Supreme Court Holds States Cannot Be Sued for Monetary Damages in Copyright Infringement Cases

In a unanimous decision, the Supreme Court recently held that States cannot be held liable for monetary damages in copyright infringement lawsuits despite the Copyright Remedy Clarification Act of 1990 (CRCA). This act provides that a State “shall not be immune, under the Eleventh Amendment [or] any other doctrine of sovereign immunity, from suit in Federal court” for copyright infringement. See Allen v. Cooper, 140 S. Ct. 994 (2020).

The case involves videos of Queen Anne’s Revenge, a ship captured and sailed by Blackbeard, which ran aground off the coast of North Carolina in 1718. In 1996, the shipwreck was discovered, and Frederick Allen was hired as a videographer to document the recovery efforts. For over a decade, Allen captured and documented the ship’s treasures through video footage and photographs. Allen subsequently obtained copyright registrations for all his works.

Without Allen’s permission and despite his protestation, North Carolina began publishing some of Allen’s videos and photographs in 2013. While Allen and North Carolina settled some of the claims, additional disputes over continued unpermitted use of Allen’s works arose, and Allen finally decided to file a copyright infringement action against North Carolina seeking monetary damages. North Carolina moved to dismiss the suit on sovereign immunity grounds and Allen countered that the CRCA provides an exception to immunity for copyright infringement.

The Eastern District of North Carolina agreed with Allen — Congress had the clear intent “to abrogate sovereign immunity for copyright claims against a state.” The Court of Appeals for the Fourth Circuit, however, reversed finding there was no constitutional basis for the abrogation of sovereign immunity.

The Supreme Court agreed with the Fourth Circuit. The Eleventh Amendment has always been interpreted to preclude suits brought by any person against a nonconsenting state. There are, however, two exceptions: (1) Congress may enact “unequivocal statutory language” abrogating states’ immunity, and (2) constitutional provisions may allow Congress to encroach on the states’ sovereignty. The language in the CRCA, as well as the Patent Remedy Act, was clear about Congress’s intent to abrogate the states’ immunity — the issue considered by the Supreme Court, however, was whether Congress had the authority to do so. Allen argued that Congress had the authority under the Intellectual Property Clause of Article I, or alternatively, under Section 5 of the Fourteenth Amendment. The Supreme Court disagreed.

Under Article I, Congress has the power to grant copyrights and patents. Allen argued that Congress, therefore, has the authority to abrogate sovereign immunity from copyright suits since abrogation is the best way to secure a copyright holder’s exclusive rights. The problem, however, was that the Supreme Court had already rejected this argument in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999), where it held Congress could only abrogate sovereign immunity pursuant to its powers under Section 5 of the Fourteenth Amendment and not Article I. Since the CRCA was enacted pursuant to Article I, it could not alter the states’ sovereign immunity.

Under Section 5 of the Fourteenth Amendment, Congress is authorized to strip the states of immunity, subjecting them to suit in federal court. Abrogation statutes are only appropriate under Section 5 when they are tailored to “remedy or prevent” conduct that infringes the substantive prohibitions of the Fourteenth Amendment. The means-end test courts use in determining whether Congress’s actions fall under Section 5 authority considers whether there is “a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Because copyrights are a form of property, and the Fourteenth Amendment prohibits states from depriving a person of property without due process of law, an intentional or reckless infringement may come within reach of the Due Process Clause. As with the Article I argument, the Section 5 argument had already been considered by the Supreme Court in Florida Prepaid where the Court found Congress did not identify a pattern of unconstitutional patent infringement, and the infringement that was found was mostly innocent. Because there was little evidence that states were depriving patent owners of property without due process of law, the Patent Remedy Act was too far sweeping—it abrogated sovereign immunity for any and every patent infringement suit without limitations. The Supreme Court found that because the CRCA was the copyright equivalent of the Patent Remedy Act, the result must be the same—the statute is too broad. Although there was more concrete evidence of states infringing copyrights than there was for patents, the evidence was not much more impressive than that presented in Florida Prepaid.

