Know Your Mediator

There is an old adage in litigation “know your judge.”  Essentially what that means is that you should find out as much as you can about the judge you are appearing in front of both so you can try to understand what the outcome might be but more importantly, so that you can may a presentation to the judge that she/he will respond positively to.  Some judges will let you go on an one.  Some judges have little patience and you have to get to the point.  With some judges, it seems like the last person to speak wins so you want to make sure you get the last word in.  Others sit there stone faced and say nothing at all.  Some are very interactive with settlement and others are not.  Some have substantial family law experience and others do not.  Some do little to settle and push cases to be tried and others don’t really want or believe that any cases should be tried.  To the extent possible, knowing your judge is an arrow in a lawyer’s quiver that helps them best represent their client.

Does the same thing apply to mediators?  The answer is yes and more importantly, in most cases, unlike the judge who gets assigned to a case, it is the lawyers that have to select and agree upon a mediator.  Of course, you want to select a mediator who you think will most favorably view your case, all things considered.  We had a recent matter where opposing counsel rejected upwards of 20 mediators that we suggested, many retired judges, and would only agree to one or two people that she suggested.  Our guess is that the lawyer perceived that all of the mediators who she had issues with also had issues with her.  That happens.

But aside from selecting a mediator that you think would be substantively/legally helpful, serious thought should go into selecting a mediator whose style and personality would be appealing to your client as well as the other party, to assist the parties to move toward settlement.  I recently had a situation where we selected a second mediator after the matter made little to no progress with the first mediator.  The first mediator was grandfatherly, soft spoken, knowledgeable, impeccably credentialed and had substantial gravitas.  The soft touch was appealing to one of the parties but totally ineffective with the other.  The second mediator had similar if not greater credentials and gravitas in some ways (but not in others), but was much more direct and blunt – and jumped right into the deep water as opposed to letting the process go on hours or multiple sessions.  The party that gelled with the soft spoken mediator was totally turned off by the direct approach and the other party more receptive.  Perhaps with these too, given their very different personalities, there would be no one mediator who checked all of the boxes and could reach both of them.

The point is that you have to know your client and know your mediator and try to agree on one that will be helpful substantively and also be able to develop a relationship of trust with both parties so as to be able to facilitate resolution, if one is possible.

_________________________________________________________

Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.

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Appellate Division Affirms Stalking with iPad in Restraining Order

The Appellate Division of the New Jersey Superior Court has affirmed a Domestic Violence Restraining Order which had been levied against a husband in the midst of a divorce. The decision, captioned, E.D.B. v. D.S. for privacy reasons, came about when the wife discovered the husband had placed an iPad in their shared home office and an iPhone under his bed in order to monitor his wife’s activities when he was not home. The couple was in the process of a divorce prior to this discovery, but was still living together in the same house with their children.

Before the husband left for a work trip, he placed an iPhone under the bed in the bedroom and an iPad in the home office. When the wife discovered these devices, sought a Domestic Violence Restraining Order against her husband, who in return filed a domestic violence complaint against his wife. At the conclusion of the four-day trial concerning both complaints, the Judge found that the husband had stalked his wife, and entered a final restraining order (FRO) in her favor. The Judge also awarded the wife $2,000 in compensatory damages and $14,750 in counsel fees.

The husband appealed this decision, under the basis that the devices were only in the home office and bedroom so he could protect his property and have a reasonable expectation of privacy. The Appellate Division of the New Jersey Superior Court rejected this appeal, finding “insufficient merit in these arguments to warrant discussion in a written opinion.”

Further, the Appellate Division added that the husband’s contention that his wife had failed to demonstrate a reasonable expectation of privacy was “wholly without merit.”

If you or a loved one has questions about divorce, stalking, or domestic violence, we strongly recommend you seek experienced legal counsel.

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NFL’s Anti-Kneeing Policy Does Not Violate Players’ Constitutional or Employment Rights

Last week, the NFL sought to end the political controversy surrounding some players kneeling during the national anthem by enacting a policy fining teams if players kneeled during the Star-Spangled Banner.

Under the new policy, players could stay in the locker room while the national anthem of the United States is played. Shortly, thereafter, players wrongfully asserted that the new policy violates their First Amendment protection of “freedom of speech.”

