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November 7, 2019


It makes sense for lawyers and laymen to associate wrongful possession of another's property with the criminal code since taking possession of someone else'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'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.

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October 24, 2019

Updates to Worker Classification Enforcement Law in New Jersey

The 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.

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October 10, 2019

Employers beware: Wage-history questions are out of the question.

A 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's prior salary history, which includes prior wages, salary and benefits.

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September 26, 2019

Defaults and Default Judgments in the Federal Courts

What "Default Judgment" Means A "default judgment" is the kind of judgment generally entered in cases where one party fails to show up to defend a lawsuit.

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September 12, 2019 by Susana Cruz Hodge

Construction Liens: Is Your Tenant Encumbering Your Property?Susana  Cruz Hodge

New Jersey's Construction Lien Law disallows liens lodged against an owner'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 only "to the leasehold estate of the tenant." N.J.S.A. 2A:44A-3.

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August 29, 2019 by Bruce D. Greenberg


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't have to be a part of. One reason for that is when someone else'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 "your side" will win. You can take an active role by seeking to become an amicus curiae, or "friend of the court."

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August 15, 2019


The New Jersey Law Against Discrimination ("NJLAD") is a very broad-based piece of legislation, liberally construed, to eliminate the "cancer of discrimination" Fuchilla v. Layman, 109 N.J. 319 (1988). The purpose of both the NJLAD and the Federal statute that it mirrors, the Americans With Disabilities Act ("ADA"), 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.

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August 1, 2019 by Mindee J. Reuben

Hot Tubbing in American CourtsMindee J. Reuben

It's not what you are thinking. It'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.

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July 18, 2019 by Victor A. Afanador

Despite the false start to the 2019 marijuana legalization the summer has shown the budding seeds of change for medical marijuanaVictor A. Afanador

On July 2, 2019 New Jersey Governor Phil Murphy signed the Jake Honig Compassionate Use Medical Cannabis Act (the "Act"), as reported in a State of New Jersey Press Release. See The Act, also identified as A-20, provides many changes, including the length of time a patient'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.

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July 3, 2019 by Joseph J. DePalma

Writs of Replevin: It's Mine- Give It BackJoseph J. DePalma

N.J.S.A. 2B:50-1 authorizes "[a] person seeking recovery of goods wrongly held by another" to "bring an action for replevin in the Superior Court." "If the person establishes the cause of action, the court shall enter an order granting possession." Id.

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June 20, 2019 by Steven J. Greenfogel

A Rare Win For ConsumersSteven J. Greenfogel

Last 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.

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June 6, 2019

Defending Against a Procedural Due Process Claim? Think Dismissal.

A claim for violations of a person'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.

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May 23, 2019

New Jersey Extends the Statute of Limitations in Civil Actions for Sexual Abuse Claims

It is crucial for litigants, attorneys, and the overall community to be aware of S477, which legally extends the statute of limitations in civil actions for sexual abuse claims. Governor Phil Murphy signed this legislation into law on May 13, 2019. The primary sponsors of the Bill included Senators Joseph Vitale and Nicholas Scutari; and Assembly members Annette Quijano, Valerie Vainieri Huttle, and Mila Jasey. See (New Jersey Legislature, Bill Number S477)

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May 9, 2019

A Heavy Burden: Court Determines Obesity Alone is Not A Disability Under LAD

Obesity has become a serious health problem in the United States, with more than one-third of the population being obese. It has been labeled a national epidemic by the Centers for Disease Control and Prevention ("CDC"), and it is now considered a chronic disease by many reputable medical organizations, including the American Medical Association ("AMA"), the National Institutes of Health, and the American Association of Clinical Endocrinologists, to name a few. According to the CDC, "[o]besity-related conditions include heart disease, stroke, type 2 diabetes and certain types of cancer that are some of the leading causes of preventable, premature death." In the workplace, decreased productivity and increased absenteeism due to obesity is a huge economic burden on our society.

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April 25, 2019 by Bruce D. Greenberg


Candidates for admission to the New Jersey Bar find that their lives are an open book to the Supreme Court of New Jersey Committee on Character. They can tell that from the Character and Fitness Questionnaire ("CFQ") that all candidates must complete. The CFQ asks for detailed information about everything from addresses to education to employment to driving history, and much, much more.

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April 11, 2019

Once Upon a PEX Line: A Class Action Happy Ending

When I joined Lite DePalma Greenberg's consumer rights class action practice in April 2014, I did so with my eyes open. I knew the reputation class actions had in our broader culture. "That's where everybody gets 17 cents and the lawyers get 10 million bucks." In fact, when I told the father of one of my childhood friends, a man I had known for 20 years, what I would be doing, his reaction was: "class action lawyer – that's one step below ambulance chaser, right?"

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March 28, 2019 by Susana Cruz Hodge

Fed. R. Civ. P. 23(c)(4) Issue Certification Remains a Viable Option for PlaintiffsSusana  Cruz Hodge

This month, for at least the fourth time¹, the Supreme Court declined to resolve an alleged circuit split over the proper application of Fed. R. Civ. P. 23(c)(4). See Martin v. Behr Dayton Thermal Products LLC, 896 F.3d 405 (6th Cir. 2018), cert. denied, 18-472, 2019 WL 1231762 (U.S. Mar. 18, 2019). While we will never know what drove the Supreme Court's decision to pass on this case, the deciding factor was likely the non-existence of the claimed circuit split (among other good reasons discussed below).

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March 21, 2019

Holiday Cruise Line Robocall Class Action: Illinois Class Certified

The Holiday Cruise Line robocall class action crossed a major milestone on March 21, 2019: the Court granted the plaintiffs' motion for class certification. Now, the case is not just the three named plaintiffs against one defendant. It is the named plaintiffs plus hundreds of thousands of Illinois residents against Holiday Cruise Line.

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March 14, 2019


Hypothetically: A public employer has a collective bargaining agreement with a labor organization. The collective bargaining agreement provides its bargaining unit members with fifteen sick days per year. This public employer has a 20-year bargaining unit member who has used all three hundred of those sick days. The question is: Has the bargaining unit member engaged in an excessive use of sick time, and is that bargaining unit member subject to disciplinary action? If the governmental employer is under the jurisdiction of the Civil Service Commission, the answer is: Who knows?!

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February 28, 2019 by Bruce D. Greenberg


For some New Jersey Bar candidates, the Supreme Court of New Jersey Committee on Character is a formidable hurdle. Candidates with a criminal record, a history of alcohol or drug addiction or financial irresponsibility, incidents of dishonest conduct in school, at work, or as an attorney in another jurisdiction, or any of a number of other things likely will not have smooth sailing before the Committee on Character.

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February 14, 2019

Changes May Be Coming to the Admissibility of Hearsay Under the Residual Exception

Hearsay is an out of court statement that a party offers in evidence to prove the truth of the matter asserted in the statement. Fed. R. Evid. 801(c). Some witness statements, even if made outside of court, do not qualify as hearsay. Examples include an inconsistent prior statement by the witness given under oath, or an admission by a party against its interest. Fed. R. Evid. 801(d). Other witness statements, even if they qualify as hearsay, may be admitted under special circumstances. Fed. R. Evid. 803-804. Examples include business records or public records.

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January 31, 2019

Privacy Violations Make "Aggrieved" Consumers

In a highly anticipated decision issued on January 25, 2019, the Illinois Supreme Court in Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186 (Ill. 2019), handed an important victory to consumers seeking redress for privacy violations under Illinois' Biometric Information Privacy Act ("BIPA").

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January 17, 2019

Third Circuit reaffirms that qualified immunity is still alive in a police shooting of a motorist who refused to comply with orders.

The tension and debate in America over police practices seem endless these days. But while the American public argues, police officers are still responsible for ensuring the safety of the community at large and their own well-being. Even in situations that result in the death of a suspect prior to arrest, a police officer will be entitled to qualified immunity so long as a plaintiff cannot prove the existence of the violation of a clearly established right. The ultimate injury is inconsequential so long as the officer's actions were proper under the circumstances. In Martin v. City of Newark, 2018 WL 6828424 (3d Cir. Dec. 28, 2018), the United States Court of Appeals for the Third Circuit highlighted this proposition by affirming the District Court's grant of summary judgment.

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January 3, 2019

Mass Shootings, Magazines and the Second Amendment

We all know that mass shooting incidents have increased exponentially in recent years. In June 2018, New Jersey passed a law limiting to 10 rounds the amount of ammunition a magazine can hold. Previously, the limit was 15 rounds. In doing so, New Jersey became the ninth state to pass a law restricting magazine capacity. A magazine is a chamber, that stores bullets and is inserted into the handle of a semi-automatic weapon. A magazine enables the user to quickly reload a weapon by inserting another magazine into the firearm.

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December 20, 2018

An Eye-Opening Class Certification Ruling

Earlier this month, Judge Harvey Schlesinger of the Middle District of Florida granted class certification in a 178-page opinion in the Contact Lens Antitrust Litigation. The case alleges that the four major manufacturers conspired with one another and with their distributors and independent eye care professionals to establish minimum pricing for certain types of contact lenses. Plaintiffs sought class certification for a horizontal conspiracy as well as a series of classes as to each defendant alleging a vertical conspiracy between each defendant and its distributors and eye care professionals.

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December 6, 2018

Duplicative Claims Are Dismissible Claims

The kitchen sink approach to pleading causes of action against public entity defendants in federal court is unwise, to say the least. In an attempt to maximize the number of claims they can assert against defendants, plaintiffs often choose to plead claims against defendants in their official and individual capacities. This is especially true in cases against municipalities, where plaintiffs bring claims against high-ranking municipal officials in tandem with claims against the municipality itself.

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November 22, 2018

The Potential Effects of the Proposed New Jersey Bad Faith Bill

S-2144, entitled the Insurance Fair Conduct Act, was passed by the New Jersey Senate on June 7, 2018. S-2144 could have a tremendous impact on the insurance industry and in connection with future litigated insurance claims. While the bill still must proceed through the Assembly and then be signed by Governor Phil Murphy, the bill, nevertheless, is highly significant.

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November 8, 2018

No Pain? No Gain. New Jersey Workers Are Entitled to Paid Sick Leave.

Americans overwhelmingly sympathize with workers who need to be able to take time off of work without penalty. States across the nation, including New Jersey, have started to implement comprehensive legislation aiming at providing paid sick leave to employees.

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October 25, 2018

Towards Resolution: Ringless Voicemails under the TCPA

As set forth more fully in Katrina Carroll's June 2018 blog post, Drop it Like it's Not: "Ringless" Voicemails and the TCPA, ringless voicemails may represent a new area of technology that is not expressly referenced in existing law. As recent opinions suggest, however, existing federal regulation is better suited to regulate "ringless" voicemails than thought.

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October 11, 2018

Absent Class Member Discovery Is Rarely Appropriate

Defendants in class actions sometimes seek to take discovery of "absent" class members. Those are members of a proposed or certified class who are not directly involved with the litigation. This type of discovery is generally not allowed. After all, one of the principal advantages of class actions over massive joinder or consolidation would be lost if all class members were routinely subject to discovery. Most courts thus limit discovery against unnamed class members, but do not forbid it altogether.

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September 27, 2018

The "Other" Talc Litigation: The Third Circuit Weighs in on Article III Standing

On July 12, 2018, a Missouri jury awarded $4.7 billion to twenty-two women who were diagnosed with ovarian cancer after using Johnson & Johnson's talc-based powder products. The headline-grabbing verdict is certain to generate additional litigation by consumers who have used talc-based products. But before the "dust" on that verdict has settled (as Johnson & Johnson intends to appeal), another talc lawsuit resulted in a Third Circuit Court of Appeals decision of constitutional dimensions.

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September 13, 2018

NOLA Homeowners Bring Class Action Lawsuit Against Brad Pitt's Make It Right Foundation For Poorly Built Post-Katrina Homes

Coastal communities hasten to gather their belongings and evacuate to shelters as Hurricane Florence closes in on the Carolinas. It is a situation that residents of New Orleans' Lower Ninth Ward are all too familiar with. In 2005, their community experienced the gravest effects of Hurricane Katrina, a devastating Category 5 hurricane that resulted in many causalities and left thousands homeless. The disaster inspired actor Brad Pitt to create Make It Right ("MIR"), a non-profit foundation with a mission to build well-designed, energy-efficient, and affordable houses in the area so that residents of the Lower Ninth Ward could return home after Hurricane Katrina.

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August 30, 2018

Jurisdictionally or Via Rule 23: When are Multi-State Class Actions Appropriate Under Bristol-Myers Squibb?

In Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), the Supreme Court reaffirmed the principle that "[a] corporation's continuous activity of some sorts within a state ... is not enough to support the demand that the corporation be amenable to suits unrelated to that activity." In reaching this conclusion, the Supreme Court employed a "straightforward application ... of settled principles of personal jurisdiction" in which specific jurisdiction over a claim can only be exercised if there is an "affiliation between the forum and the underlying controversy, principally, an activity or an occurrence that takes place in the forum State."

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August 16, 2018

Classes Certified in Mislabeled Keratin Products Class Action

Yesterday, the District Court for the Southern District of New York granted class certification in Price v. L'Oréal USA Inc., case no. 1:17-cv-00614, a case involving popular L'Oreal products misrepresented to include keratin. Plaintiffs' case is premised on the fact that the challenged products do not contain keratin and thus, plaintiffs and the Class have been damaged by paying a price premium. Plaintiffs sought a nationwide class, as well as a New York and/or California class. Not surprisingly, the District Court denied certification of the nationwide class because "some form of reliance is required under all states' laws for a fraud claim" and "[t]he viability of each class member's fraud claim turns on whether or not he or she relied on alleged representations that the Products contain keratin."

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August 2, 2018


All too often employers read or hear about a law or case in their favor and run to apply it to their circumstances without further review or research. In many situations, however, there are exceptions to the "black letter" law or a court's decision. Such is the case with the doctrine of "employment at will".

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July 19, 2018

Attorneys: Don't speak when you are spoken to (by a juror)

A recent case highlighted the issue of whether a lawyer could respond to a juror who sought to solicit a conversation on why the jury decided the way it did in a case the lawyer had tried. Montone v. City of Jersey City, 2018 WL 3377158 (D.N.J. July 11, 2018). The lawyer asked the court's permission to respond in order to ask whether the jury deliberation process had been tainted. The lawyer attempted to equate the potential conversation with the juror with a typical communication that could be had at a coffee shop.

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July 5, 2018

New Amendments to the Federal Rules of Civil Procedure - Rule 23, Relating to Class Actions

On April 26, 2018, the Supreme Court of the United States adopted several amendments to the Federal Rules of Civil Procedure (Rules 5, 23, 52 and 65.1) and are pending Congressional review. This post relates to certain aspects of the amendments to Rule 23. In order to view the entire package of materials transmitted to Congress, including redlined versions of the amendments and all related Committee Notes, please click here

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June 21, 2018

Drop it Like it's Not: "Ringless" Voicemails and the TCPA

Uninvited robocalls and spam texts can be extremely annoying to consumers. Yet these methods of direct communications are widely used by businesses and the numbers are growing each year. In 2017, the Federal Trade Commission received 7,157,370 consumer complaints regarding unsolicited robocalls, an increase of almost 2 million from the prior year (see Consumers are supposed to get protection from harassing calls under the federal Telephone Consumer Protection Act ("TCPA") which regulates these activities and confers on the consumer the right to sue.

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June 7, 2018

Recent News Regarding Arbitration Clauses in New Jersey

Many cases that would ordinarily be brought in court have been swept into the black holes of AT&T Mobility, LLC v. Concepcion, 563 U.S. 333 (2011), and Kindred Nursing Centers Ltd. Partnership v. Clark, 137 S.Ct. 1421 (2017), black holes, forcing these disputes into secret arbitration proceedings. Many readers of our blog are familiar with these Supreme Court decisions, but for those who are not, here's a brief recap.

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May 31, 2018

Give Notice or Face the Consequences

The New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. (hereinafter "NJTCA"), affords municipalities a myriad of immunities and defenses that shield public entities from liability. In personal injury cases that involve a dangerous condition on public property, plaintiffs sometimes choose not to sue public entities and never comply with the notice requirements of the NJTCA. In these cases, defendants often file third-party complaints against public entities for contribution or indemnification. Although N.J.S.A. § 59:8-8 requires that a claimant present the public entity with notice of the cause of action no later than 90 days after the accrual of the cause of action, defendants/third-party plaintiffs often avoid the notice requirement and file third-party complaints against public entities well after the 90 day period elapsed. In practice, defendants/third-party plaintiffs often have no knowledge that a claim for contribution or indemnification exists against a public entity until after commencement of the underlying case and the exchange of discovery.

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May 24, 2018

"There's Gambling Going on Here? Shocking!" "Your Winnings, Sir"

In a recent ruling by the Supreme Court, it has been found that the Congressional permanent ban on sports betting, for those States that did not adopt it by a certain date, was unconstitutional. The decision, Murphy v. NCAA, originally brought by New Jersey Governor, Chris Christie, will have a significant impact on far more than sports betting. In fact, it draws a line as to how far Congress can go in imposing laws on individual State governmental bodies.

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May 17, 2018

The Impact of New Jersey's Equal Pay Act

On March 27, 2018, the New Jersey Legislature passed the Diane B. Allen Equal Pay Act. The Act amends the New Jersey Law Against Discrimination ("LAD") by providing additional protections against employment discrimination, and to promote equal pay. The Act will take effect on July 1, 2018, once the legislation is presented to, and signed by, Governor Phil Murphy.

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May 10, 2018

Thinking of filing an NJLAD claim against a bi-state agency? Think again.

The Third Circuit Court of Appeals has not yet addressed the question of whether a bi-state agency is subject to suit under the New Jersey Law Against Discrimination. However, despite some befuddlement by hopeful litigants, the lower federal courts and the New Jersey state courts have consistently held that the answer is a resounding "no".

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May 3, 2018

In first ever cryptocurrency securities class action, appointment of lead plaintiff is business as usual

The Court presiding over In re Tezos Securities Litigation, No. 17-cv-6779-RS (N.D. Cal.), the first ever class action alleging violations of U.S. federal securities laws arising from an initial coin offering ("ICO"), recently appointed an individual investor to serve as lead plaintiff.

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April 26, 2018

New Jersey's Restrictive Covenant Bill: A Crude Proposal for a Noble Goal

Have you reviewed your employment agreement lately? Do you know if it contains a restrictive covenant? Over the past forty years, courts in New Jersey have established guidelines to determine whether such agreements are enforceable. Those guidelines are applied on a case-by-case basis: sometimes the agreements are enforceable; others they are not.

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April 19, 2018

The Supreme Court Narrows the TCCWNA

As I indicated in my last blog, we've been awaiting the Supreme Court's decision in Spade v. Select Comfort Corp., ___ N.J. ___ (2018), because it was expected to bring much needed clarity to the Truth-in-Consumer, Contract, Warranty and Notice Act, N.J.S.A. 56:12-14 et seq. ("TCCWNA"). While I believe the Court got it wrong, it certainly met that goal.

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April 12, 2018

"Consumer Class Actions in Defendants' Backyards: The Home-Field Advantage of Bristol-Myers Squibb"

In Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, decided in June 2017, the United States Supreme Court reversed the California Supreme Court's decision to allow the state to exercise specific personal jurisdiction over BMS in a mass tort insofar as it involved non-California-residents' claims (the claims of California residents were deemed subject to the court's specific jurisdiction). As Justice Sotomayor noted in her dissent, this decision highly limited the ability of plaintiffs to consolidate their tort actions against a corporate defendant. As such, the Court effectively limited the reach of personal jurisdiction over a defendant in any state court in which the plaintiff's injury did not "arise out of or relate to" the defendant's contacts with that state.

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April 5, 2018

Facebook Faces Class Action Lawsuits For Mishandling User Data

Facebook is facing at least two class action lawsuits and an investigation by the Federal Trade Commission regarding its data privacy practices after the disclosure that tens of millions of Facebook users' profile information was mishandled.

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March 29, 2018


The so-called Class Action Fairness Act of 2005 ("so-called" since it is heavily weighted in favor of class action defendants, though that's a subject for another post), known as CAFA, requires that when a settlement of a class action is proposed, defendants must give notice of that settlement to "appropriate state and federal officials." 28 U.S.C. §1715. In general, the "appropriate" officials are those who have "regulatory or supervisory responsibility with respect to the defendant."

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March 22, 2018


Excessive force cases under the federal Civil Rights Act, 42 U.S.C. §1983 against police officers are being argued with greater frequency based upon Monell v. Department of Social Services, 436 U.S. 658 (1980). This allows plaintiffs' attorneys to introduce evidence related to a "pattern and practice" of a police department that otherwise, in a majority of cases, would be inadmissible as to the actions of the police officer or officers in the specific case being tried. To avoid such undue prejudice, a motion to bifurcate is warranted.

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March 15, 2018

Protecting Your Small to Mid-Sized Business

It is crucial to retain the services of an attorney when it comes to protecting your business. This may include, but not be limited to: business formation; choosing a legal entity; business litigation; contract drafting; employment relations and litigation; and, several other aspects.

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March 8, 2018


Non-lawyers don't always believe that there are Rules of Professional Conduct by which attorneys must abide. One of those Rules is RPC 3.2, which states that "[a] lawyer … shall treat with courtesy and consideration all persons involved in the legal process." Recently, in a case where the facts are truly unbelievable, though undisputed, the Supreme Court of New Jersey reprimanded an attorney who had egregiously violated that rule in dealing with the Office of Attorney Ethics ("OAE").

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March 1, 2018

"I Don't Recall": Witness Memory Lapses and Contempt of Court

Testifying at a deposition can be a stressful experience. Witnesses must testify under oath before many lawyers, with a court reporter transcribing everything they say. Sometimes depositions are even videotaped. It is no wonder that witnesses can be nervous and want to be careful to make sure their testimony is not misinterpreted or later used against them.

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February 22, 2018

The New Jersey Supreme Court grants absolute immunity to a public employee's failure to enforce the law

In Hazel Hamrick Lee v. Florence Brown, et al., decided earlier this week, the New Jersey Supreme Court held that a public employee and his employer, the City of Paterson ("the City"), were both entitled to absolute immunity pursuant to N.J.S.A. 59:3-5. The Court decided that pursuant to its previous holding in Bombace v. City of Newark, 125 N.J. 361 (1991), the City's electrical inspector was entitled to absolute immunity when he failed to enforce a law, which according to the Court, triggered the absolute immunity provided in N.J.S.A. 59:3-5. The Court reviewed the facts and determined that despite an ensuing fire that claimed four lives, and the electrical inspector's issuance of: (1) a "Notice of Violation and Order to Terminate" electrical service; and (2) a "Notice and Order of Penalty," his actions, or lack thereof, justified the absolute immunity imbedded within N.J.S.A. 59:3-5, as opposed to a good faith qualified immunity.

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February 15, 2018

Cryptocurrencies, Initial Coin Offerings and the Securities Act of 1933

Businesses have begun to use initial coin offerings, or ICO's, to raise capital in ways that appear similar to the traditional mode of "going public," through an Initial Public Offering, or IPO. Although the IPO and ICO both function as vehicles for a company to obtain funding from the public, they vary in this important respect: in order to raise capital pursuant to an IPO, the company must adhere to the requirements of the Securities Act of 1933, including the filing of a registration statement. To date, no ICO has complied with the 1933 Act. Not a single registration statement has been filed.

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February 8, 2018

Class Action Settlements Under Assault

Ever since the Supreme Court decided Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), the use of the class action vehicle to settle litigation has become more and more problematic. There, the Court found that, even in a settlement context, a district court had to consider all of the Rule 23 (a) and (b)(3) factors (other than management issues at trial) in determining whether class certification of a settlement agreement is appropriate.

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February 1, 2018

Protective Orders: A Shield All Lawyers Should Use

Discovery is often riddled with pitfalls, risk, and exposure for clients. Parties to litigation often request sensitive or embarrassing documents or information beyond the proper scope of discovery. While a party is allowed to cast a wide net when requesting discovery, discovery is not unlimited. The New Jersey Rules of Court, like the Federal Rules, are designed to prevent fishing expeditions. Discovery should be tailored to the issues involved in the particular case and must be relevant to the allegations of plaintiff's complaint.

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January 25, 2018

Some Notes About Footnotes In Appellate Briefs

Footnotes are a subject about which there are differing and, in some instances, surprisingly strong views. A militant anti-footnote jurist was Justice Robert Clifford of the Supreme Court of New Jersey, who sought to abolish footnotes from the Court's opinions. He once wrote (quoting John Barrymore) that having to read footnotes was "like having to run downstairs to answer the doorbell during the first night of the honeymoon." In re Opinion 662 of the Advisory Committee on Professional Ethics, 133 N.J. 22, 32 (1993) (Clifford, J., concurring).

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January 18, 2018

Gov. Murphy to Continue Criminal Justice Reform Efforts

Over the last two decades, New Jersey has become a trailblazer in criminal justice reform. New Jersey's prison population has been reduced by a staggering 26 percent since 2000, and crime has fallen by 30 percent. Not only has the state reduced its prison population, its recidivism rate is also lower than the national average – 31 percent in the state, compared with 40 percent nationally. For some time, criminal justice reform has been considered a noble bi-partisan cause in New Jersey political circles, and many governors and legislators, both Democrat and Republican alike, can take credit for the change.

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January 11, 2018

Beyond the Hague Convention: Other Methods Of Serving Process On Foreign Defendants

Defendants located outside the United States are often named in securities and other types of class actions, which raises a sometimes confounding question: How to effect service of process?

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January 4, 2018

Reactions to the U.S. Opioid Epidemic

The U.S. is in the grip of an intensifying opioid addiction and overdose crisis. Since the late 1990s, there has been a rapid increase in the use of prescription and non-prescription opioid drugs in the U.S. Opioids, such as methadone and oxycodone, are synthetic painkiller drugs that are manufactured to work in a way similar to opiate drugs, such as morphine and heroin, which are derived from the opium plant.

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December 28, 2017

A Short Digression on Oral Argument

For most non-members of the bar, the word "attorney" conjures an image of a skilled orator delivering a prescient and impassioned speech in the courtroom, a dramatic oration that swings the big case in the favor of his or her client. (Perhaps this is optimistic, and if your own visual is a placard of Dewey, Cheatem, & Howe, or a group of besuited bottom-of-the-ocean dwellers fulfilling the proverbial "good start," then please allow me this temporary indulgence). Perry Mason. Atticus Finch. Jack McCoy. In the real world, perhaps Johnny Cochran or, for the more historically inclined, Clarence Darrow or William Jennings Bryan.

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December 21, 2017

The Ascertainability Battle Wages On

The question whether Rule 23 imposes an ascertainability requirement continues in the Ninth Circuit despite the issue having been settled in Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017), cert. denied sub nom. ConAgra Brands, Inc. v. Briseno, 138 S. Ct. 313 (2017). In Briseno, the Ninth Circuit joined the Second, Sixth, Seventh, and Eight Circuits in rejecting the notion that Rule 23 requires plaintiffs to show class membership is ascertainable or "administratively feasible." Briseno presented the typical conundrum – if Rule 23 imposes an ascertainability requirement, can a class action involving an inexpensive consumer product ever be certified? The Ninth Circuit correctly recognized that these cases "would likely fail at the outset if administrative feasibility were a freestanding prerequisite to certification," and declined to follow the Third Circuit in making it virtually impossible to bring these types of class actions.

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December 14, 2017

Ninth Circuit's Decision Chips Away At Consumer Privacy Protections

Litigation arising from the disclosure of personal information has exploded as technology allows consumers to interface with various media platforms and make purchases in ways never before. But what really is "personal information"? Courts and legislatures have made clear that certain pieces of information are clearly personal information, such as your name, social security number, date of birth, credit profile, and even biographical information such as facial markers taken from your digital photos. See generally 15 U.S.C.A. § 1681b et seq. (regarding the permissible purposes of sharing consumer report information); Rivera v. Google Inc., 238 F. Supp. 3d 1088 (N.D. Ill. 2017) (finding Illinois Biometric Information Privacy Act applies to face templates taken from digital photos).

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December 7, 2017

How Can I Get My Case, Or My Company's Case, To The New Jersey Supreme Court?

Every client, and every attorney, thinks that his or her case is the most important case in the judicial system. (We are right, of course). If the result at the trial level or the Appellate Division is not what we wanted, we then think about going to the New Jersey Supreme Court. It is not easy to get there. But here are some tips about how to do it.

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November 30, 2017

Social Media - An Employment Nightmare

The social media explosion has changed the way individuals communicate. This explosion has raised concerns for employers as to how control the use of social media by their employees and to what extent they can control its usage. It is critical for employers to establish a social media policy to put employees on notice as to what the employer considers appropriate or inappropriate usage of social media. It is imperative for employers to create a social media policy as a buffer to liability.

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November 22, 2017

Misstatements on Law School Applications: A Pitfall in the Committee on Character Process

It is always a good idea to be candid in completing an application to law school. Applicants are seeking admission to a school that will lead to a career in a profession where candor is one of the highest values. And if the law school discovers a misrepresentation, that could result in denial or revocation of admission, or some sort of discipline if the applicant is already enrolled at the law school.

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November 16, 2017

Why the "Fairness in Class Action Litigation Act of 2017" Is Anything But Fair - UPDATE

On March 9, 2017, the House passed H.R. 985 (as amended) and the Act has made its way to the Senate Judiciary Committee (which has not taken any action). The amended version only slightly modified from the original bill, so consumers in class actions still face a serious roll-back of their ability to maintain a class action.

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November 9, 2017

Plaintiffs' Lawyers Beware: Lessons from the Subway Sandwich Footlong Litigation

Over the past few years, the Seventh Circuit has carefully scrutinized class action settlements, and some for good cause, given the circumstances of some very notorious cases well known to the class action bar. The most recent Subway sandwich Footlong case is yet another notorious example of a questionable class action settlement that did not pass muster.

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November 2, 2017

"Does Anybody Really Care About Time?" As Lawyers, We Must

When the pop group Chicago sang "Does anybody really care about time?" their response was "If so, I can't imagine why." As lawyers, we must care about time. There are deadlines for everything. And while some deadlines can be adjusted, either on consent of an opposing party or with the approval of a court, others cannot be changed, or can be altered only on certain conditions. We must know which deadlines fall into which categories.

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October 26, 2017

The Importance of Preparing for the Pre-Sentence Interview in the Federal Criminal System

The federal criminal client you represent was just convicted after a guilty plea or a trial. Up until this point you have conducted client interviews to try and understand the facts of the case and the circumstances that led to your client's criminal case. It's likely that you have explored your client's personal and family background, but do you really know her/him? Have you cared enough to dig a little deeper to try and discover the individual behind the criminal charges? Understanding and familiarizing yourself with that individual is crucial at this point, since your client will likely be facing an important interview with a federal probation officer.

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October 19, 2017

Statutes of Repose Are Not Tolled By a Pending Class Action

The Supreme Court's assault on Rule 23 continues unabated. This time, in California Public Employees' Retirement System v. ANZ Securities, Inc., 137 S. Ct. 2042 (2017), the Court weakened a litigant's constitutional right to opt out of a class settlement. As discussed below, that decision requires absent class members and class counsel to rethink old strategies.

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October 12, 2017

The Blue Cross/Blue Shield Conundrum

When is an association of companies a single entity for the purpose of the antitrust laws and, if they are separate companies, can they limit how they compete against one another? That is the basic question that will be answered in the Blue Cross/Blue Shield Antitrust Litigation which has been centralized for pretrial purposes in the Northern District of Alabama, a case in which our Firm is playing a prominent role.

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October 5, 2017

CEPA and the Objectively Reasonable Test

The Conscientious Employee Protection Act (CEPA), N.J.S.A. 34-19-1 et seq., is designed to protect whistleblowers who disclose employer or co-worker activities that pose a threat of public harm. The offensive activity must be more than a harm that only affects the aggrieved employee. See Mehlman v. Mobil Oil Corp., 153 N.J. 163, 188 (1998).

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September 28, 2017

Check your employment contract!

If your employment contract contains a "for cause" or "good cause" termination clause, you should be aware of your legal rights prior to, during, and following your period of employment. You may possess inextinguishable legal rights and should seek counsel accordingly, as you may not be considered an "at-will" employee.

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September 21, 2017

The Unfortunate Truth in Establishing a Hostile Work Environment Claim

Have you "heard through the grapevine" that a co-worker has been making racist remarks about you? If your answer to this question is a resounding "yes," then you likely believe you have a valid racial discrimination lawsuit against your co-worker and employer. Not so fast.

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September 14, 2017

Money In Your Pocket: Shifting The Cost Of Class Notice To Defendants

In class actions, the usual rule is that the plaintiff must initially bear the cost of sending notice to the class, which can amount to hundreds of thousands of dollars, depending on the size of the class and type of notice program. As the name suggests, there are exceptions to the usual rule and, if you represent plaintiffs in class actions, it pays to know them.

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September 7, 2017

Onward And Trumpward: The Future Of The Seventh Circuit

With the retirement of the renowned Richard A. Posner from the United States Court of Appeals for the Seventh Circuit on Saturday, the federal appellate court in Chicago now stands at a crossroads. Like former Supreme Court Justice David Souter, Posner was appointed by a Republican President (Bush and Reagan, respectively) in the hopes that his judicial philosophy would exhibit a right-of-center bent. This was not always the case, with Judge Posner penning some of the most influential Circuit court decisions of the last few years, including a 2014 decision, Baskin v. Bogan, striking down Indiana and Wisconsin's ban on gay marriage.

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August 31, 2017

A Friend of Yours is a Friend of Mine, Maybe

The Miami Herald recently reported, "Facebook friends aren't necessarily real friends." While this headline comes as no surprise to someone like myself (born in the ‘50's), the meaning of a "Facebook friend" was front and center in Law Offices of Herssein and Herssein, P.A. etc. et al., vs. United States Automobile Association, a Florida Court of Appeal opinion that was filed on August 23, 2017.

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August 24, 2017

The TCCWNA Saga Continues

As we wait for the Supreme Court to provide some much needed guidance on the Truth-in-Consumer, Contract, Warranty and Notice Act, N.J.S.A. 56:12-14 et seq. ("TCCWNA"), the district courts in the Third Circuit continue to dismiss TCCWNA claims on standing grounds. Earlier this month, in Pasciolla v. General Nutrition Centers, Inc., No. CV-16-1313, 2017 WL 3412146 (W.D. Pa. Aug. 8, 2017), Judge Hornak joined Judges Wolfson, Hillman, and Simandle in finding that a plaintiff lacks standing to bring a TCCWNA claim where she (1) does not allege dissatisfaction with the purchase, or (2) cannot identify a harm other than informational injury. See also Rubin v. J. Crew Grp., Inc., No. CV 16-2167, 2017 WL 1170854 (D.N.J. Mar. 29, 2017), Murray v. Lifetime Brands, Inc., No. CV 16-5016, 2017 WL 1837855 (D.N.J. May 8, 2017), Hite v. Lush Internet Inc., No. CV 16-1533, 2017 WL 1080906 (D.N.J. Mar. 22, 2017).

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August 17, 2017

Third Circuit Limits Sentence Reductions

The opportunity for a sentence reduction is appealing for any incarcerated offender. In 2014, the United States Sentencing Commission passed Amendment 782 to the United States Sentencing Guidelines ("USSG") to offer retroactive sentence reductions to convicted drug offenders. Despite the belief that Amendment 782 could broadly be applied to many offenders, on August 15, 2017, the Third Circuit Court of Appeals in United States v. Richard Martin, No. 16-4289, 2017 WL 3481669 (3d Cir. Aug. 15, 2017), identified a restriction to the application of Amendment 782.

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August 10, 2017

Mcdonnell Douglas Modified For Discrimination Claims Based On Disability - A Grande Roadmap

On July 12, 2017, the Supreme Court of New Jersey issued a decision in Maryanne Grande v. Saint Clare's Health System, outlining the steps for evaluating discrimination cases based on disability. The Court recognized the three-step analysis required pursuant to McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The first step requires that a plaintiff establish a prima facie case. If the first step is met, the second step requires the employer to establish the reasonableness of the otherwise discriminatory act or advance a non-discriminatory reason for the employee's discharge. If the second step is met, the third step requires the employee to prove by preponderance of the evidence that the reason proffered by the employer "was not the true reason the employment decision but was merely a pretext for discrimination."

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August 3, 2017

A Missed Opportunity for More Clarity in the Legal Standards in Disability Discrimination Cases

Cases under the New Jersey Law Against Discrimination ("NJLAD") implicate a dizzying number of legal and factual wrinkles-- direct evidence of discrimination, circumstantial evidence of discrimination, the "Jansen test," whether there is a prima facie case or pretext to retaliation, and the great burden shift embedded within the "McDonnell-Douglas test"— hurdles that must be cleared before an NJLAD case can get to a jury. Employment cases are factually driven but the facts can never directly dictate the outcome. Thus, the courts, as gatekeepers of what should be presented to a jury, evaluate the legal framework and determine if the facts satisfy the legal tests so as to justify presentation of the case to a jury.

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July 27, 2017

Proposed Amendments to Federal Rules Governing Class Action Settlements

Currently under consideration by the Civil Rules Advisory Committee ("Advisory Committee"), the Committee on Rules of Practice and Procedure, the Judicial Conference, and the Supreme Court, are proposed amendments to Federal Rule of Civil Procedure 23(e), relating to class action settlements.

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July 20, 2017

A Giant Step in the Right Direction: the Northern District of Illinois' Mandatory Initial Discovery Pilot Project

For newly filed cases on or after June 1, 2017, the Northern District of Illinois (generally regarded as a very active District in case management procedures) began participating in a three- year "Mandatory Initial Discovery Pilot Project" (or "MIDP"), which will significantly affect civil litigation, especially in complex class actions. This novel project was endorsed by the Judicial Conference of the United States and is intended to reduce the cost and delay often involved in the initial stages of discovery.

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July 13, 2017

Resolving Intra-Class Conflicts to Satisfy the Adequacy Requirement for Class Certification

Rule 23(a)(4) requires that the representative party in a class action will "fairly and adequately protect the interests of the class." This requirement encompasses whether: (1) any conflicts of interest exist between the class representatives and the class as whole; and (2) whether the representatives will adequately prosecute the action. Recently, there has been a movement toward resolving any potential conflicts between representatives and the class by creating structural protections, such as formal subclasses, or appointing separate counsel for members who may have divergent interests. Federal district and circuit courts have even labeled this as the "Amchem conflict of interest," after the U.S. Supreme Court case, Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997).

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July 6, 2017

More Appellate Courts Reject the Third Circuit's "Ascertainability" Doctrine

In 2015, my colleague Kyle A. Shamberg wrote this post about the Third Circuit Court of Appeals's doctrine of "ascertainability." That doctrine prevents the certification of a class unless all members of that class can be precisely identified. In consumer cases, involving purchases such as aspirin or weight-loss pills, where consumers do not register their purchases, it is often impossible to identify all the purchasers. The Third Circuit's approach mistakenly blocks class certification in such cases, meaning (as a practical matter) that no one can recover for a defendant seller's wrongdoing.

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June 29, 2017

U.S. Supreme Court Limits Plaintiffs' Ability To Choose a Forum

In a pair of recent decisions, the Supreme Court changed the calculus for plaintiffs deciding where to bring to bring a case. In BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549 (May 30, 2017), the Court ruled that district courts may exercise general personal jurisdiction over a corporate defendant in a given forum only if the defendant is incorporated, has its principal place of business, or maintains substantial operations in that forum. The Supreme Court found that the Montana Supreme Court had erred in holding that courts in Montana could assert general jurisdiction over BNSF because it had over 2,000 miles of railroad track and employed more than 2,000 workers in the state. The Court reasoned that the "general jurisdiction inquiry does not focus solely on the magnitude of the defendant's in-state contacts. Rather, the inquiry "calls for an appraisal of a corporation's activities in their entirety; [a] corporation that operates in many places can scarcely be deemed at home in all of them." Thus, while BNSF's operations might have subjected it to specific personal jurisdiction in Montana on claims related to the business it carries out in that state, its in-state activities were not sufficient for general jurisdiction

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June 22, 2017

Generic Drugs - A grand conspiracy?

In 2016, the news that the Department of Justice was investigating the incredible increase in the prices of off-patent generic drugs brought about the filing of several suits accusing pharmaceutical companies of fixing prices on Digoxin and Doxycycline. The news regarding the investigation followed headlines from Congressional hearings that showed that the prices of these drugs, which had been on the market for a long time and could be manufactured by any pharmaceutical company, were suddenly being subjected to massive price increases (some more than 1000%). The DOJ investigation, coupled with a parallel investigation by a multistate task force of State Attorneys General led by the Attorney General of Connecticut, brought a great deal of attention to this unusual pricing behavior.

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June 15, 2017

Should Risk-Assessment Technology Be Part Of Our Criminal Justice System?

The age-old adage that nothing is certain in life but death and taxes seems ready for an update. The persistence of the digital revolution is proving to be another of life's inevitabilities. The digital revolution has proven to be an unstoppable tidal wave of "advancement" that wipes out people and industries that are unwilling or unable to adapt. Unsurprisingly, the legal industry has had to adapt to survive in the digital world, but now, the digitization of the criminal justice system is calling into question whether technological "advancement" equals "progress." Across the country the criminal justice system is becoming automatized. Many states have started using algorithms to help determine sentencing, parole, and bail. These algorithms asses a defendant's risk of recidivism or risks of jumping bail by analyzing data about a given defendant.

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June 8, 2017

Forum Shopping Revisited

Forum shopping is a practice adopted by litigants to get their cases heard in a specific court that may be more likely to produce a favorable result. Attorneys and litigants choose particular courts for a variety of reasons, including obtaining sympathetic juries, getting geographic advantage, and/or taking advantage of past favorable results in the chosen jurisdiction. Although forum shopping is sometimes frowned upon, it is nevertheless generally condoned and widely utilized by practitioners to try to benefit their clients.

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June 2, 2017

The Revival of Mandatory Minimums

The Trump Administration is committed to change numerous policies implemented under the Obama Administration, including criminal justice reform. A recent change has been Attorney General Jeff Sessions' directive to federal prosecutors. Setting the tone for the Trump Administration, Sessions issued a two-page memo on May 10, 2017 to all federal prosecutors calling for strict adherence to the mandatory minimum sentencing guidelines.

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May 25, 2017

Class Counsel Should Not Overlook Relevance In Resisting Demands For Engagement Letters

Defendants in class actions typically demand copies of plaintiffs' engagement letters under the theory that they might reveal a conflict of interest that undermines plaintiffs' ability to represent the class and thus plaintiffs' ability to satisfy the "adequacy" of representation requirement of Federal Rule of Civil Procedure 23(a)(4).

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May 18, 2017

The Pain Of "Just Saying No": The Law Is Not Always On Your Side

Last week, a potential client came to me with what she felt was a clear-cut mortgage fraud class action against one of the biggest banks in the world. After spending some time considering what she had told me and researching the point myself, I tended to agree that something was awry: there seemed to be indicators out there pointing to the fact that yes, this was happening and yes, it was happening to a lot of people. I determined that winning such a case would provide a tremendous societal benefit and would be significantly valuable to both my firm and to me personally. Immediately thereafter, I told her my firm could not take the case.

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May 10, 2017

D.C. Circuit Strikes Down FCC Solicited Fax Rule

On March 31, 2017, the D.C. Circuit struck down a regulation by the Federal Communications Commission ("FCC") requiring that senders of fax advertisements include notices on how recipients can opt out of receiving future fax ads for faxes sent with consent. See Bais Yaakov of Spring Valley v. Fed. Commc'ns Comm'n, 852 F.3d 1078, 1080 (D.C. Cir. 2017).

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May 4, 2017

Supreme Court to the Rescue?

This post is about the Truth-in-Consumer, Contract, Warranty and Notice Act, N.J.S.A. 56:12-14 et seq. [As an initial matter, I'm going to support the Appellate Division's effort to shed the tongue twister acronym and go with the "Truth Act" here. See Smerling v. Harrah's Entm't, Inc., No. A-4937-13T3, 2016 WL 4717997 (App. Div. Sept. 9, 2016).]

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April 27, 2017

School Zones are Not Special

School zones are generally considered special areas where people exercise particular care because of the need to protect children within the school zone. Contrary to these social norms, the Appellate Division in Patrick by Lint v. City of Elizabeth, No. A-2792-15T1, 2017 WL 1436113 (App. Div. Apr. 24, 2017), held that a school zone is not entitled to special protection for tort claims against public entities.

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April 20, 2017

Monell: Past Can Be Prologue

When governmental entities are forced to defend against claims asserted under 42 U.S.C. §1983, the breadth and liberal interpretation of this statute renders defense difficult in the eyes of a jury.

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April 13, 2017

Two-Judge Panels in the Appellate Division: What's Up With That?

We all generally assume that appellate courts consist of an odd number of judges. That way, there is no risk of an evenly divided court. Thus, the Supreme Court of the United States has nine Justices. The Supreme Court of New Jersey has seven Justices. And panels of the Court of Appeals for the Third Circuit, and other Circuit Courts of Appeals, consist of three judges.

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April 6, 2017

Will the New Jersey Courts Start to Rein in the Wild West of First Amendment Civil Rights Jurisprudence as it applies to the New Jersey Civil Rights Act?

In Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016), the United States Supreme Court held that a plaintiff can maintain a 42 U.S.C.§ 1983 action against his employer based upon the employer's mistaken perception that the plaintiff was exercising his First Amendment right to association. The Court found that a public employee can have a First Amendment right notwithstanding the employee's admission that he did not engage in any speech nor associate with anyone in any political campaign. Id. The Court held "the government's reason for demoting Heffernan is what counts here." Id. at 1418. Whether the employee triggered the civil right at issue was not the focal point of the Court's analysis.

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March 30, 2017

Why the "Fairness in Class Action Litigation Act of 2017" Is Anything But Fair

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

Shrink Wrap Agreements: The Third Circuit Thinks Outside the Box

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

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

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

Cyber Risk and the Law Firm

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

Class Action "Reform"

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

"Is Speech Really Free? It depends."

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

Offer of Judgment: "An offer you CAN refuse"

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

Why You Should Consider Hiring a Trial Lawyer

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

Consumers Confound ConAgra: The Ninth Circuit Follows the Trend on Administrative Feasibility

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

New Jersey Removes Impediment to Multistate Certification of Class Actions

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

Addiction Issues and The Supreme Court Committee On Character

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

Tweet at Your Own Peril

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

A Year In Amended Rule 34

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

Progressive Discipline

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

Oral Arguments In Appellate Courts: Some Do's And Don'ts

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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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

When Does Counsel "Obtain An Improper Advantage In A Civil Matter"?

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

Internet Agreements to Arbitrate: Know the Four "Wraps"

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

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

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

Buyer Beware! Express Limited Warranties May Be More Limited Than You Think

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

Musings from a Trial

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 Afanador, 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

A Millennial's Voting Nightmare: No Selfies in the Voting Booth

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

Sixth Circuit: Risk of Fraud Following Data Breach Establishes Standing

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

The Ostrich And The Telemarketer, Or Why You Still Get So Many Spam Calls

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

Leapfrog: Direct Certification of Cases By The Supreme Court

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

Gamble On Misinterpretation and You Might Just Win

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


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

My contract auto-renewed! Am I screwed?

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

Suggesting Legislation from the Bench: The Third Circuit Hints at the Necessity of Bail Reform

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

Does Actavis Extend to Pay-for-Delay Settlements That Don't Involve A Cash Buyout?

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

A Legal Fiction: The "Unpublished" Appellate Division Opinion

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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August 11, 2016

Musings From The Left Coast: The Judicial Panel on Multidistrict Litigation

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

The Attorney Oath of Office and Our Presidential Election

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

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!

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

Pre-certification Motions for Summary Judgment in Class Action Litigation

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

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

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

Beware of Hidden Recording Devices

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

The TCCWNA - A Straightforward Statute with a Complicated Acronym

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

What Happens When Two Appellate Panels Disagree?

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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June 2, 2016

Striking Balance under OPRA

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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May 19, 2016

Politics, Punting, and The Supreme Court

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

Life After Comcast: What Have We Learned?

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

Moot Court Matters

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

Life after Concepcion: Use of Ordinary Contract Principles To Nullify Forced Arbitration Clauses

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

The Pirates of the Class Action World

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

The FDCPA Does Not Govern Every Attempt to Collect a Debt

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

Show Me The Money! "Pick-Off" Attempts In The Wake Of Campbell-Ewald

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

The Art of Drafting Safe (but not Fail-Safe) Class Definitions

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

Pay Heed to Payton

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

To Win on Appeal, Know the Standard of Review

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

Faces in the Crowd: Protecting Your Biometric Information in the Internet Age

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

Tales from a SCOTUS Counsel Table Voyage

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

Picking Off Class Plaintiffs, Or Whac-A- Mole And Castles In The Sand

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

Three Little Piggies

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

Court Certifies Student Classes Denied Special Education Services

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

Reducing Federal Criminal Sentences

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

Class Action Basics: What You Need To Know To Protect And Preserve Your Rights

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

Blackmailing The Class: The Problem With Serial Objectors

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

Perpetrators of Consumer Fraud Can No Longer Blame Their Victims

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

Removing A Public Employee Who Is Unfit For Psychological Reasons

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

Trebling Troubles - Keeping Damages Below CAFA's $5M Threshold

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

"I've been ripped off! Can I represent consumers in other states?"

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

Ancient Documents in the Age of Electronic Discovery

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

The Final Hurdle for New Lawyers: The New Jersey Supreme Court's Committee On Character

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

Looking Out For the Little Claim: Mullins v. Direct Digital and Consumer Class Actions

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

Simple Language and Clear Principles: The Maxims of Equity

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

Demons and Dragons: The Plague of ESI on Public Entities

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

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

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

Turmoil in the World of College Sports

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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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

The Long and Winding Road

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

Getting The Other Side to Pay Your Attorneys' Fees

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

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

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

One For You, Nineteen for Thieves: Data Breaches and Federal Tax Fraud

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

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

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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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

After all these years, let's get back to Moot Court!

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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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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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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February 10, 2015

When The NCAA Ran Out Of Lucky Charms

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

The Dos and Donts of ESI Discovery

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

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

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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