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March 30, 2017 by Mindee J. Reuben

Why the "Fairness in Class Action Litigation Act of 2017" Is Anything But FairMindee J. Reuben

On February 15, 2017, the House Judiciary Committee approved (along party lines) H.R. 985, the “Fairness in Class Action Litigation Act of 2017” (the “Act”), without public hearings or debate. Eight amendments were proposed in the House, all of which failed. On March 9, 2017, the Act was approved by the House in its original form, again along party lines (220 to 201). It was received in the Senate on March 13, 2017, and referred to the Judiciary Committee. No action has yet been taken by the Senate Judiciary Committee.

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March 23, 2017 by Katrina Carroll

Shrink Wrap Agreements: The Third Circuit Thinks Outside the BoxKatrina  Carroll

My last post dealt with the four “wraps”: arbitration clauses presented on the internet in connection with consumer transactions. There is yet another arbitration “wrap” worthy of discussion, but it’s not an internet-based “wrap.” Rather, as the name implies, “shrink wrap” agreements are printed agreements packaged in boxes containing various consumer products. These agreements are ubiquitous and they raise unique issues in the arbitration context because of the way in which they are presented.

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March 16, 2017 by Victor A. Afanador

Can Qualified Immunity Strike the Balance with 42 U.S.C. § 1983's Chilling Effect on Public Safety?Victor A. Afanador

42 U.S.C. §1983, the Civil Rights Act, is the vehicle for championing civil rights. It is a means to protect individuals against constitutional violations by those acting under the color of law. See Monroe v. Pape, U.S. 167, 172 (1960). Now, some may say that it serves as the vehicle for chilling a police officer’s call to preserve the security of the public at large. Today, more than ever, there is a need to increase security, but at what cost to our civil rights? In a world full of racial animosity, threats of terrorism, increased police excessive force and civil rights filings, what will the future hold?

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March 9, 2017 by Joseph J. DePalma

Cyber Risk and the Law FirmJoseph J. DePalma

The March 2017ABA Journal‘s lead article is on managing cyber risk. This informative piece contains startling numbers: One cybersecurity firm estimated that at least 80 of the largest 100 firms by revenue have been hacked since 2011. Crains’s Chicago Business reported that last year one foreign hacker alone targeted 46 law firms in the United States, and others elsewhere. The threat is clear and present, so what are lawyers to do about it?

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March 2, 2017 by Steven J. Greenfogel

Class Action "Reform"Steven J. Greenfogel

A Bill titled the "Fairness In Class Action Litigation Act of 2017" is now making its way through the U.S. House of Representatives, where it will undoubtedly pass without change and move on to the Senate for more serious consideration. As an attorney whose practice is almost exclusively involved in prosecuting class actions, I view the Bill in its present form as a clear effort by the Big Business lobby to kill, once and for all, class actions as a means of redress for American consumers and others who have been harmed by illegal actions of the business community.

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February 23, 2017 by Jonathan M. Carrillo

"Is Speech Really Free? It depends."Jonathan M. Carrillo

Despite what many Americans believe, the United States Supreme Court has consistently said that the First Amendment does not give citizens unfettered freedom of speech. As the Supreme Court held in Heffron v. Int'l Soc. For Krishna Consciousness, Inc., 452 U.S. 640, (1981), “[t]he First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.”

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February 16, 2017 by Francis A. Kenny

Offer of Judgment: "An offer you CAN refuse"Francis A. Kenny

Virtually everybody agrees that litigation costs have skyrocketed over the years. Often the fees at issue dwarf the underlying damages alleged in the case. As a result of this trend, New Jersey’s Offer of Judgment Rule was developed with the primary goal of encouraging, promoting and stimulating the early settlement of disputes by imposing drastic consequences on parties that fail to accept reasonable offers to settle. R. 4:58.

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February 9, 2017 by Andrew L. Smith

Why You Should Consider Hiring a Trial LawyerAndrew L. Smith

Statistically, most lawsuits do not make it to trial. Suits are often settled by attorneys long before trial is commenced, or even scheduled on the federal or state court calendars. Cases are resolved, in large part, through pre-suit negotiation, arbitration, mediation, or court-mandated settlement conferences.

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February 2, 2017 by Kyle A. Shamberg

Consumers Confound ConAgra: The Ninth Circuit Follows the Trend on Administrative FeasibilityKyle A. Shamberg

In a nice win for consumers, the Ninth Circuit kicked off the new year by issuing its ruling in Briseno v. ConAgra Foods, Inc., holding that Federal Rule of Civil Procedure 23, which governs the prosecution of class action lawsuits, does not require plaintiffs to establish an “administratively feasible” means of identifying putative class members for purposes of class certification. The decision not only improves the chances of a consumer class action being certified in the Ninth Circuit, it represents yet another Circuit Court rejection of the onerous administrative feasibility requirement laid out by the Third Circuit in rulings like Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), and Byrd v. Aaron’s, Inc., No. 14-3050, 2015 U.S. App. LEXIS 6190 (3d Cir. April 16, 2015).

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January 25, 2017 by Jeremy N. Nash

New Jersey Removes Impediment to Multistate Certification of Class ActionsJeremy N. Nash

The presumption in New Jersey is now that its statute of limitations governs claims pursued in the jurisdiction, eliminating an impediment to pursuing certain matters here—like some multistate class actions—that implicate the laws of two or more states.

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January 19, 2017 by Bruce D. Greenberg

Addiction Issues and The Supreme Court Committee On CharacterBruce D. Greenberg

Issues such as alcoholism or drug addiction present potential impediments to admission to the New Jersey Bar. Those issues are frequently the subject of hearings before the Supreme Court of New Jersey Committee on Character. But candidates who can show that they have dealt with their addictions can still be admitted, as the case of In re Strait, 120 N.J. 477 (1990), shows.

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January 12, 2017 by Susana Cruz Hodge

Tweet at Your Own PerilSusana Cruz  Hodge

As people take to social media to run their mouths, they seemingly have no idea that their words may one day end up before a judge or jury. That’s exactly what happened in State v. Hannah, A-5741-14T3, 2016 N.J. Super. Lexis 156 (App. Div. December 20, 2016), where the Appellate Division found that tweets are admissible evidence, giving a whole new meaning to the old adage “A little birdie told me.

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January 5, 2017 by Ismael T. Salam

A Year In Amended Rule 34Ismael T. Salam

It has been over a year since the 2015 amendment to the Federal Rules of Civil Procedure went into effect. Among the changes were Rules 34(b)(2)(B) and (C), which require: Rule 34(b)(2)(B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.

