Lite DePalma Greenberg, LLC Firm News Feedhttps://www.litedepalma.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10en-us16 Sep 2019 00:00:00 -0800firmwisehttp://blogs.law.harvard.edu/tech/rssGETTING YOUR VIEWS, OR YOUR COMPANY'S VIEWS, HEARD IN SOMEONE ELSE'S APPEALhttps://www.litedepalma.com/?t=40&an=96404&format=xml&p=6944<br /> Most people want to avoid litigation. But sometimes we wish we could play a role in an appeal that does not involve us directly, a case we don&rsquo;t have to be a part of. One reason for that is when someone else&rsquo;s appeal involves an issue whose decision would affect us as well. When you learn of such a case, you need not sit helplessly by, hoping that &ldquo;your side&rdquo; will win. You can take an active role by seeking to become an amicus curiae, or &ldquo;friend of the court.&rdquo;<br /> <br /> <strong>What is an Amicus Curiae?<br /> </strong><br /> An amicus curiae is an outsider to an appeal who advises the court about the issues of that case. The idea that one who takes on that role is a friend of the court derives from the concept that the court will make a better, fairer decision if it gets input from someone who is not a party but has the &ldquo;bigger picture&rdquo; in mind.<br /> <br /> <strong>What Role can an Amicus Curiae Play in an Appeal?</strong><br /> <br /> Like a party to an appeal, one who is granted the status of an amicus will be given the right to file a brief. Sometimes, depending on the case and the court in which it is pending, an amicus who wishes to appear at oral argument and present his, her, or its views will be allowed to do that, too.<br /> <br /> In the Appellate Division, amici are often permitted to argue as well as brief the appeal, though that is up to the panel that is to hear the appeal. The practice in the Supreme Court varies. Some amici, such as the Attorney General&rsquo;s Office, generally receive permission to argue whenever they seek it. Others, in contrast, may be limited to filing a brief.<br /> <br /> In especially important cases, or where multiple amicus motions are filed, the Court may allow one amicus supporting each side to argue. If so, the proposed amicus given that right is often the first one who files a motion for leave to participate as an amicus, including the right to argue orally. Thus, prompt filing of such a motion may be important.<br /> <br /> In the Third Circuit, <a href="https://www.uscourts.gov/sites/default/files/ap_rules_eff._dec._1_2018_0.pdf" target="_blank">Federal Rule of Appellate Procedure 29(a)8)</a>&nbsp;provides that an amicus may participate in oral argument only with the court&rsquo;s permission. No criteria for that permission are stated there.<br /> <br /> <strong>How Does One Become an Amicus in a New Jersey State Court Appeal?<br /> <br /> </strong>Anyone who wishes to act as an amicus must apply for permission to do that. In the New Jersey state courts, the same Court <a href="https://www.njcourts.gov/attorneys/assets/rules/r1-13.pdf?c=bV7" target="_blank">Rule, 1:13-9</a>, governs amicus applications in both the Appellate Division and the Supreme Court. That rule requires a motion by the proposed amicus and sets forth the elements that must be described &ldquo;with specificity&rdquo; within the motion:<br /> <br /> <div style="margin-left: 40px;">1. The identity of the applicant.<br /> 2. The issue intended to be addressed.<br /> 3. The nature of the public interest in that issue.<br /> 4. The nature of the applicant&rsquo;s special interest, involvement or expertise in respect to that issue.<br /> <br /> In addition, the proposed amicus brief must be submitted with the motion for leave to appear.</div> <br /> The rule goes on to say that the court &ldquo;shall grant the motion if it is satisfied under all the circumstances that the motion is timely, the applicant&rsquo;s participation will assist in the resolution of an issue of public importance, and no party to the litigation will be unduly prejudiced thereby.&rdquo; The Supreme Court has elaborated on that language in case law. In one case, the Court referred to amici ensuring that &ldquo;all recesses of the problem will be earnestly explored.&rdquo; In another decision, the Court stated that an amicus had &ldquo;enlightened [the Court&rsquo;s] deliberations.&rdquo; That language helps potential amici know how to structure their motions.