses.

Now legislatures in other states are joining that effort.

New York:  Assemblyman Robert C. Carroll, whose district covers parts of Brooklyn including Park Slope, introduced A10266, an Act “requiring certain perils be covered under business interruption insurance during the coronavirus disease 2019 (COVID-19) pandemic.” The bill starts by saying it applies  “[n]otwithstanding any provisions of law, rule or regulation to the contrary.…” It goes on to decree that any policy of insurance insuring against loss or damage of property that includes the loss of use and occupancy and business interruption, must treat such interruption as a “covered peril” during a period of “declared state emergency due to the coronavirus disease 2019 (COVID-19) pandemic.”

The New York bill appears designed to nullify the 2006 ISO exclusion on losses for virus or bacteria. Assemblyman Carroll wrote an op-ed stating that it is “…unconscionable that insurance companies that were bailed out in 2008 won’t pay out… because they say ’viruses’ were either explicitly carved out of policies or because adjusters claim a ‘virus’ is not a ‘physical’ interruption.” Like the New Jersey bill, the New York law would apply to businesses with less than 100 eligible employees and calls for funds to be collected and made available for relief and reimbursement for insurers who must pay claims under this Act. Such funds would be collected from the insurance companies themselves in a special purpose apportionment. It would be retroactive to March 7, 2020.

Carroll is calling for the New York State Legislature to push off passing a state budget until COVID-19 related policy issues are addressed. Such a measure is essentially the only way that the law could pass in this legislative session, and it would still be subject to constitutional challenge.

Massachusetts: The Massachusetts legislature is considering another bill that attacks the virus exclusion, and states that “…no insurer in the commonwealth may deny a claim for the loss of use and occupancy and business interruption on account of (i) COVID-19 being a virus (even if the relevant insurance policy excludes losses resulting from viruses); or (ii) there being no physical damage to the property of the insured or to any other relevant property.”

The bill’s application is limited to policies issued to businesses in Massachusetts with 150 or fewer full-time employees. It would also apply only until the termination of the state of emergency declared in the Governor’s March 10, 2020 Executive Order 591.

The Massachusetts bill also creates a reimbursement process. Before it can be passed in the current session, the legislature must first grant the bill special emergency status.

To FMG’s knowledge, the Massachusetts bill is the first of its kind to tie COVID-19 denials to unfair practices. It specifically invokes the provisions of M.G.L. c. 176D, which regulates unfair practices by insurance companies, creating the potential for substantial penalties on insurers.

Ohio: HB No. 589 also would require insurers offering business interruption insurance to cover losses attributable to COVID-19.

If passed, the Ohio bill would provide that “every policy of insurance insuring against loss or damage to property, which includes the loss of use and occupancy and business interruption, in force in [Ohio] on the effective date of this section, shall be construed to include among the covered perils under that policy, coverage for business interruption due to global virus transmission or pandemic during the state of emergency.”

It also would require that “[t]he coverage required by this section shall indemnify the insured, subject to the limits under the policy, for any loss of business or business interruption for the duration of the state of emergency,” which the bill defines as “the state of emergency declared under Executive Order 2020-01D, issued on March 9, 2020, to protect the well-being of Ohio citizens from the dangerous effects of COVID-19.”

The bill would limit its effects only to insureds: (1) located in Ohio; and (2) who employ 100 or fewer eligible employees; and (3) are covered by a policy in force on the effective date of this section.

Like the other bills in this category, Ohio’s bill would allow insurers who pay applicable COVID-19-related losses to request from the Ohio Superintendent of Insurance “relief and reimbursement from funds collected and made available” for the purpose of the bill. Further, the bill would require the Superintendent to assess all Ohio insurers for the funds needed to satisfy eligible reimbursement claims.

Federal reaction: At the federal level, Congresswoman Mikie Sherill of New Jersey signed a bipartisan letter to the heads of various industry groups urging them to consider coverage of such claims. Sherill told The Daily Beast that Congress is monitoring the issue and may include specific aid for business interruptions in a future stimulus bill.

We will continue to see these bills rolled out as Covid-19 claims increase. We will likely see a second round of such bills in the fall, once the pandemic has ceased enough for Americans to begin to see the toll of Covid-19 losses on local restaurants and small businesses, particularly if Congress has not acted.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include the CCPA, the CARES Act, Law Enforcement and the viruses’ impact on the Construction Industry. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.** 

New Jersey and New York Signal Intent to Force Coverage for COVID-19 Business Losses; Other States Will Follow Suit

Posted on: March 16th, 2020

By: Erin Lamb and Marc Shrake

Both New Jersey and New York have taken steps toward attempting to force coverage of business losses related to COVID-19. In New Jersey, Assembly Majority Leader Louis Greenwald and Assemblyman Roy Reiman have introduced Assembly Bill 3844. As written, the bill would force insurers to provide coverage for claimed business losses alleged to be caused by COVID-19, under policies that were in effect on March 9, 2020 (the date that New Jersey declared a state of emergency). If successful, these state governments would be taking an extraordinary step that not only changes the terms and conditions of an existing contract, but also creates coverage ex nihilo for virus-related losses expressly bargained between the contracting parties, and underwritten, to be excluded from coverage.