In the end, the Supreme Court found that the Intellectual Property Clause could not provide a basis for abrogation of sovereign immunity and such a clause in the CRCA was out of proportion to any due process problem: the statute was aimed at providing a uniform remedy for infringement, not for preventing any unconstitutional conduct. Despite this decision, Congress may still pass a valid abrogation law in the future. The CRCA was enacted prior to several important decisions regarding sovereign immunity, and so if Congress were to enact a different abrogation law, it could tailor a statute to prevent states from infringing on both copyrights and patents, thereby subjecting them to suit for damages in federal court.

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Owners of Lebron James and Other Players’ Tattoo Designs Cannot Pursue Copyright Infringement Claims Against Developer of a Basketball Simulation Video Game for Replicating the Tattoos on the Virtual Players

In Solid Oak Sketches, LLC v. 2K Games, Inc. et al., No. 16-CV-724-LTS-SDA, 2020 U.S. Dist. LEXIS 53287 (S.D.N.Y. 2020), the Southern District of New York granted summary judgment dismissing Plaintiff’s copyright infringement claims based on the use of Plaintiff’s copyrighted tattoos on replica NBA players in Defendant’s popular NBA 2K video game. Concluding Defendants’ use was de minimis, the Court dismissed the copyright infringement claim finding a lack of substantial similarity between the works. The Court also found the existence of an implied license as well as determined that the use was fair use.

The Defendants are developers of video games, including NBA 2K, a basketball simulation game that includes realistic rendering of NBA teams and celebrity players. NBA 2K is designed to accurately simulate the look and feel of an NBA game, including both auditory elements, such as shoe sounds on the court, noise from the crowd, shot clock warnings, etc. and visual elements, such as the players, their expressions, the audience, etc. In making these simulations realistic, the Defendants include the personal characteristics of the players such as their hairstyles and tattoos “to accurately depict the physical likeness of the real-world basketball Players as realistically as possible.” In creating the game, Defendants obtained permission and licenses from the NBA and the individual players to use the name and likeness of the players.

Through accumulation of copyrights from the tattoo artists, the Plaintiff acquired and owns copyrights to various tattoos depicted on several well-known basketball players, including LeBron James, Eric Bledsoe, and Kenyon Martin (the “Players”).

The Plaintiff holds an exclusive license to the tattoo designs, but does not have any right to the Players’ likenesses. Nevertheless, Plaintiff claimed the Defendants infringed the Plaintiff’s copyright by publicly displaying the works in NBA 2K.

To establish copyright infringement, a plaintiff must show that the defendant copied the work and that a substantial similarity exists between the defendant’s work and the protectable elements of the copyrighted work. The defense argued substantial similarity could not be established because the use of the tattoos in the video game was de minimis – that any similar elements are so trivial that the copying does not rise to the level of actionable substantial similarity.

When assessing a de minimis use argument, the court will look at (1) the amount of the copyrighted work that is copied, (2) the observability of the copied work—the length of time the copied work is observable in the allegedly infringing work, and (3) other factors such as lighting, focus, camera angles, and prominence. In particular, the observability of the copyrighted work in the allegedly infringing work is fundamental in this assessment. Substantial similarity is considered under the ordinary observer test — “whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.”

In granting summary judgment, the Southern District of New York determined no reasonable factfinder could find the fleeting tattoos in NBA 2K were substantially similar to those owned by Plaintiff. Although the entire tattoos are visible in the game at certain angles, the tattoos are much smaller on the computer or television screen compared to their real-life size, and they appear merely as “visual noise.” The tattoos appear on three of the 400 possible players in the game, and are neither visible during average gameplay nor are they depicted separately from the Players. Additionally, the tattoos are not displayed with enough detail for an average lay observer to identify the subject matter of the tattoo; they are out of focus and often look like undefined dark shading on the Players’ arms. The Plaintiff did not provide any evidence supporting the proposition that a user’s selection of focus and camera angles makes the tattoos more prominent. Therefore, the court found that any similarity was de minimis.