<br /> <br /> As the rule states, timeliness is an issue. To seek amicus status in the Appellate Division, the rule requires a motion to be filed &ldquo;on or before the day when the last brief is due from any party.&rdquo; The Supreme Court is a somewhat different story, however. That is because there are two separate points at which amici might seek to appear.<br /> <br /> Sometimes amici seek to file their briefs when the Court is considering whether to grant certification (or, in other instances, leave to appeal). In that circumstance, an amicus motion is due, as in the Appellate Division, &ldquo;on or before the day on which the last brief is due from any party.&rdquo;<br /> <br /> More commonly, though, amici file motions after the Court has agreed to grant review. In that case, such motions must be filed within 75 days of the date when the Court posts on the Judiciary website an order granting certification or leave to appeal, or a notice of appeal as of right. It is therefore important to monitor the website, since late motions will be granted &ldquo;only on a showing of good cause demonstrated to the satisfaction of the Court.&rdquo;<br /> <br /> <strong>How Does One Become an Amicus in a Third Circuit Appeal? <br /> </strong> <br /> Federal Rule of Appellate Procedure 29 is a road map for would-be amici. Private parties &ldquo;may file a brief only by leave of court or if the brief states that all parties have consented to its filing.&rdquo; That second path is not available in our state courts. The motion &ldquo;must be accompanied by the proposed brief and state (A) the movant&rsquo;s interest; and (B) the reasons why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.&rdquo;<br /> <br /> The cover of an amicus brief in a federal appeal must state which side the proposed amicus supports. The amicus motion and brief must be filed &ldquo;no later than 7 days after the principal brief of the party being supported is filed.&rdquo; If the amicus is not supporting either side, the amicus papers must be filed no later than seven days after the appellant&rsquo;s or petitioner&rsquo;s principal brief is filed, absent leave to file later than that.<br /> <br /> Rule 29 also limits an amicus to a brief half the length that the rules allow for the principal brief of the party that the amicus supports. Even if that party obtains leave to file a longer brief than the rules otherwise allow, the amicus does not get more pages as a result. Thus, concision is important in amicus briefs.<br /> <br /> <strong>Who Can Act as an Amicus?</strong><br /> <br /> The Supreme Court has accepted as amici a wide range of movants. Companies or organizations with particular knowledge of or interest in the issues at hand have often been allowed to appear as amici. So have individuals such as lawyers who have expertise in the subject matter of the appeal.<br /> <br /> In at least one case, the Appellate Division permitted a company involved in other litigation on the issue before the Court to participate as an amicus. When that case went to the Supreme Court, dissenters in the Court&rsquo;s decision objected to the company&rsquo;s participation, labeling it as &ldquo;inviting the fox into the hen house.&rdquo; But the majority had no problem with that, something for future amici to keep in mind.<br /> <br /> In state court appeals, once someone has been granted leave to appear as an amicus in a lower court, whether at the trial level or in the Appellate Division, that amicus may file papers in a higher court without the need to seek further leave. That avoids requiring amici to do the same thing twice, reducing expense and the need for duplicative motion practice.<br /> <br /> Lite DePalma Greenberg, LLC attorneys have represented amici curiae in a number of appeals. Those amici have ranged from the Center for Auto Safety to the Hudson County Taxpayers Association, an organization of landlords, and from the Consumers League of New Jersey to the American Group Psychotherapy Association, an organization of mental health professionals of numerous disciplines. For more information on Lite DePalma Greenberg, LLC&rsquo;s appellate practice, please visit <a href="https://www.litedepalma.com/appellate" target="_blank">www.litedepalma.com/appellate</a>. <br /> <br /> <br />Lite DePalma Greenberg Law Blog29 Aug 2019 