The problem with the players’ constitutional argument is that the Constitution only applies to “State actors.” The state action requirement stems from the fact that the constitutional amendments protecting individual rights are mostly phrased as prohibitions against government action. The First Amendment to the United States Constitution sets forth, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or the press, or the right of the people peacefully to assemble, and to petition the Government for a redress of grievances.” The Fourteenth Amendment, which was ratified after the Civil War, made most of the liberties set forth in the Bill of Rights applicable to the States.

The NFL, like a majority of private employers, may enforce prohibitions against protesting, speech, use of social media, and other conduct, so long as it does not violate employment discrimination statutes. Generally, it is unlawful for a private employer to discriminate against an employee on the basis of their race, religion, gender, national origin or sexual orientation. Since kneeling during the national anthem is neutral as to race, religion, gender, national origin and sexual orientation, there is no protections afforded under state and federal anti-discrimination rights.

Employers are permitted to enact rules curtailing speech, so long as they do not violate state or federal employment discrimination rules. For example, an employer can enact rules prohibiting their employees from posting on social media platforms such as Twitter or Facebook. On the other hand, an employer is not permitted to only discipline Jewish employees for posting their views on Facebook and not discipline members of other religious groups for posting their views.

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OPRA Requires Disclosure of the Names of Successful Bidders at Public Auctions of Government Property

Brennan v. Bergen County Prosecutor’s Office, ___ N.J. ___ (2018).  This opinion by Chief Justice Rabner, for a unanimous Supreme Court, addressed an issue that arose under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (“OPRA”).  The Bergen County Prosecutor’s Office held a public auction of sports memorabilia that it had seized in the […]

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The Latest Supreme Court Grants of Review: A Tort Claims Act Notice Case, and the Effect of Zoning Board Conflict of Interests

The Supreme Court announced that it has granted review in two more cases.  The first is O’Donnell v. New Jersey Turnpike Authority.  The question presented in that appeal, as phrased by the Supreme Court Clerk’s office, is “Was the failure of plaintiffs’ first attorney to serve a timely tort claim notice against defendant an extraordinary […]

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Should Two Attorneys be Able to Split an Appellate Oral Argument?

The Supreme Court announced that it is seeking comments on a proposed amendment to Rule 2:11-1(b)(3).  That rule, which deals with oral argument in the appellate courts, currently states that “[n]o more than two attorneys will be heard for each party.”  The proposed amendment would say “One attorney will be heard for each party, unless […]

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Stark & Stark is Once Again at the Forefront of Protecting Women at Risk in Sexually Abusive Environments

Stark and Stark, along with its co-counsel Barry, Corrado, Grassi & Gillin-Schwartz, have filed a class action on behalf of thousands of potential female class members against the New Jersey Department of Corrections (“NJDOC”), over the intolerable conditions at the Edna Mahan Correctional Facility for Women (“EMCFW”).

NJDOC is a public entity that maintains an annual budget of roughly $1 billion; approximately 8,000 employees; 13 correctional institutions; and nearly 23,000 state-sentenced offenders housed in prisons, county jails, and community halfway houses. NJDOC is responsible for the day-to-day operations, supervision, and management of EMCFW. In 2017, EMCFW had an operational capacity of 846 persons and an average daily population of 659. The daily expense per inmate was $202.15, and the yearly per capita was $73,785.00.^[1]

EMCFW, formerly known as the Clinton Correctional Facility for Women, is located at 30 Route 513, in Clinton, Hunterdon County, New Jersey. Opened in 1913, EMCFW was named after one of the first female correctional superintendents in the United States. According to the official NJDOC website description, EMCFW “houses state-sentenced female offenders. The prison provides a campus-like setting with housing units and various support buildings. In terms of security designation, there are two compounds – minimum and maximum/medium. There is a third housing compound for inmates with varying classifications of special mental health needs. Programming includes counseling as well as education and vocational opportunities.”^[2] EMCFW is the only women’s correctional facility in New Jersey, providing custody and treatment programs for female offenders 16 years of age and older.