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December 29, 2016 by Steven S. Glickman

Progressive DisciplineSteven S. Glickman

While many employers are familiar with the term “progressive discipline,” only a relative few fully comprehend its true meaning. Unions and employees would have employers believe that if an employee engages in misconduct, no matter the severity, the employer must start with minor discipline, i.e., oral warning, written warning, or small suspension. However, as in Gilbert and Sullivan’s Mikado, progressive discipline simply requires that the punishment must fit the crime. .

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December 22, 2016 by Bruce D. Greenberg

Oral Arguments In Appellate Courts: Some Do's And Don'tsBruce D. Greenberg

In over 30 years of doing appellate work, I’ve learned some things do, and not to do, regarding oral arguments on appeal. Here are three of each, in no particular order:

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Categories: Appellate Law

December 15, 2016

Cannabis Vaporizers Denied Federal Trademark Protection

This Election Day was historic for many reasons, including the cannabis industry. Marijuana-related measures were on the ballot in nine states, and all but one passed. Florida, Montana, North Dakota, and Arkansas voted on medical marijuana, while California, Nevada, Massachusetts, Maine, and Arizona voted on recreational marijuana. Only Arizona failed.

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December 8, 2016 by Mindee J. Reuben

When Does Counsel "Obtain An Improper Advantage In A Civil Matter"?Mindee J. Reuben

New Jersey Rule of Professional Conduct 3.4(g) provides that an attorney “shall not … present, participate in presenting, or threaten to present criminal charges to obtain an improper advantage in a civil matter.” Doing so “is a form of intimidation and harassment that threatens the integrity of the civil process and is prejudicial to the administration of justice.” New Jersey Ethics Opinion 714 (Conditioning Entry of a Plea or Entry Into Pretrial Intervention on Defendant's Release From Civil Liability and Hold-Harmless Agreement), 194 N.J.L.J. 451 (Oct. 27, 2008). But what exactly constitutes obtaining an “improper advantage” under the New Jersey ethical rules?

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December 1, 2016 by Katrina Carroll

Internet Agreements to Arbitrate: Know the Four "Wraps"Katrina  Carroll

As any lawyer practicing in the field of consumer litigation knows, arbitration clauses have become commonplace in consumer agreements. Arbitration shuts the courthouse door and effectively prevents people from pursuing class actions and vindicating their rights for small injuries. The plaintiffs’ bar has been fighting against forced arbitration for years, with limited success. The most successful attacks are where, applying traditional contract principles, plaintiffs can show that no valid agreement to arbitrate was formed.

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November 24, 2016 by Victor A. Afanador

Change is in the Air - A fresh look at Mathis and the Sentencing Commission's Views on Career Offender Sentencing EnhancementsVictor A. Afanador

Mathis v. United States, 579 U. S. ____ (2016), may serve as one of the biggest federal sentencing decisions of last year’s Supreme Court term. This decision, along with the United States Sentencing Commission’s (“USSC”) most recent report to Congress, shows a change in the analysis of federal sentencing trends for “career offenders.” There may be a movement to change many career offender sentencing enhancements and even retool sentencing for drug based trafficking offenses. This change in the direction of the wind could neutralize many career criminal federal sentencing weapons used by federal prosecutors.

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November 17, 2016 by Joseph J. DePalma

Buyer Beware! Express Limited Warranties May Be More Limited Than You ThinkJoseph J. DePalma

You hear about a terrific consumer product being sold by the best company. You are assured that the product will last because it is backed up by a 20 year limited warranty against materials and workmanship. Lo and behold, after you have properly used the product for a month, it falls apart. It is, in fact, a terrible product. (Hey, I know good words.)

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November 10, 2016 by Steven J. Greenfogel

Musings from a TrialSteven J. Greenfogel

Over the past three weeks, I have had the pleasure of monitoring an antitrust case in the Southern District of New York that is very similar to a class action antitrust case in which Lite DePalma Greenberg, LLC is co-lead counsel. Aside from the fact that I have to travel from South Jersey to Lower Manhattan and arrive before 9:30 AM (which is no easy task), I get to sit back and watch two excellent teams of lawyers put their skills on display before a very competent jurist.

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November 3, 2016 by Francis A. Kenny

A Millennial's Voting Nightmare: No Selfies in the Voting BoothFrancis A. Kenny

With only a few days left in the 2016 presidential race, the bitter war between candidates is coming to an abrupt end. Behind the scenes, however, there is another battle brewing in federal courtrooms and state legislative chambers across the United States regarding the constitutionality of state laws banning the taking of selfies in voting booths. In the last decade, social media has become an integral part of our lives, and the so called “ballot selfie” question has become an increasingly popular topic in the law.

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October 27, 2016 by Jeremy N. Nash

Sixth Circuit: Risk of Fraud Following Data Breach Establishes StandingJeremy N. Nash

Data theft is on the rise in this country and around the world, as the sophistication of hackers and the illicit markets for stolen information grow. Unfortunately, some courts have stumbled over what should be a simple question when consumers take steps to protect themselves: if their data has been stolen but they have not actually been the victim of fraud, do they have standing to sue the company that was supposed to safeguard their data? The Sixth Circuit recently joined a number of other circuit courts in finding that, since the likelihood that fraud will follow the theft of names, birthdates, social security numbers, and credit card information is a virtual certainty, the answer to that question must be yes.

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October 20, 2016 by Kyle A. Shamberg

The Ostrich And The Telemarketer, Or Why You Still Get So Many Spam CallsKyle A. Shamberg

Picture it: after a long day of work you come home hungry and tired to the smell of a delicious dish cooking in the oven. You pour yourself a glass of your favorite beverage, sit down at the table and get ready to dig in when the phone rings. You get up to answer and when you do you hear a synthetic, slightly creepy voice telling you you’ve been selected to win a very special prize, or gauging your interest in purchasing a medical alert device, or a free cruise, or etc. etc. etc. After either immediately hanging up or spending some time chewing out the person on the line – that is, if you ever even get to a real person – you come back to your (possibly cold) meal bothered by the annoyance and intrusion on your privacy.

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October 13, 2016 by Bruce D. Greenberg

Leapfrog: Direct Certification of Cases By The Supreme CourtBruce D. Greenberg

Sometimes, parties who are going into the appellate process would love to skip the Appellate Division and go right to the Supreme Court. There’s not “an app for that,” but there are two Court Rules, Rule 2:12-1 and 2:12-2, that offer ways to leapfrog the Appellate Division and get to the Supreme Court.

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October 6, 2016

New Jersey Supreme Court Broadens The Law Against Discrimination

On June 21, 2016, in Smith v. Millville Rescue Squad, 225 N.J. 373 (2016), the New Jersey Supreme Court reiterated the broad, remedial purpose of New Jersey’s Law Against Discrimination (“LAD”), and held that the term “marital status” should be broadly interpreted to cover people who are married or single, who are transitioning from one of these statuses to the other, who never got married, or who are separated, engaged, in the process of getting a divorce, or recently widowed. Previously, the LAD itself was silent on this issue.

