A Qualified Immunity Case and a Tort Claims Act/Legal Malpractice Case for the Supreme Court

Add two more cases to the Supreme Court’s docket.  One of them is before the Court as of right, by virtue of a dissent in the Appellate Division.  In the other appeal, the Court granted certification. The first case is Baskin v. Martinez, a Civil Rights Act matter.  The question presented there, as phrased by […]

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Conflict Resolved: The Supreme Court Applies the Unemployment Compensation Law in Favor of Benefit Claimants

McClain v. Board of Review, ___ N.J. ___ (2019).  This appeal actually involved two consolidated cases, each of which was the subject of a published opinion in the Appellate Division.  McClain v. Board of Review, 451 N.J. Super. 461 (App. Div. 2017) (discussed here); Blake v. Board of Review, 452 N.J. Super. 7 (App. Div. […]

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Appellate Courts Can Decline to Review Arguments Made Below as to Other Issues, But Not as to the Issue Actually on Appeal

Chirino v. Proud 2 Haul, Inc., ___ N.J. Super. ___ (App. Div. 2017), aff’d o.b., __ N.J. __ (2019).  There is a long-settled general rule that an appellate court will not consider issues that have not been raised below.  But what if an argument was not raised below as to the issue on appeal, but […]

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No Surprise: The U.S. Supreme Court Says “Ambiguous” Arbitration Agreements Do Not Permit Class Arbitration

Lamps Plus, Inc. v. Varela, ___ U.S. ___  (2019).  In Stolt-Nielsen, S.A. v. AnimalFeedsInt’l Corp., 559 U.S. 662 (2010), the Supreme Court of the United States, by a 5-3 vote, held that an agreement that is “silent” as to whether the parties intend to permit class arbitration cannot support a demand for class arbitration.  Today, […]

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What Should I Do First When I Want a Divorce? #AskingforaFriend

The “D” word is a scary one. However, when considering the idea of a divorce, whether you are unhappy in your marriage, or your spouse has informed you that he or she is, ignoring the urge to hide under the covers is a really, really bad idea. Knowledge is the fuel you need to power through this process—from the “I am thinking about it” stage to the “OMG I was just served divorce papers” stage.

The first thing that needs to be attended to is compiling the information that your attorney is going to need in order to represent your interests. This information will include (but depending on any individual case, not be limited to) the following:

1. Bank Account Balances
2. Investment Account Balances
3. Inventory of any stocks, bonds, mutual funds
4. Value of any personal property
5. Value of any real property that is owned, including vacation property
6. Balance of any mortgages or home equity loans
7. Values of any vehicles, boats, etc.
8. Balances of any loans against any vehicles, boats, etc.
9. Balances of any credit cards and any other debts
10. Retirement account information
11. Monthly expenses, which includes shelter and transportation costs as well as monthly personal expenses for the family.
12. If either party owns a business, your lawyer will ask you for information about the business to assist in determining its value
13. Information about each party’s earning history and capacity

If you are in the “just thinking about it” stage, you should speak to an attorney. The laws involving divorce are complex, and it is important to understand how your actions could affect your future rights. You need to understand this ahead of time, and take steps to protect your assets. Also, do not move out of the house without first talking to a lawyer, particularly if you have any children. The process of a divorce can take a long time, and being out of the house may affect your rights.

When children are involved, there are parenting time and custody issues that have to be considered. New Jersey law has some presumptions about custody of children and it is important for parents to have information before making any decisions, or giving any commitments to the other parent.

The legal process of getting divorced can seem overwhelming to many. There are many court forms that have to be completed, there are court appearances, and there is a specific process in order to ask a judge to do something in your case. Having an understanding of this will make all the difference.

There is more than one way to get to the finish line, and the courts have methods of alternative dispute resolution available, including mediation, arbitration, and collaborative law. Getting information about these is important so you know all the tools you have to make the process the least painful for your family.

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Two Cases About Access to Swimming

Susko v. Borough of Belmar, ___ N.J. Super. ___ (App. Div. 2019); Curto v. A Country Place Condominium Association, ___ F.3d ___ (3d Cir. 2019).  Yesterday, while I was in or traveling to and from court for most of the day, the Appellate Division and the Third Circuit, no doubt coincidentally, each decided cases involving […]

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New Jersey or Pennsylvania Child Support: Which Law Applies?

In the recently decided case of Flynn v. Flynn, a New Jersey appeals court was faced with whether to apply New Jersey or Pennsylvania child support law regarding a parent’s obligation to an eighteen-year-old full-time college student. Although Flynn was fact-specific due to the parties’ prior legal entanglements, the decision explores the substantial differences between Pennsylvania and New Jersey with respect to child support.

