Halloween: A Not-at-All Spooky Anniversary in Defamation Law

On October 31, 1955, the Supreme Court decided Rainier’s Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552 (1955).  It was a 6-1 decision, with Justice Jacobs writing for the majority.  Justice Wachenfeld was the lone dissenter. The case arose from proceedings before an administrative agency, the Office of Milk Industry.  Joseph and Michael Gonnella, […]

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What Does Your Divorce Have in Common with Halloween? A SPOOOOOOOOOOKY Comparison.

All Hallow’s Eve is upon us.  All month long, I have watched my favorite Halloween movies (Hocus Pocus, anyone?), visited haunted houses, carved my Jack-O-Lantern, and engaged in all the usual Halloween festivities.  But it occurred to me:  the scariest thing that many of my clients will go through in their lives is their divorce.  And there’s a reason why the ghosts, ghouls, zombies, witches, and hobgoblins of Halloween are trotted out each year to scare us – that feeling of being up against soullessness and inhumanity is terrifying.  And it’s how many of my clients feel about the people they are dealing with through their divorce process, whether it be their ex and/or his/her attorney, a mediator, or even a judge.

Here’s what it can be like:

Zombies Abound:  It can feel like everyone you are dealing with is a soulless zombie – even your spouse.  Suddenly, your spouse may act with no emotion toward you and will forget like the past years of your life together never happened.  For example, according to him or her, you’re not the loving parent to the kids that you know you always were.  His or her attorney will treat you with no emotion at all, acting at the direction of your spouse.

Likewise, the judges, experts, and mediators – whether on your side or not – have a non-emotional role to play.  They won’t necessarily care about the personal issues that are important to you.  They will look at your case in an agnostic, non-emotional way.

Witches Cast Their Spells:  Sometimes, it might feel like there’s a hex upon you and you just can’t win.  Or, it may feel like no matter how untrue or manipulative your spouse’s claims are, the judge or the mediator believe him or her, as if (s)he’s cast a spell over them.  No matter the situation, it may sometimes feel like you have no control or that everything is going your spouse’s way, for no discernible reason.

Vampires Suck Your Blood:  Maybe this is a little too “on the nose.”  While your lawyers aren’t going to be doing unnecessary work, divorces get expensive.  If you are the “monied spouse,” you may be paying for not only your own legal fees, but those of your husband or wife – and not only for attorneys, but perhaps also for various experts, or a mediator/arbitrator.  All while continuing to support the family during the divorce.

Frankenstein Lives:  I often use the term “Frankenstein” when referring to an agreement of any kind that has been drafted, then revised, revised again, and revised some more.  It often becomes a mishmash of different thoughts that each party had at different points in the negotiation, and when taken together, makes little sense as a whole.  This is NOT what you want the ultimate written agreement (or any interim agreements) to be.

So, how do you keep your divorce from becoming a Halloween-style nightmare?  Here are some thoughts:

• Hire a qualified, conscientious, attorney with a good reputation.
• Listen  to that attorney.  After all, you hired him/her because (s)he is qualified, conscientious, and has a good reputation.
• Take control of the story, and change it if you have to.  If you feel like nobody is listening to you, then whatever it is you are saying is not resonating.  For example, if you are claiming that your spouse should have less parenting time because your child has been returned to you from parenting time with bumps, scrapes, or bruises, and the judge is not moved by this information because he or she views them as typical for a child of that age…then maybe you need to try a different argument, if you have one.  Or, if you are arguing that you have tried and tried to find a new job after being fired from your old one, but just haven’t been able to find anything at your prior income level, then maybe you need to stop explaining and start showing the Court exactly what efforts you have made.
• Keep the written agreement simple, and only make necessary revisions.  While every word in an agreement is important, trust your attorney to ensure that the agreement says what you want it to say.  Don’t over-complicate it just because you insist upon one word being in the agreement that is not there, and don’t give in to the feeling that the attorney on the other side is trying to “trick” you with revisions.  That’s why you hired a lawyer.  In the end, you want an agreement that is easily understood by a third party who knows nothing about your case, because if an issue comes up in the future, you may be assigned a judge who is just that.

 

 

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Appellate Division Statistics for the 2017-18 Term

The annual summary of Appellate Division statistics is out.  They cover the 2017-18 Term, which ended on August 31, 2018.  Once again, the figures have stayed remarkably consistent from year to year. In civil cases decided by two-judge panels, 75% resulted in affirmances.  The affirmance rate for three-judge civil cases was slightly lower, at 69%.  […]

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Trying Cases with an Eye Toward Appeal: What Your Lawyer is Thinking and Doing at the Trial Level to Preserve Your Case

Nobody wants to go to Court. In fact, you’ve probably spent your whole life doing everything not to go to Court. But you’re getting divorced. And now, it’s unavoidable. Hopefully, you’re working toward settling your case so that you only have to see the judge when he or she stamps your Final Judgment of Divorce. Hopefully, in a dispute that arises after the divorce, you can speak with your former spouse and reach a resolution.

But, that’s not always possible. Either one side is unreasonable or there is a complex legal or factual issue in your case that both parties see completely differently. Either way, the differences are irreconcilable and you end up before the trial court.