00:00:00 -0800https://www.litedepalma.com/?t=40&an=96404&format=xml&p=6944WHAT WE HAVE HERE IS A FAILURE TO ACCOMMODATE - OR NOT!https://www.litedepalma.com/?t=40&an=96163&format=xml&p=6944The New Jersey Law Against Discrimination (&ldquo;NJLAD&rdquo;) is a very broad-based piece of legislation, liberally construed, to eliminate the &ldquo;cancer of discrimination&rdquo; <em>Fuchilla v. Layman</em>, 109 N.J. 319 (1988). The purpose of both the NJLAD and the Federal statute that it mirrors, the Americans With Disabilities Act (&ldquo;ADA&rdquo;), is to: (1) prevent discrimination against individuals with disabilities; (2) protect the rights of these individuals; and (3) provide them with an avenue to seek assistance in protecting these rights through the courts.<br /> <br /> In &ldquo;<em>failure to accommodate</em>,&rdquo; it is necessary for an individual to first establish a <em>prima facie</em> case, which requires the individual to demonstrate that he or she: (1) qualifies as an individual with a disability or is perceived as having a disability; (2) is qualified to perform the essential functions of the job, or was performing those essential functions, either with or without reasonable accommodations; and (3) the employer failed to reasonably accommodate his or her disabilities. See <em>Royster v. State Police</em>, 227 N.J. 482 (2017).<br /> <br /> It must be noted that unlike the ADA, the NJLAD does not address the issue of &ldquo;failure to accommodate.&rdquo; However, through case law, New Jersey courts have determined that the &ldquo;reasonable accommodation&rdquo; standard is implicit in the statute and employers must reasonably accommodate an employee&rsquo;s disability.<br /> <br /> The question always arises as to what is considered &ldquo;reasonable.&rdquo; In <em>Carabello v. City of Jersey City Police Department</em>, the New Jersey Supreme Court dealt with this issue in the context of medical treatment as a &ldquo;reasonable accommodation.&rdquo;<br /> In <em>Carabello</em>, the police officer (Carabello) argued that the police department failed to accommodate his disability by refusing to authorize his double knee replacement. The Police Department argued that such a claim was unwarranted because Carabello could not perform the essential functions of his job even with the &ldquo;accommodation&rdquo; (surgery).<br /> <br /> In reaching its determination, the Supreme Court referenced the New Jersey Administrative Code, the ADA, and the Equal Employment Opportunity Commission (&ldquo;EEOC&rdquo;) guidelines to define &ldquo;reasonable accommodation.&rdquo; The accommodations referenced in the New Jersey Administrative Code &ldquo;are all designed to make certain <strong>changes in the work environment</strong> or <strong>structuring of employees&rsquo; time</strong> that will allow disabled employees to remain at work without their physical handicaps impeding their job performance.&rdquo; <em>Jones v. Aluminum Shapes, Inc.</em>, 339 N.J. Super. 412 (App. Div. 2001) (emphasis added). The Supreme Court cited to the ADA definition of &ldquo;reasonable accommodation&rdquo; as follows: &ldquo;job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.&rdquo; The Supreme court them cited to the EEOC regulations defining &ldquo;reasonable accommodations&rdquo; as follows: &lsquo;<strong>modifications or adjustments to the work environment</strong>, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position&rdquo; (emphasis added).<br /> <br /> The Supreme Court&rsquo;s holding was strongly influenced by the U.S. District Court&rsquo;s decision in <em>Desmond v. Yale-New Haven Hosp., Inc.</em>, 738 F. Supp. 2d 331 (D. Conn. 2010), where the District Court addressed the same issue as in <em>Carabello</em>. The District Court concluded that medical treatment had no bearing on &ldquo;changes in the work environment&rdquo; or &ldquo;removal of workplace barriers,&rdquo; and as such did not fall within the definition of reasonable accommodation.