Broadly stated, under Pennsylvania law a parent’s obligation to pay child support terminates when the child graduates from high school or reaches eighteen, whichever last occurs. Although New Jersey law contains a presumption of a child’s emancipation akin to Pennsylvania law, no automatic termination date exists.

In fact, if the child is a full time college student, he or she remains legally unemancipated until college graduation. It was on this distinction that Flynn rested since while child support had been initially determined in connection with the parties’ divorce in Pennsylvania, both parties and the child subsequently moved to New Jersey which registered their divorce decree as agreed.

Years later, the issue arose as to whether or not child support would continue while the parties’ son was attending college on a full time basis under New Jersey law or fully terminate under Pennsylvania law. Since New Jersey law also holds that divorced parents are responsible for their children’s college education expenses (in addition to child support payable by the non-custodial parent to the custodial parent), the stakes were high in terms of which law to apply.

Initially, the trial judge determined that child support should continue, in accordance with New Jersey law, a ruling which was promptly appealed. In a well-reasoned decision, the appellate court reversed and held that since child support had originally been determined in Pennsylvania, New Jersey law did not apply.

The case contains an intriguing question evolving from the fact that the parties had already participated in a number of child support hearings in New Jersey Since it had not been raised on appeal, the appellate court sidestepped the issue of whether they were thus bound by New Jersey law and elected to base their decision on the duration, not the amount, of child support.

Since no two cases are alike, any such matter would warrant analysis by a skilled family law attorney before proceeding.

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The Next Third Circuit Bench-Bar Judicial Conference is Planned for Philadelphia in Spring 2020

It has been announced that the Third Circuit is planning its next Bench-Bar Judicial Conference for a still-to-be-decided date in the spring of 2020.  The Conference will take place in Philadelphia. In recent years, the Bench-Bar Judicial Conference occurred every other year.  Previously, however, that Conference occurred every third year.  At least for now, the […]

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Involuntary Commitments Orders Don’t Become Moot Merely Because Confinement Has Ended

In re Civil Commitment of C.M., ___ N.J. Super. ___ (App. Div. 2019).  The doctrine of mootness enables courts to avoid disputes that are not “live.”  Today’s opinion by Judge Fisher, in the context of three appeals that pose the same issue involving persons who were involuntarily committed, rightly concluded that those persons, the appellants […]

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Insubstantial Constitutional Issues Don’t Afford an Appeal to the Supreme Court as of Right

On this date in 1965, the Supreme Court decided Tidewater Oil Co. v. Mayor & Council of Borough of Carteret, 44 N.J. 338 (1965), a municipal land use case.  That is still the leading case on the question of the extent to which a question of constitutional law allows a party to pursue an appeal […]

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Where Sample Primary Election Ballots Are Required to be Printed in English and Spanish, Official Primary Ballots Must Also Be

Correa v. Grossi, ___ N.J. Super. ___ (App. Div. 2019).  Multiple pieces of related legislation can be inconsistent, and courts are called on to harmonize them using classic principles of statutory interpretation.  Today’s opinion by Judge Reisner applied de novo review to the purely legal issues involved and reached a commonsense result in reconciling facially […]

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Who Has the Burden of Proving the Premarital Value of a Business?

We often deal with cases in which one or both spouses own a business.  In many of those cases, a spouse received their interest in a business prior to the marriage, either from a family member, or otherwise.  With regard to premarital assets and/or any other assets that a party claims is exempt, that party must prove that the asset is truly exempt.  The inquiry doesn’t end there.  If the asset is an active asset, like a business, the other party may share in the increase in value of the business during the marriage.  Typically, the non-titled spouse will share in the increase in value if they can show that they contributed to the increase by make financial or non-financial contributions.

An interesting question that is not often discussed is who bears the burden of establishing what the premarital value actually was.  That question was recently addressed in Fox v. Fox, an unreported (non-precedential) Appellate Division decision released on April 9, 2019.  In Fox, the Appellate Division determined that in that case, the burden was on the business owner to establish the pre-marital value.  Specifically, the Appellate Division stated:

… Sculler explains that the non-owner spouse must show that “there has been an increase in value of the asset during the term of the marriage.” 348 N.J. Super. at 381. Naturally, to establish an asset’s appreciation, its value must be established at both the beginning and the end of the valuation period. Sculler can be read to suggest it was Catherine’s burden to prove EBN’s value in 2004.