Now, you’re not unique. All family law matters are initially determined at the trial court level. A trial court judge will make a ruling based upon the litany of issues that are presented during your case.

If you feel that the judge “got it wrong” there are two higher courts in New Jersey that a party may seek an appeal from a final trial court order. There is an appeal as a matter of legal right to the New Jersey Appellate Division. A party dissatisfied with a decision of the Appellate Division may seek the appeal to be Certified and heard by the New Jersey Supreme Court. Certification is rare and reserved for only novel legal issues and other very specific circumstances.

While it may sound odd, cases are oftentimes tried with an eye toward the appellate division. That means, even if you’re not thinking of the possibility of appeal at the trial level, be sure that your lawyer is. The possibility of an erroneous legal decision or incorrect application of the law to the facts is always swirling around in our minds. We prepare for and try cases with the notion that we need to “make a record” just in case.

That’s because you have no chance of a successful appeal if you don’t check off all requirements at the trial court level. This requires your lawyer’s attention to a number of different issues, all while trying for a successful adjudication of your trial court issues as well.

For example, while you’re worried about the testimony you’re going to give, or what a witness will recount, your lawyer is thinking about more big picture procedural issues that could ultimately determine the success or failure of your appeal:

1. Preserving issues: If you don’t raise it at the trial level, you waive it at the appellate level. Only in a limited number of circumstances will the appellate division hear a new issue that was not raised before the trial court.
2. Objections: Your lawyer will need to make sure he/she putting everything you believe that the opposing party and the judge are doing incorrectly. You need to ensure that you have a record of the proceedings. Remember, if you don’t raise it, you waive it. This will also require the lawyer to be a bit pushy about getting rulings from the judge on the record.
3. Appropriate motions: If you ultimately appeal on an evidentiary issue or other legal issue, your lawyer needs to have filed the appropriate motions in advance. For example, if you have a problematic expert report, you can’t go through the whole trial without ever having filed a motion in limine to exclude it. Or maybe there are documents you could have requested in advance that could have changed the trial court’s mind. The appellate division may question your lawyer as to why these things were not done and it may ultimately ruin your chances of a successful appeal.
4. Presentation of a clear story: Your lawyer will need to have a theme of your case, to tell a complete story of exactly what happened during the trial court proceedings. Because there is no new evidence or facts presented on appeal, and the appellate division will never hear from the litigant through testimony or otherwise, your lawyer will need to synthesize all the details to humanize your issues.

So, if it feels like your lawyer is being over inclusive, he/she probably is, but you’ll be grateful later on that someone had the foresight to preserve your rights.

___________________________________________________________________________________________________________________________

Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com

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Non-Traditional Relationships and Consent as a Defense to Domestic Violence

When a trial court’s decision is published, we know it’s time to listen.   T.M. v. R.M.W. is a good reminder that definitions modernize with our modernizing society, even when dealing with terms and concepts that we use in our daily practice. In this case, the court opined about two integral parts of a domestic violence matter:

1. Underlying relationship to qualify for a restraining order; specifically, the definition of “dating relationship”.
2. Defending against the underlying act alleged in support of the restraining order; specifically, the affirmative defense of consent against assault and harassment allegations.

In T.M., the parties sporadically engaged in consensual “rough sex” over the course of eight years, with a three years hiatus.  Their encounters included hair pulling, slapping and choking. The parties did not have any ground rules, either verbally or in writing.

The plaintiff obtained a Temporary Restraining Order (“TRO”) two days after the defendant punched her with a closed fist during a consensual sexual encounter.  The parties continued having intercourse after the incident – for approximately 20 minutes as the plaintiff acknowledged.  What happened next is where their respective sides of the story begin to change.  In the initial complaint, the plaintiff claimed that when she told the defendant not to punch her again, he laughed it off and then punched her again during this encounter.  During testimony, the defendant claimed that they only had the discussion after the intercourse and he agreed to never punch her again before leaving her house, and he anticipated that they would continue with their relationship going forward.

Dating Relationship

Neither party defined their relationship as dating in the traditional sense during their testimony.  Additionally, the parties did not hold themselves out to the public as having a relationship. In fact, the defendant hid these encounters from his girlfriend and the only time that the defendant appeared at the plaintiff’s home uninvited was after the plaintiff told his girlfriend that the defendant cheated on her.

Utilizing the dating relationship factors defined in Andrews v. Rutherford, 363 N.J. Super. 252, 260 (Ch. Div. 2003), which we often take for granted when checking off that box on a restraining order, the court allocated the most weight to the length of their relationship, the intimacy involved and the catchall factor as to the uniqueness of their relationship.  Notably the court found:

For the courts to deny this plaintiff victim status could potentially been seen as morally judging a plaintiff who chooses not to engage in a relationship with ‘traditional’ and ‘observable’ indicia of dating.

Additionally, the court opined that a plaintiff enduring abuse in a secret relationship may be even more vulnerable than in a traditional dating relationship.  Thus, the plaintiff prevails on this prong.

Consent

This aspect of the case turned primarily on credibility to determine whether the plaintiff consented to the alleged punch, especially after both parties acknowledged consent for the slapping, hair pulling and choking that would have otherwise qualified as harassment by offensive touching and assault. Although the parties’ testimony differed about the conversation regarding the punch at the end of their encounter, they both acknowledged that they continued engaging in consensual sexual intercourse thereafter.