<br /> <br /> Armed with these statutory and administrative references, bolstered by the District Court&rsquo;s decision in Desmond, the New Jersey Supreme Court in <em>Carabello </em>held that the medical procedure sought by Carabello &ldquo;is neither a modification to the work environment nor a removal of workplace barriers,&rdquo; and therefore did not qualify as a &ldquo;reasonable accommodation&rdquo; under the NJLAD. <br />Lite DePalma Greenberg Law Blog15 Aug 2019 00:00:00 -0800https://www.litedepalma.com/?t=40&an=96163&format=xml&p=6944Mindee Reuben has been selected by her peers for inclusion in The Best Lawyers in Americahttps://www.litedepalma.com/?t=40&an=96101&format=xml&p=6944<p><strong>Mindee Reuben</strong> has been selected by her peers for inclusion in <em>The Best Lawyers in America</em><em>&copy;</em> 2020&nbsp;for her work in Antitrust Law and Litigation-Antitrust.</p>News & Events15 Aug 2019 00:00:00 -0800https://www.litedepalma.com/?t=40&an=96101&format=xml&p=6944Bruce D. Greenberg has been selected by his peers for inclusion in The Best Lawyers in Americahttps://www.litedepalma.com/?t=40&an=96102&format=xml&p=6944<p><strong>Bruce D. Greenberg</strong> has been selected by his peers for inclusion in <em>The Best Lawyers in America&copy;</em> 2020 for his work in Appellate Law.</p>News & Events15 Aug 2019 00:00:00 -0800https://www.litedepalma.com/?t=40&an=96102&format=xml&p=6944Hot Tubbing in American Courtshttps://www.litedepalma.com/?t=40&an=95892&format=xml&p=6944It&rsquo;s not what you are thinking. It&rsquo;s not even a pitch for a salacious television show. Rather, it refers to a way of eliciting expert testimony that is popular in Australia and seems to be creeping into American courtrooms.<br /> <br /> Hot tubbing refers to a scenario where all the experts in a case are brought together at trial to dialogue with each other and the judge in a non-jury case. Generally speaking, the experts exchange reports and present a joint submission that identifies the areas of agreement and disagreement. The judge guides the discussion, and the experts are free to question each other. Attorneys generally do not play a central role in hot tubbing.<br /> <br /> The premise behind hot tubbing is that it removes the bias inherent in having an expert present evidence that favors the party presenting it. It also purports to reduce the often less-than-pleasant experience of cross-examination, discouraging highly qualified from experts from assisting the court in resolving litigation. Criticisms of the technique include that it places too much reliance on the judge&rsquo;s ability to understand the expert issues (which are often economic or highly technical) and ferret out inaccuracies, and that an advocate loses the ability to advance certain arguments and control the narrative of the case.<br /> <br /> Although hot tubbing may seem anathema to the United States&rsquo; adversarial system, it does not appear to be prohibited by the Federal Rules of Evidence or the Federal Rules of Civil Procedure. Federal Rule of Evidence 102 provides that &ldquo;[the] rules [of evidence] should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.&rdquo; Other evidentiary rules permit judges to control the order of proof, as well as to call and examine witnesses. Fed. R. Evid. 611, 614. Rule 16 of the Federal Rules of Civil Procedure also gives the courts broad discretion in expediting resolution, managing the litigation, and other matters. Fed. R. Civ. P. 16.<br /> <br /> In fact, hot tubbing has been used in some American courts, both in the pretrial and trial stages of litigation. There is, of course, variety in how courts approach hot tubbing in the United States. For example, sometimes hot tubbing occurs without any notice to the parties or experts. Attorneys may be permitted to make opening statements about their positions (even though the attorneys are not permitted to cross-examine the experts). And hot tubbing may even be used where the parties have already introduced expert evidence.<br /> <br /> Hot tubbing has even been used in connection with class certification proceedings. For example, in <em>In re Polyurethane Foam Antitrust Litig.</em>, MDL 2196 (N.D. Ohio), Judge Zouhary elected to use hot tubbing instead of holding a more traditional class certification hearing with cross-examination of witnesses. There, the court identified a series of questions that it wanted to address in advance of the hearing. The court permitted each party to make an opening statement regarding as to whether class certification was appropriate, swore in the expert witnesses, and then proceeded to engage in a conversation with the experts and counsel centered around the court&rsquo;s list of questions. Judge Zouhary, in an article written about the experience, noted that he &ldquo;found the experience rewarding and will not hesitate to utilize it again in the right case.