Lite DePalma Greenberg, LLC Firm News Feedhttps://www.litedepalma.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10en-us16 Dec 2019 00:00:00 -0800firmwisehttp://blogs.law.harvard.edu/tech/rssTAKING POSSESSION THROUGH REPLEVINhttps://www.litedepalma.com/?t=40&an=99745&format=xml&p=6944It makes sense for lawyers and laymen to associate wrongful possession of another&rsquo;s property with the criminal code since taking possession of someone else&rsquo;s property often consists of theft. Many lawyers and laymen are surprised to learn that there is a centuries old civil remedy for retrieval of a person&rsquo;s wrongfully possessed or withheld property. Indeed, one of the oldest legal actions in common-law, dating back to the 14th Century, is an action for replevin. Although many practitioners in New Jersey seem unaware of this cause of action, it is a legal remedy that practitioners should familiarize themselves with.<br /> <br /> Put simply, a replevin action seeks the return of personal property wrongfully taken and for compensation for any resulting loss. In New Jersey, replevin is governed by both statute and court rule.<br /> <br /> <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; 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 tortuously, 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 /> <u>R.</u> 4:61-1 is the mechanism through which a party obtains relief under <u>N.J.S.A.</u> 2B:50-2. R. 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: 40px;">&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;</div> <br /> <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. 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 /> Thus, replevin allows for retrieval of property under different circumstances beyond what most people would consider theft or stealing. It is a flexible and expedient cause of action that is especially effective in situations where the underlying property is unique or priceless. In practice, it often makes sense to file this action in Chancery and combine it with an Order to Show Cause seeking temporary restraints. This combination works well because it accelerates the process and can help protect the property from damage or destruction. <br />Lite DePalma Greenberg Law Blog07 Nov 2019 00:00:00 -0800https://www.litedepalma.com/?t=40&an=99745&format=xml&p=6944Updates to Worker Classification Enforcement Law in New Jerseyhttps://www.litedepalma.com/?t=40&an=97472&format=xml&p=6944The New Jersey Department of Labor has recently partnered with the United States Department of Labor to remedy the improper classification of employees as independent contractors. As set forth below, misclassification of employees has become a prominent issue to Governor Phil Murphy and his administration. <br /> <br /> First, in determining whether a contractor is truly independent or should be a company employee, New Jersey uses the &ldquo;ABC&rdquo; test. To comply, an employer must establish that each independent contractor: (A) is free from direction and control; (B) provides a service outside the employer&rsquo;s usual course of business or places of business; and (C) is engaged in an independently established trade, occupation, or business. <br /> <br /> In some instances, applying the &ldquo;ABC&rdquo; test is straightforward. For example, a transportation company that deems its truck drivers to be independent contractors is virtually certain to be in violation of the &ldquo;ABC&rdquo; test. If the truck driver is controlled by the employer; provides pertinent services to the employer within the business model; and works to further the employer&rsquo;s business, that driver is not an independent contractor. <br /> <br /> Alternatively, in many other scenarios, the &ldquo;ABC&rdquo; test is not so easily utilized. For example, a group of businesses in a shared office space could hire a joint office clerk as an independent contractor, and the clerk would not be eligible for various employment benefits and protections. This classification could benefit the employer, to the detriment of the worker. However, if the clerk is controlled by a business; services a business; and is not otherwise engaged independently, he or she should be granted employee status. Employers and employees alike often face confusion regarding whether part-time, seasonal, or temporary workers should be classified as employees or independent contractors. Thus, classification is important and should be analyzed by employers and workers prior to the commencement of any employment. <br /> <br /> Consequently, the New Jersey Department of Labor has become heavily involved in recent months to address potential misclassification. While some workers may desire independent contractor status for personal reasons and/or to retain independence, the State of New Jersey is nevertheless concerned that such workers are being denied employment protections such as overtime, workers&rsquo; compensation benefits, unemployment, insurance, and other associated amenities. Additionally, employers of independent contractors do not pay into the tax system. Thus, the State of New Jersey is concerned that, in some situations, employers may be intentionally misclassifying their workers to avoid the above expenses and liabilities. <br /> <br /> Among other actions, Governor Murphy has established a Task Force on Employee Misclassification to inspect the extent of misclassification by New Jersey companies and to find remedies to cure such activities. Moreover, Governor Murphy signed Bill A-108/S-2557 into law. This new law grants the New Jersey Department of Labor authority to levy significant civil penalties against employers who have misclassified workers. The Murphy Administration has cautioned the public to undertake a careful analysis of the &ldquo;ABC&rdquo; test and to determine whether workers are being denied benefits unlawfully, prior to potential Department of Labor intervention. <br /> <br /> Therefore, it is highly advisable that employers and workers consult with counsel to ensure compliance with the &ldquo;ABC&rdquo; test. Hiring independent contractors can be advantageous in some situations; however, the &ldquo;ABC&rdquo; test must first be meaningfully applied. <br /> <br />Lite DePalma Greenberg Law Blog24 Oct 2019 00:00:00 -0800https://www.litedepalma.com/?t=40&an=97472&format=xml&p=6944Employers beware: Wage-history questions are out of the question.https://www.litedepalma.com/?t=40&an=97449&format=xml&p=6944A new wage equity law that affects employers and workers alike will soon take effect in New Jersey. The law forbids employers from screening job applicants based on the applicant&rsquo;s prior salary history, which includes prior wages, salary and benefits.<br /> <br /> The bill has been hailed as a substantial victory for the advancement of gender pay equity. According to women&rsquo;s advocacy groups, using past wages as a base for salary offers is a key reason why sizeable pay gaps still endure today. As New Jersey State Senator Loretta Weinberg explained in a recent New York Times article, &ldquo;[t]he new laws are designed to protect job seekers . . . from receiving starting salaries that are tied to low past salaries. This is mostly aimed at women[.] The idea is that if a woman is paid less from the get-go, and then limited by her past salary at each subsequent job, it may be impossible for her to catch up.&rdquo; It is thus argued that, as a result of the ban, potential employers and job candidates will negotiate salaries focused specifically on qualifications and the requirements for the job set to a salary as opposed to other, more nefarious considerations. <br /> <br /> If employers fail to comply, the new law provides for a private right of action. Furthermore, employers will face civil penalties in the range of $1,000 for a first offense, $2,000 for a second offense, and $10,000 for all subsequent offenses. Nonetheless, proving a violation may be difficult because the law does not explicitly define what conduct would be deemed a single violation for purposes of determining penalties.<br /> <br /> While the new law provides great protections to potential employees, it also includes express examples of acceptable actions by employers and exceptions from coverage in specific areas. First, if an employer has a multistate job application that includes operations in other states, the employer can ask a salary-history question with a disclaimer that an applicant for a position located in New Jersey is instructed not to answer. Second, if an applicant voluntarily provides information pertaining to his or her salary history, an employer may verify the validity of the information provided and may use that information in setting an applicant&rsquo;s compensation. Third, the law does not apply to internal transfers or promotions within an organization. Fourth, an employer can discuss the &ldquo;terms and conditions&rdquo; of incentive and compensation plans that the applicant was previously subject to; however, the employer cannot ask about the specific dollar amount involved in the plans.<br /> <br /> New Jersey is far from the first place in the United States to pass legislation of this kind. Similar bills have been signed in recent years in places like Illinois, Massachusetts, New York, and Pennsylvania. Recently, in Philadelphia, a local wage equity law faced instant criticism from large companies and the City&rsquo;s Chamber of Commerce, who argued that the law created an anti-business environment within the City and that it was a violation of their First Amendment commercial speech rights. A lawsuit was eventually filed against this City on these grounds and that matter is currently before the Third Circuit Court of Appeals. Undoubted, a ruling declaring Philadelphia&rsquo;s wage equity law unconstitutional would have a significant impact on New Jersey&rsquo;s implementation of the bill.