The court initially found that the plaintiff was credible, noting her candor about the parties’ relationship. However, the defendant became the more credible party after his testimony successfully disputed the plaintiff’s claims about a prior history of domestic violence, which did not exist,  the parties’ conversation after their sexual encounter that evening, and the second punch alleged in the plaintiff’s initial complaint. The court found the defendant so credible that it even repeated his term for the punch as a “tap on the jaw”, after reviewing the stipulated discharge instructions from the plaintiff’s visit to Urgent Care, pictures of the plaintiff’s face on the day of the incident and two days later, and noting that the plaintiff did not have any visible marks during the trial that occurred ten days after the incident.

Erring on the side of caution, the court determined that the issue of consent was a “close call” and analyzed the second prong of a domestic violence analysis, namely whether a Final Restraining Order is necessary. Again turning to credibility, the court determined that the FRO is not necessary to protect the plaintiff and that an FRO cannot be entered to protect the “general public” despite the plaintiff’s (unsubstantiated) claim that other women should be protected from the defendant.

Take-Away

While the plaintiff did not prevail on obtaining a FRO in this sound decision, she did prevail on making a mark in our legal system that traditional relationships are not the only ones requiring attention and protection.  Perhaps this will lead the way to a victim of domestic violence in a private, non-traditional relationship to come forward with his/her story and seek protection.

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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.

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The Supreme Court Will Address “Not Raised Below,” and Three Criminal Appeals

The Supreme Court has announced that it has granted certification in three cases, all criminal matters, and that a civil case will be before it on an appeal as of right.  Here are the details. The civil case, a class action, is Chirino v. Proud 2 Haul, Inc.  The question presented there, as phrased by […]

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Heather Baker Will Become Clerk of the Supreme Court as of November 29

In an Order dated October 16, but released late yesterday, Chief Justice Rabner announced that Heather Baker is being appointed as Clerk of the Supreme Court, effective as of November 29.  She replaces Mark Neary who, as discussed here, has served as the Clerk since 2009. Heather Baker, a resident of Readington, is a graduate […]

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New NJ Bill Aims to End Craft Brewery Tours & Add Food Vendors

A new bill in New Jersey was introduced last week which would amend the 2012 law that established microbreweries in the state and governs their operations and restrictions.

This is the first attempt so far to legislatively address the craft brewing industry after a special ruling was issued by the New Jersey Division of Alcoholic Beverage Control (ABC) which implemented restrictions on events and other brewery operations. The ruling was suspended indefinitely only a week later after significant public backlash from both brewers and state government officials.

The ruling would have limited craft breweries to only being able to hold a finite number of “special events,” like trivia nights and paint and sip nights, as well as limiting the number of private parties. In response, Brewed Independent, a collection of South Jersey breweries, created a petition calling for the ruling’s suspension and quickly garnered more than 25,000 signatures.

ABC announced they would be suspending the ruling shortly thereafter until the division could meet further with craft breweries and alcoholic beverage licensers and iron out new regulations.

The new bipartisan bill, introduced by Assemblymen Joe Howarth and Wayne DeAngelo, was structured to mirror similar microbrewery allowances in other states like New York, Pennsylvania, and North Carolina.

The bill would allow unlimited onsite events for yoga and craft classes, live music, and televised sporting events. If passed, it would also end brewery tours as a requirement for purchasing beer in tasting rooms.

The bill does propose that breweries are limited to obtaining permits to sell products off the brewery premises only 12 times a year. This provision was originally included in the special ruling as well.

However, the bill does allow microbreweries to offer soda and takeout food menus, as well as permit food vendors on brewery premises.

Now that the bill has been introduced, it will most likely go through rounds of negotiations with holders of consumption liquor licenses.

If you have questions about New Jersey ABC license regulations, Stark & Stark may be able to assist.

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National Labor Relations Board Released Proposed Rule to Undo Browning-Ferris

Recently, the National Labor Relations Board (NLRB) issued a Notice of Proposed Rulemaking which is intended to roll back a controversial 2015 decision that loosened the board’s test for determining whether businesses like franchisors and franchisees are joint employers under the National Labor Relations Act.

The proposed rule states that entities will be considered joint employers “only if the two employers share or codetermine the employee’s essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction.” The Board will only find a business jointly employs another company’s workers if it has “direct and immediate” control over these “essential terms and conditions,” rather than “limited and routine” control.

This rule would overturn a test previously established in the NLRB’s 2015 Browning-Ferris Industries of California, Inc. decision which broadened the scope of joint employment to situations where a company only has to have “indirect” control over another company’s workers. In doing so, the NLRB overturned decades of precedent previously requiring “direct and immediate control.”

With the Browning-Ferris standard, the focus was not on whether a presumed joint employer actually exercised sufficient control over terms and conditions of employment, only if they could exercise said control. This raised much concern in the franchise industry.

In December 2017, the NLRB’s Republican majority overturned the Browning-Ferris decision in a case involving Hy-Brand Industrial Contractors Ltd. and returned the joint employer standard to “direct and immediate control.” However, this ruling was then overturned just months later when ethics officials ruled that one of the NLRB members should have recused himself because his participation in Hy-Brand violated a bar on board members deciding “particular matters” they or their prior law firms worked on. Accordingly, the Browning-Ferris decision was reinstated.