&rdquo; <a href="http://www.fedbar.org/Resources_1/Federal-Lawyer-Magazine/2015/May/Columns/Jumping-In-A-Different-Approach-to-Expert-Evidence.aspx?FT=.pdf" target="_blank">http://www.fedbar.org/Resources_1/Federal-Lawyer-Magazine/2015/May/Columns/Jumping-In-A-Different-Approach-to-Expert-Evidence.aspx?FT=.pdf</a>.<br /> <br /> Just last week, another court indicated its interest in using hot tubbing in another antitrust matter, <em>In re Capacitors Antitrust Litig.</em>, MDL 2801 (N.D. Cal.). Judge Donato of the Northern District of California suggested to counsel that hot tubbing might be appropriate to resolve certain matters in advance of trial (perhaps for Daubert challenges). Given that the direct purchaser case may proceed to trial in February 2020, we may yet see some more hot tubbing in U.S. courts in the near future.<br /> <br />Lite DePalma Greenberg Law Blog01 Aug 2019 00:00:00 -0800https://www.litedepalma.com/?t=40&an=95892&format=xml&p=6944Despite the false start to the 2019 marijuana legalization the summer has shown the budding seeds of change for medical marijuanahttps://www.litedepalma.com/?t=40&an=95589&format=xml&p=6944On July 2, 2019 New Jersey Governor Phil Murphy signed the Jake Honig Compassionate Use Medical Cannabis Act (the &ldquo;Act&rdquo;), as reported in a State of New Jersey <a href="https://www.nj.gov/governor/news/news/562019/approved/20190702d.shtml" target="_blank">Press Release</a>.&nbsp; The Act, also identified as A-20, provides many changes, including the length of time a patient&rsquo;s authorization to purchase medical marijuana will last, the number of and the types of conditions that can be treated with medical marijuana, authorizing multiple caregivers who can collect marijuana for patients, the allowance for edibles to be prescribed for adults and not only children, and a prospective tax exemption plan.<br /> <br /> The bill&rsquo;s adopting statement provides: &ldquo;[T]his bill makes various revisions to the &ldquo;Compassionate Use Medical Marijuana Act,&rdquo; P.L.2009, c.307 (C.24:6I-1 et al.), including renaming the act the &ldquo;Jake Honig Compassionate Use Medical Cannabis Act,&rdquo; establishing a new Cannabis Regulatory Commission (CRC) to oversee the medical cannabis program; revising the requirements to authorize a patient for medical cannabis; revising the permit and operational requirements for alternative treatment centers (ATCs), including establishing discrete cultivator, manufacturer, and dispensary permits; creating a new clinical registrant permit; authorizing delivery of medical cannabis, and establishing additional protections for registry cardholders.&rdquo;.<br /> <br /> These changes provide for an expansion for the medical marijuana program and may slow the rush to legalization. For example, the expansion of the treatable illnesses alone can help increase the numbers of New Jersey patients. The new law changes the term &ldquo;debilitating medical condition&rdquo; to &ldquo;qualifying medical condition,&rdquo; and updates and revises the list of conditions in certain ways, including adding additional conditions and providing that medical cannabis may be used as a treatment of first resort for any condition included in the list, which are: seizure disorder, including epilepsy; intractable skeletal muscular spasticity; post-traumatic stress disorder; glaucoma; positive status for human immunodeficiency virus; acquired immune deficiency syndrome; cancer; amyotrophic lateral sclerosis; multiple sclerosis; muscular dystrophy; inflammatory bowel disease, including Crohn's disease; terminal illness, if the patient has a prognosis of less than 12 months of life; anxiety; migraines; Tourette&rsquo;s syndrome; dysmenorrhea; chronic pain; opioid use disorder; or any other condition that is approved by the CRC.<br /> <br /> <a href="https://www.nj.com/marijuana/2019/07/the-jersey-shore-could-soon-be-getting-2-new-marijuana-dispensaries-as-medical-pot-program-expands.html" target="_blank">NJ.com</a> has reported that since January 2018, the number of medical marijuana patients has increased from 16,000 to 50,000.00 as of this month.