Defendants also argued they were authorized through an implied license to use the tattoos as part of the Players’ likenesses. In the Second Circuit, an implied nonexclusive license exists “where one party created a work at the other’s request and handed it over, intending that the other copy and distribute it.” Copyright owners who grant nonexclusive licenses to use the copyrighted work cannot sue the licensee for copyright infringement.

The Court found that the original tattoo artists who created the design necessarily granted the Players nonexclusive licenses to use the tattoos as part of their likeness — the Players requested the tattoos, the tattooists created the tattoos and delivered them to the Players, and the tattooists understood and intended the Players to distribute the tattoos as part of their likeness by appearing in public, on television, etc. Since the Players received implied licenses to use, distribute, and display the tattoos as part of their “likeness,” the Defendants had the right to use the tattoos to depict the Players because the Players gave the Defendants permission to use their likeness. And on that basis, the Court also dismissed the infringement claims.

Finally, the Court addressed Defendants’ arguments that their use of the tattoos in the video game is fair use. The Court weighed four factors in finding fair use: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Considering the nature of the use, the District Court found the inclusion of the tattoos in the video game to be transformative. Although the tattoos appearing in the video game are exact copies of the copyrighted designs, the purpose of the use was different — the Players used the tattoos to express themselves while the Defendants used the tattoos to accurately depict the Players. The size of the tattoos in the video games is significantly smaller than those in real life, approximately only 4.5% to 11% of their actual size. Because of their small size, the tattoos are difficult to see and are not often visible. Additionally, the tattoos amount to an inconsequential portion of the video game’s data (about 0.000286% to 0.000431% of the game data). Although the purpose of the video game is commercial and the use of the tattoos in the game is therefore commercial, the tattoos are merely incidental to the game’s commercial value.

Since the game does not serve as a substitute for the tattoo designs, Plaintiff has never licensed the tattoos or used the tattoos in any video game, and consumers would not buy the game just to see the tattoos on a few simulated characters, the District Court found all four factors supported fair use.

It appears the Court was most swayed by the obscure appearance and insignificant use of the tattoos in the video game. Perhaps the outcome would have been different if the tattoos were prominently featured in the game and contributed more to the game’s commercial value and appeal.

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Is Your Child Turning Age 18 – How Can You Still Be There to Help?

Your child’s transition to adulthood is an important time in life. If your child has reached age 18, particularly an adult child travelling to attend school or work, important changes have occurred. At age 18, your child is an adult under New Jersey law, even if he or she is still living at home. Your adult child now controls his or her own medical and financial decisions, and a parent’s access to information is restricted. Several documents are available to address these changes and appoint agents to assist your child during this stage of life.

A Power of Attorney appoints agents to help with financial and legal decisions – particularly in the event of incapacity. Understanding these issues is a key component of drafting and implementing the Power of Attorney. For example, a Power of Attorney needs to avoid terms that cause unnecessary delays or restrictions on the agent’s authority to act. Children pursuing higher education should also consider the Family Educational Rights Privacy Act (FERPA). FERPA is a federal law that protects the privacy of student educational records and can restrict access to this information. Your child can include FERPA related terms in a Power of Attorney, as well as signing a FERPA release with your child’s educational institution.

A Power of Attorney for Healthcare designates healthcare agents who are best suited to make these types of decisions. The healthcare agent’s authority should include the type of treatment, control over medical staff, choice of healthcare facilities, and pain management. In addition to the Power of Attorney for Healthcare, a separate release under the Health Insurance Portability and Accountability Act (HIPAA) may also be useful. A HIPAA Release will assist with access to important medical information from healthcare providers if the need arises.

Finally, adult children should also have a Will in the unlikely event that it is needed. A Will can be completed at the same time as other estate planning documents.

Whether your child is leaving home or staying with you, these documents will make you and your child better equipped to handle unforeseen circumstances or an emergency. As your child enters this new stage in life, these documents can give parents added peace of mind. If your child is approaching age 18, or is already over 18, now is a good time to discuss these documents with your child and the problems that can arise if they are not implemented.