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September 29, 2016 by Susana Cruz Hodge

Gamble On Misinterpretation and You Might Just WinSusana Cruz  Hodge

This month, the Appellate Division effectively rewrote the Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”), N.J.S.A. 56:12-14 et seq. In Smerling v. Harrah’s Entm’t, Inc., No. A-4937-13T3, 2016 WL 4717997 (N.J. Super. Ct. App. Div. Sept. 9, 2016), Harrah’s mailed a promotional offer to plaintiff that stated:

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September 22, 2016 by Steven S. Glickman

TELL THE TRUTH!!Steven S. Glickman

In the movie “Concussion”, all Will Smith wanted the NFL to do was “Tell the truth”. That sentiment would be good advice for public employees, especially law enforcement officers. In In The Matter of Angel Reillo Camden County Police Department, Docket No. A-1216-14T1 (App. Div. Aug. 4, 2016), the Appellate Division weighed in on the significance of a law enforcement officer being truthful or, in the negative, of being charged with untruthfulness.

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September 15, 2016 by Katrina Carroll

My contract auto-renewed! Am I screwed?Katrina  Carroll

Any consumer who signs a contract for services of any kind should be on the lookout for an automatic renewal clause. These provisions (also known as “Evergreen Clauses”) typically specify that the contract will continue if not cancelled within a specific amount of time. Often, the contract will be extended for the same period provided in the original agreement, and this can be many months and even years at a time! It is easy to see why vendors like automatic renewal provisions: they eliminate administrative burdens in having to keep track of expiring agreements and having their customers agree to new contracts. For the consumer, however, automatic renewal clauses can be extremely problematic if not properly disclosed.

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September 8, 2016 by Phylicia A. Preston

Suggesting Legislation from the Bench: The Third Circuit Hints at the Necessity of Bail ReformPhylicia A. Preston

As we all learned in our social studies class, it is the essence of our government that the three branches operate independently. The judicial system prides itself on not creating legislation, but only interpreting the laws as written. However, the lines become blurred when the judiciary notices an error in our legislation causing ripples of injustice in our legal system. The court may send signals to the legislature to take corrective action to cure an unintended effect of legislation.

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September 1, 2016

NJ Supreme Court Amends Attorney Ethics Rules, Effective Today, to Expressly Allow Counseling Regarding NJ Medical Marijuana Laws, Despite Conflict with Federal Law and Policy

The New Jersey Supreme Court has amended Rule of Professional Conduct 1.2(d), which previously stated: A lawyer shall not counsel or assist a client in conduct that the lawyer knows is illegal, criminal or fraudulent, or in the preparation of a written instrument containing terms the lawyer knows are expressly prohibited by law, but a lawyer may counsel or assist a client in a good faith effort to determine the validity, scope, meaning or application of the law.

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August 25, 2016 by Mindee J. Reuben

Does Actavis Extend to Pay-for-Delay Settlements That Don’t Involve A Cash Buyout?Mindee J. Reuben

In FTC v. Actavis, Inc., 133 S. Ct. 2223, 2245 (2013), the Supreme Court ruled that a reverse payment settlement agreement, pursuant to which a brand-name manufacturer pays a generic manufacturer to delay bringing its generic to market, is subject to antitrust scrutiny under the rule of reason standard. Actavis, 13 S. Ct. at 2237. The Supreme Court was concerned about such “pay-for-delay” agreements for several reasons, including, among other things, that two competitors were dividing the market between themselves to the detriment of the consumer. Id. at 2235. Whether the rule in Actavis extends to pay-for-delay settlements that do not involve a cash component is an open question in most jurisdictions, although it may be addressed by the Supreme Court in the near term.

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August 18, 2016 by Bruce D. Greenberg

A Legal Fiction: The “Unpublished” Appellate Division OpinionBruce D. Greenberg

When New Jersey’s Appellate Division issues an opinion, it is designated as either “published” or “unpublished.” Under Rule 1:36-2(a), “[o]pinions of the Appellate Division shall be published only upon the direction of the panel issuing the opinion.”

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Categories: Appellate Law

August 11, 2016 by Steven J. Greenfogel

Musings From The Left Coast: The Judicial Panel on Multidistrict LitigationSteven J. Greenfogel

Last month, I attended the Judicial Panel on Multidistrict Litigation (JPML) hearing in Seattle. The Panel, consisting of seven federal judges (both District and Circuit Court judges), meets approximately six times per year at various (mostly delightful) locations throughout the country. The hearings always take place on a Thursday, giving the Panel members (and the attorneys who are attending the Panel) an opportunity to spend a long weekend in a venue that most of us would consider a prime vacation spot.

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August 4, 2016 by Joseph J. DePalma

The Attorney Oath of Office and Our Presidential ElectionJoseph J. DePalma

Our firm’s blogs have never addressed political issues, by choice. Our firm comprises attorneys of different races, faiths and political persuasions. We are all respectful of each other’s divergent views. Rather than blogging about one political view or another, we have devoted our writings instead to legal issues of the day. But, just as Michael Corleone replied to his wife Kay’s question regarding the family business, when the new Godfather answered by saying, “this one time,” here goes: A political blog, just this once.

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July 28, 2016 by Victor A. Afanador

The Court Just Dismissed My Federal Civil Rights Lawsuit, So Now I’ll Refile the Same Case Under the New Jersey Civil Rights Act – NOT So Fast!Victor A. Afanador

The Appellate Division recently ruled that a civil rights plaintiff cannot get two bites at the same apple. In Paszkowski v. Roxbury Township Police Department, A-1169-14T1 (decided on May 25, 2016), the plaintiff brought a federal action against a public entity alleging violations of 42 U.S.C. § 1983 (“Section 1983”) and the New Jersey Civil Rights Act (“NJCRA”). The District Court granted the defense’s motion to dismiss and held that the federal complaint failed to plead facts establishing a federal constitutional violation. Specifically, the District Court held that the defendant was entitled to qualified immunity.

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July 21, 2016 by Jeremy N. Nash

Pre-certification Motions for Summary Judgment in Class Action LitigationJeremy N. Nash

Defendants in class action lawsuits often seek a summary judgment ruling before plaintiffs have moved for class certification, but it is always a gamble to do that. Defendants who go down that road and who are fortunate enough to prevail have bound only the named plaintiff. They still run the substantial risk that a member of the proposed class will pick up the spear and take the place of the original plaintiff by filing a subsequent action.

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July 14, 2016 by Kyle A. Shamberg

Click-Wraps, Browse-Wraps And Arb Traps: What Rights Are You Giving Up When You Purchase Products Or Services Online?Kyle A. Shamberg

If you’ve ever bought a product or signed up for a service online (and, given the fact that you’re reading this blog post right now and/or have not been living under a rock for the last decade, you probably have) you’ve almost certainly bound yourself to terms and conditions you never read and in all likelihood never even knew existed.

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July 7, 2016

What is a “Law” – How an OPRA request for police dashboard video left two Appellate Division panels in conflict and one split on what is a “law.”

In Paff v. Ocean Cnty. Prosecutor’s Office, available here, the Appellate Division was charged to answer a seemingly straightforward question: does the public have a right to access recordings from the mobile video recorders (MVRs) in police vehicles under the Open Public Records Act (OPRA), N.J.S.A. 48:1A-1 to -13. The plaintiff—an open government records advocate—sought recordings made by MVRs of a police chase joined by Barnegat police vehicles after a suspect eluded a Tuckerton Borough police officer’s attempt to effect a motor vehicle stop. The Barnegat MVRs captured the Tuckerton police officer and his police dog during the arrest of the fleeing driver. The driver was charged with eluding, resisting, and various motor vehicle offenses.

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June 30, 2016

Supreme Court Ruling Has Potential To Undermine The Fourth Amendment

On June 20, 2016, the Supreme Court voted 5 to 3 to reverse a decision of the Utah Supreme Court that threw out drug-possession evidence seized from Edward Strieff in 2006 based upon an unlawful stop by an Officer. The underlying case, Utah v. Strieff, arose from police surveillance of a house in Salt Lake City, Utah based on an anonymous tip of “narcotics activity.” Upon receiving this tip, Officer Fackrell promptly conducted surveillance of the home and during his surveillance he witnessed Strieff emerge from the home.

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June 23, 2016 by Steven S. Glickman

Beware of Hidden Recording DevicesSteven S. Glickman

With the expansion of social media and with the ever increasing enhancements in recording devices, the ability and desire of employees to record conversations with their employers has increased exponentially. The question is: Do employees have the right to surreptitiously record conversations with their employers? Unfortunately, for employers, the answer is YES!

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June 16, 2016 by Susana Cruz Hodge

The TCCWNA - A Straightforward Statute with a Complicated AcronymSusana Cruz  Hodge

The Truth-in-Consumer Contract, Warranty and Notice Act ("TCCWNA"), N.J.S.A. 56:12-14 et seq., has recently been the subject of several news articles because of the uptick in complaints alleging that the Terms of Use located on websites violate the statute. Since these cases are all in their inception, it remains to be seen whether TCCWNA claims will survive motions to dismiss. Given the clear language of the TCCWNA and the recent wins for the plaintiffs on certain key issues raised in TCCWNA cases, the recent Terms of Use cases present an uphill battle for defendants.

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June 9, 2016 by Bruce D. Greenberg

What Happens When Two Appellate Panels Disagree?Bruce D. Greenberg

When two trial level judges disagree about the same legal issue, that is not a big problem. A decision by one trial level judge does not bind another trial judge, and a different judge is free to reach a different result. Any dispute between trial level decisions can be sorted out by an appellate court. That is the rule in both the New Jersey and federal systems

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Categories: Appellate Law

June 2, 2016 by Phylicia A. Preston

Striking Balance under OPRAPhylicia A. Preston

In April, the New Jersey Appellate Division drew a line in the sand limiting requests made to government agencies under the Open Public Records Act (“OPRA”), N.J.S.A. 47:1A-1 et seq. OPRA establishes a procedure for the public to access government records. Generally, under OPRA, government records should be readily accessible for inspection, copying or examination by the citizens of the State. However, as announced by the court in Paff v. Galloway, 444 N.J. Super. 495 (App. Div. 2016), that standard does not apply to improper OPRA requests.

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May 26, 2016

Review of the DOL's Final Rule Updating the FLSA's White Collar Exemptions

This month we received the Department of Labor’s (“DOL”) final rule updating the overtime regulations under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. 201 et seq. This comes about a year after President Obama issued a Presidential Memorandum directing Secretary of Labor Thomas Perez to update and modernize the overtime regulations, particularly those pertaining to executive, administrative, and professional employees, which are known as the “white collar” or “EAP” exemptions. Calling the regulations “outdated,” President Obama commented that millions of Americans’ overtime and minimum wage rights were not being protected as intended under the statute. The Memorandum also specifically instructed Secretary Perez to simplify the regulations and make them easier to understand and apply.

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Categories: Employment/Labor Law

May 19, 2016 by Mindee J. Reuben

Politics, Punting, and The Supreme CourtMindee J. Reuben

On May 16, 2016, the Supreme Court declined to resolve the question of whether requiring an organization to submit a form stating that it objected on religious grounds to providing contraceptive coverage substantially burdens the exercise of religion in violation of the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb et seq. (“RFRA”). See Zubik v. Burwell, 578 U.S. ___, 2016 U.S. Dist. LEXIS 3047 (S. Ct. May 16, 2016) (per curiam). Instead, the Court vacated and remanded the cases to the respective Courts of Appeals for the Third, Fifth, Tenth and D.C. Circuits. While the Court’s decision was surprising given the split among the Circuits on the issue (many commentators have accused the Court of “punting”), this is not the first time that the Supreme Court has remanded a case after granting certiorari, particularly where oral argument or briefing has elucidated facts and positions of the parties not considered below.

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May 12, 2016 by Katrina Carroll

Life After Comcast: What Have We Learned?Katrina  Carroll

Are plaintiffs required, at the class certification stage, to submit a model showing that damages are capable of class-wide proof? And if plaintiffs do submit a damages model, is it enough to show statistically that the average class member suffered harm even if some may not have suffered any damage at all? These questions, which are of critical importance to plaintiffs and will heavily influence how class actions are prosecuted in the future, have come to the forefront in the last few years in the wake of the oft-cited and carefully scrutinized 2013 Supreme Court decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). There, the Court decertified a class of Comcast subscribers and ruled that the plaintiffs could not show at the certification stage that damages could be measured class-wide. As a result, the Court found that the plaintiffs failed to make the requisite showing of predominance under Federal Rule 23(b)(3).

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May 5, 2016 by Victor A. Afanador

Moot Court MattersVictor A. Afanador

I was a member of the Interscholastic Moot Court Board while I was a student at Seton Hall Law, and I competed in three moot court competitions during that time. Moot Court enables students to compete against other schools to learn how to present issues and mock arguments before panels of practitioners and real judges. The students get scored on their performance. Through Moot Court, we learned the essential skill of presenting our case, speaking persuasively and clearly before an appellate panel. The process involves getting questions from professors and practitioners, who probe the issue that the students are to present before the mock appellate panel.

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April 28, 2016 by Joseph J. DePalma

Life after Concepcion: Use of Ordinary Contract Principles To Nullify Forced Arbitration ClausesJoseph J. DePalma

The United States Supreme Court erected a considerable barrier to consumers who want to have their disputes with sellers resolved in court. Its decision in ATT Mobility LLC v Concepcion, 563 U.S. 333 (2011), ushered in a new concept in American jurisprudence, forced arbitration. Take it or leave it arbitration clauses, restricting a person’s right to a jury trial, to join claims with others, and to proceed as a class action, have now become commonplace in virtually all consumer contracts. Despite this hurdle, courts have begun to give closer scrutiny to these purported “agreements.”

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April 21, 2016 by Steven J. Greenfogel

The Pirates of the Class Action WorldSteven J. Greenfogel

Most often, when anyone thinks about class actions (to the extent that anyone ever does), scorn is heaped on plaintiffs’ lawyers for receiving huge fees and getting little for the parties who were actually injured by the illegal acts of defendants. Quite often the reality is rather different. Many lawyers studiously avoid class action practice for the very reason that it is extremely difficult, requires extensive investments in time and costs and returns nothing in the event that the case is not won or settled. Even when a case does get resolved favorably, it doesn’t end there. The professional objectors then come out in force to tax the settlement and any potential fees that may be awarded.

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April 14, 2016 by Jeremy N. Nash

The FDCPA Does Not Govern Every Attempt to Collect a DebtJeremy N. Nash

The Fair Debt Collection Practices Act (FDCPA) is a federal law that prohibits debt collectors from using abusive, unfair, or deceptive practices to collect a debt, but you should know that it does not necessarily govern every attempt to collect a debt.

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April 7, 2016 by Kyle A. Shamberg

Show Me The Money! “Pick-Off” Attempts In The Wake Of Campbell-EwaldKyle A. Shamberg

While civil lawsuits can involve all sorts of different topics (employment discrimination, personal injury, a lease between landlord and tenant, copyright infringement, or a defective product, to name only a few), at heart they are all about the same thing: the plaintiff believes she has been wronged in some way by the defendant and is seeking redress from the court. Most often, this redress takes the form of money damages. Let’s say a plaintiff is injured in a car accident by the negligent defendant and files a suit asking for $100,000 in damages. If the next day that defendant offers to write the plaintiff a check for the $100,000, that should bring the dispute to an end, right?

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March 31, 2016

2016 Proposed Amendments to the New Jersey Court Rules - An Ad Hoc Look at What the Civil Bar Needs to Know

In January, the New Jersey Supreme Court issued the 2016 Report of the Supreme Court Civil Practice Committee, which proposes amendments to the New Jersey Court Rules (the “Proposed Amendments”). The report is available here.

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March 24, 2016

Can Citizens Photograph the Police?

Last month, U.S. District Court Judge Mark Kearney of the Eastern District of Pennsylvania issued a ruling in two consolidated cases, Fields v. City of Philadelphia and Geraci v. City of Philadelphia. He held that, absent “any state purpose of being critical of the government,” the rights to freedom of expression and speech are not applicable when recording the activities of police officers.

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March 17, 2016 by Susana Cruz Hodge

The Art of Drafting Safe (but not Fail-Safe) Class DefinitionsSusana Cruz  Hodge

One of the ways in which defendants attempt to defeat class certification is by arguing that a class is fail-safe. A fail-safe class is “one that is defined so that whether a person qualifies as a member depends on whether the person has a valid claim.” Zarichny v. Complete Payment Recovery Services, Inc., 80 F. Supp. 3d 610, 623 (E.D. Pa. 2015). In other words, a fail-safe class definition is one where the class members cannot be identified until liability is established.

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March 10, 2016 by Steven S. Glickman

Pay Heed to PaytonSteven S. Glickman

When established case law lies fallow, many times it becomes forgotten. Then, when it becomes applicable, parties fail to abide by its constructs. Such could be the case with Payton v. New Jersey Turnpike Authority, 148 N.J. 524 (1997).

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March 3, 2016 by Bruce D. Greenberg

To Win on Appeal, Know the Standard of ReviewBruce D. Greenberg

Parties who lose at the trial level take comfort in knowing that they can go to a higher court for review. But not all appellate review is created equal. Both the party who appeals (the “appellant”) and the party who opposes the appeal (in New Jersey state court, the “respondent,” and in federal court, the “appellee”) need to know what level of review is implicated by any particular appeal.

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February 25, 2016

Financial Advisors Exempt From Overtime Under FLSA

Most employers are familiar with the Fair Labor Standards Act (FLSA), but the rising number of FLSA suits signals ongoing struggles with compliance. According to figures released by the Administrative Office of the U.S. Courts, FLSA suits reached record highs in recent years. The uptick may be due to ambiguities in the law and the changing landscape of modern workplaces, which make compliance challenging for even the most well-intentioned employers, or perhaps it is owed to a general increase in awareness about workers’ rights among potential plaintiffs. Whatever the cause, employers covered by the FLSA must be mindful of their obligations and continuously audit their internal policies and compliance efforts.

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February 19, 2016

The 2015 Amendments to the Federal Rules of Civil Procedure in Practice: Third Circuit Courts’ Application of the 2015 Amendments

Proposed 2015 Amendments to the Federal Rules of Civil Procedure, available here, became effective December 1, 2015. For litigators, the 2015 Amendments have practical implications on early case management and discovery, especially discovery of electronically stored information. Below is a summary of some of the Amendments, which also provides examples of how those practical implications have played out so far in District Courts in the Third Circuit.

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February 11, 2016 by Katrina Carroll

Faces in the Crowd: Protecting Your Biometric Information in the Internet AgeKatrina  Carroll

In the digital world of today, we know that biometric recognition technologies, including fingerprint, face, voice and eye recognition, are a fact of life. Often, these systems are there for additional security purposes, or even for our own convenience.

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February 4, 2016 by Victor A. Afanador

Tales from a SCOTUS Counsel Table VoyageVictor A. Afanador

Whether you are petitioning for certiorari or opposing the writ, you may be lucky (or unlucky) enough to find yourself in the hallowed halls of the United States Supreme Court. I am blessed to have recently taken this journey as counsel of record in a case that I litigated (please see my the blog of my law partner, Bruce D. Greenberg, Esq., on all the legal action: I would like to pass along some helpful hints to those that may find themselves on a similar passage for the first time, and point to some wonderful resources that may aid you in understanding how to navigate these legal waters.

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January 26, 2016 by Joseph J. DePalma

Picking Off Class Plaintiffs, Or Whac-A- Mole And Castles In The SandJoseph J. DePalma

What do a boardwalk arcade game and sand castles have to do with the most recent US Supreme Court’s decision involving class actions? Plenty, it seems. In Campbell-Ewald Co. v. Gomez, No. 14-857, the issue presented was whether, in a class action, a defendant’s unaccepted offer to settle renders the case moot. This device is commonly referred in class action parlance as “picking off” a plaintiff. “Whac- a-Mole” is a boardwalk arcade game where players use a mallet to hit toy moles, which appear at random from holes in the game board, much like the game a wrongdoing defendant plays when it picks off named plaintiffs- one after the other- to try to block the case.

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January 21, 2016 by Steven J. Greenfogel

Three Little PiggiesSteven J. Greenfogel

And then there were three. In February 2006, the United States Department of Justice Antitrust Division, the European Union, and various individual international antitrust bodies began an investigation into whether the vast majority of international air carriers were involved in a conspiracy to raise prices for air cargo services throughout the world. The investigation began when Lufthansa, pursuant to various amnesty programs, revealed that it had been participating in a long-term price-fixing agreement with its competitors. While several different methods were used to raise prices, the primary vehicle was an agreed-upon imposition of a jet fuel surcharge that bore no relationship to the actual fuel price increases being experienced by the airline industry. As a result of these governmental actions, over $3 billion in fines were paid, including the imposition by the U.S. Department of Justice of fines exceeding $1.8 billion. Four airline executives went to prison. This resolved one of the largest criminal conspiracies in international cartel practice ever uncovered.

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January 14, 2016 by Jeremy N. Nash

Court Certifies Student Classes Denied Special Education ServicesJeremy N. Nash

A New York federal judge recently certified two classes and several subclasses consisting of more than 20,000 New York City students with disabilities in a case alleging that the New York City Department of Education and the New York State Education Department have adopted policies denying them special education services.

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January 7, 2016 by Phylicia A. Preston

Reducing Federal Criminal SentencesPhylicia A. Preston

The sentences imposed on criminal offenders have been criticized as too harsh, resulting in the overcapacity of prisons and over sentencing of first time and non-violent offenders. Much of the criticism stems from the recommended sentences of United States Sentencing Guidelines (“USSG”) and other legislation. The USSG provides a sentencing range based upon the defendant’s criminal history and the severity of the offense. Although there are concerns regarding the severity of the penalties imposed upon criminal defendants, there are revisions to the USSG, legislation, and case law that can reduce or modify the sentence of a defendant.

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December 31, 2015 by Kyle A. Shamberg

Class Action Basics: What You Need To Know To Protect And Preserve Your RightsKyle A. Shamberg

I often receive phone calls from people who have read or heard about a class action our firm is pursuing and are curious about whether the case applies to them and what they need to do to get involved. I find that while most of these people – usually consumers who have purchased a defective or falsely advertised product, or have had their personal information compromised in a data breach – are familiar with the concept of what a class action lawsuit is (Erin Brokovich anyone?) they have a number of questions about how they actually work. Am I member of the class? Do I need to provide documents or other evidence? How can I recover if there’s a settlement or judgment in the case? For those of you who have these same questions, here’s a brief crash course in class actions that can help you understand the basics.

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December 22, 2015 by Mindee J. Reuben

Blackmailing The Class: The Problem With Serial ObjectorsMindee J. Reuben

Federal Rule of Civil Procedure 23(e) requires that, in the event of a settlement in a class action, notice of the settlement and the opportunity to object be given to class members. Too often, however, the opportunity to object is abused by serial objectors, causing significant delay and harm to the rest of the class.

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December 17, 2015 by Bruce D. Greenberg

Perpetrators of Consumer Fraud Can No Longer Blame Their VictimsBruce D. Greenberg

We often hear the phrase “caveat emptor,” which means “let the buyer beware.” But New Jersey courts at all levels, including the Supreme Court, have said that caveat emptor “no longer prevails in New Jersey.” As far back as the 1960’s, beginning with cases involving the sale of automobiles and real property, our Supreme Court began to repudiate caveat emptor. That trend continued in succeeding decades. Thus, the time is long past when a seller who commits a consumer fraud can hide behind caveat emptor.

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December 10, 2015 by Steven S. Glickman

Removing A Public Employee Who Is Unfit For Psychological ReasonsSteven S. Glickman

Public sector employers, especially those jurisdictions covered by the New Jersey Civil Service Commission, have wrestled with the issue of how to meet the burden of proof necessary to establish that an employee is unfit for duty for psychological reasons. While removal of an employee on the basis of being physically unfit for duty is relatively easy to establish, lack of fitness for duty for psychological reasons is more difficult to prove

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December 3, 2015 by Susana Cruz Hodge

Trebling Troubles - Keeping Damages Below CAFA’s $5M ThresholdSusana Cruz  Hodge

The Class Action Fairness Act of 2005 (“CAFA”) allows a defendant to remove to federal court a class action case filed in state court if the total amount in controversy exceeds $5,000,000. As a result, it is possible that claims for punitive or treble damages can enable a case to be punted to federal court, where defendants often prefer to be. One key issue to examine is whether plaintiff seeks to treble all damages in the complaint. In Chulsky v. First Niagara Bank, N.A., No. 15-421, 2015 U.S. Dist. LEXIS 10238 (D.N.J. Aug. 5, 2015), Judge Shipp examined whether statutory damages should be trebled for the purposes of establishing the jurisdictional $5,000,000 limit.

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November 24, 2015

Cleveland Jocks

On November 9, the U.S. Supreme Court declined to hear a last-ditch appeal by the City of Cleveland concerning its “jock tax” on visiting professional athletes. The Supreme Court’s decision not to take on the case solidifies a lower court victory for former Chicago Bears linebacker Hunter Hillenmeyer and former Indianapolis Colts center Jeff Saturday.

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November 5, 2015

Internal Investigations Are Just That...Internal

In New Jersey, all law enforcement agencies within the state must adopt and implement guidelines consistent with the “Internal Affairs Policy and Procedures” promulgated by the Police Bureau of the State’s Division of Criminal Justice. Under these guidelines, each agency must establish an internal affairs function and accept reports of officer misconduct.

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October 29, 2015

NJ Upholds Casino’s Weight Requirements for BorgataBabes

The Borgata Casino Hotel & Spa in Atlantic City, NJ opened in 2003 and introduced us to the “BorgataBabes”—attractive male and female servers donned in form-fitting costumes. The BorgataBabes were intended to reflect the “fun, upscale, sensual, international image” of the Borgata brand and help bring the style of Las Vegas to NJ.

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October 22, 2015 by Katrina Carroll

“I’ve been ripped off! Can I represent consumers in other states?”Katrina  Carroll

Can a resident of Illinois who purchased a falsely-advertised product represent a class of people who bought that product in California? And if yes, which state’s law applies? Illinois, California, neither or both? These questions arise often in class litigation and the answers are complex and depend heavily on the nature of the case and the specific state laws involved.

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October 15, 2015 by Mindee J. Reuben

Ancient Documents in the Age of Electronic DiscoveryMindee J. Reuben

The Advisory Committee on Evidence Rules (“Advisory Committee”), part of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, is seeking approval to abrogate Federal Rule of Evidence 803(16), the ancient documents exception to the hearsay rule. The proposed amendment grew out of the Advisory Committee’s concerns about the growth of electronically stored information (“ESI”) and the potential for abuse of F.R.E. 803(16) in the ESI context.

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October 8, 2015 by Bruce D. Greenberg

The Final Hurdle for New Lawyers: The New Jersey Supreme Court's Committee On CharacterBruce D. Greenberg

Before being able to practice law, aspiring lawyers must go through at least nineteen years of education (twelve years through high school, four years of college, and three years of law school). Then they must pass one or more bar examinations. But no one can become an attorney unless the Committee on Character in their state clears them to practice.

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October 1, 2015 by Kyle A. Shamberg

Looking Out For the Little Claim: Mullins v. Direct Digital and Consumer Class ActionsKyle A. Shamberg

Consumers seeking to pursue small-individual, large-aggregate class actions have been confronted time and again with the dreaded “A” word: Ascertainability. Not that the word itself is imposing or even unfair; all it means is that, for a class action to be appropriate, there needs to be a reasonable way of figuring out who fits within the definition of the class and who doesn’t based on some sort of objective criteria. For example, “people who purchased Product X between January 2011 and January 2014” would work, whereas “people who think Product X is really cool” would not. Seems fairly straightforward, right?

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September 17, 2015 by Bruce D. Greenberg

Simple Language and Clear Principles: The Maxims of EquityBruce D. Greenberg

Complex litigation is often fraught with legalese. Frequently, complex litigation seems more concerned with technicalities than what is fair and reasonable. But there is a refreshing body of law that expresses itself in plain English and focuses on what is right and just. That body of law is known as the “maxims of equity.”

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September 10, 2015 by Victor A. Afanador

Demons and Dragons: The Plague of ESI on Public EntitiesVictor A. Afanador

In this current economy, public entities are forced to do more with less and carefully watch the their coffers. Public entities are required to provide basic protective, maintenance and regulatory services for their communities while struggling to pay increasing employee salaries, fund pensions, manage a diminishing tax ratable base, and defend a myriad of lawsuits, all while taxpayers are demanding lower taxes.

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August 20, 2015

Third Circuit Panel Nixes New Jersey Sports Betting

On August 25, 2015, the Third Circuit denied New Jersey’s latest effort to bring legalized sports betting into the state. In a 2-1 decision, the Court of Appeals panel ruled that New Jersey’s efforts violate the Professional and Amateur Sports Protection Act of 1992 (“PASPA”). New Jersey’s efforts to bring sports betting to the state have been repeatedly and vigorously challenged by the major professional sports leagues and the NCAA.

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August 13, 2015 by Susana Cruz Hodge

Meeting the Requirements of Rule 4:32-1(a) at the Class Certification Stage in A Consumer Fraud CaseSusana Cruz  Hodge

If your case has survived defendant’s motion to dismiss, you have negotiated ESI, discovery is complete and expert reports have been exchanged, it’s time to file that class certification motion and see if your case has some legs after all. If your case is being adjudicated in the Superior Court of New Jersey, you must satisfy the requirements of R. 4:32-1(a) and either R. 4.32-1(b)(2) or (b)(3) in order to obtain class certification. Today’s blog entry will focus on the Rule 4:32-1(a) elements.

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August 6, 2015

Probable cause gets bad reception in the Eleventh Circuit

On May 5, 2015, the en banc Eleventh Circuit held that investigators do not need to secure a warrant before obtaining records of cellphone tower tracking data. This decision overturned a three-judge panel’s earlier ruling which found that obtaining Davis’ past cellphone location without a warrant violated his Fourth Amendment right to privacy.

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July 30, 2015 by Steven J. Greenfogel

Turmoil in the World of College SportsSteven J. Greenfogel

Since the last time that I wrote about O’Bannon v NCAA, several developments of interest have taken place. On March 15, 2015, the Ninth Circuit heard oral argument on Judge Wilken’s findings that the NCAA’s rules prohibiting payment to college athletes for the use of their name image and likeness rights violated the Sherman Act. The injunction issued by Judge Wilken, allowed schools to offer full cost of attendance and up to $5,000 per year in deferred payments to student athletes. Judge Wilken denied the NCAA’s motion to stay the injunction pending the appeal. Around two weeks ago, the NCAA asked the Ninth Circuit to enter a stay of the injunction pending their ruling on the appeal. Last Friday, the Ninth Circuit stayed the injunction pending the disposition of the appeal.

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Categories: Appellate Law

July 24, 2015

Is the Career Offender Enhancement’s Residual Clause under the United States Sentencing Guidelines next on the chopping block after Johnson v. United States, 576 U.S. ___ (2015)?

On June 26, 2015—the same day that the Supreme Court issued its landmark decision that the fundamental right to marry is guaranteed to same-sex couples in Obergefell v. Hodges—the Supreme Court issued another decision that will affect an untold number of federal prisoners. In an opinion authored by Justice Scalia, the Court in Johnson v. United States revisited the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e) (the “ACCA”), the fifth time it has done so in the last seven years. So why does the ACCA appear so often on the Court’s docket?

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July 16, 2015 by Joseph J. DePalma

The Long and Winding RoadJoseph J. DePalma

We have been blogging on our new website about important legal issues of the day. This one is different. It’s about who we are and why we are here. Our website touts the firm’s deeply rooted ties to the great City of Newark:

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July 9, 2015

Law Grads Lose Class Certification

Class certification was recently denied in Harnish v. Widener University School of Law, No. 12-608 (D.N.J. July 1, 2015), a proposed $75 million class action filed in New Jersey federal court against Widener University School of Law over allegedly misleading employment statistics. The Court held that the plaintiffs failed to show typicality under Federal Rule of Civil Procedure 23(a), as well as predominance of common questions under Rule 23(b)(3).

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April 30, 2015 by Bruce D. Greenberg

Getting The Other Side to Pay Your Attorneys' FeesBruce D. Greenberg

It’s all well and good to win your case, but most of the time you still have to pay your attorneys. Our courts follow what is known as the “American Rule.” Under that rule, a party, even one who wins the case, generally cannot shift its attorneys’ fees to the other side. The reason for this is the policy decision that adopting a “loser pays” regime would deter all but the wealthy from having access to the courts, since even a party with a valid claim might be afraid to sue given the risk, no matter how small, of having to pay the other side’s attorneys’ fees.

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April 23, 2015 by Katrina Carroll

"Notice of Class Action Settlement?" Yes, please!Katrina  Carroll

So, here’s the scene: after a long day, you’re standing in the kitchen and sorting through a huge pile of mail. Between bills and catalogues, you spot an ominous, legalistic “NOTICE OF CLASS ACTION SETTLEMENT,” most of its text written in tiny 4-point font. At the top (and perhaps in oh so distinguishable 5-point font), you see that “you are not being sued.” “Phew! What a relief,” you think as you toss the notice into the trash. You have no clue that you’re actually throwing good money away with yesterday’s dinner scraps.

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April 16, 2015 by Kyle A. Shamberg

One For You, Nineteen for Thieves: Data Breaches and Federal Tax FraudKyle A. Shamberg

The close of tax season is finally upon us, bringing with it relief for the last-minute filer, excitement for the unexpectedly-large-refund recipient, and a renewed sense of freedom for the seasonal tax preparer released back into the world to once again enjoy the sights and sounds of civilization. But for another group of people, tax season will drag on indefinitely as they spend hours on the telephone with the IRS, fill out mounds of paperwork, and hope against hope to eventually get the refund they were counting on. These people are the victims of tax fraud, in many instances as a direct result of having their personal information stolen in a data security breach.

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April 2, 2015 by Bruce D. Greenberg

I Want to Appeal That Terrible Decision Right Away. Can I?Bruce D. Greenberg

When a judge makes a bad decision, whether on a motion or at trial, a disappointed party’s first reaction is “Appeal at once!” But there are special rules about how quickly an appeal can be brought, and it’s important to know when an immediate appeal is or is not allowed. The rules about appealability differ between state and federal courts.

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Categories: Appellate Law

March 19, 2015

Appellate Division Limits Application of “Good Faith” Law Enforcement Immunity for Public Entities

The Appellate Division recently issued an opinion discussing the scope of the “Good Faith” Law Enforcement Immunity (N.J.S.A. 59:3-3) under the New Jersey Tort Claims Act. In Caicedo v. Caicedo, No. A-6163-12T2 (App. Div. March 17, 2015), the minor Plaintiff was severely injured when he was struck by Defendant Newark police officer’s cruiser while crossing the street riding his bicycle. At the time, the Officer was transporting a recently arrested prisoner to police headquarters for processing.

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March 13, 2015 by Victor A. Afanador

After all these years, let's get back to Moot Court!Victor A. Afanador

So each year around this time I get drafted by the Director/Professor in charge of the Seton Hall University School of Law’s Interscholastic Moot Court program to “coach” a competing moot court team. The position is more akin to a hands-on clinical adjunct professor position. I am assigned a few students and, along with a co-coach or the director of the program, we assist the students in crafting their oral arguments and in preparing answers to judges’ questions for a Moot Court competition against other law schools across the country. Despite a busy schedule and a clamoring of “no time for this,” I find myself year in and year out committing to the endeavor. Why?

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Categories: Appellate Law

March 9, 2015

No Room for the Third Circuit's Ascertainability Requirement under New Jersey's Class Action Rules

In Carrera v. Bayer, 727 F.3d 300 (3d Cir. 2013), the Third Circuit set a new bar for class certification under Rule 23 of the Federal Rules of Civil Procedure: classes may not be certified unless individual class members can be identified. This requirement that class members be identifiable-also known as the ascertainability requirement-has become “a subject of much discussion” and has not only left judges on the Third Circuit at odds on the issue, but even has the Rule 23 Subcommittee to the Advisory Committee on Civil Rules waffling on what its place in the federal rules should be. (Compare the Subcommittee's October 2014 report wherein consideration of the requirement “warrant[s] making the effort' with its December 2014 report wherein the Subcommittee shifts the inquiry: "[I]s there both reason and opportunity to address [ascertainability] by new rule text?").

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February 25, 2015

The U.S. Supreme Court Scrutinizes Abercrombie & Fitch's "Look Policy"

On February 25, 2015, the U.S. Supreme Court heard argument in an employment discrimination case involving a young Muslim woman from Tulsa, Oklahoma, who alleges she was denied a job because she wears a headscarf in conformance with her religious views. In 2008, Plaintiff Samantha Elauf interviewed with Abercrombie & Fitch for a position as a “model”, which is the company’s term for a sales associate.

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Categories: Appellate Law

February 19, 2015

Employee or Independent Contractor? Learn the ABCs

The Supreme Court of New Jersey recently held in Hargrove v. Sleepy’s, LLC, No. A-70-12 (072742),_N.J._(2015), that the worker-friendly “ABC” test governs classification disputes under the New Jersey Wage Payment Law (“WPL”), N.J.S.A. 34:11-4.1 to -4.14, and the New Jersey Wage and Hour Law (“WHL”), N.J.S.A. 34:11-56a to -56a38. The WPL governs the time and mode of wage payments to employees, and the WHL establishes a minimum wage and an overtime rate for certain employees.

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Categories: Employment/Labor Law

February 10, 2015 by Steven J. Greenfogel

When The NCAA Ran Out Of Lucky CharmsSteven J. Greenfogel

March 17 is St. Patrick’s Day, a time for carousing and all-around good fun. It’s also the day on which the Ninth Circuit will hear the NCAA’s appeal in the O’Bannon litigation, perhaps the most important piece of sports litigation in the last thirty years. [Disclosure: I am one of the counsel for O’Bannon and the class in this case]. Originally brought in 2009 under antitrust theories which alleged price fixing of college Grant-in-Aids, O’Bannon is really human rights litigation challenging the “field hand” status of college athletes forced to work for nothing while universities, operating under the umbrella of the NCAA, profited from the free labor of the young football and basketball players.

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February 2, 2015 by Susana Cruz Hodge

The Dos and Donts of ESI DiscoverySusana Cruz  Hodge

When faced with the daunting task of engaging in and negotiating discovery of Electronically Stored Information (“ESI”) with your adversary, be mindful of some tips.

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January 22, 2015 by Joseph J. DePalma

Fun with Civil Procedure. Filing an Appeal-Quando, Quando, Quando?Joseph J. DePalma

Ever lose sleep about the interplay between 28 U.S.C. § 1291, (appeals from final decisions). Fed. Rule Civ. Pro. 54(b), (appeals from separate claims) and 28 U.S. C. § 1407 (cases centralized in an MDL proceeding)? Now you can rest assured. The question of when to appeal a decision disposing of a case in its entirely, but during the pendency of a still ongoing multi-district litigation, has been resolved. In Gelboim v. Bank of America Corp., No. 13-1174, decided January 21, 2015. the Supreme Court unanimously ruled that a party in an MDL proceeding can file an appeal as of right under § 1291 even during the pendency of an ongoing MDL, so long as the decision appealed from disposes of all of the claims in that case.

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