&nbsp; These numbers, prior to the new law&rsquo;s enactment, already show society&rsquo;s willingness to be part of a monitored state program with a system of checks and balances.<br /> <br /> Moreover, the strength of the State&rsquo;s medical marijuana is no more evident than in the recent announcement of two more dispensaries headed for uncharted territory in Central Jersey as <a href="https://www.nj.com/marijuana/2019/07/the-jersey-shore-could-soon-be-getting-2-new-marijuana-dispensaries-as-medical-pot-program-expands.html" target="_blank">reported by our local news sources</a>.&nbsp; As reported, two new dispensaries currently are primed to open in Monmouth County, an area where no dispensaries exist.<br /> <br /> The seeds of change are evident but not ripening fast enough for many. Thus, those that are already in the business can continue perfecting the medical treatment for those growing numbers of new patients seeking a way to ease their anxiety or pain. However, those looking for a new &ldquo;legal&rdquo; vice must still wait.<br />Lite DePalma Greenberg Law Blog18 Jul 2019 00:00:00 -0800https://www.litedepalma.com/?t=40&an=95589&format=xml&p=6944Writs of Replevin: It's Mine- Give It Backhttps://www.litedepalma.com/?t=40&an=95351&format=xml&p=6944<u>N.J.S.A.</u> 2B:50-1 authorizes &ldquo;[a] person seeking recovery of goods wrongly held by another&rdquo; to &ldquo;bring an action for replevin in the Superior Court.&rdquo; &ldquo;If the person establishes the cause of action, the court shall enter an order granting possession.&rdquo; <u>Id.</u><br /> <br /> Under the plain language of <u>N.J.S.A.</u> 2B:50-1, a plaintiff establishes a cause of action for replevin by showing that the defendant is holding the subject goods wrongfully, or in other words, that the defendant is holding the goods contrary to the plaintiff&rsquo;s superior right to possession. The replevin action created by <u>N.J.S.A.</u> 2B:50-1 encompasses actions where goods are taken wrongfully or tortiously, and where goods were lawfully taken but are withheld contrary to a superior right of possession&mdash;also called detinue. <u>See</u> <u>Voellinger v. Dow</u>, 420 N.J. Super. 480, 483 n.2 (App. Div. 2011).<br /> <br /> Pursuant to <u>N.J.S.A.</u> 2B:50-2 and Rule 4:61-1, a party asserting a claim for replevin may obtain a writ of replevin, possession of the goods, and other relief by filing a motion on three days&rsquo; notice demonstrating a &ldquo;probability&rdquo; of final judgment. Specifically, <u>N.J.S.A.</u> 2B:50-2 states as follows:<br /> <div>&nbsp;</div> <div style="margin-left: 80px;">Temporary Relief; On Notice. If the court, after notice and</div> <div style="margin-left: 80px;">hearing, and based upon filed papers and testimony, if any, finds a</div> <div style="margin-left: 80px;">probability of final judgment for the plaintiff, it may, prior to final<br /> judgment:</div> <div style="margin-left: 120px;">a. grant possession of the goods to the plaintiff; or<br /> <br /> b. order other just relief.<br /> &nbsp;</div> Rule 4:61-1 is the mechanism through which a party obtains relief under <u>N.J.S.A.</u> 2B:50-2. Rule 4:61-1 echoes the standard set forth in <u>N.J.S.A.</u> 2B:50-2, that relief may be granted merely by showing &ldquo;a probability that final judgment will be rendered in favor of the movant.&rdquo; <br /> <br /> <div style="margin-left: 80px;">&ldquo;To maintain replevin, the plaintiff must have the right of exclusive possession to the goods in question. He must not only have property absolute or qualified, and the right of possession at the time of the commencement of the action, but he must have the exclusive right of possession.&rdquo;<br /> <br /> </div> <u>Hunt v. Chambers</u>, 21 N.J.L. 620, 623 (E. &amp; A. 1845). Notably, a replevin claim also requires unlawful detention after a demand for the property has been made. As the Supreme Court noted in <u>Baron v. Peoples Nat'l Bank</u>, 9 N.J. 249, 256 (1952):<br /> <div>&nbsp;</div> <div style="margin-left: 80px;">Under our statute there must be an unlawful detention and in that respect the action of replevin is put on the same footing as an action in trover or detinue. There must be an actual conversion or refusal to deliver on demand which is evidence of conversion, before the detention becomes unlawful. But to constitute such conversion there must be some repudiation by the defendant of the owner's right or some exercise of dominion over the chattels by him inconsistent with such right or some act done which has the effect of destroying or changing the quality of the chattels.