Back in 2006, ISO adopted a mandatory exclusion for such losses that specifically referenced the SARS (also a coronavirus) epidemic. Obviously, then, since at least that time purchasers of insurance, and agents, were on notice of such risks — which include damage and loss caused by COVID-19 — and the fact that they are not covered under the bargained-for terms and conditions of the insurance coverage.

The New Jersey bill seeks to wipe all of this out. The bill would apply to insureds with fewer than 100 eligible employees in New Jersey. (It defines “eligible” as “full-time employees who work more than 25 hours or more in a normal workweek.”) It is unclear whether the new bill would eliminate the requirement that there be direct physical loss of damage to covered property, or on an arguably more limited basis, void application of the 2006 Virus exclusion. The New Jersey bill is up for discussion on the floor of the Assembly today, March 16, 2020.

In New York, the Department of Financial Services ordered all authorized Property/Casualty Insurers to provide them with details on business interruption coverage for all business owner policies, commercial multiple peril policies, and specialized multiple peril policies. The letter instructed insurers that DFS considered their obligations to policyholders under business interruption policies a “heightened priority.” The letter demanded that every insurer provide DFS with its volume of business interruption coverage, civil authority coverage, contingent business interruption coverage, and supply chain coverage, including direct premium amounts, policy types, and numbers of each type of policy written. Each insurer is additionally instructed to prepare information regarding COVID-19 coverage not only as of today but “as the situation could develop to change the policyholders’ status.” Insurers were instructed to consider whether there was any potential for COVID-19 coverage.

It is notable that these steps are being taken in two states with major industries (including all shipping through the East Coast’s largest port) that have already suffered COVID-19 losses from the shutdowns in China, Asia, and now Europe. They have filed claims for those losses under some of these policies and have been denied. Policyholders have been marshaling their own resources and lobbying organizations to push to transfer their business risks, including having their losses paid for by insurance companies for reasons other than an arm’s-length, bargained-for agreement in place that would obligate the insurers to do so in exchange for a policy premium tied to the risk of loss being transferred.

Other states impacted by the COVID-19 outbreak, especially California and Washington, are also likely to try to spread the costs of the COVID-19 business losses to other businesses and entities who did not cause the loss and who did not contract to, were not paid to, did not expect to, and are not obligated to take on such risks.

In addition, FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

New Jersey Moving Toward Adopting Privacy Legislation like the GDPR and CCPA

Posted on: March 5th, 2020

By: Justin Boron

New Jersey legislators are pushing forward on new data privacy legislation with disclosure and consent requirements that are akin to—and in some instances more burdensome than—the California Consumer Privacy Act.

The CCPA—which took effect in January this year—was the first statute of its kind to be adopted in the U.S.  In the wake of the CCPA’s controversial implementation, co-sponsors of the New Jersey bill are holding a public hearing set for March 16 to obtain feedback on the proposed data privacy legislation.[1]  Introduced on February 25, 2020, AB 3283 is the most recent proposal to revise New Jersey’s data privacy law. You can read the bill here:  https://legiscan.com/NJ/text/A4902/2018.  Other bills from previous sessions remain pending, including AB4902 and AB4640.

If the latest bill is adopted in New Jersey, companies that collect, maintain, or control personally identifiable information (PII) would be required to obtain affirmative consent from consumers.  This feature contrasts with the CCPA, which requires that businesses provide consumers the right to opt-out of PII sale, and it would place New Jersey law more in line with the EU’s privacy law, the General Data Protection Regulation, which requires affirmative consent.

The bill would also give a consumer the right to demand that the business provide the PII that the company has disclosed to a third party.

With multiple bills pending, it remains unclear what direction New Jersey legislators will ultimately take.  Some of the questions arising from the bills are whether the final legislation would include a private right of action, allow for a safe harbor cure period, vest enforcement authority exclusively in the attorney general, or include some combination of those characteristics like the CCPA.

While the substance of the bill remains in flux, the legislative push toward public hearings—and the media attention that it is grabbing—suggests that some form of the legislation will ultimately be adopted.  The New Jersey bill is one of a patchwork of bills pending in the state legislatures across the country aiming to implement measures like the CCPA and GDPR.

[1] https://www.wsj.com/articles/new-jersey-lawmakers-push-data-privacy-bill-11583159592.

Pay History is out for New Jersey Employers, Mostly…

Posted on: February 10th, 2020

By: Justin Boron

As of 2020, New Jersey employers, in general, may no longer ask applicants past salary information.  If they do, it constitutes an unlawful employment practice.  See N.J. Stat. § 34:6B-20.  New Jersey joins more than a dozen other states, the District of Columbia, Puerto Rico, and multiple local governments that have enacted similar provisions.

But there are several exemptions, such as voluntary disclosure, internal transfers, federal law or regulation requiring disclosure.   If an employer does not fit into one of the exemptions, the employer should review and revise its applications and policies immediately.

The law imposes a civil penalty in an amount not to exceed $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation collectible by the Commissioner of Labor and Workforce Development.

The legislation also amended the New Jersey Law Against Discrimination to create a cause of action for violations that affect a member of a protected class, such as race or sex, so in addition to fines, violations could result in civil litigation as well.

If you have any questions or would like more information, please contact Justin Boron at [email protected].