For decades, there has been a recognized and documented environment of rampant and unchecked sexual assault and harassment of female inmates by prison employees, agents and administrators, as well as other inmates, throughout state and federal corrections systems. For example, a 1996 study by Human Rights Watch, entitled Sexual Abuse of Women in U.S. State Prisons, stated:

Our findings indicate that being a woman prisoner in U.S. state prisons can be a terrifying experience. If you are sexually abused, you cannot escape from your abuser. Grievance or investigatory procedures, where they exist, are often ineffectual, and correctional employees continue to engage in abuse because they believe they will rarely be held accountable, administratively or criminally. Few people outside the prison walls know what is going on or care if they do know. Fewer still do anything to address the problem.

The United States has the dubious distinction of incarcerating the largest known number of prisoners in the world, of which a steadily increasing number are women. Since 1980, the number of women entering U.S. prisons has risen by almost 400 percent, roughly double the incarceration rate increase of males. Fifty-two percent of these prisoners are African-American women, who constitute 14 percent of the total U.S. population. According to current estimates, at least half of all female prisoners have experienced some form of sexual abuse prior to incarceration. Many women are incarcerated in the 170 state prison facilities for women across the United States and, more often than not, they are guarded by men.

The custodial sexual misconduct documented in this report takes many forms. We found that male correctional employees have vaginally, anally, and orally raped female prisoners and sexually assaulted and abused them. We found that in the course of committing such gross misconduct, male officers have not only used actual or threatened physical force, but have also used their near total authority to provide or deny goods and privileges to female prisoners to compel them to have sex or, in other cases, to reward them for having done so. In other cases, male officers have violated their most basic professional duty and engaged in sexual contact with female prisoners absent the use or threat of force or any material exchange. In addition to engaging in sexual relations with prisoners, male officers have used mandatory pat-frisks or room searches to grope women’s breasts, buttocks, and vaginal areas and to view them inappropriately while in a state of undress in the housing or bathroom areas. Male correctional officers and staff have also engaged in regular verbal degradation and harassment of female prisoners, thus contributing to a custodial environment in the state prisons for women which is often highly sexualized and excessively hostile.

No one group of prisoners appears to suffer sexual misconduct more than any other, although those in prison for the first time and young or mentally ill prisoners are particularly vulnerable to abuse. Lesbian and transgendered prisoners have also been singled out for sexual misconduct by officers, as have prisoners who have in some way challenged an officer, either by informing on him for inappropriate conduct or for refusing to submit to demands for sexual relations.^[3]

Similarly, a 1999 report by Amnesty International, entitled Not Part of Her Sentence: Violations of the Human Rights of Women in Custody, found the same widespread and systematic abuse and harassment of female prisoners:

Many women in prisons and jails in the USA are victims of rape and other forms of sexual abuse including, commonly, sexually offensive language; male staff touching female inmates’ breasts and genitals while conducting searches and male staff watching women while they are naked. . . . Under international law, rape of an inmate by staff is considered to be torture. Other forms of sexual abuse violate the internationally recognized prohibition on cruel, inhuman or degrading treatment or punishment.^[4]

The plight of incarcerated women was perhaps best crystalized by Kim Shayo Buchanan, in her 2007 study entitled Impunity: Sexual Abuse in Women’s Prisons:

In the United States, sexual abuse by guards in women’s prisons is so notorious and widespread that it has been described as ‘an institutionalized component of punishment behind prison walls.’ Women in prisons across the United States are subjected to diverse and systematic forms of sexual abuse: vaginal and anal rape; forced oral sex and forced digital penetration; quid pro quo coercion of sex for drugs, favors, or protection; abusive pat searches and strip searches; observation by male guards while naked or toileting; groping; verbal harassment; and sexual threats. Guards and prisoners openly joke about prisoner ‘girlfriends’ and guard ‘boyfriends.’ Women prisoners become pregnant when the only men they have had contact with are guards and prison employees; often they are sent to solitary confinement—known as ‘the hole’—as punishment for having sexual contact with guards or for getting pregnant. Such open and obvious abuses would seem relatively easy for a prison administration to detect and prevent if it chose to do so.^[5]

Thus, it was no surprise that the United States Department of Justice, through the Bureau of Justice Statistics, confirmed that, as of 2011:

[F]emales account for a greater proportion of victims of staff-on-inmate victimization than they do in the overall inmate population. Females account for 7% of sentenced prison inmates, but represent 33% of all victims of staff-on-inmate sexual victimization in federal and state prisons. Similarly, females represent only 13% of inmates in local jails, but 67% of all victims of staff-on-inmate victimization.