<br /> &nbsp;</div> A claim for replevin also exists despite the fact that a defendant is no longer in possession of the property at issue. <u>See</u> <u>id.</u> at 257 (&ldquo;When one has wrongfully detained property and refused it on demand he is liable in an action in replevin even though it may not remain in his possession when the suit is brought&rdquo;).<br /> <br />Lite DePalma Greenberg Law Blog03 Jul 2019 00:00:00 -0800https://www.litedepalma.com/?t=40&an=95351&format=xml&p=6944A Rare Win For Consumershttps://www.litedepalma.com/?t=40&an=95150&format=xml&p=6944Last week, the Ninth Circuit, en banc reinstated a class settlement in the Hyundai/Kia Fuel Economy Litigation. The Court upended sitting a ruling by a three-judge panel that had upheld objections to the proposed settlement. Several important concepts regarding settlement classes were reaffirmed in this ruling.<br /> <br /> This litigation dates back to 2012, when Hyundai and Kia both admitted overstating, on the required EPA stickers, the average miles per gallon that their cars might achieve in highway and city driving. Plaintiffs brought a nationwide class action alleging consumer fraud under various state statutes.<br /> <br /> In analyzing the propriety of the class settlement, the en banc court cited the 1997 Supreme Court of the United States&rsquo; ruling in <em>Amchem Products, Inc. v. Windsor </em>for the proposition that it is appropriate to consider a settlement in the context of deciding whether to certify a settlement class. They also found that consumer fraud cases are extremely appropriate in meeting the predominance requirement of Rule 23(b)(3) in that the class had allegedly been subjected to a series of uniform misrepresentations and damages that would have been in a fairly narrow range.<br /> <br /> In rejecting the rationale for certain objections, the en banc court found that the inclusion in the class of used car purchasers with new car purchasers was appropriate given that the misrepresentations were not only placed on new car stickers but were also the subject of nationwide advertising campaigns. The court went on to say that, even were there to be different damage calculations for new and used car buyers, disparate damages should not outweigh the common questions of liability in assessing predominance.<br /> <br /> Most importantly, the Ninth Circuit recognized the ability of a District Court to treat a case such as this through the application of a single state&rsquo;s consumer protection laws rather than having to sift through variations that might exist on a state by state basis. In this case, that was California law, and the court said &ldquo;By default, California courts apply California law &lsquo;unless a party litigant timely invokes the law of a foreign state&rsquo; in which case it is &lsquo;the foreign law proponent&rsquo; who must &lsquo;shoulder the burden of demonstrating that foreign law, rather than California law, should apply to class claims.&rdquo; The court went on to set forth the test that an objector must meet to force a state by state law analysis rather than using a single state law: &ldquo;1) the law of the foreign state materially differs from the law of California; 2) a true conflict exists, meaning that each state has an interest in the application of its own law to the circumstances of the particular case; and 3) the foreign state&rsquo;s interest would be more impaired than California&rsquo;s interest if California law were applied.&rdquo;<br /> <br /> The opinion then discussed, and reject objections to, the adequacy of plaintiffs and class counsel as well as the sufficiency of notice to the class and the burdensomeness of the claim form. The Court also found that there was absolutely no evidence that the settlement was the result of collusion between the counsel for the class and defendants. Finally, the court approved the attorneys&rsquo; fees awarded by the District Court to class counsel and rejected any award to objector counsel.