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Administrative Challenge Continues to Delay Medical Marijuana License Awards in New Jersey, as Court Denies Request to Dissolve Stay

New Jersey medical marijuana, already a multi-million-dollar industry, is primed for explosive growth. But first, the New Jersey Department of Health (DOH) must expand available licenses to grow and distribute medical marijuana. In order to fairly distribute such licenses, the DOH employs a regimented application process, offering a limited number of licenses and creating a highly competitive environment. Unfortunately for medical patients and businesses alike, the latest license round has grinded to a halt after litigation over a technical glitch during the application submission process.

2019 Requests for Applications and the Glitch

Most recently, the DOH solicited applications from July 1 to August 22, 2019, for permits to operate dispensary, cultivation, and manufacturing operations. The DOH received 196 applications for up to 24 licenses. Eight licenses are available in each of the Northern and Central regions of the state, seven are available in the Southern region, and one non-regional “at-large” license exists. Available are fifteen licenses for dispensaries, five for cultivation sites, and four for Vertically Integrated Alternative Treatment Centers (dispensing, cultivation, and manufacturing).

But, now almost a year later no licenses have been awarded because a number of applicants petitioned the courts after their applications were allegedly denied due to a technical glitch. During the submission process and electronic transmission of applications, the PDF documents supplied by approximately fifteen applicants, including both small and large operations, in support of their applications were corrupted somewhere during their electronic transport, rendering them impossible to open. As a result, the DOH denied those applications as untimely, stating that because the PDFs could not be opened, the applications were incomplete.

Stay of Application Process Granted

After exhausting their DOH appeals, the applicants took to the courts. The denied applicants argued their interests would be materially harmed if the process continued without consideration of their applications and requested a stay until the alleged glitch could be remedied.

Critically, the denied applicants argued, after submitting their applications electronically as suggested by the DOH, their applications were denied because of a technical glitch outside of their control and not because of the merits of the applications themselves. These applicants put forth expert testimony showing, at the time of submission, each of the applicant’s documents were free of viruses, malware, and not corrupted. The DOH denied responsibility for the glitch, noting the denied applicants could have submitted paper applications in addition to the electronic submission; a redundancy that six of the fifteen affected applications had completed.

In December 2019, Judges Rothstadt and Mitterhoff, Appellate Division, granted a stay of the DOH 2019 application process until the denied applicant’s claims could be heard. But, the DOH interpreted the Judges’ order to allow it to continue scoring applications that had already passed the initial review meant to ensure application completeness, reasoning that each application is scored on its independent merits and not in reference to one another.

The DOH’s interpretation was short lived. In January 2020, the Judges clarified the stay to “include all administrative activities relating to the entire administrative review process, including but not limited to, ranking of applications, scoring of applications, awarding permits and publishing results.” The Judges’ clarification once again brought the application process to a halt.

DOH Request to Dissolve Stay Rejected

In June 2020, the DOH filed a motion to dissolve the stay, arguing it was unnecessarily harming those who depend on medicinal marijuana to treat chronic conditions and irreparably harming the DOH’s charge to “keep pace with the rapidly growing demand for medical marijuana.” Applicants opposed the motion to dissolve the stay, pointing out that the DOH could simply allow the denied applicants to resubmit their applications to be scored. The DOH has yet to accept this proposal, standing firm that the denied applicants did not timely submit their applications and that their claims are meritless.

In July 2020, the court denied the DOH’s motion to dissolve the stay, continuing the freeze on the application process. Oral arguments on the matter have yet to be scheduled, but are expected to take place sometime this Fall. For now, all 2019 applicants must continue to wait for their applications to be process, with no end in sight.

Questions about Marijuana Licensing? Stark & Stark Will Work for You.

Through its Cannabis Practice, Stark & Stark is committed to helping its clients enter, thrive, and survive in the protean legal marijuana industry. If you have any interest or questions regarding New Jersey’s stringent licensing standards, Stark & Stark has the resources and capacity to assist and clarify.

Stark & Stark is a nationally respected law firm comprised of experienced regulatory lawyers and litigation experts. As a full-service firm, Stark & Stark has assisted thousands of clients throughout the country. We have been in business for over 80 years and have more than 100 attorneys in offices located throughout New Jersey, Pennsylvania, and New York. Contact Stark & Stark to speak with a Cannabis attorney, free of charge, who can help navigate the complicated regulatory scheme and assist with planning for the future legal marijuana expansion.