With this new Notice of Proposed Rulemaking, the NLRB is attempting to provide clarity on the joint employer standard and return it to the original precedent pre-Browning-Ferris. The federal rulemaking process does require regulators to respond to the substance of every comment they receive, which will most likely be a daunting task given the existing controversy. However, it is a welcome sign of movement into a move favorable direction for those in the franchise industry.

Anyone wishing to provide comments on the proposed rule must submit their comments so that they are received by November 13, 2018.

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California to Conduct Written Electronic Examination of State-Registered Investment Advisers

In April 208, California’s Department of Business Oversight (“DBO”) announced that, beginning in October, it will begin conducting an online questionnaire-based examination of certain investment advisers registered with the DBO. This digital examination will be in addition to the DBO’s onsite examination program. The DBO recently sent registered investment advisers a reminder of this pending initiative. It is unclear from the DBO’s communications whether this online examination will be required for every investment adviser on an annual basis or only after an investment adviser receives an examination request.

Investment advisers registered with the DBO should have already provided a designated business email address to IAAEQ@dbo.ca.gov, but it appears that DBO should already be in possession of contact information submitted on Form ADV through the Investment Adviser Registration Depository. We previously contacted the DBO to try and determine whether this email notice is required for investment advisers that maintain an accurate Form ADV.

The DBO’s Monthly Bulletin distributed on September 12, 2018 suggests that all California-registered investment advisers are required to complete the online examination, even if they have a principal place of business in another state. This requirement could potentially conflict with Section 222 of the Investment Advisers Act of 1940, which states that: “No state may enforce any law or regulation that would require an investment adviser to maintain any books or records in addition to those required under the laws of the State in which it maintains its principal office and place of business, if the investment adviser—(1) is registered or licensed as such in the state in which it maintains its principal office and place of business; and (2) is in compliance with the applicable books and records requirements of the state in which it maintains its principal office and place of business.” We have formally requested that the DBO’s new online questionnaire-based examination acknowledges the limitations imposed on it by Section 222. Specifically, the online examination should only request from investment advisers with a principal place of business somewhere other than California, and these investment advisers should only be required to produce, exact copies of information that they are required to maintain according to the laws and rules of the state where they maintain their principal place of business.

We have contacted the DBO in an attempt to gather more information to better position our state-registered investment advisers. Specifically, we have requested the following information:

• Will all California-registered investment advisers be required to complete the questionnaire? Will the questionnaire be structured differently for investment advisers with a principal place of business somewhere other than California?
• When will the first examination begin?
• Will it be an annual requirement for all investment advisers or will it be sent to selective investment advisers?
• How much time will an investment adviser have to complete the questionnaire?

Could DBO provide us with a sample of the examination?

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A Pinata, A Pole, and an Injury

Piech v. Layendecker, ___ N.J. Super. ___ (App. Div. 2018).  This opinion by Judge Fasciale effectively summarizes all the issues, and the result on each issue, in its opening paragraph.  “This personal injury social-guest liability case deals with flawed jury charges, the erroneous admission of subjective lay opinion testimony into evidence, the proper denial of […]

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A Sunshine Law Anniversary

On October 19, 1977, the Supreme Court decided Polillo v. Deane, 74 N.J. 562 (1977).  That decision is still the leading case under the New Jersey Sunshine Law, N.J.S.A. 10:4-6, otherwise known as the Open Public Meetings Act.  There, the Supreme Court, by a 4-2 vote, held that the Sunshine Law was applicable to Faulkner […]

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Pros and Cons of Dating During Divorce

Going through a divorce is one of life’s greatest disruptions. Whether you are resistant to the divorce and it feels like a tragedy or you are initiating the divorce and it feels like an escape, there is no doubt that divorce creates a massive change in your family life, finances and day-to-day routine.  At its core, divorce is the process of going from “we” to “me” which can be daunting, exhilarating or something in between. Many clients going through a divorce ask: when can I start dating and how will it affect my divorce?  The answer is never black and white, as dating during a divorce can have its pros and cons.

1. Dating is a much needed distraction during divorce

For all parties involved, the process of getting divorced is difficult. Divorce can turn your life upside down, add new stressors to an already hectic life and create a financial burden that wasn’t there before. Your spouse, the court (and yes, sometimes the lawyers) can at times be frustrating. It is perfectly normal to want to forget about your divorce and take a break from it, even if it’s just for an evening. Dating can be a much needed “vacation” from the reality of divorce.

Many divorcing couples do not go from marital bliss to divorce court overnight, and it may have been a while since you’ve had a positive romantic experience. Dressing up for a night on the town with an uncomplicated new partner is sometimes just what the doctor ordered. Spending time with a new, exciting person can be a wonderful distraction from the messy, tortured history of your marriage.  This breath of fresh air can give you the reprieve from the drama that you need to forge ahead in your divorce.

2. Taking control of your dating life is empowering and can boost self esteem

Divorce can make a person feel unappreciated, undesired and out of control. Whether you did not want the divorce, or you don’t like a decision a judge has made, it can be unnerving to feel like you have a diminished say in what happens in your life. Dating can put you back in the driver’s seat of one area of your life, and provide some semblance of control. The positive benefits of a “clean slate” cannot be understated.  Stepping out with a new partner who finds you desirable and engaging, unburdened by the complications of parenting and finances that can come with a marriage, can work wonders for your mental health and sense of self-worth.  After long periods of battling with your spouse, it can be exceptionally refreshing to spend time with someone who is nice to you! Getting back in the game and feeling pursued and appreciated might be the ego boost you need to power through an unpleasant divorce.

3. Embracing positivity can set the scene for a rational and amicable divorce

When you are in a bad place mentally, it is difficult not to make emotionally-charged decisions. Strategizing in a divorce based on emotions will position you and your spouse further away from resolution and, in the end, cost you more time and money.  While it may feel good to exact revenge or act out of spite, in the long term, it will likely only make your divorce that much more protracted and painful.

When you are in a good place mentally, you can more easily make decisions based on reason and practicality. You will feel less incentivized to hurt your spouse or be vindictive. In many cases, your approach to the divorce will shape your spouse’s attitudes, after all, no one wants to play the villain, but people are all too happy to take the gloves off when their spouse is already playing dirty. Dating may make you happier, which in turn, will enable you to approach your divorce with a level head and amicable attitude to create a more pleasant experience for all those involved.

1. Dating may fan the flames of acrimony between you and your spouse

While dating may make you happier, it might spur feelings of anger, jealousy or resentment in your spouse which will promote an ill-will in your divorce proceedings.  In this regard, you know your spouse best, and can gauge how they will react to you reentering the dating world. If you believe that dating again will cause your spouse to fly off the handle, be warned that it will likely lead to your spouse taking less reasonable positions and being more litigious in your divorce. In this sense, dating can backfire – as you are trying to move on with your life, your spouse may dig his or her heels in further, dragging out the divorce even longer as a result.

2. Your kids might freak out

If you have children, you should give serious consideration to their thoughts and feelings before you start dating.  Without a doubt, your children’s lives will change drastically as a result of a divorce and they will likely mourn the loss of your family unit.  Do your children hold out hope that you and your spouse will reconcile? Have they (or are they old enough to) express their emotions about the divorce? Do they have the assistance of a family therapist or mental health professional to guide them through this process? All of these things must be considered before you throw another curveball into the family dynamic.

With regards to the legal implications of dating, how involved your new partner becomes with your children may have an effect on a custody battle between you and your spouse.  If custody experts are involved in your case, they will interview collateral contacts (including your new partner) as part of the evaluation and his or her past can affect the outcome of your case! A new partner with a criminal record, substance abuse or certain mental health issues can be a red flag for a custody evaluator (especially if they are around your children a lot) and may impact the custodial issues in your divorce.

3. (Serious) dating might affect your spousal support

Most people who start dating after a divorce are in no rush for a big commitment, but some find it easier to cope with a divorce by jumping right back into a serious relationship.  You may lose your alimony if you are cohabiting with a partner in a marital-type relationship. Accordingly, you need to remain cognizant of how living with your new partner may affect the amount of alimony you receive in divorce or whether your ex-spouse can make an application to terminate alimony based on your cohabitation after divorce. It is important to note that this is a one-sided consequence. If you are paying alimony, feel free to date to your heart’s content – it won’t affect your obligation to pay your ex-spouse alimony.

__________________________________________________________________

Katherine A. Nunziata is an associate in the firm’s Family Law practice, based in the Morristown, NJ office. You can reach Katherine at (973-548-3324) or at knunziata@foxrothschild.com.

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The Eighth Anniversary of New Jersey Appellate Law Blog

Today marks the eighth anniversary of this blog.  As has been so every year, I’m grateful to the many jurists, lawyers, law students, and laypeople who read the blog.  I’m especially appreciative for the feedback that has been provided to me, both on the blog and off it.  The blog continues to be cited, and […]

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A Split Appellate Division Decision in a Medical Malpractice Case Goes to the Supreme Court

T.L. v. Goldberg, which was the subject of a reported Appellate Division opinion where the panel split 2-1 in favor of plaintiffs, reversing the Law Division and awarding plaintiffs a new trial, has now reached the Supreme Court.  The Appellate Division’s ruling was discussed here.  Defendants filed an appeal as of right, based on the […]

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House Lawmakers Unveil New Joint Employer Bill

The U.S. House of Representatives lawmakers announced last week that they have prepared a bill that would establish that a business simply licensing a trademark, such as in the case of a license from a franchisor to a franchisee, would not create a so-called “joint employer” relationship.

Joint employment is the sharing of control and supervision of an employee’s activity among two or more businesses. This new bill, called the Trademark Licensing Protection Act of 2018, declares that if a company is licensed to use a trademark, this should not be enough to establish “an employment or principal agent relationship” between the two licensing entities.

The rules for determining joint employer status have been a hot-button issue for the last several years. In 2015, the National Labor Relations Board (NLRB), the federal agency tasked with enforcing the National Labor Relations Act (NLRA), issued a controversial decision, Browning-Ferris Industries of California, Inc., 362 NLRB No. 186, that expanded the definition of “joint employer” under the NLRA. This decision held that “indirect” or “potential” control over employees’ working conditions is sufficient for finding a joint employment relationship.

