This week the U.S. Supreme Court heard oral arguments in Halliburton Co. v. Erica P. John Fund. The issue in the case is the ongoing viability of fraud-on-the market theory as an underlying assumption in shareholder class actions.
This week the U.S. Supreme Court heard oral arguments in Halliburton Co. v. Erica P. John Fund. The issue in the case is the ongoing viability of fraud-on-the market theory as an underlying assumption in shareholder class actions.
Justin Fox | Harvard Business Review Blog Network
The Supreme Court is going to host a debate next week on the efficient market hypothesis. The battle lines may not be exactly what you’d expect: the U.S. Chamber of Commerce and Justice Samuel Alito have already argued that the EMH is, as Alito put it, “a faulty economic premise,” while Justice Ruth Bader Ginsburg and the Obama administration have backed the idea that, as a sextet of Justice Department lawyers put it, “markets process publicly available information about a company into the company’s stock price.”
A selection of the need-to-know civil justice news for the week of February 15-21, 2014.
Filling a lawsuit is always a gamble since the odds are never certain, but for these litigants what’s at stake is gambling.
Thanks to its plaintiff-friendly procedural rules and broad consumer protection laws, New Jersey is a hotbed of class action litigation. These four cases provide just a snapshot of the sort of cases coming to the New Jersey courts as class actions, highlighting the challenges judges face in overseeing this sort litigation.
The New Jersey Civil Justice Institute is excited to announce that the Honorable Stuart Rabner, Chief Justice of the New Jersey Supreme Court, will deliver remarks at the Institute’s Spring 2014 Membership Luncheon. The event will also include an update on NJCJI's legislative efforts, upcoming events, and our expanding work in the courts.
The event will be held on Wednesday, March 19th from 12:00 - 2:00 PM at the Trenton Country Club.
The New Jersey Supreme Court is soliciting applications from attorneys and judges interested in serving on one of the court’s various committees.
“The list of committees for which the Court is seeking to create this pool of potential appointees includes, but is not limited to, the Rules Committees (Civil Practice, Complementary Dispute Resolution, Criminal Practice, Family Practice, Municipal Court Practice, Rules of Evidence, Special Civil Part Practice, Tax Court), the Program and Jury Charge Committees (Arbitration Advisory, Bench/Bar/Media, Jury Selection in Civil and Criminal Trials, Minority Concerns, Model Civil Jury Charges, Model Criminal Jury Charges, State Domestic Violence Working Group, Women in the Courts), as well as the various regulatory and advisory committees (including Attorney Advertising Committee, Advisory Committee on Professional Ethics, Unauthorized Practice of Law Committee, Disciplinary Review Board, Advisory Committee on Judicial Conduct, Board on Continuing Legal Education, Board on Attorney Certification, Advisory Committee on Extrajudicial Activities, Advisory Committee on Outside Activities of Judiciary Employees ). It also includes present and future ad hoc committees or task forces.”
A selection of the need-to-know civil justice news for the week of January 25-31, 2014.
Jon Bramnick|The Record
As Americans, we believe in giving people a “second chance.” The proposed “Ban the Box” legislation is not the answer to the problem of a job applicant with a criminal history.
Imagine you are looking to hire someone to care for your elderly mother. That person will be alone with her and will have access to her home and her possessions.
After receiving applications for the job, you discover that one of the applicants has a criminal history of assault and theft. One would presumably be concerned about hiring that person to assist your mother.
You may not have a choice if “Ban the Box” legislation is enacted.
A selection of the need-to-know civil justice news for the week of January 18-24, 2014.
How to Sue Over the Christie Bridge Scandal and Win
John Culhane | Slate
As New Jersey Gov. Chris Christie tries to recover from the fallout for his administration’s participation in the vindictive decision to close lanes and snarl traffic on the George Washington Bridge for five days, he will get no help from lawsuits brought by angry citizens stuck in the mess. The first suit has already dropped. These claims will surely breed others. They could keep the story alive for years. And they could even result, unusually, in personal liability for the officials involved, including, perhaps, the governor himself.
New Jersey’s businesses face a stagnant economy coupled with high business costs, but our members know that New Jersey’s economy is taking another serious hit – from excessive litigation. During the 2014 legislative session the New Jersey Civil Justice Institute will advocate for legislation that ensures that New Jersey's civil justice system treats all parties fairly and discourages lawsuit abuse.
You can’t turn on the news, open a paper, or scroll through your Twitter feed these days without being inundated with stories about the George Washington Bridge lane closing scandal. While most stories focus on the political fallout, there are real legal implications that deserve attention as well.
Here's Who's Behind The Huge Civil Lawsuit From The Chris Christie Bridge Scandal
Brett LoGiurato | Business Insider
Four-hour delays. Late for work. Lost wages. Late for crucial doctor's appointments.
Some of these alleged hardships are at the heart of a proposed class-action complaint in the burgeoning George Washington Bridge scandal. The complaint was filed last Thursday, the day after new revelations tying the administration of New Jersey Gov. Chris Christie to the lane closures.
Chris Christie hires law firm to review administration's role in 'Bridgegate'
By Statehouse Bureau | Asbury Park Press
A former federal prosecutor will head up an internal review by the administration of Gov. Chris Christie of his staff’s involvement with the politically motivated lane closings on the George Washington Bridge in September 2013.
The administration this morning announced the hiring of the Gibson, Dunn & Crutcher law firm and specifically Randy Mastro to assist both with the review and an investigation by the U.S. Attorney’s office into the closings, which snarled traffic for four days in Fort Lee.
Bridge scandal: Chris Christie's Nominees Delayed
By Jenna Portnoy | The Star-Ledger
The ongoing scandal over George Washington Bridge lane closures is having more ripple effects through Gov. Chris Christie’s administration.