<br /> <br /> New Jersey&rsquo;s law does not go into effect until January 2020. In the meantime, New Jersey employers should thoroughly assess the substance of their job applications, interview guidelines and templates, and recruiter instructions to ensure compliance with the law. Moreover, multistate employers should conduct surveys of each state and municipality where they operate to determine the scope and applicability of local wage-disparity laws. <br />Lite DePalma Greenberg Law Blog10 Oct 2019 00:00:00 -0800https://www.litedepalma.com/?t=40&an=97449&format=xml&p=6944Victor A. Afanador was a Moderator at the HNBA's Young Lawyers/Law Students Career Development Panelhttps://www.litedepalma.com/?t=40&an=96971&format=xml&p=6944<p><strong>Victor A. Afanador</strong> was a Moderator at the HNBA's Young Lawyers/Law Students Career Development Panel titled, &quot;There Are No Motions for Reconsideration When it Comes to Your Reputation&quot;.&nbsp; The panel focused on how young lawyers must carefully navigate the pitfalls in the legal profession from their first handshake to their first court appearance.&nbsp; To view the full agenda, click <a href="https://hnba.com/wp-content/uploads/2019/09/AC2019-Agenda-Only_092619.pdf">here</a>.</p>News & Events28 Sep 2019 00:00:00 -0800https://www.litedepalma.com/?t=40&an=96971&format=xml&p=6944Defaults and Default Judgments in the Federal Courtshttps://www.litedepalma.com/?t=40&an=97039&format=xml&p=6944<strong>What &ldquo;Default Judgment&rdquo; Means<br /> </strong><br /> A &ldquo;default judgment&rdquo; is the kind of judgment generally entered in cases where one party fails to show up to defend a lawsuit. <br /> <br /> Its meaning comes from the Federal Rules of Civil Procedure. The Rules define &ldquo;default&rdquo; as when &ldquo;a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend,&rdquo; and define &ldquo;judgment&rdquo; as &ldquo;a decree and any order from which an appeal lies.&rdquo; Read together, a default judgment is simply any judgment that results from a default.<br /> <br /> Courts typically enter default judgments in favor of the plaintiffs in cases where the defendants did not respond to the complaint. Shortly after a complaint is filed, the defendant is supposed to respond to the complaint by submitting an answer or by filing a motion to dismiss. If the defendant does neither of those things, it risks entry of default and default judgment.<br /> <br /> <strong>The Difference Between &ldquo;Default&rdquo; and &ldquo;Default Judgment&rdquo;<br /> </strong><br /> The entry of a default and entry of a default judgment are two different things. <br /> <br /> Obtaining a default judgment is a two-step process that begins with asking the clerk of the court to enter the default. This is a ministerial act of the court clerk that formally establishes that a party is in default. Once in default, a party is no longer able to answer the complaint or otherwise respond to the complaint.<br /> <br /> The second step is asking for entry of a judgment that awards the relief sought in the complaint. This can be done in one of two ways. The party seeking the default judgment can apply to the clerk of the court for entry of a default judgment. Otherwise, the request must be made by motion to the district court judge.<br /> <br /> Another difference between defaults and default judgments is in how difficult they are to have set aside. The relevant rules use the same language to describe the standard &ndash; &ldquo;good cause&rdquo; &ndash; but the courts interpret them differently for requests to vacate entry of default and to vacate a default judgment. The standard for setting aside entry default is lower and thus easier to achieve.<br /> <br /> <strong>How to Request Entry of Default<br /> </strong><br /> Requesting an entry of default typically involves filing the following two documents with the court clerk:<br /> <div style="margin-left: 40px;"><br /> &bull; Request for Default<br /> &bull; Supporting Affidavit<br /> &nbsp;</div> <div>The Request for Default sets forth the request for the court clerk to enter the default of the party who has not answered the complaint or otherwise defended the action within the time required by the rules or as extended by court order.<br /> &nbsp;</div> The Supporting Affidavit sets forth the basis for the entry of default. It should include the date of service of the summons and complaint, the failure of the defaulting party to file a motion or serve a responsive pleading, and the absence of an extension of time to respond. Unless it was already filed, a copy of the proof of service of the summons and complaint should be attached as an exhibit in support of the request for entry of default. <br /> <br /> <strong>How to Apply to the Clerk for Default Judgment</strong><br /> <br /> Motions for Default Judgment are more complex than Requests for Default for several reasons, the first being that in some instances they must be made to the presiding district court judge and in others may be made to the clerk of the court.<br /> <br /> Applications for Default Judgment may be made to the clerk in only the following limited circumstances:<br /> <br /> <div style="margin-left: 40px;">&bull; Plaintiff&rsquo;s claim must be for a sum certain.<br /> &bull; The defendant must not have appeared or otherwise participated in the action.<br /> &bull; The defendant must not be an infant or incompetent.<br /> &bull; The defendant must not be the United States or member of the armed forces.<br /> &bull; If there are multiple defendants, all must be in default.<br /> &nbsp;</div> <div style="margin-left: 40px;">&nbsp;</div> <div>The &ldquo;sum certain&rdquo; limitation is the most common impediment to applying directly to the clerk for a default judgment. It excludes many forms of relief commonly sought in civil litigation including, for example, injunctive and declaratory relief, unliquidated damages, punitive damages, attorneys&rsquo; fees, and prejudgment interest.<br /> <br /> In cases where all the above criteria are satisfied, the application for default judgment consists of the following three or four documents:<br /> &nbsp;</div> <div style="margin-left: 40px;">&bull; Supporting Affidavit <br /> &bull; Proposed Form of Default Judgment<br /> &bull; Bill of Costs and Disbursements<br /> &bull; Affidavit of Nonmilitary Service</div> <br /> The Supporting Affidavit should establish the basic requirements of the relevant Rule, which are (1) the entry of default by the clerk, (2) the failure of the defaulting party to appear, (3) that the defaulting party is neither an infant nor incompetent, and (4) the &ldquo;sum certain&rdquo; of damages being asserted and how those damages are calculated.<br /> <br /> The Proposed Form of Default Judgment should reiterate those basic requirements and the Bill of Costs and Disbursements should set forth all costs other than attorneys&rsquo; fees unless a statute, the Rules, or court order provides that such costs are not available. In cases where the defaulting party is an individual, the application must also include the Affidavit of Nonmilitary Service and supporting certifications from the various military services.<br /> <br /> If all the requirements of the relevant Rules have been satisfied, the clerk will enter the default judgment against the defaulting party. <br /> <br /> <strong>Motions Before District Court Judges for Default Judgment<br /> </strong><br /> District court judges have authority to enter a default judgment against a party in default on their own initiative or in response to a motion filed by the nondefaulting party.<br /> <br /> Like applications to the clerk, motions for a default judgment must be supported by evidence establishing the requirements of the relevant Rules and the amount of damages requested. <br /> <br /> Unlike applications to a clerk, however, motions for a default judgment may be denied even if the movant has complied with the technical requirements of the Rules. That is because motions for default judgment are discretionary and subject to a range of considerations that may impact the outcome. For example, if the party in default filed an appearance, the Rules require that the movant provide the defaulting party with at least seven days&rsquo; notice of the motion. Special weight is given to the notice requirement in such circumstances.<br /> <br /> If the motion is granted, the district court makes the findings of fact required by the Rules, and the court directs the clerk to enter judgment, it generally becomes final and binding on the defaulting party.<br /> <br /> <strong>Requesting Relief from Entry of Default or a Default Judgment<br /> </strong><br /> The Rules allow for relief from an entry of default or a default judgment for &ldquo;good cause.&rdquo; <br /> <br /> Making the &ldquo;good cause&rdquo; showing is more difficult with respect to default judgments than it is for entries of default, but the courts disfavor defaults and so any doubts about the propriety of a default are generally resolved in favor of setting it aside.<br /> <br /> There are too many possible grounds for setting aside a default to list them all. Common reasons to set aside a default are that it was not properly entered in the first instance or because the party obtaining the default judgment failed to meet an express requirement of the rule, such as proper service of the complaint or notice of the motion for default judgment.<br /> <br /> In considering whether to grant a motion to vacate a default, district courts also consider four factors that are set forth in the Rules:<br /> <br /> <div style="margin-left: 40px;">&bull; Whether the plaintiff would be prejudiced by setting the default aside.<br /> &bull; Whether the defendant has a meritorious defense.<br /> &bull; Whether the default was the result of the defendant&rsquo;s culpable conduct.<br /> &bull; The effectiveness of alternative sanctions.<br /> &nbsp;</div> A party moving to vacate an entry of default or a default judgment should submit an affidavit explaining the reasons for the default. Given the above factors, the affidavit should also set forth the factual and legal basis for all defenses and any facts concerning the parties&rsquo; good faith and culpability. In addition, any motion to vacate should include a request to serve and file an answer to the complaint, as well as the proposed answer. Motions to set aside a default that contain mere denials or assert defenses in a conclusory fashion without a reasonable description of the surrounding facts will likely be given little weight.<br /> <br /> Lite DePalma Greenberg, LLC appellate attorneys are familiar with the default rules and have handled numerous appeals, in both the federal and state courts. For more information on Lite DePalma&rsquo;s appellate practice, please visit <a href="https://www.litedepalma.com/appellate" onclick="window.open(this.href,','resizable=no,location=no,menubar=no,scrollbars=no,status=no,toolbar=no,fullscreen=no,dependent=no,status'); return false">www.litedepalma.com/appellate</a>.<strong><br /> </strong>Lite DePalma Greenberg Law Blog26 Sep 2019 00:00:00 -0800https://www.litedepalma.com/?t=40&an=97039&format=xml&p=6944Construction Liens: Is Your Tenant Encumbering Your Property?https://www.litedepalma.com/?t=40&an=96697&format=xml&p=6944New Jersey&rsquo;s Construction Lien Law disallows liens lodged against an owner&rsquo;s property rights if the contract at issue is between a tenant and a third-party. In other words, if a tenant contracts for property improvements, the lien attaches <u>only</u> &ldquo;to the leasehold estate of the tenant.&rdquo; N.J.S.A. 2A:44A-3.<br /> <br /> Of course, there are exceptions. A lien can attach to the property owner&rsquo;s rights if the owner (1) agrees in writing to the improvement that forms the basis of a lien, or (2) has paid or agreed in writing to pay, for the majority of the improvement, or (3) is a party to a lease that specifically provides the owner&rsquo;s interest is subject to a lien for the improvement. N.J.S.A. 2A:44A-3.<br /> <br /> But unless the situation falls into one of those rare exceptions, Section 2A:44A-3 arms property owners with the ability to threaten the lien claimant with slander of title and attorney fee shifting. Recall that the Construction Lien Law states that if a lien is &ldquo;frivolous, false, unsupported by a contract, or made with malice or bad faith or for any improper purpose,&rdquo; or if &ldquo;the amount of the lien claim is willfully overstated,&rdquo; among other things:<br /> <blockquote> <div>the claimant shall forfeit all claimed lien rights and rights to file subsequent lien claims to the extent of the face amount claimed in the lien claim. The claimant shall also be liable for all court costs, and reasonable legal expenses, including, but not limited to, attorneys&rsquo; fees, incurred by the owner, [] in defending or causing the discharge of the lien claim. The court shall, in addition, enter judgment against the claimant for damages to any of the parties adversely affected by the lien claim.</div> </blockquote>N.J.S.A. 2A:44A-15. <br /> <br /> Therefore, in addition to determining whether a lien is willfully overstated (violating N.J.S.A. 2A:44A-9), or has not been appropriately served (pursuant to N.J.S.A. 2A:44A-7(a)), be sure to analyze whether a lien is properly lodged against a tenant&rsquo;s leasehold interest, and not the owner&rsquo;s interest. This is key because not only will the owner&rsquo;s property interest no longer be encumbered by a lien once the lien is properly filed&sup1;, but the lien claimant may discharge the lien <u>altogether</u> because most lien claimants have no interest in filing or foreclosing on a lien against a leasehold interest. That is because even if the lien foreclosure is successful, the lien claimant obtains both the lease benefits and its obligations (like rent).<hr /> &sup1;Keep in mind that a lien cannot be amended to cure a violation of N.J.S.A. 2A:44A-15. As a result, the original lien cannot be amended to attach to the tenant&rsquo;s leasehold interest. The lien must be re-filed and therefore, time is of the essence for the lien claimant. See N.J.S.A. 2A:44A-6 (stating a lien must be filed within &ldquo;90 days following the date the last work, services, material or equipment was provided for which payment is claimed.&rdquo;).<br />Lite DePalma Greenberg Law Blog12 Sep 2019 00:00:00 -0800https://www.litedepalma.com/?t=40&an=96697&format=xml&p=6944GETTING 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=6944