Correctional authorities reported that the sexual contact between the inmate and staff ‘appeared to be willing’ in 59% of substantiated incidents. However, few incidents of staff sexual harassment were determined to be willing (2%). When limited to incidents of staff sexual misconduct only, nearly three-quarters (74%) were classified as ‘appeared to be willing.’ Any sexual contact between inmates and staff is illegal, regardless of whether it ‘appeared to be willing.’

Physical force, abuse of power, or pressure was involved in 13% of incidents of staff sexual misconduct. An estimated 10% of the incidents of staff sexual misconduct involved unwanted touching for sexual gratification, and 9% involved indecent exposure, invasion of privacy, or voyeurism.^[6]

Indeed, EMCFW was subject to sexual assault claims by two inmates (claims that were initially sought to be covered up), who were brutally assaulted from 1997 through 1999, in a lawsuit that continued into 2005. In that case, despite: extensive written policies and training manuals; a consent decree applicable to all New Jersey prisons that had been in effect since 1991, under which EMCFW was required to make minimum privacy accommodations for female inmates and institute formal training and policies for guards with respect to gender sensitivity and inmate privacy in areas such as locker rooms and showers; and a New Jersey state law specifically making it illegal to have “criminal/sexual contact” with inmates. See N.J.A.C. 4A:2-2.3(a) (prohibiting undue familiarity with inmates); N.J.S.A. 2C: 14-3b and 2C: 14-2c(2) (prohibiting guard /inmate sexual relations); an environment of sexual terror pervaded the EMCFW grounds:

Sella, the EMCFW guard that raped and sexually assaulted inmates Heggenmiller and Davis, was not the first to be fired or prosecuted for improper contact with a female inmate. EMCFW records and deposition testimony reveal as many as six ‘familiarity’ or ‘contact’ incidents between 1994 and 1998, all involving different guards, none of them Sella. At least five of these guards were fired and prosecuted for conduct ranging from sexual assault to consensual sexual contact with current and former inmates. Additionally, when viewed in the light most favorable to Appellants, deposition testimony from guards and their immediate supervisors, including Captain Ochs, shows the administrative hierarchy of EMCFW knew of up to a total of ten ‘familiarity’ or ‘contact’ incidents over a period of time dating back to 1990.^[7]

During this time, evidence of this climate of abuse became so marked as to engender federal protective measures, embodied in the Prison Rape Elimination Act. NJDOC has acknowledged its responsibilities under the Act:

The Prison Rape Elimination Act (PREA) was signed into Federal law in 2003 by President George W. Bush. It was created to address the problem of sexual misconduct in all confinement facilities. In 2012, the U.S. Department of Justice released national PREA standards to prevent, detect and respond to sexual abuse and sexual harassment in confinement facilities.

The NJ Department of Corrections (NJDOC) is responsible for protecting the rights of inmates placed under the Department’s custody and supervision. The Department has established a zero-tolerance policy for all forms of sexual abuse and sexual harassment and acts to prevent, detect and respond to all allegations and incidents of sexual misconduct.

All NJDOC employees, volunteers and contractors receive training on their duties and responsibilities under the Department’s zero-tolerance policy and are informed that they are required to immediately report any incident or allegation of sexual abuse and sexual harassment.

The NJDOC investigates all allegations of offender–on–offender and staff–on–offender sexual misconduct.^[8]

NJDOC commissioned a PREA audit of EMCFW in July 2014. That audit looked at 42 different multipart standards used to detect and combat sexual assault and sexual harassment at EMCFW. Despite the hostile environment at EMCFW, the facility scored a perfect 42 out of 42 “standards met” in the PREA audit.^[9]

Shortly after the audit, among numerous other incidents, a longtime NJDOC employee at EMCFW pleaded guilty in October 2017 to official misconduct for having sex with an inmate, and was sentenced to prison. Thereafter, in January 2018, four veteran EMCFW corrections officers were indicted by a Hunterdon County grand jury on charges ranging from second-degree official misconduct and sexual assault, to third-degree criminal coercion and fourth-degree criminal sexual contact. In all, seven NJDOC employees at EMCFW have been similarly charged within the last two years. This has culminated in an ongoing investigation by the United States Justice Department and the departure of NJDOC’s Commissioner, Gary Lanigan.^[10]

The class action lawsuit filed by Stark & Stark alleges that EMCFW is a place of public accommodation subject to the New Jersey Law Against Discrimination (“LAD”). See N.J.S.A. 10:5-12, et seq. Pursuant to the LAD, freedom from discrimination is a civil right. The class action complaint goes on to allege that the environment at the EMCFW is discriminatory based on the sex of the female inmates, and that the sexual harassment and discrimination at the facility has been so severe and pervasive that it constitutes a hostile and abusive environment in violation of the LAD. Further alleged is the fact that NJDOC knew, or should have known, of the environment of rampant threats and sexual abuse at EMCFW, which was especially harmful, considering the vulnerable status of those women incarcerated there.

Accordingly, Stark & Stark has sought to protect the rights of those injured, and force the NJDOC to take appropriate corrective action to end this widespread environment of harassment and discrimination against women at risk.

 

---

^[1]http://www.nj.gov/treasury/omb/publications/18budget/pdf/FY18BudgetBook.pdf

^[2]http://njdoc.gov/pages/index.shtml

^[3]https://www.hrw.org/reports/1996/Us1.htm

^[4]https://www.amnestyusa.org/reports/usa-not-part-of-my-sentence-violations-of-the-human-rights-of-women-in-custody/

^[5]https://www.prearesourcecenter.org/sites/default/files/library/108-impunity-sexualabuseinwomensprisons2007.pdf

^[6]https://www.bjs.gov/content/pub/pdf/svraca0911.pdf

^[7]Heggenmiller v. Edna Mahan Corr. Inst., 2005 U.S. App. LEXIS 6067 **6-**9 (3d. Cir. 2005) (unreported)

^[8]http://www.state.nj.us/corrections/pages/PREA/PREA.html

^[9]http://www.state.nj.us/corrections/pdf/PREA/Reports/14%20Edna%20Mahan%20PREA%20AUDIT%20Final.pdf

^[10]http://www.nj.com/politics/index.ssf/2018/05/major_changes_at_nj_womens_prison_facing_federal_s.html

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A Sidewalk Liability Case Involving a Vacant Church

Ellis v. Hilton United Methodist Church, ___ N.J. Super. ___ (App. Div. 2018).  The opinion in this case, issued today, involved a slip and fall on a sidewalk that abutted a vacant church.  Plaintiff sued two church defendants and, before discovery concluded, filed a motion to strike defendants’ charitable immunity defense and declare the church […]

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Required Notification to Be Beneficiary Under a Payment Bond

In State, County, or Municipal projects, payment bonds are typically required of the general contractor, as the commercial Construction Lien Law is inapplicable to these projects. Copies of the payment bond are always provided to the relevant government agency, as well as to all direct subcontractors or suppliers with whom the general contractor has directly contracted.

On the other hand, copies of the payment bond are not typically provided to other subcontractors or material suppliers with whom the general contractor does not have a direct contractual relationship. In general, a subcontractor who has a direct contract with a subcontractor to the general contractor, or a material supplier who likewise has a direct contract with a subcontractor to the general contractor has a right to bring a claim against the bond in the event of non-payment. Before they are able to bring such a claim against the bond, however, specific notifications are required relevant statute.

N.J.S.A. 2A:44-145 provides a detailed procedure that a potential beneficiary of the bond must follow in order to be entitled to bring a claim against the bond should there be payment issues in the future. If this procedure is not followed, the right to file a bond claim could be waived entirely by the subcontractor or material supplier. The statute specifically states that any person who may be a beneficiary of the payment bond, as defined in this article and who does not have a direct contract with the contractor furnishing the bond shall, prior to commencing any work, provide written notice to the contractor by certified mail or otherwise, provided that he shall have proof of delivery of same, that said person is a beneficiary of the bond. The statute further explains that if a beneficiary fails to provide the required written notice, the beneficiary shall only have the rights and benefits available hereunder from the date notice is actually provided. On the other hand, if notice is never provided no rights to claim to the bond will ever accrue.

As to delineated by the statute, this is a very simple notification requirement by any subcontractor or supplier who does not have a direct contractual relationship with the party who posted the bond. This is a simple procedural step that should be taken by any subcontractor or supplier on a state, county or municipal project. It is suggested that the notification be done via certified mail, or overnight mail with signature confirmation. Also, the timing of this notification should be done prior to performing any work or providing any materials to the project. Under such instances, this would entitle the subcontractor or supplier to bring a claim against the bond. Should this party fail to provide such notification, they may later provide it, however, they would be limited to bond claims only from the date of notification thereafter.

As such, it is important that a subcontractor or material supplier follow the relevant state law as to notification to the contractor who provided the payment bond. If this contractor or supplier has any questions, they should consult with an attorney who can assist them in this regard.

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Can the Termination of a Shareholder’s Employment be Oppression?

The termination of a shareholder’s employment may constitute oppression under N.J.S.A. 14A:12-7(b)(1)(c). That is because a person who holds a share in a closely held corporation often does so “for the assurance of employment in a closely-held corporation in the business.” Muellenberg v. Bilkon Corp., 143 N.J. 168, 180-181 (1996). That is because, a shareholder may have a “reasonable expectation” of continued employment. See, Brenner v. Berkowitz, 134 N.J. 488, 508 (1993).

When representing the minority, it is important to develop why the employee/shareholder had a reasonable expectation of continued employment. Of course, when representing the corporation or majority, counsel should present evidence that the employee/shareholder did not have a reasonable expectation of continued employment.

A finding that the employee/shareholder has a reasonable expectation of continued employment alone does not mean that the firing alone constitutes oppression. Recently, the Appellate Division, in an unpublished decision found that the termination of shareholder for violating the company’s prohibitions against sexual harassment and the New Jersey Law Against Discrimination did not constitute oppression. Hammer v. Hair Sys., 2017 N.J. Super. Unpubl. LEXIS 1411 (App. Div. 2017).

In that case, the majority shareholders received complaints that Mr. Hammer had inappropriately touched and made sexual comments to them. The company, in an effort to address those problems, conducted a sexual harassment training in which Mr. Hammer attended. Moreover, at the inception of his employment, Mr. Hammer along with every other employee was presented with an employment handbook which set forth prohibitions against workplace discrimination, including but not limited to sexual harassment. The company also retained outside counsel, who performed a comprehensive investigation of the claims of sexual harassment. That investigator concluded that the employee allegations of sexual harassment were credible. As a result of that investigation, a decision was made to terminate Mr. Hammer’s employment. The Court found that because there was a legitimate reason to terminate Mr. Hammer’s employment, it could not be the basis for sustaining his minority oppression claim.

So, the answer to the question whether or not the termination of a shareholder’s employment can be oppression is: yes, as long as there is a reasonable expectation of continued employment and the termination was unwarranted.

When representing the alleged oppressed who claims that their termination constitutes oppression, it’s important to build the case that the termination was unwarranted. On the other hand, when representing the majority or the corporation, counsel should develop and present evidence why the termination was warranted. For cause termination is not oppression. Termination without cause may constitute shareholder oppression.

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U.S. Supreme Court Strikes Down Ban on Sports Betting

The reversal may not have immediate effects on what we do here at the Simon Law Group. Overtime however, you can be sure that in the future Monday's striking down of the federal law against sports betting will have huge repercussions in the garden state. While the Supreme Court of the United States struck the ban down it was New Jersey who fought long and hard to do so. Former Governor Chris Christie began this fight after the state voting overwhelmingly to approve legalized sports betting. After many years and much struggle, New Jersey with new Govenor Phil Murphy taking up the cause has found victory.

A Break in the Action

Due to my personal schedule, posts will not appear here for at least one week from today.  They will likely resume sometime later next week.

The post A Break in the Action appeared first on Appellate Law NJ Blog.

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New Jersey Wins on Sports Betting in the U.S. Supreme Court

Murphy v. National Collegiate Athletic Association, ___ U.S. ___ (2018).  This blog has covered the history of the State of New Jersey’s efforts to overcome the Professional and Amateur Sports Protection Act (“PASPA”), which forbids (with some exceptions not applicable here) a State from authorizing betting on professional sports.  For example, the en banc oral […]

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When Does the FDCPA Statute of Limitations Begin to Run? The Circuit Courts Now Disagree.