The Republican governor has put on hold his plan to nominate John Hoffman, his acting attorney general, to the state Superior Court. The move comes as the nomination of Christie’s chief of staff, Kevin O’Dowd, is also in a holding pattern.
The Senate Judiciary Committee voted unanimously to advance the nomination of Faustino Fernandez-Vina. If confirmed by the full Senate, he would replace Justice Helen Hoens, whom Governor Christie declined to renominate.
The Court currently has two vacancies, reflecting a three-year impasse between the Governor and Senate leadership.
N.J. Supreme Court Justice Roberto-Rivera Soto as the justice who declined to seek renomination to the State's highest court back in 2011, just as the current high court standoff began to unfold.
Rivera-Soto, who is now in private practice, was the keynote speaker at NJLRA's annual Fall Membership luncheon. He offered his insight about the current vacancies on the Court, critisms of the political structure which led to said vacancies, and praise for his former colleagues.
NJ’s civil courts are experiencing a backlog of litigation, despite a decrease in the number of filings. Read Marcus Rayner’s assessment of why this may be happening.
Rayner asked the justices to consider amending the state’s Rules of Evidence to ensure that evidence permitted in New Jersey courtrooms are of comparable caliber to evidence permitted at trial in other jurisdictions. New Jersey’s Rules of Evidence, which act as a framework to determine whether evidence is admissible in court, have been heavily criticized for being too favorable to plaintiffs and their attorneys. As a result, plaintiffs from across the country seek to have their cases heard in New Jersey courts whenever possible, where the standard for what may be considered evidence is notoriously and disproportionately low. The past several years have seen an epidemic of “litigation tourism” in New Jersey as thirty-four other states have adopted all or part of the federal Daubert standard. Amending New Jersey’s Rules of Evidence would likely cut down on litigation tourism and the associated costs of hearing the cases of non-New Jersey residents and warrant fewer instances of appellate review.
Rayner was joined by Edward Fanning, who testified on behalf of the New Jersey Defense Association, and John Zen Jackson, testifying on behalf of the Medical Society. NJLRA’s request is available online here:
When red is the only color your skin turns, you tend to take note of the sunblock products that work. After all, it’s a bit obvious when a particular line of sunscreen fails. Pictured is one of my personal favorites, Coppertone’s sensitive skin SPF 50.
But under New Jersey's Consumer Fraud Act, what’s obvious to the consumer can have little bearing on the outcome. New Jersey-based Merck just settled a longstanding class action lawsuit in which plaintiffs claim that the power of Coppertone was overstated in advertising, using words such as “waterproof,” “sweatproof,” and (shocker) “sunblock.”
Originally developed by Schering-Plough, Merck acquired Coppertone (and its lawsuit) when it bought Schering in 2009. The case was originally filed in 2003. And consumers, like me, readily used Coppertone products in ignorant bliss in the interim, unaware that our UVA-protected skin wasn’t as protected as the attorneys in this case contend.
Here’s how things will change under the settlement: Coppertone will stop using the words “sunblock,” “waterproof,” “sweatproof,” and “all day” on its labeling. The content of the sunscreen will remain the same. Yes, the same. And under this $3- $10 million settlement, I will get $1.50. According to Reuters, Merck stated that it agreed to the settlement “solely for the purpose of avoiding the burden, expense, risk and uncertainty of continuing to litigate those issues."
Nice of the lawyers to reward me with $1.50 for my patronage and leave my product formula intact. Heck, for $1.50 I can get:
I can’t get a bottle of sunblock, but apparently that’s beside the point.
Now if only I could figure out how to collect.
Ten years ago the Medical Society of New Jersey (MSNJ) worked hard to enact meaningful medical liability reform in New Jersey. Since then, court decisions have gutted key statutes and insurance premiums have skyrocketed. We are now on the brink of a severe doctor shortage as other states enact liability reform and attract new physicians.
MSNJ will be hosting a panel discussion on Thursday, September 27th with leading legislative and legal experts to discuss what can be done to combat the unique issues facing New Jersey’s doctors and their impact on public health.
To register for this free event, please click here to visit the Medical Society’s website.
A young man who was severely brain injured during a Little League game will receive a $14.5 million settlement. Approximately $4.7 million will go to his attorneys.
A baseball hit from a metal bat struck him in the chest at age 12. Now 18, Steve Domalewski has difficulty speaking and can’t stand on his own. He’s lucky to be alive. It was a costly freak accident that will affect him and his family forever.
Metal bats are controversial because of their potential to cause serious injury, as one did to Steve Domalewski. According to the Star-Ledger, the suit targeted Hillerich & Bradsby, makers of Louisville Sluggers; Little League, Inc., which approved use of the bat; and The Sports Authority, which sold the bat.
Some comments from NJ.com:
why stop here? Sue the town for allowing the game to happen. Sue the state for allowing the town to allow the game to happen. Sue the United States for allowing the state to allow the town to have the game. Sue the makers of the baseball for making the baseball too hard. Sue the opposing batter and his family for hitting the ball. Sue the opposing kid's coach for putting the kid out there that hit the ball that hurt this young man. Sue the maker of this kid's glove for not catching this comebacker in time. Sue the umps who didn't stop this game proactively before the child got injured. Sue PAL Baseball for having this league in which the child got injured.
You forgot the shirt maker for not making it out of a material that would deflect a ball...LOL
In part, it’s, the human-versus-animal, possession-versus- humankind argument.
New Jersey resident Joyce McDougall witnessed her cute Maltese-poodle’s violent death at the hands (paws?) of another dog in Morris Plains. She filed suit for the cost of a replacement dog, and for emotional distress.