<br /> <br /> In sum, the opinion is a ringing endorsement for the use of Rule 23 in dealing with consumer fraud litigation both in the settlement and litigation context. It rejects the efforts of certain courts and the professional objectors bar to write Rule 23 out of the arsenal of tools utilized to simplify and resolve litigation. <br />Lite DePalma Greenberg Law Blog20 Jun 2019 00:00:00 -0800https://www.litedepalma.com/?t=40&an=95150&format=xml&p=6944Mindee J. Reuben has been appointed to serve in the Leadership of the Antitrust Law Sectionhttps://www.litedepalma.com/?t=40&an=92319&format=xml&p=6944<p><strong>Mindee J. Reuben</strong> has been appointed to serve in the Leadership of the Antitrust Law Section during 2019-2020 ABA year as a Member of the Competition/Consumer Protection Policy and North American Comments Task Force.</p>News & Events11 Jun 2019 00:00:00 -0800https://www.litedepalma.com/?t=40&an=92319&format=xml&p=6944Defending Against a Procedural Due Process Claim? Think Dismissal.https://www.litedepalma.com/?t=40&an=92212&format=xml&p=6944A claim for violations of a person&rsquo;s procedural due process rights is a constitutional claim often misunderstood and improperly pleaded. Defense practitioners should be on alert when dealing with a due process claim and should be aware of common mistakes plaintiffs make when they assert this claim.<br /> <br /> Due process rights are protected by both the Fifth and Fourteenth Amendments of the United States Constitution. Although these two Constitutional Amendments safeguard this right, it is well established that the Fifth Amendment applies only to actions taken by the federal government. Plaintiffs often assert due process claims under the Fifth Amendment despite the lack of any allegation related to the federal government. Such claims are improper and should be dismissed.<br /> <br /> Furthermore, procedural due process claims should be dismissed at the beginning of a lawsuit when a complaint fails to allege facts that deal with the inadequacy of post-deprivation procedures. In order to successfully establish a prima facie case for a procedural due process violation, a plaintiff must show that: (1) there has been a deprivation of the plaintiff&rsquo;s liberty or property, and (2) the procedures used by the government to remedy the deprivation were constitutionally inadequate. &ldquo;At the core of procedural due process jurisprudence is the right to advance notice of significant deprivations of liberty or property and to a meaningful opportunity to be heard.&rdquo; <em>Abbott v. Latshaw</em>, 164 F.3d 141, 146 (3d Cir.1998). The focus is on the remedial process, not the government&rsquo;s actions that allegedly deprived the plaintiff of his liberty or property interest. <br /> <br /> However, plaintiffs often fail to adequately assert facts that deak with the procedures used to remedy an alleged constitutional deprivation. Litigants fail to focus on issues such as a lack of notice or of a proper hearing, and instead focus claims on the underlying unconstitutional harm they suffered. If a complaint does not specify how remedial procedures were constitutionally inadequate, that complaint is deficient if it seeks relief for a procedural due process violation under the Fourteenth Amendment. Therefore, in such situations defense practitioners would be well-served by filing a dispositive motion at the initial stages of litigation to dismiss a procedural due process claim. <br /> <br /> Finally, litigants asserting a deprivation of a property interest often fail to properly assert a claim that can survive motion practice. Property interests &ldquo;are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.&rdquo; <em>Bd. of Regents of State Colls. v. Roth</em>, 408 U.S. 564, 577 (1972). &ldquo;To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it ... He must, instead, have a legitimate claim of entitlement to it.&rdquo; Id. Allegations of a deprivation of property must clearly set forth facts that support a claim of entitlement to the alleged property interest. Where such factual allegations are missing, the pleading is deficient.<br /> <br /> Procedural due process claims are rife with potential pitfalls for plaintiffs. Defense practitioners should ensure that they scrutinize these claims from the outset of litigation as doing so can result in dismissal of this claim.<br /> <br />Lite DePalma Greenberg Law Blog06 Jun 2019 00:00:00 -0800https://www.litedepalma.com/?t=40&an=92212&format=xml&p=6944