We do not think such a rule makes sense in this case. General principles suggest that courts must consider the parties’ “comparative interests” and “relative litigational strengths,” their “access . . . to proof[s],” and the “objectives to be served by the evidence,” when assigning the burden of proof. Romano v. Kimmelman, 96 N.J. 66, 89 (1984). Here, Edward contends EBN had value before marriage. In other words, he asserts part of the asset is immune from equitable distribution. Because the burden to establish an asset’s immunity “rest[s] upon the spouse who asserts it,” Painter, 65 N.J. at 214, we hold that Edward must prove that EBN had value in 2004. As it may have been unclear that he had that burden, it is fair to remand to give him an opportunity to present proof as to EBN’s pre-marital value.

While it is interesting that the Court stated that this should be the process “in this case”, the rationale provided suggested that this should be the rule in every case.  When would the non-titled spouse have better “access …. to proofs” than the owner of the business?  As to the objectives served by the evidence, when would the non-titled spouse’s objective be to show a premarital value.  Put another way, despite the holding in the Sculler case that was discussed in the opinion, it seems that if this logical rationale was to be followed, in most of not all cases where a party is claiming the exemption of the premarital value, it will be their burden to establish the value.

There were a few other interesting points that one can take away from this case.  First, the court reminded us about what non-financial contributions may look like when it stated:

The non-owner spouse can contribute to an asset’s appreciation in a number of ways. For instance, a non-owner spouse can provide the necessary support that allows his or her partner to devote time and energy to a business. Id. at 339 (concluding that a spouse who “took care of the home, worked part – time and raised [their son]” contributed to an asset’s appreciation).

Second, just because a business is not profitable, does not mean that it has no value.  The Court stated, “An unprofitable business may still have a positive fair market value.  For instance, a business can have valuable tangible assets or inventory, as well as intangible assets, such as goodwill and customer lists.”

Third, despite the often espoused notion that businesses are never divided 50-50, in this case, the increase in value of the business was, in fact, equally divided and that decision was affirmed by the Appellate Division.

Fourth, in this case, the husband argued that the value as of the date of separation should have been used as opposed to the value as of the date of Complaint which is the norm.  That notion was roundly rejected by the trial court and the Appellate Division, who noted that argument is just inconsistent with the law.  Rather, the court reminded us again of the exceptions to using date of complaint as the cut-off date when it held:

The Court recognized two exceptions to the Painter rule: first, where the couple physically separated and entered into a written separation agreement, the agreement date governs; second, where the couple separated and actually divided their assets pursuant to an oral agreement, “assets acquired afterwards are not eligible for equitable distribution.”

For the reasons stated above, the Fox case provides many useful reminders regarding the valuation, burden of proof and division of active assets.  It also provides the opportunity to remind people that if they want to immunize a premarital business, they should give serious consideration to entering into a prenuptial agreement.

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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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Moving Child Support from Place to Place

I have previously written about the custody and parenting time issues that may be presented when a child is moved from state to state within the country.  But what of child support?

In an interesting recent unpublished decision, Flynn v. Flynn, the New Jersey Appellate Division examined the question: in a case where multiple child support orders have been entered in multiple states, which state has jurisdiction over the issue, and which state’s law controls?

The Uniform Interstate Family Support Act (UIFSA)

Because the issue of modification and enforcement of child support requires a level of uniformity and coordination among the fifty states, there is a Uniform act which different states – including New Jersey – have adopted with slightly different modifications or additions depending on the policies of each state.  The purpose of UIFSA is to resolve questions about which state has jurisdiction in the event multiple child support orders are entered over the course of a child’s life in different states, and provides the courts with guidance on which law to apply.

Jurisdiction Over Child Support Matters

Under New Jersey’s version of UIFSA (N.J.S.A. 2A:4-30), where there are two or more child support orders that have been issued by tribunals in this state OR another state regarding the same obligor and child(ren), and New Jersey has personal jurisdiction over both the obligor and obligee, then the controlling child support order is the one that is issued by the current home state of the child.  For example, in Flynn, the parties were divorced in Pennsylvania.  After the divorce, both of them – together with the children – moved to New Jersey.  New Jersey, then, became the state with jurisdiction to modify and then to enforce the child support obligation.

But Which State’s Law Applies?

Just because a State is conferred jurisdiction (which is merely the authority or power to make a decision about the parties and the issues between them) does not mean that State’s law is the one that applies.  Indeed, New Jersey’s UIFSA statute makes clear that even if it has jurisdiction to modify or enforce a child support order, its courts cannot makes modifications which substantively depart from the laws of the state that issued the Order:

[The] law of the issuing State or foreign country governs:  the nature, extent, amount and duration of current payments under a registered support order.