A trial court agreed that she should receive more than the cost to replace her pet and issued her $5,000. But being compensated for emotional distress was reserved for people who witness the violent death of a close family member, they said, based on the 1980 Portee v. Jaffee doctrine. The New Jersey Supreme Court unanimously upheld that decision this week.
In a much-needed reality check, Justice Helen Hoens observed that the vast majority of states do not allow owners to sue for emotional distress when their animals are killed. And beyond that, the Courts have been very limited in what they consider to be a “close family member” under this doctrine. The New Jersey Law Journal notes that an appellate court in the 1980s said it did not apply to a woman who saw her 5-year-old neighbor, with whom she was very close, mauled to death by a circus animal (Eyrich ex rel. Eyrich v. Dam, 193 N.J. Super. 244).
"It would make little sense, we think, to permit [the] plaintiff to recover for her emotional distress over the loss of her dog when she would be precluded from any such recovery if she instead had the misfortune of watching a neighbor's child, whom she regarded as her own, torn apart by a wild animal," Hoens said.
And if the Court were to expand Portee to include animals, it would open the floodgates for New Jerseyans to sue for emotional distress after watching heirlooms or other property destroyed, the Justices reasoned. As if New Jersey needs any help maintaining its status as a Judicial Hellhole…
A class action lawsuit brought by major corporations and trade associations against Visa, Inc., and Mastercard, Inc., charged that the companies’ fees to retailers were excessive. And after a $725 billion settlement, the plaintiffs are seeing that the defendants aren’t the only ones charging high fees.
The settlement includes a $1.2 billion temporary fee-reduction. With history as a guide, attorneys can make as much as $600 million, which is roughly 10 percent of the remaining settlement. This puts it on par with fees received by lawyers during Enron, WorldCom, and Tyco litigation according to an expert quoted in a Reuters report.
Later this week, the U.S. Supreme Court is expected to decide the constitutionality of the Affordable Care Act, more commonly known as “Obamacare.” The law’s constitutionality has sparked discussions and debate over the past three years as we vet the best way to keep ourselves healthy. But irrespective of your position on the mandates and regulations that comprise it, New Jersey has a health care crisis all its own — one that has the potential to affect how its residents access specialized medical care in the very near future, and one that the court’s decision isn’t likely to affect.
New Jersey’s crisis is a shortage of doctors. And the hemorrhaging will affect us all.
Ask around and you’re likely to hear frustration about the amount of time it takes to schedule a visit with an OB-GYN. Unfortunately, that is becoming the norm. The New Jersey Council of Teaching Hospitals reports that there is already a 12 percent gap between physician supply and demand. New Jersey’s medical schools graduated 860 newly minted physicians in 2009; only 370 stayed in the state. By 2020, New Jersey is expected to be short an additional 3,000 physicians needed to care for its population.
And these shortages are most profound in obstetrics, cardiovascular specialties and family medicine. In short, women will bear the brunt.
In the criminal court system, it’s often said that justice delayed is justice denied.
But for the civil court system in Union County, justice is suspended.
A political stalemate over judicial vacancies is contributing to a shortage of judges available to hear civil cases, according to a report in the Star-Ledger. A nearly 40 percent vacancy rate among judges, a backlog of over 800 cases, and four recall justices on vacation beginning July 1st means that the Union County Courthouse will not hear any civil cases during the months of July and August, a spokesperson said. Civil cases include everything from child custody disputes and divorces to the resource-draining “I-drove-drunk-and-hurt-myself-time-to-sue-the-bar” cases for which New Jersey has become infamous.
New Jerseyans from all walks of life need access to our civil courts. Union County taxpayers are no exception. Once the political stalemates are resolved, the Legislature needs to get serious about keeping frivolous lawsuits of our civil courts, which take scarce time, money, and resources away from disputes which need judicial intervention.
To the dismay of taxpayers and Americans with actual disabilities everywhere, unfortunately, it appears that the answer is “wrong.”
A University of Texas professor mused in an op-ed in the New York Times last year that affirmative-action like programs for the “ugly” should be in order, giving self-described “ugly” Americans grounds for a lawsuit under the Americans with Disabilities Act (ADA).
Lacking a high school diploma, the Department of Justice warned, may also count as a disability under the expanded definition of the ADA, should a potential employer reject an applicant because of it.
The Washington Times points out that the expanded definition of “disability” is consistent with a 2008 Congressional amendment to the Act, following concerns that courts were interpreting the definition too narrowly. The tide seems to have been reversed and then some, with ADA claims rising by 90 percent in the past five years. “The flood includes more frivolous claims than ever,” writes Luke Rosiak for the Washington Times. “Despite the broadened law, the EEOC [Equal Employment Opportunity Commission] saw the highest percentage yet deemed ‘no reasonable cause’ last year.”
Alas, even with the expanded definition on the plaintiffs’ side, ADA attorneys are still finding ways to te$t the bounds of our taxpayer-funded court system.
Some say it's a done deal: Bruce Harris, Mayor of Chatham and Governor Christie's Supreme Court nominee, won't be approved by the Senate Judiciary Committee tomorrow.
The Star-Ledger reported this last week (Spoto, 5/22), and others have weighed in since. Here is a sampling:
"Before a second of testimony has been heard or a single question has been asked, once again Democrats are disrespecting the nomination process and rushing to judgment to kill another qualified man’s nomination before he even sits in the committee room."- Kevin Roberts, spokesman for Governor Christie
"The nomination of Mr. Harris sends the wrong message, that we can only achieve diversity on the Supreme Court through lowering the bar for qualifications. In a state with many distinguished African-American lawyers and judges, nothing could be further from the truth." – Senator Ronald Rice, leader of the NJ Black Legislative Caucus
"I don’t think it’s going to be an extremely long hearing because there’s just not a lot of experience to question him on," Senator Nick Scutari, Senate Judiciary Chair
(and of course)
"It's interesting that someone like Nick Scutari, with his educational background [found Harris unqualified]" - Governor Christie
As you may recall from a previous post, a Morris County judge was being asked to decide whether a woman who sent a text message to her boyfriend just before he caused a serious accident could be held liable.