However, in December 2017, the NLRB briefly overturn the Browning-Ferris joint employer standard, only to reinstate the standard once more when a conflict-of-interest controversy was revealed involving one of the NLRB members in February 2018. Months later, in April, the D.C. Circuit decided to reinstate the appeal of Browning-Ferris and restore the case to the docket.

This new House bill, if it passes, will effectively render the Browning-Ferris standard null and void. Representatives sponsoring the bill have stated, “The Trademark Licensing Protection Act will provide our nation’s small and franchise businesses the certainty necessary to grow and invest in the future of their employees.”

If you own a franchise or are interested in learning how to franchise your business, don’t hesitate to contact Stark & Stark’s experienced Franchise practice today.

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Government Owned Trademarks: Give me Liberty or Give Me …a License?

In recent years, various government branches and departments across the country who are responsible for policing the government’s own trademarks have been sending cease-and-desist letters and filing suit against local businesses that are using trademarks likely to either cause confusion as to the government’s sponsorship of or affiliation with the companies or dilute the famous qualities of the government’s distinctive marks.

The most recent lawsuit concerns Virginia’s recognizable “Virginia Is For Lovers” slogan. In June 2018, The Virginia Tourism Corporation (“VTC”) filed suit against Recovered Gold LLC, an online gun parts dealer, arguing that consumers would likely confuse the parts dealer’s trademark, which includes the phrase “Virginia is For Gun Lovers,” with the state’s longtime “Virginia Is For Lovers” catchphrase.

VTC voiced concern that consumers would misconstrue that the retailer was affiliated with the state when no such connection exists. VTC has obtained multiple registrations over the years for “Virginia is for Lovers” with the Patent and Trademark Office (“PTO”) for use in clothing, accessories, and license plate holders to promote travel and tourism in the U.S. In its lawsuit, VTC alleged that it spent considerable time and money in developing and promoting its trademark, which was first used in 1969 and later earned a spot on the Madison Avenue Advertising Walk of Fame in 2009. VTC also alleged that the likelihood of confusion between the two marks was especially high because VTC previously granted third-party requests to use the slogan in connection with third party products and services. VTC sought a permanent injunction barring Recovered Gold’s use of the mark as well as attorney’s fees, disgorgement of profits, and punitive and statutory damages up to $1,000 per day for each day Recovered Gold continues to use “Virginia is for Gun Lovers” without VTC’s intent. Defendant Recovered Gold has not yet answered the complaint.

Moving along to the Garden State, in 2016 a small New Jersey winery, Old York Cellars, filed suit in New Jersey state court seeking a declaratory judgment confirming that the winery’s “What Exit Wine” brand of wines was not infringing upon New Jersey Turnpike Authority’s (“NJTA”) trademark, the logo for the Garden State Parkway.

Both marks feature a green and yellow color scheme with an outline of the state of New Jersey. The wine company’s logo, “What Exit Wines,” had already been modified once at the request of the Authority, but NJTA was unsatisfied with the changes and threatened legal action against the wine company. Old York Cellar’s owner expressed disapproval of the government’s interference and competition with its taxpaying small businesses.

Old York Cellar’s complaint against NJTA alleged that the New Jersey Turnpike Act, which limits the Agency’s authority, prohibited activity that was not “directly or indirectly related to the use of a transportation project,” and thus argued that the agency could not use and license intellectual property. The wine company also pointed out that the green and yellow color scheme was found on countless highway signs throughout the country and further asserted that there is no likelihood of confusion caused by the company’s mark because “nobody expects to buy wine at the Driscoll Bridge Toll Plaza and there are no EZ Pass lanes at Old York Cellars–” in other words the goods and services in question are sufficiently distinct to preclude confusion. The NJTA counterclaimed against Old York Cellar seeking a declaration that the winery’s use of its “What Exit Wine” logo and wine labels constituted trademark infringement.

Coincidentally, around this same time, the NJTA was battling with the owners of Jersey Boardwalk Pizza, a pizza and sandwich shop in Florida, that was using a logo and mark that NJTA contended infringed on the Garden State Parkway logo:

The matter was before the Trademark Trial and Appeal Board (TTAB) on NJTA’s opposition proceeding challenging the pizza shop’s trademark registration application of its Boardwalk Pizza mark. After years of litigation, the TTAB rejected NJTA’s challenge finding that the proposed mark was not confusingly similar to the Garden State Parkway mark because, despite the competing marks containing similar stylistic elements, NJTA did not have common law rights in its mark as to restaurant services, the overall connotation of the marks was different (pizza v highway), and the goods and services provided by the pizza shop owners was markedly different than those provided by the NJTA. In concluding that confusion as to source was unlikely, the TTAB found the lack of relatedness of the restaurant services with which the proposed mark is used to NJTA’s traffic control and highway operation goods and services to be dispositive, regardless of some degree of strength of NJTA’s mark, some overlap in the trade channels, and the similarity of the actual marks. NJTA’s opposition was, therefore, dismissed.

Following the opposition dismissal, the NJTA settled with Old York Cellars under terms and conditions that are subject to a confidential settlement agreement.

Across the Hudson River, last summer the City of New York filed suit against Blue Rage Inc. d/b/a Chop Shop, a company that prides itself on being “Long Island’s largest police and fire equipment store.” The complaint alleged violations of the Trademark Act of 1946 (The Lanham Act) through Chop Shop’s use of NYPD and FDNY logos on souvenir merchandise, which the City alleged amounted to counterfeiting. The City pleaded with particularly emotional language given that one of the trademarks in question had been used since the September 11, 2001 attacks to honor FDNY personnel who risked their lives trying to save others. The case is still pending, with a recent decision in June 2018 made by Magistrate Judge Shields in the Eastern District of New York ordering the City need not disclose the profits it makes on its merchandise or its contributions to non-profit organizations.

Next, the municipal government for the city of Portland, Oregon recently settled a dispute with a local brewery over trademark rights to the famous “White Stag sign.”

The sign that the city owns consists of a white reindeer above the words “Portland Oregon” contained inside a border outline of the state of Oregon and hangs prominently in the state’s largest city. In 2015, the city sought to register an image of the sign to use as a trademark on a variety of goods, but the Patent and Trademark Office (“PTO”) refused registration of the mark for beer products because Old Town Brewing obtained registration for a “leaping stag” back in 2012 that takes up a considerable portion of the city’s famous sign. Many residents of Portland viewed it as an attack on small business, given that every time the city tried to apply for use in beer, Old Town brewing expended a lot of money in legal fees to urge the PTO to reject each application. Many local drinkers and fellow small and independent breweries showed their support for Old Town Brewing during the several trademark disputes in the form of letters and social media posts. Finally, Old Town Brewing and the mayor of Portland in January 2018 reached a compromise. The city would remove beer, wine, and liquor from its pending trademark applications if the brewery notified the PTO that it consented to the city’s registration for any purpose outside the field of alcohol beverages.

Saving the biggest state for last, owners of the longtime local eatery El Fenix unveiled a new mural on the restaurant building’s exterior which reads “Don’t Mess with Tex-Mex,” a term used to describe cuisine that features tastes and flavors originally characteristic of the border regions of Texas and Mexico.

The Texas Department of Transportation (“TxDOT”), owner of the infamous “Don’t Mess with Texas” slogan originally coined as part of an anti-litter campaign, argued that the mural dilutes the value of their trademark.

The restaurant previously requested a license to use the phrase as part of its “Don’t Mess with Tex-Mex” slogan, but the TxDOT denied the request as well as the restaurant’s offer of free food and drinks. El-Fenix maintains that the mural is not likely to cause confusion over a possible affiliation with an anti-littering campaign. The parties, however, have yet to initiate any legal action, so perhaps some sort of licensing agreement or compromise may be reached in the near future.

The important takeaway for trademark applicants to heed from these recent disputes is not only should applicants search the PTO database thoroughly to ensure their applied-for marks do not infringe on another private competitor, but they must also take into consideration whether any government entity could contest the mark for its likelihood to create confusion or dilute the public entity’s well-recognized and/or registered trademark, especially where the governments marks serve as inspiration for the applied for mark.

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No Meeting of the Minds Where Arbitration Clause Did Not Specify Arbitration Forum or Process

Flanzman v. Jenny Craig, Inc., ___ N.J. Super. ___ (App. Div. 2018).  This opinion by Judge Fasciale today is yet another case arising out of an arbitration clause.  Plaintiff, having been terminated from her employment by defendant, filed an age discrimination complaint under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq.  Defendant filed […]

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David Porter is Confirmed to a Third Circuit Seat

In April, this blog reported on the nomination of David Porter to the Third Circuit Court of Appeals.  Despite the opposition of one of his home state Senators, Robert Casey, the Senate confirmed Judge Porter, among a group of fifteen judges who cleared the Senate last week.  The vote on him was 50-45.  He joins […]

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You Know Why You Should Settle Your Retirement Alimony Case – Now What?

Last week, I blogged about whether you should settle your retirement alimony case and the ingredients that might go into that decision. To be honest, this “why you should or should not settle” question is only the beginning of what you might be facing when you decide it is time to retire and terminate your alimony obligations. There is, of course, also the “where/when/how” of all of it. And that’s quite a nebulous concept if you’re only now beginning to think about your “whys” and whether or not you should even broach the topic. Below, I’ll give you a run-down of the possible scenarios that will at least address the “wheres” and “whens” of your journey.

In my experience, there are several possible ways in which alimony cases resolve: (1) Immediate settlement; (2) settlement following a motion; and (3) a full Court hearing wherein a judge makes a decision as to your continued alimony obligation. Examining each scenario will allow you to put the concept of “settlement” into the context of your particular situation.

(1)         Immediate Settlement: This is the path of least conflict and resistance if your spouse accepts your offer with an eye toward a termination of support. This will, more often than not, begin with a “feeler” letter to your former spouse. The letter may indicate that you are retiring, the date of your proposed retirement, provide some detail as to your financial circumstances, and ask if a termination of alimony would even be considered. Sometimes, the former spouses may negotiate directly with one another, with guidance from an experienced matrimonial attorney throughout.

If successful, this is the most cost-effective and low conflict resolution. The specifics of any settlement would be memorialized in an Agreement and simply filed with the Court, at which point, it would become an enforceable document.

But don’t be mistaken. This path is not for everyone. If you went through a very high conflict divorce, or know you’re dealing with an unreasonable ex-spouse, you may want to skip this step entirely. In the alternative, you may write a letter and the concept of termination may be rejected immediately.

If settlement at this early stage is not successful for whatever reason, you may decide to pursue litigation. That would bring us to scenarios 2 & 3, described below.

(2)         Filing a Motion: To provide some background, when someone paying alimony experiences a change in circumstances (including retirement, other reduction in income, or they believe their spouse is cohabiting etc.), you file what is known as a “Motion”, which is a formal application to the Court. You would be required to submit your current Case Information Statement, Case Information Statement from the time of your divorce, tax returns and a narrative of events leading up to your motion and describing your circumstances along with the motion.

You further file a legal brief describing the case law, including Lepis v. Lepis, which is the seminal support modification case in the state of New Jersey. Under Lepis, an alimony payor is required to file a Motion and establish what is known as a prima facie change in circumstances. A prima facie showing is simply an initial showing (on its face) that demonstrates that circumstances have permanently and significantly changed such that alimony may ultimately be modified.

Several weeks later, you would proceed to Court. This is a formal court proceeding, with oral argument from counsel, but not testimony of the parties, no formal introduction of evidence, etc. In other words, it is not at the point where the Court would conduct a full trial yet based on what has been submitted.

The Court would then review everything and determine if you meet the burden of a prima facie showing. The Court will then move you past what we call “Lepis 1”, or the initial prima facie showing, and enter an order as to whether you should move to a “Lepis 2” analysis – i.e. whether the change is substantial, continuing and permanent. As part of this analysis, the Court may also consider whether there is sufficient reason to award counsel fees to either party in connection with the motion. Because a supported spouse’s financial circumstances may be more precarious than yours, the Court may be inclined to grant counsel fees to equalize the playing field or to provide her an advance for litigation.

During the discovery phase, you are permitted to do a full examination of the other party’s finances to try and substantiate your claim. This includes written discovery, depositions, subpoenas, etc.

Typically following or during discovery and related proceedings the matter may settle. The parties have exchanged the majority of their discovery and the payee spouse, at some point, realizes alimony will end and that some concessions will need to be made. At that point, the parties will come to the table, make a settlement offer which is negotiated or reach a resolution through mediation (sometimes the Court will order the parties to go to mediation).

(3)         Court Hearing:  The matter can sometimes move toward a more contentious conclusion via a court hearing. In that regard, if all possibilities for settlement are expended and the parties have passed the discovery phase, the matter proceeds to a hearing, and the Court will hear testimony, consider evidence and make a determination based on everything before it. It is akin to a trial.

Keep in mind that neither party is obligated to agree to an out of court settlement. But as you can see, settlement at the early stages of the games provides finality without having to subject yourself to the time and effort of full-blown litigation. You also would avoid the counsel fees that go in to the discovery and litigation phases. Of course, having counsel on your side with experience in retirement alimony case will help you reach a conclusion on your terms.

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Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com

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Pumpkin Spice Latte’s and Time to Think About Holiday Parenting Time

It’s hard to believe that summer is over and I’m already following behind school buses on my way to work. Believe it or not, while fall has barely started, and it’s still almost 80 degrees outside, winter and the holidays are just around the corner. If you don’t believe me, just walk into your local CVS and see all the holiday displays!

Fall also means one other thing: now is the time to start thinking about holiday parenting time and making sure that you and your ex are “good” on the schedule. Most divorced or separated parents do not realize how much lead time is necessary to have a dispute decided by a judge in the event a resolution is not reached between the parents or caregivers. That’s why it’s time to start thinking about these issues now rather than waiting until the end of November, right before Thanksgiving.

This is particularly so in the event holiday travel is involved, and air or train tickets have to be purchased. More importantly, who wants to go into the winter holidays with the anxiety of fighting with an ex over what should be a happy and stress free time for the kids?

Chances are, you have a holiday schedule as part of your divorce settlement agreement, or custody agreement. Take it out of the drawer, check to see what it says for this year, and determine whether there are any issues that might have to be addressed.

When there is a dispute over holiday parenting time that cannot be worked out between parents, you need to get your case in front of the judge by mid-December. Practically, this is the latest time you want to have a dispute resolved, and in order to do so, papers have to be filed by the beginning to mid-November. This is because typically, courts can get backed up this time of year, and although the court rules call for a shorter time period, oftentimes cases get adjourned or delayed. Additionally, people need to be mindful that one of the attorneys may have matters in other courts which can cause delays.

Many custody agreements provide some type of provision stating that parties have to attend mediation or engage in some type of dispute resolution prior to even being allowed to file an application to the court. Moreover, all judges want to know that the parents have tried to work problems out between themselves before rushing to the courthouse. This also takes time if you are dependent on a mediator’s schedule.

That’s why it’s so important to look at your calendars and any agreements that you have between yourself in the other party. Make sure that there are no ambiguities. Send a letter or email with your proposed holiday parenting time for the holiday time. Give your ex a reasonable opportunity to respond and attempt to work out a resolution. If you are unable to do so, that’s the time to call you lawyer and talk about whether it is appropriate to make an application to the court.

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