N.J.S.A. 2A:4-30.171(a)(1).

And:

A tribunal of this State may not modify any aspect of a child support order that may not be modified under the law of the issuing state, including the duration of the obligation of support.

N.J.S.A. 2A:4-30.178(c)

Importantly, the “issuing state” may not be state that ORIGINALLY entered a child support order.  We’ll get to that next.  The “issuing state” is the state that issued the controlling child support.  So, in Flynn, New Jersey was the issuing state.  New Jersey had entered multiple orders over the years regarding child support and had jurisdiction over the issue.  Therefore, New Jersey law applied.

EXCEPT with respect to one very important issue which was the crux of the Flynn case:  duration of the child support obligation.  On this particular issue, New Jersey law says that the law of the state that entered the first child support order must control:

In a proceeding to modify a child support order, the law of the state that is determined to have issued the initial controlling order governs the duration of the obligation of support.  The obligors’ fulfillment of the duty of support established by that order precludes imposition of a further obligation of support by a tribunal of this State.

N.J.S.A. 2A:4-30.178(d) (emphasis added).

In Flynn, the Father sought to apply the law of Pennsylvania to the question of whether his child support obligation should be terminated, or whether he had an obligation to continue to pay child support for his son while in college.  Under Pennsylvania law, his obligation would not have continued; but under New Jersey law, which requires parents to continue to provide support for children while they are in college, he would have been required to continue to pay.  The Court applied Pennsylvania law and terminated his obligation.

And this makes sense.  When parties negotiate the various financial aspects of their agreement – or when the Court decides these issues if a trial takes place – the terms may be dictated in part by how long the support will be paid.  If all the other pieces of the puzzle were based upon this question, then it would be unfair to blindside an obligor by building in additional time to make payment when that was not contemplated at the time the original child support was entered.

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Jessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

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Judge Nugent Reminds Us That Rule 4:23-5’s Requirements Must be “Scrupulously Followed and Technically Complied With”

Salazar v. MKGC + Design, ___ N.J. Super. ___ (App. Div. 2019).  In Thabo v. Z Transp., 452 N.J. Super. 359 (App. Div. 2017), discussed here, the Appellate Division made clear that before a complaint can be dismissed with prejudice for failure to make discovery, the defendant who seeks dismissal must strictly comply with all […]

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Two More for the Supreme Court

The Supreme Court announced that it has granted certification in two more cases.  In the first matter, State v. Medina, the question presented, as phrased by the Supreme Court Clerk’s office, is “Under the circumstances presented, did testimony elicited by the State concerning an anonymous female who spoke to police at the scene violate State […]

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Employers: Think Twice Before Retaliating Against Employees for Medical Marijuana Use

Although New Jersey lawmakers cancelled a vote on an adult-use recreational cannabis bill recently, medical cannabis use gained some support following a ruling from the Appellate Division of the Superior Court of New Jersey that an employer’s failure to accommodate medical marijuana use by an employee constituted a valid basis for an employment discrimination claim.

Plaintiff alleged the following in his legal complaint against his employer: he began working with Carriage Funeral Holdings in 2013 as a licensed funeral director. The job required him to direct funerals, engage in visitations, perform the embalming process, “cosmetize” the diseased, prepare death certifications, conduct religious services at gravesites, and drive the funeral home’s hearse and other vehicles. In 2015, he was diagnosed with cancer and prescribed medical marijuana as part of his treatment pursuant to the New Jersey Compassionate Use Medical Marijuana Act, N.J.S.A. 24:6I-1 to -16.

While driving a funeral vehicle at work one day, plaintiff was struck by a car that ran a red light and transported to the emergency room. He informed his treating physician that he had a license to possess medical marijuana, and the physician found it clear that plaintiff was not under the influence of marijuana, so no blood test was required. Because the accident was considered work-related, his medical marijuana use was disclosed to his employer.

The funeral home insisted that plaintiff could not return to work without submitting to a blood test. Plaintiff went to an urgent care to receive such a test, but the physician said that testing would be illegal and yield positive results due to how long marijuana stays in one’s system in addition to the pain killers plaintiff had taken after the accident. He underwent a urine/breathalyzer test instead, the results of which were never released to him.

In the following weeks, plaintiff was told that “corporate” was unable to “handle” his marijuana use and that he was being terminated due to the test’s “detection of drugs in his system.” Later, “corporate” advised plaintiff in a letter that he was terminated not due to his drug use, but because he failed to disclose his medication use, which could adversely affect his ability to perform his job duties.