Judge David Rand rejected the plaintiff’s effort to hold the text sender liable. “Were I to extend a duty of care [to the text sender] in this case, in my judgment any form of distraction could potentially serve as a basis of liability,” he said.
The case was believed to be the first of its kind. Morris County motorcyclists who were severely injured and each had a leg amputated sued Kyle Best, the driver of the car, as well as his girlfriend, from whom he was receiving a text message at the time he caused the accident. The injured parties claimed that she knew or “should have known” the driver would be reading the text while driving, even though she wasn’t with him in the vehicle.
According to a Daily Record report, the plaintiffs’ attorney is planning to appeal.
A New Jersey court will soon decide whether a woman who sent a text message to an irresponsible teenager is liable for the accident he caused.
It was a horrible accident: the Morris County teenager, tinkering with unimportant texts while behind the wheel, struck a motorcycle ridden by a couple. They were severely injured and each had a leg amputated. They’ve described it as being in prison, and their lives will never be the same.
To make matters even worse, the driver, Kyle Best, received a mere slap on the wrist – a nominal fine and some community service. The law didn’t even require his license be revoked. He’s free to drive and risk the penalties for texting while driving again if he so chooses.
But the couple’s attorney has filed a lawsuit against not just the teenager – but the person he was conversing with via text at the time of the accident.
“The victim's lawyer claims the woman aided and abetted the driver's negligence by texting him when she knew or should have known he was driving,” according to an Associated Press report. “However, her lawyer is seeking to have her dismissed as a defendant, saying she had no control over when the driver would read the message. He also claims the legal arguments made by the victims' attorney are not supported by case law.”
The Daily Record reports that Morris County Superior Court Judge David Rand is expected to decide on May 25th whether to dismiss Shannon Colonna, the woman who sent the text message to Best, as a defendant in the suit.
NJLRA mused over the implications if the court finds the text-sender liable: will people need to sign waivers before we can hand them a bottle opener? It would open a legal can-of-worms bound only by a lawyer’s imagination and ability. What’s next, “the phone made me do it”?
It’s a painful situation in which New Jerseyans have to wonder how our legal system became so unfair. Dismissing the claim against Colonna wouldn’t right the wrongs committed against the couple. But it would help bring common sense and personal responsibility back into the legal equation.
Einstein famously said that the definition of insanity is doing the same thing over and over again and expecting different results.
Yet, that’s the legal tactic trial lawyers have employed against Merck, one of the state’s leading employers.
At issue is whether Fosamax, a drug designed to prevent osteoporosis, caused osteonecrosis of the jaw (ONJ).
Juries are unconvinced. Six bellweather cases have gone to trial, and Merck is currently on a five-case winning streak. Its only hiccup was the first Fosomax case, which ended in a mistrial. (A subsequent trial awarded the plaintiff $8 million in damages, which was later reduced to $1.5. The plaintiff’s attorneys have asked for a new trial on damages, which is scheduled for September).
Despite being 1-for-6, there are still 2,345 state and federal Fosamax product liability cases pending against Merck. It’s insanity yielding to a let’s-keep-trying-until-we-get-it-right offensive. After all, no matter how insane it seems to continue to pursue such cases, there really isn’t a downside for plaintiffs’ attorneys – just Merck, its employees, and those who rely on it for life-saving drugs.
You know it’s serious when legal reformers and trial lawyers agree.
Legal reformers consistently argue that when the publicly-financed civil court system is inundated with absurd litigation, the brakes are put on justice for everyone else.
Child custody cases, divorces, landlord-tenant disputes, and temporary restraining orders sought by battered women must compete for the same day in court as the guy who sues the bar after crashing his motorcycle in a drunken stupor and the woman who spills hot coffee on her lap.
And that day in court, of course, is underwritten by taxpayers. So when funding is cut to the judicial branch, as it was in 42 states last year, the pace of justice slows considerably.
"The impact on people in great distress, such as abused women seeking temporary restraining orders, is beyond measure in money," says Jon Streeter, president of the State Bar of California.
The simplest divorce cases can now take a year to resolve in some states. “Such delays are not just creating inconvenience for people trying to claim money from landlords or tenants, or fight traffic tickets. Court cuts are hitting people where they live,” writes Alan Greenblatt for NPR.
Criminal cases take precedence over civil cases, of course. But that’s hardly comforting to the everyday Americans who need the civil court system to protect them or make them whole. One circuit in Georgia stopped hearing civil cases altogether.
Backlog in states have become so significant that Institute for Legal Reform President Lisa Rickard and American Bar Association President Bill Robinson III pleaded with lawmakers to take cuts to the judiciary seriously. "When states financially starve their judiciaries, they inadvertently create environments toxic to economic growth," they wrote in an op-ed in USA TODAY.
New Jersey’s small businesses, particularly those located in Southern New Jersey, have experienced increased financial strain from rising liability insurance over the past few years. Municipal governments are also feeling the effect of an overheated culture of litigation. Irrespective of the merits or outcome, taxpayers foot the bill when a lawsuit is filed against local governments. It’s not exactly the kind of investment one hopes for with his or her property tax bill.
Click here for a list of active, bipartisan legislation which can improve New Jersey’s civil justice climate for taxpayers, businesses of all sizes, and the medical community and their patients.
Whether you live or work in the Trenton area (or just read about it on occasion), you may remember the unfortunate death of a man who had fallen into a snow bank at the intersection of South Warren and West Front streets last winter.
