« September 2009 | Main | November 2009 »

11 posts from October 2009

Friday, October 30, 2009

Next Administration Could Reshape the State Supreme Court

New Jersey voters are preparing to cast their ballots in one of the most hotly contested gubernatorial elections in recent memory.  In addition to the economy and social policy, it is important to note that the next governor will impact each of these – and much more – far beyond a four or eight year tenure in the governor’s office. 

The Star-Ledger’s Mary Fuchs  reports that the next governor will likely appoint four justices to the State Supreme Court.   In a body of seven, these new justices will have enormous power to render decisions impacting the way New Jersey companies do business and doctors care for patients for years. 

Justice Virginia Long will reach the mandatory retirement age of 70 during the next gubernatorial term.  Three others – John E. Wallace, Jr., Roberto Rivera-Soto, and Helen Hoens – will face reappointment hearings. 

In a too-close-to-call election like this one, it’s easy to overlook the impact the outcome will have on the Court, and neither campaign has dedicated advertising to it.  Fairleigh Dickinson University poll director Peter Wooley  may have summed up voters’ individual importance in this election the best.  He told Politicker NJ that “At this point, anyone who says their vote doesn’t count is mistaken.  And no one knows that better than the campaigns.”

So as we prepare for the final weekend of campaign advertising, keep in mind that the Governor’s office isn’t the only branch of government that will be effected by this election. 

Thursday, October 29, 2009

Under What Circumstances…

… should a client be allowed to sue his or her attorney after having knowingly and voluntarily accepted a settlement placed on the record by the trial court while two motions to enforce a similar prior settlement were pending?

The New Jersey Supreme Court is expected to consider this question after two lower courts offered opposing interpretations. 

Mary Pat Gallagher of the New Jersey Law Journal reports that this question stemmed from a decision by the Appellate Court which allowed Joseph and Teresa Guido to proceed with their malpractice suit against their attorney and the attorney’s law partners over their representation. 

Joseph LaSala of McElroy, Deutsch, Mulvaney & Carpenter of Morristown is representing the attorneys – who are now defendants – in the Guidos’ suit.  LaSala cautioned that allowing the Appellate Court decision to stand would “encourage clients to sue their lawyers whenever they second-guess settlements, [and] undermine the policy favoring finality of settlement.” 

Allowing the Appellate Court’s ruling to stand could have dire consequences for New Jersey’s already over-burdened courts.  Instead of kicking and screaming with buyer’s remorse, a plaintiff would be able to simply turn the tables on their attorney and head to court.  On second thought, a few hundred thousand dollars more may be available to squeeze. 

Tuesday, October 27, 2009

Governor Corzine signs executive order backed by NJLRA

Kudos to Governor Corzine, who just signed Executive Order #157.  This E.O. affects the hiring of outside council to carry out the business of the Attorney General’s office. 

Like many states, New Jersey relies on contracts with private attorneys general to litigate the people’s business, as Attorney General’s offices everywhere face the difficult task of operating within tight budgets.  In New Jersey, an ever-expanding docket of lawsuits has created the need to hire private attorneys general to deal with such.  The Governor’s executive order restates his commitment to requiring New Jersey’s private attorneys general to be highly qualified and transparently selected.  For once, New Jersey’s hiring of outside council has positioned us to become an outlier on ethics – in a good way. Earlier this year, Pennsylvania Governor Ed Rendell found himself in political hot water for hiring private attorneys who donated substantial sums to his campaign.  NJLRA has maintained that citizens have the right to know why certain lawyers are selected to work on state contracts, how much money they are receiving for their services, and what matters they are pursuing.  Without the Governor’s Executive Order, the potential exists for pay-to-play. 

This is an excellent start for the taxpayers and businesses of New Jersey.  Hopefully the next legislature can work with the Governor – whomever he may be – to legislatively codify Governor Corzine’s Executive Order.

Thursday, October 22, 2009

Paying for your own funeral under the New Jersey Consumer Fraud Act

The New Jersey Law Journal yesterday carried this story (subscription req.) titled "U.S. Justices Put Off by N.J. Order That Defendant Foot Class-Notification Bill" in which NJLJ reporter Henry Gottlieb covers the concerns of U.S. Supreme Court Justices over a NJ judges' ruling that the defendant in a class action suit should cover the cost of notifying class members of the suit.  Newcomer Sonya Sotomayor joined Chief Justice John Roberts and Justice Anthony Kennedy in the opinion, which stated, in part:

"To the extent that New Jersey law allows a trial court to impose the onerous costs of class notification on a defendant simply because of the relative wealth of the defendant and without any consideration of the underlying merits of the suit, a serious due process question is raised,"

Gottlieb points out in the story that "unlike federal class action law that puts the onus on plaintiffs to pay the cost of notification, New Jersey court rules give judges latitude to allocate notification costs among the litigants." 

So, according to at least one judge in New Jersey, if you are sued in a class action you, the defendant, must pay the costs of notifying the plaintiffs of the suit.  And under New Jersey law, this could happen to anyone. 

Kudos to Sotomayor, Kennedy and Chief Justice John Roberts for calling attention to this serious flaw in NJ's law.  The Supreme Court had merely denied cert (declined to hear the case) and it required no further comment.  The fact that they took the time to note the deficiency of NJ's consumer fraud law is remarkable.  

For the record, Gottlieb's story includes the statutory language in question:

"Under R. 4:32-2(b)(3), the cost of notice may be assessed against any party present before the court, or may be allocated among parties present."

Will ‘lame duck’ be lame?

This morning, the New Jersey Business & Industry Association (NJBIA) held its “Meet the Decision Makers” breakfast.  Senate President Richard Codey and Assembly Speaker Joseph Roberts spoke at length about the challenges facing businesses in New Jersey and allowed for a Q & A session.  Marcus and I listened attentively as the legislative leaders were asked whether they believe the Wrongful Death Act – also known as the “More Lawsuits, Higher Taxes” bill – will re-emerge in the lame duck session of the Legislature. 

Senator Codey answered that when vetoing it last session, Governor Corzine “made it clear” that certain things needed to happen before the Governor would consider supporting the bill, whether in this lame duck or in future sessions.  Senator Codey was likely alluding to the inclusion of a clause which would require municipalities and local governments to pay virtually unlimited damages in wrongful death verdicts.  A multi-million dollar judgment against a smaller municipality, for instance, could have a severe crippling effect.  Including NJLRA and its members, many in New Jersey are opposed to this measure.  Just as consumers typically foot the bill for higher production fees, taxpayers will likely see their taxes rise in order for local governments to pay the bill. 

Both Senator Codey and Assemblyman Roberts, however, emphasized that they have not yet discussed their plans for lame duck, even with one another.  Assemblyman Roberts said that his members were far more concerned with “keeping their jobs” before deciding what to do once they’ve been hired.  Senator Codey noted that the gubernatorial election results would likely influence their legislative agenda. 

At this point, the bottom line is that the Legislature’s lame duck agenda is still anyone’s guess. 

Wednesday, October 14, 2009

Around the Web Today, October 14 2009

As a new feature on Lawsuit Reform Watch, on days where there are a lot of civil justice stories we will provide you with a list of relevant links that are worth your attention.  Today was one of those days:

PNC Bank accused of Bullying, While Unemployment Still Rising in New Jersey

New Jersey is again making national headlines.  A Jersey City resident is suing PNC Bank for its ‘abusive’ overdraft policies and violating New Jersey’s Consumer Fraud Act.  The Associated Press reports that the lawsuit accuses the bank of posting transactions in a ‘highest to lowest dollar amount,’ instead of chronologically, in order to collect overdraft fees.  Writing for The Washington Post, Michelle Singletary offered an uncanny, non-legal solution:  

[It’s] wrong for customers to complain about overdraft fees that they can largely avoid -- by keeping track of what's in their accounts and not overspending.

The suit seeks an end to PNC’s practices, as well as the return of "improper fees" paid by New Jersey residents over the past six years.

Meanwhile, NJBiz released a report today indicating that New Jersey’s unemployment rate has reached 9.8%.  João-Pierre Ruth notes that while New Jersey’s job losses for the month of September were relatively comparable to the rest of the nation, a disproportionate amount of those jobs were lost in the private sector. 

You can view the full table of September’s job losses on the Department of Labor and Workforce Development website. 

Tuesday, October 13, 2009

Woman Sues Morristown Hyatt for Serving Booze at a Wedding

The New York Post is reporting that 27-year-old Christine Mancision, a Manhattan resident, is suing a New Jersey man for injuries she sustained at a wedding reception at the Morristown Hyatt last fall. 

Mancision was minding her own business when a tall drunk man grabbed her and began dancing.  She was thrown to the floor, breaking a wrist, and spent eight months in physical therapy.  In addition to a permanent scar and having to spend the remainder of the evening at Morristown Memorial Hospital, Mancision spent about $2,500 in medical co-pays. 

Mancision’s lawsuit, however, doesn’t end there.  She is suing the Hyatt Hotels chain for $1 million in damages for what she says was a violation of New Jersey's "dram shop" law — a prohibition against serving someone liquor even after they are "visibly intoxicated."  Should her lawsuit against the Hyatt Hotels chain be successful, our collective right to get drunk at a wedding might be severely compromised. 

The Daily Intel describes suing a hotel for ‘allowing’ someone to get drunk at a wedding reception as something that goes against all that is holy and American.  Agreed. 

One would think that Ms. Mancision was embarrassed enough, and would simply sue the drunken culprit for her damages and get on with her life.  Apparently she saw the incident as a winning lottery ticket instead.  Perhaps forcing hotels to provide helmets and wrist guards at wedding receptions to shield guests from one another is next. 

Thursday, October 08, 2009

Phillies Lawsuit Ends with a Strikeout

The twelve-year-old who caught the ball used to score Ryan Howard’s 200th career home run ended up getting caught in a legal battle.

The Phillies first baseman scored his 200th career home run – in the shortest amount of time on record – last July when Philadelphia faced the Marlins in Florida.   Jennifer Valdivia caught the ball and was quickly escorted by a Phillies representative to the team’s dugout, where she was offered an autographed ball in exchange for Howard’s #200.  She and her 15-year-old brother initially agreed, but her parents later filed a lawsuit, claiming she was duped into exchanging a ball possibly worth thousands for one worth a few hundred.

Melissa Block, host of NPR’s All Things Considered, interviewed Fort Lauderdale attorney Norm Kent, who represented Jennifer Valdivia’s family.  She noted to that the public is largely unsympathetic to the girl, and one follower commented that it’s a great way to teach a 12-year-old how to extort money at an early age.  Mr. Kent countered that neither child was the age of majority.  An adult attempting to enter into a contract with a minor should have known better, and not resorted to bribing the 12-year-old with an autographed ball and cotton candy.

Howard eventually let the Valdivia family have the ball, ending the lawsuit.   Time will tell whether this milestone meant as much to Jennifer as it did to Ryan Howard, or if this is simply her first step in a career as a ball hawker. 

Wednesday, October 07, 2009

New York City as Trial Lawyer Cash Cow

PointofLaw.com has a link today on their blog to a Staten Island Advance story about lawsuits against New York City in which it is revealed that New York City taxpayers lose over $500 million a year to lawsuits.  "Call it 'Sue York' as City loses over $500 million in lawsuits" points out that this is a lot of money out of the budget:

That's more than double the lawsuit outlay the city paid 15 years ago and 20 times what it was 30 years ago. It's more than the city spends on parks, transportation, and on all of Staten Island's police and firefighting services combined.

I'm sure the taxpayers of NYC can think of better uses for this money.

Thursday, October 01, 2009

Tonight is the first Gubernatorial Debate

Paul Mulshine suggests that the pressure is mounting on candidate Chris Christie to outperform incumbent Governor Jon Corzine.  Some of us will hear Independent candidate Chris Daggett’s voice for the first time.  No matter how well the candidates fair, here is one thing affecting New Jersey’s civil justice climate that none of them are likely to address tonight:

Montville has been spared pollution liability.  The Star Ledger reported yesterday that 14 families, who sued the builders, a real-estate firm and related home sales businesses in 2003 because their homes were built on pesticide-ridden farm land, lost a bid to find Township of Montville liable for their plight.  The plaintiffs contended that the municipality should have known that the land was contaminated.   All 14 families filed additional allegations against Montville contending the township had a duty to know of and warn the public of the potential for contamination on the land.  It’s worth noting that every entity connected to this land after 1970 was targeted for civil prosecution once the discovery was made.  Fortunately, Judge Dickinson Debevoise's ruling could protect all New Jersey municipalities from responsibility for polluted, private property within their borders, and refocus responsibility on the offending polluter.  This is encouraging, because it reaffirms that municipalities – and ultimately, tax payers – are not liable for contaminated private property within their borders. 

Gregory Coffey, Montville’s municipal attorney, was pleased with the ruling, saying that “It ratifies the long-held premise that the polluters pay, otherwise you’d have every municipality being sued for every contaminated property and taxpayers paying for cleanups.”

You can watch the debate live on NJN at 8:00 p.m. ET, just in case that site remediation makes its way into the limelight.