Carriage referenced a workplace policy that required an employee to advise his immediate supervisor if he was taking any medication that may adversely affect his ability to safely perform his assigned duties. Plaintiff’s mother also received a telephone call stating that she heard plaintiff was fired for being “a drug addict.” Plaintiff’s mother then called Carriage and was relayed the same message about her son being a drug addict.

Plaintiff then filed this lawsuit, alleging violations of the Law Against Discrimination (“LAD”) for disability discrimination, failure to accommodate, perceived disability discrimination, aiding and abetting on the part of Carriage employees, defamation, and intentional interference with a prospective economic gain. During trial court proceedings, plaintiff claimed Carriage could not lawfully terminate his employment without violating the LAD because he had a disability and was legally treating that disability in compliance with his physician’s orders and the Compassionate Use Act.

But the trial court judge dismissed plaintiff’s legal complaint, acknowledging that while the Legislature declared that an authorized medical-marijuana user could not be criminally prosecuted, it also stated that nothing in the Compassionate Use Act required accommodations for medical marijuana users. Therefore, the trial court judge held that a LAD claim could not go forward.

Giving the plaintiff every reasonable inference of fact alleged in his legal complaint, the Appellate Division noted that the Compassionate Use Act was enacted to decriminalize the use of medical marijuana in light of modern medical research findings. The court acknowledged that the Act did not mention anything that would require an employer to accommodate the medical use of marijuana in any workplace.

Yet the plaintiff alleged a disability that qualified his use of medical marijuana, and the Law Against Discrimination clearly made it unlawful to discharge or discriminate against an individual in terms, conditions, or privileges of employment based on that individual’s disability unless the nature and extent of the disability reasonably prevented him from performing his job duties.

Just because the Compassionate Use Act did not require accommodations for medical marijuana users did not mean that other legislation could not impose such a requirement. That provision did not create or destroy rights and obligations, and therefore, did not immunize employers from obligations already imposed elsewhere like in the Law Against Discrimination. “It would be ironic indeed if the Compassion Use Act . . . permit[ted] . . . discriminating without compassion.”

After resolving the relationship between the Compassionate Use Act and the Law Against Discrimination, the court then looked to see if plaintiff met the preliminary requirements to make a case for disability or perceived disability discrimination under the LAD. This meant that the plaintiff had to allege that (1) he had a disability or Carriage perceived that he was disabled; (2) he remained qualified to perform the essential functions of the job and was performing at a level that met Carriage’s expectations; (3) he was subject to an adverse employment action because of the disability or perceived disability and (4) Carriage thereafter sought a similarly qualified individual.

The Appellate Division found that plaintiff successfully pled all of these elements. The court also noted that plaintiff was not seeking an accommodation for his use of medical marijuana in the workplace; he alleged that he would only use it “offsite” or during “off-work hours.”

The case’s decision joined others from courts in Connecticut and Arizona who have ruled similarly in favor of employees in employment disputes over medical marijuana. But there have been cases in New Jersey as well with unfavorable rulings for medical marijuana users and employees. One decision held that an employer was not required to accommodate a forklift operators’ medical marijuana use and waive a positive drug test result, notwithstanding a doctor’s note from the employee’s physician allowing for the operation of machinery while using the medical marijuana prescription.

And another case in New Jersey dismissed a wrongful termination suit filed by an accountant who failed a drug test because he used medical marijuana for chronic back pain. In that case the court found that the employee’s notice to his employer that he was in the medical marijuana program did not constitute a proper request for accommodation of a disability.

Notably, this case does stand for the notion that additional protections are being afforded to medicinal marijuana patients, and if the vote on recreational marijuana happens anytime soon, questions for employers with respect to employee marijuana use will only continue to surface.

Employers who seek to terminate or take other adverse action against employees due to drug test results consistent with medical marijuana use should consider the legal ramifications of doing so following this case’s outcome.

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Another Due Process Ruling for Domestic Violence Defendants

A few months ago, I blogged about due process for defendants in domestic violence actions.  We now have another unpublished decision on this topic but with a different due process violation.  In the matter of S.C. v. Z.B., the parties had cross-temporary restraining orders (“TRO”) against each other stemming from the same incident involving an argument and broken plate.

In the TRO procured by S.C./husband, he alleged the predicate act of criminal mischief based on his allegation that Z.B./wife broke the plate during an argument in front of S.C. and their children.  Z.B. later procured a TRO against S.C. for the same incident alleging the predicate acts of criminal mischief and harassment based on her allegation that S.C. shoved her, grabbed the plate from her and broke the plate on the floor.  Each party alleged prior acts of domestic violence against the other.  After a lengthy five-day trial, the trial court entered an FRO against Z.B., based in large part on credibility findings, and denied Z.B.’s request for a final restraining order (“FRO”) against S.C. based on the same findings.  However, and what matters here, is the trial court’s finding that S.C. did not prove the underlying act of criminal mischief.  Rather, the trial court sua sponte (on its own) entered the FRO against Z.B. based upon harassment even though harassment was not alleged in S.C.’s TRO.  Therein lies the due process violation.

The issue here is this: The TRO serves as the complaint placing defendant on notice of the allegations for which he/she has the right to defend against.  This includes underlying acts, facts of the incident and prior domestic violence history.  The trial court is limited to the four corners of the TRO at the FRO trial.  Given that the harassment box was not checked off on S.C.’s TRO, Z.B. was not on notice to prepare a defense against harassment.  In practice, plaintiff’s in domestic violence matters often amend their TRO after the initial entry for a myriad of reasons, including to add other underlying acts, specify the facts of the underlying incident, adding to the history of domestic violence listed, etc.  Keep in mind that a party procuring a TRO is often in a frenzy having just experienced the allegations and called the police.  Also, the TRO is generally obtained without counsel.  Thus, it makes sense that the initial TRO would require amendments.  However, in order to assure due process to the defendant, the FRO hearing is adjourned following the TRO amendment so the defendant has an opportunity to prepare the appropriate defense.

This concept is codified in precedent setting case law as cited by the Appellate Division in S.C. v. Z.B., and is one that we often use in practice when representing either side on the domestic violence action.  As the plaintiff, you do not want to be in the position of S.C. and lose your FRO because you forgot to check a box or an adjournment was not granted when it should have been.  As the defendant, you need to ensure that you have appropriate notice of all allegations to prepare your case.

The takeaway here is simple but extremely important.  If you are the plaintiff, make sure your TRO is thorough and that you allege any relevant underlying acts based upon the facts of the incident.  If you did not have the opportunity to do so when you initially obtained the TRO, then have it amended.  Also, make sure that all of the relevant boxes representing the predicate acts are checked off (e.g. harassment, stalking, assault, battery, criminal mischief, etc.)   If you are the defendant, make sure you request an adjournment if needed to prepare your defense against the initial and future amended TRO.  Either party doing otherwise may be a fatal error as we see in S.C. v. Z.B.

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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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PTAB Brings Promise to Pot Patent Protection

The Patent Trial and Appeal Board (PTAB) issued an opinion earlier this year lending support to those interested in seeking patents related to cannabis. GW Pharmaceuticals, a U.K. company focused on therapeutic cannabinoids, walked away with a partial win concerning a patent that involved the use of cannabinoids to treat epilepsy.

This decision was part of an inter partes review (IPR), a PTAB trial proceeding where third parties can challenge the validity of claims of a patent that the U.S. Patent and Trademark Office has granted. Here, Insys Development Co., Inc. challenged U.S. Patent No. 9,066,920 (“the ‘920 Patent”) for use of one or a combination of phyto-cannabinoids in the treatment of epilepsy, which was originally assigned to GW Pharma and Otsuka Pharmaceuticals Co., Ltd.

GW Pharma previously made history when it became the first entity to receive FDA approval of Epidiolex, a drug for epilepsy containing CBD, an active ingredient derived from the cannabis plant. CBD is a nonpsychoactive cannabinoid that does not produce a “high,” which is caused by the THC cannabinoid.

CBD is being heavily studied and is showing great promise as a nutritional and wellness supplement; products infused with CBD are currently being used to treat the pain and symptoms resulting from a wide range of medical conditions, such as epilepsy, multiple sclerosis, and arthritis.

Generally, in order to obtain a patent for an invention, the applicant must make a sufficient showing that the invention is (1) of the type of subject matter eligible for protection, (2) novel in that at least some aspect of it must be new, and (3) non-obvious. In challenging GW Pharma’s patent, Insys attempted to demonstrate that the public knew about the claimed technology before GW Pharma filed for its patent, negating the novelty and/or non-obviousness of the invention and allowing for patent invalidation.

Insys sought to cancel all thirteen claims of the ‘920 Patent as obvious based on three different combinations of references, including scientific articles describing two studies from the 1980’s that examined the potential for CBD to treat epilepsy as well as one of GW Pharma’s own published Patent Cooperation Treaty applications. Independent claim 1 of the ‘920 Patent (which the other 12 claims derive from) reads:

A method of treating partial seizure detailing administering CBD to a patient wherein the CBD is present in an amount which provides a daily dose of at least 400 mg.”

Dependent claim 2 of the ‘920 Patent reads:

The method of claim 1, wherein CBD is present in an amount which provides a daily dose from 400 to 800 mg.

The first issue the PTAB considered was whether the term “partial seizure” needed to be construed. GW Pharma, however, did not dispute that the asserted references applied to the treatment of partial seizures, and therefore the PTAB did not find it necessary to construe the term in order to determine the patentability of the challenged claims.

The parties also argued over whether certain experts were qualified to opine on the patented technology. For the obviousness challenge, Insys argued that all claims were obvious because a person of ordinary skill in the art (“POSA”) would know that a claimed daily dosage of at least that amount in the ‘920 patent was predictably safe and expected. It supported this assertion through the scientific studies mentioned above.

This was not surprising, given that dosage ranges are often challenged and argued during prosecution of biotechnology and pharmaceutical patent applications. GW Pharma countered that at the time of the patent’s creation, CBD’s potential medical benefits made at best a “promising candidate for further study,” meaning a POSA would not expect CBD to treat partial seizures at all, let alone at a dose of 400 mg or higher.

After weighing these two arguments, the PTAB concluded that claim 1 (the broadest claim of the patent) and dependent claim 2 were obvious over two of the three asserted combinations of references and invalidated them. Both combinations relied on the same primary reference of clinical studies regarding CBD’s effect on epileptic patients, notwithstanding describing a lower dose than 400 mg, because a POSA would still believe that the amount of CBD could be safely increased to at least 400 mg, since at that time, people knew humans generally tolerated CBD without serious side effects for doses up to 600 mg.

In contrast, The PTAB ruled for GW Pharma on claims 3-13 because Insys failed to identify where most of the limitations on those claims were disclosed in the prior art and did not offer expert testimony on the issue. Therefore, Insys could not demonstrate obviousness of the invention.

With 11 out of 13 claims affirmed, the ‘920 Patent remains largely intact with claims that are fairly broad. This decision has great significance for patent rights, which are enforced through federal law, and since cannabis remains a Schedule I illegal substance under the Controlled Substance Act, inventors and businesses can now be sure that cannabis patent rights could actually be asserted and protected.

Putting aside issues of a potential appeal of the Final Written Decision, GW’s cannabis patent was treated identical to any other patent facing an IPR challenge, which bodes well for cannabis patent owners and prospective owners.

Some commentators believe this approach will be followed by federal courts in a patent infringement case pending in the District of Colorado, United Cannabis Corporation v. Pure Hemp Collective, Inc., which has not yet addressed the Schedule I status of cannabis.

Courts and the industry should also expect to see more patent infringement lawsuits and/or IPR challenges to proposed cannabis patents, in addition to more patent application filings as courts begin recognizing legitimate canna-patent infringement cases.

Above all, cannabis entrepreneurs are reminded of the importance of seeking patent protection; that protection will become more and more valuable as the market continues to normalize and expand and inventors seek to register their new devices to keep up with the growing industry.

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How to Spring Clean Your Old Divorce Files

Ahhh, April. This month always feels like a fresh start for me. The sun emerges and it starts to truly feel like spring. April also happens to be my birth month, so I can’t help but feel refreshed and energized at the start of this season.

There’s a reason why “spring cleaning” is a thing, and this year, home and office organization are all the rage. If you’ve managed to avoid learning the name Marie Kondo or the phrase “spark joy” in 2019, I commend you. If you have no idea what I’m talking about, I highly recommend the Netflix special about tidying up and decluttering, which has the masses taking spring cleaning to the max this season.

If you’re already on the bandwagon, you have probably come across a big pile of paperwork you’ve “filed” in the corner of a spare room somewhere, dubiously eyeing it and dreading the task of sorting through what you must keep and what can be discarded. If you’ve been through a divorce, you probably have a box or two of old court documents lying around, taking up space and reminding you of a less pleasant time in your life.  You are probably all too eager to toss it entirely (the likelihood of divorce paperwork “sparking joy” is slim!) but unfortunately there are a few things you really need to keep on file. In a perfect world, we would recommend that you keep your entire file, but if that is impossible for you, here are the highlights on the necessities:

1. Your Judgment of Divorce: This document is the single most important paperwork from your divorce. Your Judgment of Divorce proves that you are legally divorced. It also proves that you are free to remarry! It should have a gold seal on it from the time it was entered. This copy is incredibly important. When transferring assets, applying for refinancing on a loan or even changing your name after divorce, various agencies may ask to see a Gold Seal Copy of your Judgment of Divorce.  And while you can make copies of the judgment of divorce to your heart’s content, don’t give the Gold Seal copy away! If you lose it, you can always obtain a new Gold Seal copy from the Courthouse in the County where you got divorced, but they will charge you a fee. I highly recommend keeping this document in a safe place, like a safe deposit box or fireproof box in your house.
2. Your Marital Settlement Agreement: For the majority of litigants who dissolve their marriage by way of agreement instead of a trial, you should have a marital settlement agreement, sometimes called a property settlement agreement, which outlines all of the issues in your divorce and how you’ve agreed to resolve them. This agreement probably addresses issues like alimony, divisions of assets and debts, custody, child support, contribution to college costs, filing taxes, and other miscellaneous items. It probably outlines each party’s respective rights and obligations, as some things set forth in your agreement may not happen right away. For example, if you have adolescent children but your agreement outlines how their college expenses will be funded, portions of the agreement may not “kick in” until many years later. You’ll need a copy of your agreement on hand to know what you are contractually obligated to do and when. Speaking of obligations, it should be no surprise that sometimes people don’t always abide by the terms of their agreement.  If you find yourself in a situation where your ex-spouse is not living up to his/her end of the deal, and you need to enforce the agreement in some way (whether it’s filing a motion in court or trying to go to mediation) you’ll absolutely need a copy of your agreement to decipher exactly which terms are not being complied with.
3. Your Case Information Statements: These are the forms you filled out during your divorce which set forth your income, assets, liabilities, and expenses. This document was critical in litigating and resolving your divorce, but may become relevant again in a post-divorce situation, if you have outstanding issues to address. For example, if you want to file an application to modify your alimony obligation (or need to defend against one) your Case Information Statement will have helpful information about what the financial state of affairs was at the time you got divorced. If you or your ex-spouse is trying to show a change of circumstances, it is helpful to know what those circumstances were at the time so you can see how they’ve changed. If you have a copy of your ex-spouse’s Case Information Statement, you should definitely keep that, too.
4. All Orders entered in your Case: I like to think of Court Orders as the Cliff’s Notes for a case. While Court Orders don’t tell you everything about the history of a case, they give you a fairly accurate abbreviated summary of what happened and when. If you ever have to recall who filed a motion or when a critical event in your divorce took place, a Court Order is a great first place to look to hone in on a date or an outcome.
5. Any Transcripts or Recordings that you Ordered: In the context of a post-divorce dispute, these documents may or may not be relevant later on, but they are still worth keeping because, in order to retrieve another copy from the Court, you’ll have to pay a fee. Transcripts can be quite costly, so there’s no point in purchasing the same thing twice if you already have a copy on hand.

I must reiterate that it is important to keep all of your old court records if you have the space, including all of the letters and emails your attorneys may have sent throughout the litigation. While your attorney has an obligation to keep your files for at least seven years, you may need to pay for the copying costs to get those. Depending on the amount of time that has passed, your records may no longer be available. If you are tech savvy and can digitize all of your records, that’s even more so a reason to keep everything.  But if you simply can’t, keep in mind these spring cleaning tips to make sure you have the most important legal documents ready and accessible if you need them.  Happy cleaning!

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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 Appellate Division Must Adhere to Supreme Court Precedents, Despite Contrary Appellate Division Authority

Liberty Mutual Insurance v. Rodriguez, ___ N.J. Super. ___ (App. Div. 2019).  This short opinion by Judge Firko today involved how to calculate reimbursement to an insurer for its workers’ compensation benefits paid to an injured insured where the insured obtains a third-party recovery.  The Appellate Division affirmed the ruling of the Law Division that […]

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Waiver, Forfeiture, the Plain Error Doctrine, and the “Third Circuit Model Jury Instructions”

Robinson v. First State Community Action Agency, ___ F.3d ___ (3d Cir. 2019).  This opinion by Judge Fuentes today affirms a plaintiff’s verdict in a jury trial under the Americans With Disabilities Act (“ADA”).  Plaintiff and defendant, who is plaintiff’s former employer, “proceeded under the [same] case theory throughout litigation, trial, and post-trial briefing.”  Only […]

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Two More Criminal Cases, and Another Arbitration Case, for the Supreme Court

The Supreme Court announced today that it has granted certification to review three cases.  Two of them are criminal appeals.  The third is another case involving an arbitration agreement. The first of the two criminal cases is State v. Jones.  The question presented there, as phrased by the Supreme Court Clerk’s office, is “In this […]

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