Quirino Azcona, a popular deliveryman whom friends called “Cabrera,” stopped at an unnamed bar after his shift ended at Supreme Food in the City’s South Ward in late January 2011. Fresh snow lined the path he took to his residence in the West Ward. Surveillance footage suggests that he was heavily intoxicated, stumbling several times before he fell into a snow bank and didn’t get up. He laid there for an unspecified period of time, hidden from sight by the snow, before he was tragically caught in a city plow and gruesomely killed.
In addition to the City, Azcona’s estranged wife and children have decided to sue the bar.
"The bar served him to the point where he was intoxicated," his lawyer said in a statement to the Times of Trenton. "The poor guy got drunk, went out into the snow and got run over by a snowplow.”
Yes, the poor guy got drunk after drinking alcohol. What reasonable adult could anticipate such a consequence?
The weather conditions certainly were a key contributor to Azcona’s accident, but I suppose the bar is a defendant when Mother Nature is unavailable. We’ve seen similar situations before.
We’ve all been warned about the consequences of drinking and driving (really, the consequences of drinking and doing just about anything), which is why most bar patrons take precautions when consuming alcohol. But as the suing-the-bar-where-you-voluntarily-drank-alcohol-trend continues, the courts are allowing the intoxicated and their kin to shift responsibility to others rather than hold them responsible for their actions (see Voss vs. Tranquilino, Killarney’s in Hamilton, et. all).
We probably won’t ever know if the unnamed bar in question is the only establishment Azcona patronized on the night of his death, or whether things may have turned out differently if he had been walking with a friend instead of alone. But we can use his untimely death as an opportunity to remind the public to take weather conditions into account when enjoying a night out, even when planning to walk. And, hopefully, keep others from meeting a similar fate. This isn’t something that a lawsuit can do.
The plaintiffs’ attorneys will argue that personal responsibility is too much of a buzz kill for patrons, so the bar needs to supervise the adults in their presence. But judging by the comments associated with the Times of Trenton’s story, it seems that most of us agree that having a bar play nanny to its patrons is a greater buzz bill.
Azcona certainly isn’t the first person to pass out in a drunken stupor after leaving a bar. But if the suing-the-bar-where-you-voluntarily-drank-alcohol-trend continues in New Jersey, nightlife in the Garden State may undergo an involuntary rehab.
Carl Wilkins’ family suffered an unspeakable nightmare when their loved one was tragically struck and killed after a double hit-and-run incident. The family’s attorney has indicated that they intend to sue NJ Transit, the state of New Jersey and Ewing Township for his death, along with the women who committed this crime (“Hit-and-run victim’s family targets NJ Transit, Ewing, state, 2 others,” Feb. 8).
The individuals who killed Mr. Wilkins deserve to be found liable for their actions. Taking the law a step further, however, and suing the township, state and NJ Transit is costly and misdirected anger. There is no question that this was a tragedy. But as Ewing Township fights to keep its streets safe with fewer police officers, adding a hefty lawsuit to the agenda will undoubtedly jeopardize their ability to provide the services we have become accustomed to as taxpayers.
Suing Ewing Township won’t make crossing the street safer. But working with local and state government to address traffic patterns instead of working against them may yield the changes we need to prevent a tragedy like this from happening again.
-- Marcus Rayner, Feb 23rd
The writer is executive director of the New Jersey Lawsuit Reform Alliance (njlra.org).
In 2006, children at a South Jersey daycare facility played freely. Then state inspectors informed them that their facility existed on a heavily contaminated former thermometer factory. A class action lawsuit against the building’s owners, as well as local, county, and state government entities found all parties liable.
It may take several years until all of the damage done to these children comes to light, which is why the judge ordered each of these entities to pay for the children’s medical monitoring until age 24. The fund was supposed to consist of $1.5 million for neuropsychological tests for the 100 children involved. Early detection and treatment if health problems emerge, the order stressed.
But so far, nearly 6 years parents were first told that their children were subjected to unsafe levels of mercury at Kiddie Kollege, not a single test has been administered through this fund.
As is the case with far too many class-action lawsuits, the victims’ plight has taken a back seat to disputes over attorneys’ fees. $1.5 million was put in escrow for medical testing last year. But the $3 million requested by the five law firms representing the plaintiffs and $1.4 million already paid to Franklin Township’s attorney by its insurer are far from settled, delaying the children’s medical monitoring. The township’s attorney has even asked for a new trial.
The children who this case was supposed to be about haven’t accessed the testing that may affect the quality and duration of their lives. But the lawyers who fought for it (and against it) probably don’t want you to know that.
What do the New Jersey Lawsuit Reform Alliance, the New Jersey Chamber of Commerce, NJBIA, New Jersey Retail Merchants Association, National Federation of Independent Business-New Jersey, Chamber of Commerce of Southern New Jersey, Chemistry Council of New Jersey, New Jersey Food Council, and the Healthcare Institute of New Jersey have in common?
Legal issues involving businesses are complex, laden with terminology and evidence which is unfamiliar to the common court. Highly technical matters are identified and addressed at great cost to both businesses and taxpayers alike. The advantage of a business court is that it would permit business-related judicial matters to be heard by courts with an established background and knowledge of such litigation. A majority of northeastern states already have a business court in place, and it is actively under consideration by several others.
Establishing a business court doesn’t just improve the efficiency of our court system – it sends a strong message to businesses that New Jersey is a solid place in which to expand and hire workers.
A-265 was posted today for discussion only. NJLRA looks forward to the bill’s reintroduction and advancement in the 215th legislative session, which begins next week. You can download a copy of NJLRA's testimony in support of business courts here.
A-265 would create a specialized business court within the New Jersey Superior Court.