Rotkiske v. Klemm, ___ F.3d ___ (3d Cir. 2018).  The Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq. (“FDCPA”), states that an action to enforce liability thereunder may be brought “within one year from the date on which the violation occurs.”  Today, in a unanimous en banc opinion, the Third Circuit, speaking through […]

The post When Does the FDCPA Statute of Limitations Begin to Run? The Circuit Courts Now Disagree. appeared first on Appellate Law NJ Blog.

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Police Scandal Vacates Over 1,500 Drug Cases

After a lab technician was caught mishandling the testing of evidence in drug cases, prosecutors are hoping to dismiss 1,169 drug cases due to destroyed evidence. In December 2015, Kamalkant Shah had allegedly recorded a positive identification for marijuana even though the evidence had not been tested also known as 'dry-labbing.' This prompted the re-examination of between 7,827-14,800 related cases. Shah has undergone a criminal investigation but was eventually not charged.

Parental Alienation and How to Respond

Very rarely do divorces occur where both parties leave the relationship happy. A divorce usually carries, a significant amount of anger or bitterness between two people. If a child or children are involved one of these parents may misdirect those feelings into trying to turn the child against the other parent. The desire to show the child that their other parent doesn't care as much as they do can manifest in several ways. Often it presents itself as the spreading of lies, constant victimization and attempting to sever contact with the other parent.

Murphy Pushes for Marijuana Legalization but Arrests Remain the Same

Gov. Phil Murphy was elected on a platform strongly built around reforming of marijuana culture and ultimately it's decriminalization. Already the wheels of change are starting to turn as hearings for the reclassification of marijuana are currently taking place.

A Key Consumer Fraud Case for the Supreme Court

The Supreme Court announced that it has granted review in All the Way Towing, LLC v. Bucks County International, Inc.  The question presented on this appeal, as phrased by the Supreme Court Clerk’s Office, is “Does the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, apply to this sale of a custom-built tow truck; and did […]

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No Accidental Disability Benefits for Teacher Who Alleged Mental Disability as a Result of Three Incidents of Physical Contact at Work

Thompson v. Baord of Trustees, Teachers’ Pension & Annuity Fund, ___ N.J. ___ (2018).  As discussed here, this case came before the Supreme Court by virtue of a dissent in the Appellate Division.  The issue was whether a prior Supreme Court case required that accidental disability benefits be paid to plaintiff, a teacher who alleged […]

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What to Know About Legal Child Custody in NJ

Unless you also work in the law field you may not know the difference between legal and physical custody. When you have physical custody, also known as residential custody, of a child, you are who the child lives with. If they spend less than two overnights a week and some vacation/holidays the parent is considered to have sole physical custody. More than two overnights and it's shared physical custody.

ACLU v. Hendricks Goes Back to the Secretary of Higher Education to Develop a Full Administrative Record

American Civil Liberties Union of New Jersey v. Hendricks, ___ N.J. ___ (2018).  In 2016, in a decision reported at 445 N.J. Super. 452 (App. Div. 2016), and discussed here, the Appellate Division invalidated as unconstitutional grants that the Department of Higher Education made to a Lakewood yeshiva and a Princeton seminary.  The basis for […]

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Referring to a Party’s Brief Instead of Offering Findings and Conclusions Draws Judge Fuentes’s Ire

Estate of Doerfler v. Federal Ins. Co., ___ N.J. Super. ___ (App. Div. 2018).  This opinion by Judge Fuentes today is one of the shortest published opinions of the Appellate Division.  It deals with breach of contract and bad faith claims against the defendant insurer in the context of damage caused by Super-Storm Sandy.  On […]

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Implied Consent: Knowing Your Rights

The ability to drive in the United States is not a right of it's citizens, the law views it as a privilege. When you get a driver's license in the large majority of states, you're also agreeing to 'implied consent.' This is the agreement that if you are suspected of being under the influence of either drugs or alcohol, you will undergo chemical testing to determine your blood alcohol content (BAC).