On this date in 1990, the Supreme Court decided Nolan v. Lee Ho, 120 N.J. 465 (1990). According to Westlaw, that case has been cited over 1,100 times. Generally, those citations invoke legal rules relating to settlement of litigation, such as “A settlement agreement between parties to a lawsuit is a contract,” “Settlement of litigation […]
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Mielo v. Steak ‘n Shake Operations, Inc., ___ F.3d ___ (3d Cir. 2018). This was an appeal under Rule 23(f) of the Federal Rules of Civil Procedure from a District Court decision that granted class certification in this case under the Americans With Disabilities Act, 42 U.S.C. §12101 et seq. (“ADA”). Plaintiffs were two disability […]
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Adorers of the Blood of Christ v. Federal Energy Regulatory Commission, ___ F.3d ___ (3d Cir. 2018). Transcontinental Gas Pipe Line Company, LLC (“Transco”) obtained a certificate of public convenience to build a gas pipeline from the Federal Energy Regulatory Commission (“FERC”) after a hearing before that agency. A certificate of public convenience is essentially […]
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The State Senate yesterday voted to confirm Justice Patterson for tenure on the Supreme Court. She can now serve until age 70, the age of mandatory retirement. Her current term was to expire on September 1. This blog endorsed Justice Patterson for tenure, as discussed here. It is good to see that Governor Murphy, a […]
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Abdelkader v. Hosny, 2018 WL ______ (App. Div. July 26, 2018). In State in Interest of N.P., 453 N.J. Super. 480 (App. Div. 2018), discussed here, Judge Messano discussed the purpose of Rule 2:5-6(c). That rule, which allows a trial judge to produce a supplementary statement of reasons for his or her decision following the […]
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Sconiers v. United States, ___ F.3d ___ (3d Cir. 2018). Under the Federal Tort Claims Act, 28 U.S.C. §2401(b) (“FTCA”), a tort claim against the United States is “forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six […]
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Vehicular manslaughter, also known as vehicular homicide, is the charge given when someone has been killed but the person who has done it, has not done it on purpose. This is worst charge you can get if you've been drinking and driving. It's the nightmare scenario that is difficult to imagine, but unfortunately it happens often more than you may think.
The Supreme Court announced that it will review two more cases. Both are criminal appeals in which the Court granted certification. In State v. McNeil-Thomas, the question presented, as phrased by the Supreme Court Clerk’s Office, is “Among other issues, was defendant entitled to a new trial based on the prosecutor’s summation, which included the […]
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Serico v. Rothberg, ___ N.J. ___ (2018). As discussed here, last year, the Appellate Division ruled in this medical malpractice case that a “high-low agreement” is a contract, and that where the agreement did not provide for plaintiff to recover attorneys’ fees and litigation expenses in addition to the “high” amount, plaintiff could not be […]
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Little v. Kia Motors America, Inc., ___ N.J. Super. ___ (App. Div. 2018). Class actions notoriously take a long time. But the case in which Judge Koblitz issued a decision for her Appellate Division panel today is nearly old enough to vote. As her opinion recited, plaintiffs, who are owners or lessees of Kia Sephia […]
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Allstars Auto Group, Inc. v. New Jersey Motor Vehicle Commission, ___ N.J. ___ (2018). The New Jersey Motor Vehicle Commission (“NJMVC”) imposed fines and suspensions on eight car dealers for alleged violations of various NJMVC regulations. The dealers, all acting pro se, responded to notices of violation by providing explanations for their conduct, though without […]
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A fair share of people reading this that at some point in their life stole something. Most often it was nothing serious and nothing that adversely affected your future, you might have taken a candy from a checkout line. Whether you were caught or got away without any repercussions, you didn't have anything to face besides an embarrassing incident and your parents disapproval. When people grow too old to be satisfied with taking candy and decide to move on to more heavy duty theft, we have a range of shoplifting laws to discourage people from continuing that sort of behavior. If you have been charged with shoplifting of any value it's imperative you are aware of the types of penalties you may be facing.
United States of America ex rel. Palmer v. C&D Technologies, Inc., ___ F.3d ___ (3d Cir. 2018). Today’s opinion by Judge Greenberg (no relation) in a False Claims Act case involved the issue of an attorneys’ fee award to the relator’s counsel. The decision went through questions as to appropriate hourly rates, the reasonableness of […]
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McDaid v. Aztec West Condominium Association, ___ N.J. ___ (2018). As Jutice Albin stated in the first two sentences of today’s opinion for a unanimous Supreme Court, “Res ipsa loquitur is an equitable doctrine that allows, in appropriate circumstances, a permissive inference of negligence to be drawn against a party who exercises exclusive control of […]
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Mr. Simon who is one of New Jersey's premier DUI/DWI attorneys. As Managing Partner of the Simon Law Group, he believes that continuing not only his education but the education of all of the other attorneys in this office, no matter their field of expertise.
Walsh v. Defenders, Inc., ___ F.3d ___ (3d Cir. 2018). The “local controversy” exception to federal jurisdiction over putative class actions under the so-called Class Action Fairness Act of 2005, 28 U.S.C. §1332(d) (“CAFA”), requires certain uniquely local cases that were filed in state court and removed by defendants to federal court to be remanded back […]
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The Supreme Court announced that it has granted review in two more cases. In Zimmerman v. Sussex County Educational Services Commission, the question presented, as phrased by the Supreme Court Clerk’s Office, is “Did the defendant-employer violate the tenure rights of plaintiffs, part-time teachers, by substantially decreasing their work hours under the circumstances presented?” In […]
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Credibility is key when it comes to matrimonial litigation – from your initial filing through the last day of trial. In our practice, we can often make educated guesses of the range for equitable distribution and alimony from the initial consultation based upon the many statutory factors that a court has to consider and some rules of thumb in settlement negotiations. However, there are those cases that do not result in such a typical manner and the reasoning often comes down to presentation.
For a trial that I conducted in February 2016, the Appellate Division recently upheld the court’s decision awarding the plaintiff/wife 100% of the equity in one of the parties’ businesses with a value of $133,000 (where she primarily worked) and 40% of defendant/husband’s $214,000 interest in the other business (where he primarily worked), as well as determining that each party retain his/her individual retirement accounts following a long-term marriage of over 30 years. Wife’s retirement accounts exceeded those which husband disclosed – being the key word. In addition to this equitable distribution award, the Appellate Division upheld the trial court’s 40% counsel and expert fee award for the wife, totaling $31,388.10.
Why did the wife prevail in this way? It’s pretty simple based upon a reading of the decision – her husband just could not help himself as a litigant or a witness.
As a litigant, he “stonewalled” discovery, failed to pay the support obligation order during the pre-trial phase of the litigation (a.k.a pendente lite support) that was initially agreed upon, and failed to file a complete Case Information Statement (the bible in family law cases that lists income, budget, assets and debts).
As a witness, he would not even give a straight answer for his address. While he may have thought he was being cute when he responded that the wife could have the value one of the companies, and do “whatever she wants to do with it”, the trial court and the Appellate Division used the husband’s own words against him to find that he abdicated any interest in the company.
The husband’s lack of credibility resulted in a unique comment of the Appellate Division when it stated that the trial court’s counsel fee opinion was upheld even though the trial court did not specify the factors considered under the applicable Court Rule, R. 5:3-5(c). The Appellate Division opined that “…the discussion throughout the opinion made clear he had those factors very factors in mind”. The Appellate Division again cited to the husband’s bad faith (without utilizing the term) by citing to the trial court’s findings that the requested fees were “’fair and reasonable’ and that much work was required due to the ‘recalcitrance of [the husband]’”, as well as that the wife “faced substantial difficulties” to enforce court orders and agreements, and ultimately prepare for trial.
So, what’s the takeaway? What you say and how you act at each stage of the case is important… someone is always watching and, oftentimes, that someone is your spouse’s attorney who will jump at the opportunity to show the court how you have oppressed your spouse. Having handled this trial and appeal, I can confirm that cross examining the husband and finally having the opportunity to point out all of the misbehavior was fun, but not for him. You don’t want to end up in that seat! Mind your manners even in the heat of the moment and, as painstaking as it may be, always remember that it’s better to be the “bigger person” – the games will catch up to the other!
Lindsay A. Heller is an associate in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.
Chief Justice Rabner has issued the General Assignment Order for 2018-19. It is available here. The Appellate Division lineup again features Judge Messano as Presiding Judge for Administration and Judge Sabatino as Deputy Presiding Judge for Administration. Those two judges, as well as Judges Simonelli, Koblitz, Alvarez, Fisher, Yannotti, and Fuentes, will serve as Presiding […]
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A federal court in California agreed to remove the two songwriters of the Disney animated film Frozen from a copyright infringement lawsuit, for now. The lawsuit claims that the hit song “Let It Go” was copied from a Chilean song called “Volar,” and that the two songs are so strikingly similar that Disney could not claim its song was independently created.
The plaintiff, Jamie Ciero, originally filed the lawsuit in November 2017 wherein he alleged that the songwriters, Bobby Lopez and Kristen Anderson-Lopez, copied “quantitatively and qualitatively distinct, important, and recognizable portions of his song.” This included note combinations, hooks, and melodies that are, according to Ciero, almost identical to those in his song.
Copyright infringement occurs when someone uses a copyrighted work without permission of the copyright holder. A copyright holder has certain exclusive rights to his or her work, including the right to reproduce, distribute, display, or perform the protected work, as well as the right to make any derivative works (like sequels or spin-offs) from the original. A copyright owner’s rights are limited, however, by the doctrine of fair use, which allows copying for purposes of education, journalism, commentary, and criticism.
According to the Copyright Act, a copyright owner has three years from the date of to bring suit assuming the owner knew or should have known about the infringement. Evaluation of when an owner’s claim arises for purposes of the three-year statute of limitations is often a complicated process and very fact sensitive.
Attorneys for the Frozen team argued that the clock had already run out on any copyright infringement lawsuit, as the film had been released in November of 2013 and Ciero waited four years to bring suit. The court agreed, and removed the songwriters from the suit, observing that Ciero should have “known about ‘Let It Go’ prior to November 23, 2014,” as the song had been a smash hit and even won an Academy Award for Best Original song.
The fight might not be over just yet. According to the Supreme Court in Petrella v. MGM, 134 S. Ct. 1962 (2014), a copyright owner who is aware of an infringed can sit back and wait for years until the infringer’s profits justify the cost and effort of suing and then bring the lawsuit. In that case, the copyright owner will only be able to collect damages for the three years prior to suit. As such, every separate act of infringement gives rise to a separate cause of action, and is subject to a separate statute of limitations clock.
The California court has given Ciero the opportunity to amend its complaint to take another shot at the dismissed defendants. This time, he should include “all factual allegations supporting his claims . . . because that opportunity to amend his complaint might be his last,” according to the court.
If you have any questions about copyright law or copyright infringement, you should speak to an experienced copyright attorney.
Demonstrating yet again that cohabitation cases are almost always a creature of their specific facts and circumstances, the Appellate Division in the recently unpublished, Salvatore v. Salvatore, reversed a trial court’s decision denying a payor former husband’s motion to terminate his alimony obligation based on his payee former wife’s cohabitation in a manner defined by the parties’ Marital Settlement Agreement (MSA).
Here are the facts that you need to know:
Reversing the trial court, the Appellate Division held that the trial judge:
In so doing, the Appellate Court reiterated seminal pre-2014 statute case law mandating that the “economic needs” of the payee spouse need not be considered so long as the cohabitation provision meriting an alimony modification is fair.
Addressing the subject addendum to the MSA – really the unique feature of this particular cohabitation case – the Appellate Division found that the trial court:
As a result, the matter was remanded to the trial court for a period of discovery and ultimate plenary hearing on the payor’s motion to terminate alimony. While not shedding further light on the 2014 cohabitation statute (since this matter applied pre-statute case law), the unique factual scenario at issue only further highlights how cohabitation matters are often unpredictable, and rise and fall on the case-specific circumstances at issue.
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Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey and Manhattan. He can be reached at (973) 994-7526, or repstein@foxrothschild.com.
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Chief Justice Rabner has announced the elevation of three judges to the Appellate Division. Two of them, Judges Firko and Natali, have been serving on temporary assignment to the Appellate Division since April 16, 2018, as discussed here. The third judge, Judge Stephanie Ann Mitterhoff, has been sitting in the Civil Division, Essex County, since […]
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With July 4th this Wednesday, we wanted to take a moment to remind you that if you've been drinking and get behind the wheel of a car, you will face serious repercussions in the state of New Jersey. Anyone regardless of size or age who is above a 0.8 percent BAC (Blood Alcohol Content) will be arrested for a DUI/DWI. This is no small matter, being charged with a DUI/DWI may result in severe fines, a loss of license or even jail. The police know that this is the time when people let loose and enjoy NJ's many beaches and other scenic locales. They will be turning up their own heat to make sure people are enjoying the holiday responsibly.
MTK Food Services, Inc. v. Sirius America Ins. Co., ___ N.J. Super. ___ (App. Div. 2018). In McCarrell v. Hoffman-LaRoche, Inc., 227 N.J. 569 (2017), discussed here, the Supreme Court adopted section 142 of the Restatement (Second) of Conflicts of Laws. That section calls for the use of a “substantial interest” test to resolve conflict […]
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