Legal issues involving businesses are increasingly complex, laden with terminology and evidence which is unfamiliar to the common court. Highly technical matters are identified and addressed at great cost to both businesses and taxpayers alike.
And unsurprisingly, we are among a minority of states on the east coast which do not have a business court in place.
NJLRA supports A-265 because it would permit narrow business-related judicial matters to be heard by courts with an established background and knowledge of business litigation. And with an unemployment rate in excess of 9 percent – the highest in the region – the creation of a business court serves as an incentive for leading employers to increase their business presence in New Jersey. The highly specialized industries, including the life sciences, which are affected by this legislation have the potential to create long-term, high paying jobs that will be essential to growing our state’s economy over the next several years.
It is sponsored by Assemblyman David Russo (R-Midland Park).
Since you just can’t make some things up (“Man who overdosed at teen house party awarded $4.1 million settlement,” Markos, The Record), here is NJLRA’s statement:
Ridgewood drug store to pay nearly half; underscores need for legal reform
TRENTON, N.J. – Marcus Rayner, executive director of the New Jersey Lawsuit Reform Alliance, released the following statement regarding a $4.1 million settlement awarded to a 21-year-old who overdosed on Xanax stolen from a local pharmacy:
“In this case, the pharmacy was the victim – not the plaintiff, who made a decision to ingest stolen drugs. Yet it is the pharmacy that is being denied justice by today’s legal system and the drug user who is benefiting from it.
“The pressure to settle cases – even ones as ridiculous as this – is high, particularly for small businesses like Harding Pharmacy. This isn’t CVS or Walgreens, with a legal department to handle such matters. This is a neighborhood business, which settled a case of questionable merit presumably because the cost of justice is simply too high and out-of-reach.
“In New Jersey a drunk driver can already sue a bar tender if he injures himself while driving under the influence. Apparently pharmacies which have drugs stolen from them can be financially liable for thieves’ overdoses. It is a classic example of abusing the system in the hopes of winning a jackpot judgment at everyone else’s expense.
“This case underscores just how much our tort system has become out-of-step with common sense and fairness. Instead of investing in Ridgewood’s local economy, $1.9 million will be going into the pocket of a man who made poor and illegal choices.
Scott Simon voluntarily ingested Xanax stolen by a friend who used to work for the pharmacy nearly four years ago. His cohorts did not seek immediate medical attention after he went into a coma. Harding Pharmacy will pay $1.9 million. Other parties will pay the remaining amount.
Unfortunately, it occurs all too often: a plaintiff overstates, inflates, or fabricates an injury altogether after an auto accident and seeks compensation.
And then she posts photos of herself completing a 5k on Facebook.
Defendants are beginning to fight back, asking courts for permission to introduce a plaintiff’s Facebook content if it appears to contradict statements made in court about the scope of their injuries.
In a recent Pennsylvania case, Largent v. Reed, Jennifer Largent claimed that an automobile accident caused by the defendant, Jennifer Rosko, left her and her husband with “serious and permanent physical and mental injuries.” Largent’s injuries were so extensive that she needed to walk with a cane, she told the Court.
All it took was a search of the plaintiff’s public profile to see Largent’s status updates about going to the gym and “enjoying life with her family.” Judge Richard Walsh was satisfied that the defendants met relevancy standard needed to probe the rest of her page. Noting Facebook’s motto – “Facebook helps you connect and share with the people in your life” – Walsh wrote:
[No court has ever] recognized a ‘general privacy privilege’ for Facebook information, and neither will we… only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.”
Ben Present, writing for the Legal Intelligencer, notes that this is the third Pennsylvania civil court to decide that a party’s Facebook page falls within the scope of discovery if posted information appears to contradict statements in discovery or testimony. Let’s hope that plaintiffs and attorneys will begin to think twice before crowding our courts with bogus claims- that’s something honest Pennsylvanians can ‘like.’
Unless you read about it here, of course.
If you purchased a $0.99 iTunes giftcard, you could make a 30% return on your investment.
Apparently iTunes raised the price of most of their songs from $0.99 to $1.29 in April 2009. In legalese, this means that if you purchased a $0.99 giftcard before May 2010 (and no, I don’t understand the point of a $0.99 giftcard, either), you may be entitled to a large cash credit of $3.25.
Attorneys William M. Audet, Jonas P. Mann, Audet & Partners, LLP were kind enough to file this class action lawsuit on your behalf. They are seeking a mere $2.1 million for their trouble. The named plaintiffs in the suit, Johnson v. Apple Inc., will receive a $2,500 return on their $0.99 investment.
While Apple maintains that it did nothing wrong, it seems that they’ve preferred to roll over and play dead rather than to risk an even greater financial loss: they are not contesting the $2,500 settlement for each named plaintiff, nor are they contesting the aforementioned attorneys’ fees. The class’s own attorneys state:
Apple denies all allegations in the Lawsuit and in the Owens Action, and has asserted many defenses. Apple is entering into this settlement to avoid burdensome and costly litigation. The settlement is not an admission of wrongdoing or an indication that any law was violated.
And yes, if you were one of the folks who used a $0.99 iTunes giftcard during this period, they are representing you as well (unless you choose to opt out of the settlement – which you must do before December 29th).
Finally, no greediness permitted: the fine print clearly states that you are entitled to one $3.25 credit, no matter how many giftcards you redeemed. Click here to enlarge and see for yourself:
Statehouses across the country are grappling with budget deficits and declining revenue. We’ve all heard of successful programs meeting their demise due to an absence of funding. Crippling budgetary trade-offs being made to our educational system, law enforcement, and the like have become so commonplace that they barely raise eyebrows in disbelief.
What we’ve heard less about is the economic downturn’s impact on a key cornerstone in our democracy: justice.