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Counsel Fees in Probate Litigation

When contesting a Will or defending one that has been offered for probate, a party may incur significant counsel fees. One important question concerns whether the Estate or another party would be responsible for reimbursing this party.

In general, during a Will contest you are either a proponent of a Will or you are seeking its invalidation. Depending on the nature and merits of the claims which are asserted, one or both sides can be reimbursed counsel fees by the Estate.

The named executor under a Will which has been offered for probate is typically allowed to pay counsel fees for the defense of the purported Will from the assets of the Estate. This is very typical in probate litigation and is generally accepted by the Courts.

On the other hand, if you are contesting the validity of a Will that has been offered for probate, you must pay your counsel fees during the course of the litigation. At the conclusion of the litigation, however, the party that challenged the Will can apply to the Court to have their counsel fees reimbursed. Such applications may be granted provided there was a legitimate basis to challenge the Will, even if not successful, or if the challenge to the Will proved successful.

A party which has filed claims seeking to enrich the corpus of the Estate can also file an application for counsel fees with the Court provided they had a legitimate basis to bring such claims, or they did in fact enrich the Estate by prosecuting these claims on its behalf. Such claims are not necessarily challenges to a Will, but instead, can be claims against either the executor or other parties who have unlawfully converted or wasted assets which belong to the Estate. In order to bring these claims, however, this person must be a potential beneficiary under the Will.

Finally, it is possible in the context of probate litigation that the Court can actually surcharge a beneficiary under a Will, including an executor, and require them to pay the counsel fees of the party who either contested the Will or brought an action to recover estate assets. In such instances, should the court find evidence of unlawful conduct by a beneficiary or executor, the Court may punish this party by having the counsel fees rewarded to the party who brought the action from the share of the wrongful party’s interest in the estate.

In order to successfully prosecute an action in probate litigation a party may incur substantial counsel fees. As such, it is important that a party understand the possibility of an award of counsel fees in the context of such litigation. This blog merely provides some general guidance about this important issue, as this issue is not always clear cut.

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What to Do If You Get a Letter from Your Internet Service Provider (ISP) About a Subpoena to Turn Over Your Name and Address

Many people are either confused, do not know what to make of, or may even think it is a phishing expedition when a letter is received from their internet service provider (“ISP”) such as Comcast, Verizon, AT&T, CenturyLink, Spectrum, Frontier, Cox, Optimum, Earthlink, Viasat, Altice, etc., informing them of a lawsuit by STRIKE 3 HOLDINGS, LLC, which concerns the illegal downloading and uploading of copyrighted materials.

The letters state the recipient has been identified as the subscriber of an Internet Protocol (“IP”) address, which has allegedly been used to download Strike 3’s copyrighted works. The ISP states it has received a subpoena to turn over records providing the recipient’s name and address, which is associated with the accused IP address. The letters provide a deadline by which time the ISP will deliver the recipient’s name and contact information to Strike 3 pursuant to the subpoena, unless there is a motion to quash or vacate the subpoena has been filed. The ISP says it cannot provide legal advice and strongly encourages the recipient to seek the advice of counsel.

If you receive one of these letters, do not ignore it. It is real and not a scam or a mistake.

Strike 3 is a producer of adult films that it sells, licenses, and distributes through the Blacked, Tushy, Vixen, and Blacked Raw adult websites and DVDs. As with regular movies and music, Strike 3’s adult content is often pirated, illegally downloaded, and copied without permission. To protect its copyrights and pursue infringers, Strike 3 hires forensic investigators to track the transmission, downloading, and uploading of its works on the BitTorrent File Distribution Network platform. This platform allows users to download content while simultaneously uploading it to other users. Through their software, the investigators record, trace, and identify when files are downloaded or uploaded using a specific IP address. Through prolonged surveillance, the investigators record the number of works an IP address is used to download and turns this information over to Strike 3’s attorneys who bring copyright infringement lawsuits in Federal Court, or most recently, in Florida County Court for Miami-Dade County.

Since Strike 3 does not know the name of the individual associated with a particular IP address, it seeks permission to conduct expedited pre-answer discovery in the form of serving a subpoena on the ISP, who is the only entity that can connect the IP address with the name of an individual. While some courts and judges have denied Strike 3’s requests for early discovery, those decisions generally get overturned and most courts allow the subpoena but require safeguards such as anonymity, confidentiality, and time for the prospective individual defendant to challenge or object to the subpoena.

In general, parties “may not initiate discovery prior to satisfying the meet and confer requirement of Fed. R. Civ. P. 26(f).” Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 241 (S.D.N.Y. 2012). Specifically, under Rule 26(d)(1), Fed. R. Civ. P., “[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f),” except in limited proceedings delineated in Rule 26(a)(1)(B), or “when authorized by these rules, by stipulation, or by court order.” “[C]ourts may in some instances order earlier discovery.” Digital Sin, 279 F.R.D. at 241 (citing Fed. R. Civ. P. 26(d)). See, e.g., Strike 3 Holdings, LLC v. Doe, No. 3: 17-CV-1680 (CSH), 2017 WL 5001474, at *2 (D. Conn. Nov. 1, 2017) (“[A] party may engage in discovery before such a [26(f)] conference pursuant to a court order.”) (quoting Malibu Media, LLC v. John Doe Subscriber Assigned IP Address 173.68.5.86, No. 1:16-CV-02462 (AJN), 2016 WL 2894919, at *2 (S.D.N.Y. May 16, 2016)) (citing Fed. R. Civ. P. 26(d)(1)).

When considering whether to grant a motion for expedited discovery prior to a Rule 26(f) conference, courts apply a “flexible standard of reasonableness and good cause.” Malibu Media, LLC, 2016 WL 2894919, at *2 (gathering cases); see also Arista Records LLC v. Does 1-4, 589 F. Supp. 2d 151, 152-53 (D. Conn. 2008) (applying “good cause” standard to request for expedited discovery); see generally 8A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2046.1 (3d ed. 2011) (“Although [Rule 26(d)] does not say so, it is implicit that some showing of good cause should be made to justify such an order, and courts presented with requests for immediate discovery have frequently treated the question whether to authorize early discovery as governed by a good cause standard.”).

In evaluating subpoenas seeking identifying information from ISPs regarding subscribers who are parties to copyright infringement litigation, courts have examined the following factors:

1. the concreteness of the plaintiff’s showing of a prima facie claim of actionable harm;
2. the specificity of the discovery request;
3. the absence of alternative means to obtain the subpoenaed information;
4. the need for the subpoenaed information to advance the claim; and
5. the objecting party’s expectation of privacy.

[Arista Records, LLC v. Doe 3, 604 F.3d 110, 119 (2d Cir. 2010) (quoting Sony Music Entm’t , Inc. v. Does 1-40, 326 F. Supp. 2d 556, 564-65 (S.D.N.Y. 2004)).]

If application of these principal factors confirms that Strike 3 is entitled to the requested subpoena, the motion for early discovery will be granted for “good cause.” Because Strike 3’s complaints adequately allege copyright infringement, the requested discovery is narrowly tailored and specific, there is no other way for Strike 3 to obtain the IP subscriber’s identity, and sufficient safeguards are put in place to protect the subscriber’s privacy and identity, courts will generally grant Strike 3’s request to subpoena the ISP.

Once the ISP receives the subpoena, it will locate the subscriber’s information and send him or her a notification letter that it received the subpoena and will turn over the subscriber’s information. If you receive one of these letters, do not hesitate to contact an experienced attorney at Stark & Stark. If you don’t take action, Strike 3 will get your name and address, amend its complaint, and then serve you at your home with the amended complaint. If you ignore the complaint, Strike 3 will obtain default and apply for default judgment against you. Since virtually all of these infringement cases settle early on, it is in your best interest to obtain representation and attempt to reach a settlement.

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Domestic Violence: What is a Dating Relationship?

Several months into the COVID-19 pandemic, the daily lives of most people have changed in many ways. With many people still desiring to find companionship, dating websites and mobile applications have provided somewhat of a substitute for traditional in-person dates, which are no longer feasible during the pandemic.

What happens if the relationship you’ve developed in these virtual settings goes awry, and the continued virtual contact becomes unwanted, threatening, malicious, and/or harassing? Can you obtain a restraining order to prevent further contact?

The answer largely depends on whether your online relationship with this person is considered to be within the definition of a “dating relationship” under the New Jersey Prevention of Domestic Violence Act.

The New Jersey Prevention of Domestic Violence only provides protection for certain classes of relationships, defined as a spouse, former spouse, household member (whether presently or at any prior time), parties with a child in common, or parties with whom the victim has had a dating relationship.

Fortunately, recent case law has shown an evolution of the term “dating relationship” under the statute to account for the evolution of dating itself.

The case of C.C. v. J.A.H., decided by the New Jersey Appellate Division on June 11, 2020, took into consideration two individuals who had never experienced a traditional, in-person “date.” They never visited each other’s homes, or met each other’s friends or family members. They never engaged in sexual relations, kissed, or even held hands. What they did do, however, was exchange nearly 1,300 highly personal and intimate text messages over the course of several months. Eventually, when one of the parties tried to cease the contact and spurn any further relationship, the other party’s communications became threatening and malicious.

In this first case of its kind, the court held that these two individuals, who shared no other meaningful contact aside from these text messages, were in enough of a “dating relationship” to provide protection to the victim.

This case may have broadened the protections available to victims of domestic violence tremendously. If you are being threatened, harassed or otherwise are subjected to domestic violence, you may be able to obtain a Final Restraining Order to protect yourself.

In many cases, an abuser may be ordered to pay for the victim’s legal costs. If you find yourself in these types of situations, it is more critical now than ever to have effective and careful advocacy from experienced legal counsel. Stark & Stark’s Family Law Department is here to help.

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The Appellate Division Reaffirms the Basic Tenets of Who You Can Get a Final Restraining Order Against

It is important to understand the requirements to obtain a Final Restraining Order or to defend against the entry of one.  Through case law and the New Jersey legislature, there are specific requirements that need to be met.  In the recent unpublished decision, the Court reaffirms that both litigants and attorneys cannot stray away from the basic tenets to obtain a Final Restraining Order (“FRO”).   In M.H. v. J.B., the Appellate Division reversed the entry of the FRO because none of the requirements were met.

In M.H. v. J.B., an unpublished decision, meaning non-precedential, the parties are sisters-in-laws – the Plaintiff is married to the Defendant’s brother, but had apparently never lived together. The two parties argued via text message over the Plaintiff’s son’s (the Defendant’s nephew’s) birthday party. The Plaintiff failed to answer the Defendant’s phone calls and the Defendant proceeded to text the Plaintiff and the Plaintiff immediately responded. This continued for a period of twenty minutes. A couple of hours later, the Plaintiff reinitiated the conversation where the Defendant responded to “stop harassing [her] and [her] family”. Then, the Plaintiff, once again, reinitiated further conversation and the Defendant asked in six different messages for the Plaintiff to stop texting her.

Both parties obtained Temporary Restraining Orders against the other the next day, alleging harassment. Both parties submitted that they were former household members pursuant to the PDVA. The trial court entered a Final Restraining Order against the Defendant, finding that although there was no prior history of domestic violence between the two parties, found that the Defendant or through a third person attempted to contact the Plaintiff “repeatedly”. Additionally, the court found that the FRO was necessary “to protect the welfare and safety of the victim” as the parties had “bad blood” between them. The Plaintiff’s only allegation was that she feared  the Defendant.

Here, the Appellate Court found that none of the factors were present for a FRO to be entered.  To obtain a FRO the following must all be met: (1) a relationship within the meaning of the Protection Against Domestic Violence Act (“PDVA”); (2) a finding that an act of domestic violence occurred as listed within the PDVA; and (3) that a restraining order is necessary to protect the victim “from an immediate danger or to prevent further abuse.” Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006).

First, the Plaintiff’s testimony was clear that the parties never lived in the same household at the same time as the Defendant. Although the Defendant contended that the Plaintiff lived at the Defendant’s mother’s house, this does not equate that the two parties resided there at the same time. Therefore, the parties did not meet the definition as former household members under the PDVA. Although the parties’ allegations may have been sufficient for the court to entertain the parties’ applications, the trial court failed to engage in any jurisdictional analysis to determine whether these parties met the definition of former household members.  This was a fatal flaw.

Second, the Appellate Division did not find that the text messages constituted as a predicate act of harassment as contemplated under the PDVA for entry of a FRO. Without a finding of a predicate act, the court cannot move to the second prong of Silver to determine whether a restraining order is necessary to protect the victim. Notwithstanding this factor, the trial court failed to engage in any analysis that a restraining order was necessary to protect the Plaintiff from immediate danger or future harm from the Defendant. In fact, the parties agreed that they had a good relationship prior to the texting incident. There were no prior incidents of domestic violence between the parties; the Plaintiff made no claims that she was in physical fear or danger of the Defendant; and the Plaintiff’s sole allegation was fear of the Defendant. Thus, the Appellate Division found that a restraining order was not necessary to protect the Plaintiff and reversed the entry of the FRO.

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The NJRA Will Launch the Small Business Lease Emergency Assistance Grant Program

The New Jersey Redevelopment Authority (“NJRA”) will launch the Small Business Lease Emergency Assistance Grant Program on August 10, 2020. The program will allow businesses in 64 eligible municipalities to apply for grants of up to $10,000 for lease costs. The program will assist small business owners impacted by the COVID-19 pandemic, which also assists landlords, many of whom are also small businesses. Grants will be made on a first come, first serve basis.

Eligibility:

• Business must be located in one of the 64 eligible municipalities listed here.
• The business must have no more than 5,000 square feet of leased space.
• Operating prior to March 1, 2020, and either:
  • A small business leasing commercial space in mixed-use buildings;
  • A small business leasing space in commercial buildings; or
  • A storefront business.

Non-eligible businesses:

• Most businesses are eligible to apply for this program except for: gambling and gaming activities, the conduct or purveyance of “adult” (i.e., pornographic, lewd, prurient, obscene or otherwise similarly disreputable) activities, services, products, or materials (including nude, or semi-nude performances or the sale of sexual aids or devices); any auction or bankruptcy or fire or “lost-our-lease” or “going-out-of-business” or similar sales; sales by transient merchants, Christmas tree sales, or other outdoor storage; any activity constituting a nuisance; or any illegal purposes. Tattoo shops, vaping and marijuana dispensaries, and any business involved in selling alcohol are also ineligible.

Eligible businesses can receive a grant of up to $10,000. The funds will be provided to your landlord once the grant agreement is executed by both parties and returned to NJRA. The funds will be provided via ACH.

Documentation needed to apply:

• Completed online application. The application can be found here.
• Current tax clearance certifications. If you do not have a tax clearance certificate you will need to certify that to the best of your knowledge you do not owe any taxes to the State of New Jersey as part of the application process.
• Current executed lease agreement.
• If approved, an executed grant agreement will be provided by NJRA to be executed by tenant and landlord.

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State Regulators to Require Licensing for Investment Adviser Representatives Displaced by COVID-19

Many investment adviser representatives (“IARs”) employed by or associated with state-registered and SEC-registered/“federal covered” investment advisers have been required to conduct business from their home or other temporary office location in the face of COVID-19. If those displaced IARs are not currently licensed by the states where they are temporarily providing advisory services, firms should quickly analyze whether they must license these individuals under the respective and applicable state law.

For example, the Pennsylvania Department of Banking and Securities recently announced that as of August 31, 2020, it would end its “grace period” for those IARs “who were displaced for teleworking to their PA home addresses during COVID-19” if they were previously unlicensed. We are also aware of other state regulatory bodies that have issued similar guidance and restrictions for IARs displaced from their principal office because of COVID-19.

Stark & Stark is monitoring these developments and remains available to discuss any state-specific issues that concern your firm’s IARs. Please feel free to contact us in this or any other respect.

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