Layoffs, furloughs, and unfilled judicial vacancies eventually leave their mark on our judicial system. The American Bar Association’s Task Force on Preservation of the Justice System found that civil cases have been the hardest hit by budget cuts. Typical civil cases include everything from child custody and divorce to employee compensation.
In the past few months, we’ve had a patron pursue a lawsuit against restaurant for injuries he sustained while driving his motorcycle drunk all the way up to the State Supreme Court; a lifeguard sue for age discrimination just before he retired; a patient who fell asleep while polishing a gun sue his doctor; and a woman who filed suit against ABC, claiming to be “severely damaged” after the station read the wrong winning lottery numbers.
These are the types of cases pushing back court dates for issues that matter. These are the types of cases being vetted when resources thin and demand for the court’s services grow. And yes, these all happened here in New Jersey.
“All of us must have and protect our right and our freedom to use courtrooms when we need to…That courtroom must be open to protect families…to validate and protect contracts for business...” said newly elected ABA President Wm. T. Robinson III at a symposium in Kentucky.
Spreading ever-thinning public funds around may be a new reality for the foreseeable future. But compromising access to justice is one sacrifice Americans shouldn’t have to make.
No matter what the trial lawyers tell you, filing a frivolous lawsuit isn’t a victimless crime.
Have you ever been asked “Can I have your ZIP code?” by a perky cashier?
It’s not something I have an issue with- after all, they’re just numbers that I happen to share with 25,000 other people.
Kerry Feder, a Verona, NJ resident, doesn’t see it that way. She was asked by a store employee for her ZIP code when making a purchase at Williams-Sonoma in Upper Montclair earlier this year. Instead of simply declining, Feder decided to file suit under New Jersey’s Truth in Consumer Contract, Warranty, and Notice Act (TCCWNA).
Fortunately, Feder v. Williams-Sonoma Stores Inc. was thrown out by a federal judge in Newark earlier this week. Judge William Walls found that Williams-Sonoma’s practice does not violate CCWNA because the “Can I have your ZIP code” request is not made under the provision of a written contract.
Unfortunately, however, a Morris County judge reached the opposite conclusion just a few weeks ago in a case against Harmon Stores. The New Jersey Law Journal reports that Superior Court Judge Stephan Hansbury rejected the notion that a ZIP code is “too broad an identifier to be the subject of a privacy violation.” (The same attorneys, by the way, represented the plaintiffs in both TCCWNA suits).
The reason why there is a sudden rush to try class action TCCWNA cases in New Jersey (even though this practice has been around for so long it’s rather routine) is likely due to a California Supreme Court ruling against Williams-Sonoma in February, which found that collecting ZIP codes violates their state’s consumer statutes. A plethora of similar cases have since been filed across California, and it seems that New Jersey is poised to be the second state in which the trial attorneys want to test the waters.
The courts’ conflicting rulings suggest that New Jersey might be in for more TCCWNA class action suits. Trial attorneys may see the dollar signs at the end of the road, but remember who pays the bill: consumers, who pay stores’ legal overhead in the form of higher prices; job-seekers, whose opportunities part-time and seasonal employment may be extinguished; and taxpayers, who are forced to subsidize these cases as they make their way through the court system.
So, you can stand up and be counted, and give your ZIP code if asked – (and if it means better advertising and coupons for me, I’m for it) – or you can decline. The choice should be yours – not the trial bar’s to make for you.
One thing is clear: NJ's hospitality industry could be severely impacted by Voss v. Tranquilino.
"As much as we try to help new businesses establish, hire people and flourish, we need to devote the same sort of efforts to making sure existing businesses and industries flourish. We all know that tort reform goes a long way to removing the obstacles that exist and actually prevent businesses and industries from growing.
"We've got to be able to give businesses and physicians and those who are impacted by what we [legislators] do some stability and some certainty in the marketplace. And hopefully together we can do that."
Cryan told the audience about his personal experience with lawsuit abuse in Middlesex County. His family-operated establishment was the third and largest of three establishments visited by an intoxicated patron. The patron, who was refused service by Cryan's establishment, fled as an employee attempted to call him cab and caused a fatal automobile accident. Cryan's establishment - the only establishment to refuse him service - ended up paying out half a million dollars in claims.
"I look at this recent Voss decision, for example, and the Supreme Court is going to potentially take down the whole hospitality industry... Have we kind of lost our way a little bit in terms of who's responsible for what?
The case refers to the New Jersey Supreme Court's decision in Voss v. Tranquilino earlier this year, which permitted an Ocean County motorcyclist to sue the establishment which served him for bodily injuries he sustained while driving under the influence.
"Tort reform isn't a Republican or Democrat issue - it's an economic issue," said Marcus Rayner, NJLRA’s executive director.
"That's why it's important to urge the legislature to support measures like A-3333/S-2855, which would help protect honest businesses from frivolous litigation," Rayner said.
Late last month, Senator Jeff Van Drew (D-Cape May) introduced S-3028. Like its companion bill, A-4228, this legislation would reverse the New Jersey Supreme Court’s decision in Voss v. Tranquilino, which allowed a motorcyclist to sue the bar for injuries he sustained while driving drunk.
The text isn’t available on the Legislature’s website as of today, but an earlier report in the Asbury Park Press outlines some of its parameters.
“… why not offer legal protections to the ugly, as we do with racial, ethnic and religious minorities, women and handicapped individuals?”
Extending the Americans with Disabilities Act to protect the “ugly?” Seriously?!
Most of us are taught that beauty is in the eye of the beholder, not the ADA attorney.
Nevertheless, Professor Daniel S. Hamermesh at the University of Texas, Austin, argues that even affirmative-action programs for the ugly should be in order. Yes, he’s actually advocating to put ugliness-based lawsuits on the same platform of racial, ethnic, gender, and disability-based employment discrimination.
Oddly enough, he seems to acknowledge that money is the motivating – not supporting – factor in bringing potential lawsuits:
“There are other possible objections. ‘Ugliness’ is not a personal trait that many people choose to embrace; those whom we classify as protected might not be willing to admit that they are ugly. But with the chance of obtaining extra pay and promotions amounting to $230,000 in lost lifetime earnings, there’s a large enough incentive to do so. Bringing anti-discrimination lawsuits is also costly, and few potential plaintiffs could afford to do so. But many attorneys would be willing to organize classes of plaintiffs to overcome these costs, just as they do now in racial-discrimination and other lawsuits.”
Gee, there’s an idea. Let’s refrain from bathing and personal care and sue our way into cold hard cash. Exactly what our business community (and kempt colleagues) need to thrive during an economic downturn.
Richard Kreimer has discovered something the trial bar has known for quite some time: there is good money in suing people.
Excerpt from Alexi Friedman’s piece in the Star-Ledger:
“Kreimer, who is homeless, has made a name for himself over the years by suing NJ Transit, the Morristown Library, CVS pharmacy, a coffeehouse, a Chinese restaurant and various municipalities and mayors, all alleging First Amendment and civil rights violations. In most instances, he has been barred from or thrown out of a location.
Kreimer believes he is a target because he is homeless.
The suits — there have been close to 20 — have won the Morristown native equal parts scorn and support, a good bit of media coverage and hundreds of thousands of dollars in settlements.
"I’m probably the most famous person in New Jersey," he boasted in between forkfuls of rice and sips from a soda from the train station, where he spends much of his time.”
It’s been fifteen months since we brought you the case of Voss v. Tranquilino. You’ll recall that the plaintiff in this case, Ocean County resident Fredrick Voss, had a blood alcohol level nearly two and a half times the legal limit when he plowed his motorcycle into a car (“Drive drunk, hurt yourself, and blame someone else, 4/29/10). He later sued Tiffany’s Restaurant, where he had consumed the alcohol, for his injuries. The New Jersey Supreme Court agreed to hear the case to determine whether a 1997 Motor Vehicle law, which barred drunken drivers from collecting damages for their injuries, trumped an earlier law allowing those who suffer a loss (usually the innocent involved) to sue the licensed beverage server.
In the year since, the Court actually ruled in favor of Voss, essentially giving a green light to a person charged with a DUI to sue a tavern owner for any injuries they sustain in the process of driving drunk (an illegal act, last I checked).
It doesn’t stop there, either. The parents of a young man who was killed after driving home from a popular Hamilton bar are now suing the establishment for wrongful death. The loss of a child is always tragic, irrespective of the means. But usually when “drunken driver” is mentioned in conjunction with “wrongful death,” it’s the family of an innocent motorist who is suing the drunk driver – not the family of the drunk driver suing the bar.
What we’re seeing now, in the fifteen months since the New Jersey Supreme Court decided to hear the Voss case, is a disturbing push to use New Jersey’s civil justice system to compensate criminal behavior. Assemblyman John Amodeo introduced legislation to overturn the Court’s decision in Voss v. Tranquilino¸ and prevent drunken drivers from suing others for injuries they cause themselves. The bill number is A-4228.
It’s unfortunate but necessary that the Legislature clarifies that New Jersey’s legal system should not reward illegal behavior.
A jury recently awarded a $2.5 million judgment against Warren Township, population 16,000, over its handling of a report the council received about an intoxicated municipal judge on the bench (“The costly consequences of dismissing a whistle-blower,” July 18). With a total budget of $16 million, this is a surcharge residents will feel for years to come if it isn’t overturned on appeal.
Should drunk drivers be able to sue bartenders for serving them alcohol? Vote here!
Even the plaintiff’s lawyer thinks it’s crazy.
A state jury recently hit Warren Township, NJ (Somerset County) with a $2.5 million judgment over its handling of a municipal judge who came to work after consuming alcohol and prescription drugs.
The judge, Richard Sasso, was reported to Warren’s town council by Michele D’Onofrio, who was Warren’s municipal prosecutor. The Council chose not to take action, so D’Onofrio reported Sasso to the state Supreme Court’s Advisory Committee on Judicial Behavior. He was barred from serving as a municipal court judge for life. And she was dismissed.
D’Onofrio sued and won. The award breaks down as $552,000 in economic damages; $824,000 in punitive damages; and D’Onofrio’s attorney’s $1.2 million request for legal fees.
“We would have settled for a fraction of that,” Bob Braun quotes D’Onofrio’s attorney, Nancy Erica Smith as saying.
Municipal insurance doesn’t cover punitive damages, so for a town with a $16 million budget, the $2.5 million judgment is a hefty price for taxpayers to foot – especially when the Township had the opportunity to address it before it reached the Supreme Court’s Advisory Committee.
The bad behavior of Sasso - who earned $200,000 a year by racking up part-time gigs in Warren, Bridgewater, Watchung, and Bound Brook – is a lesson on how taxpayers end up paying for the actions (or in this case, inactions) of others. (See Braun’s piece in the Star-Ledger, “Warren Township melodrama highlights suburban mismanagement,” 7/18/11).
Warren Township is appealing the decision. Unless New Jersey acknowledges the need to reform its civil justice system, a single lawsuit – even a meritorious one – will have the power to influence a municipality’s budgetary priorities for years to come.
It’s been a quiet week for civil justice reform. Unsurprising, since failed attempts to override some of the Governor’s vetoes, school funding, and speculation over which congressional district will be eliminated during redistricting have dominated New Jersey politics.
To recap the 2010-2011 Session thus far, NJLRA supports the following bills: