New Jersey Attorney Law Review Blog

    In a 4-2 vote, New Jersey's Supreme Court in The Committee to Recall Robert Menendez v. Nina Wells (A-86-09) held that a tea-party group can't continue with its effort to recall U.S. Sen. Robert Menendez. The group, amongst Menendez's critics, argued that the states have the power to regulate recall efforts because the U.S. Constitution is silent on the issue. Specifically, the tea party group maintained that an amendment to New Jersey's state constitution later implemented by statute provides for the recall of any elected official “in this State or representing this State in the United States Congress.” The Judges sided with lawyers for the New Jersey Democrat, who said a recall would violate the U.S. Constitution. Menendez is up for re-election in 2012. According to news reports, the Committee says it will be appeal to the U.S. Supreme Court. The facts and procedural history of the case are as follows:   In 1993, New Jersey voters approved an amendment to th...

The following appeals were recently added to the docket of the New Jersey Supreme Court.   We will report the outcome of these decisions when the the Court publishes their opinions, which could take 4 to 6 months or more. A-34-10 O Builders & Associates, Inc. v. Yuna Corp. of NJ d/b/a Baden Baden Restaurant (066490) Did the prior consultation between the defendant and plaintiff’s attorney create a conflict that required the attorney to be disqualified from representing plaintiff in this litigation? Certification granted 10/28/10 A-27-10  Peter Risko v. Thompson Muller Automotive Group t/a Hammonton Chrysler Jeep Dodge (066502) In this wrongful death case arising from a slip-and-fall, did the cumulative effect of plaintiff’s attorney’s comments during summation, including telling the jury that they would be “ignoring the law” if they had an issue with “a million dollar case,” violate the prohibition against suggesting a verdict? Leave to appeal gra...

In a case of first impression, the New Jersey Appellate Division affirmed the dismissal of negligence claims brought against securities brokerage firm Merrill Lynch, finding that Merrill Lynch owed no duty of care to third parties who claimed the company should have policed its customer's account for fraud.  Frederick vs. Smith, et als. , Superior Court of New Jersey, Appellate Division, Docket A-1620-09T2 (November 9, 2010). In this case the plaintiffs alleged that defendant Maxwell Baldwin Smith (Smith) convinced them to invest in Healthcare Financial Partnership (HFP), a fictitious entity.  As part of the fraud, Smith instructed plaintiffs to convey the invested funds to an account that he maintained with Merrill Lynch.  Plaintiffs were not Merrill Lynch clients, yet Merrill Lynch accepted payment directly from the plaintiffs and the funds were deposited into Smith's account.  In support of their negligence claims, plaintiffs alleged that Smith convinced t...

Share | In Moore v. Woman to Woman Obstetrics & Gynecology , a New Jersey appellate court ruled that arbitration is a valid forum for resolution of disputes between doctors and their patients. The court found that some patient-physician agreements to arbitrate are enforceable, but enforceability will be determined based on whether certain substantive and procedural requirements have been met. The relevant facts of the case are as follows:  The Plaintiffs Monica and Kevin Moore are the parents of Koral Moore, who has Down Syndrome. Due to Monica's age, her pregnancy was considered high risk. Her doctor, defendant Lisa Vernon, M.D., practicing with defendant Woman to Woman Obstetrics & Gynecology, L.L.C., referred Monica to defendants Carlos Fernandez, M.D., and Premier Perinatal, L.L.C. (Premier).  During Monica's first appointment with Dr. Fernandez at Premier, an ultrasound was to be administered due to her high-risk pregnancy.  The receptionis...

Share | A class-action lawsuit filed by Century 21 franchisees against Century 21 Real Estate Corp. and parent company Cendant is moving forward following a decision of the NJ Appellate Division. In August 2010, New Jersey Superior Court Judge Robert J. Brennan certified a class of current and former Century 21 franchisees in a lawsuit alleging breach of contract and other claims against their franchisor, Century 21 Real Estate Corp., as well as its parent company, Cendant Corp.  Currently, Century 21 is owned by Cendant spin-off Realogy Corp. Following Judge Brennan's ruling, Cendant asked the New Jersey Appellate Division to reconsider the class certification decision.  On October 15, 2010 , the appellate court announced it would not hear the appeal, thus clearing the way for the case to go to trial. According to the lawsuit, Cendant failed to provide the level of services to Century 21 franchisees required by their agreements. Additionally, the lawsu...

As one recent New Jersey appeals decision confirms, the Internet can serve as a valuable tool  for trial attorneys and litigants to research information about potential jurors.   The concept of "Googling" someone's name has now become part of New Jersey trial practice.   In Carino v. Muenzen, M.D. , No. 5491-08, 201 N.J. Super. LEXIS 2154 (Aug. 30, 2010), the appeals court determined that the trial court erred in prohibiting the plaintiff's lawyer from conducting Internet research on potential jurors at the counsel table.  More specifically, the Carino court reasoned that there is nothing that "requires attorneys to notify the court or opposing counsel in advance of their intention to take advantage of the internet access made available by the Judiciary." Id. at *26. The Carino court determined that the fact that plaintiff's counsel "had the foresight to bring his laptop computer to court, and defense counsel did not, simply canno...

In a precedential ruling issued on August 5, 2010, Singer Management Consultants Inc. v. Milgram, No. 09-2238, the United States Court of Appeals for the Third Circuit - the appellate tribunal to the United States District Court for the District of New Jersey - held that New Jersey will have to pay the legal fees for a music promoter that sued the State to stop it from enforcing its "truth-in-music" law. The Third Circuit held that the promoter, Live Gold Operations, Inc. (“Live Gold”), which accused the State of violating its constitutional and trademark rights, was a prevailing party in the underlying litigation thus triggering the fee-shifting statute requiring the State to reimburse the promoter for its attorneys’ fees. The full reported decision can be found here . The United States District Court initially dismissed the case and denied fees, finding the case moot because the State did an about-face once it became clear it would lose the case. Thus, the promoter, Liv...

A recent New Jersey Supreme Court decision serves as a wake-up call to part-time municipal court judges and the law firms which employ them:  Do not use the law firm’s checking account to make political contributions. In In the Matter of Philip N. Boggia , Judge of The Municipal Court, (D-118-08)(July 27, 2010), the Advisory Committee on Judicial Conduct (“ACJC”) found by clear and convincing evidence that Philip N. Boggia, a part-time municipal court judge for the Borough of Moonachie, NJ and a practicing lawyer who is partner in his own law firm, violated Canon 7A(4) of the Code of Judicial Conduct and Rules 2:15-8(a) (5) and (6) of the New Jersey Court Rules because his law firm made political contributions to several local Democratic organizations. Canon 7A(4) of the NJ Code of Judicial Conduct states that “[A] judge shall not . . . solicit funds for or pay an assessment or make a contribution to a political organization or candidate, or purchase tickets for pol...

While we normally do not report on United States Supreme Court decisions, we feel that the Court's recent decision issued on June 17, 2010 involving a public employee’s expectation of privacy concerning text messages merits discussion in view of our coverage of a recent NJ Supreme Court decision involving an employee's rights to privacy in Yahoo e-mails sent over the workplace computer.    http://newjerseylawreview.blogspot.com/2010_04_01_archive.html   In a unanimous decision issued on June 17, 2010, the U.S. Supreme Court in City of Ontario, California v. Quon ventured into the privacy rights of public employees who transmit and receive text messages through government-owned electronic communication devices.   In this particular case, the Court held that a California police department’s search of one of its police officer’s sexually explicit text messages sent and received through his department-issued pager did not violate the officer’s 4th ...

This is no joke!   A stand-up comedian sued by her husband's family for making Jewish mother-in-law jokes gets to enjoy the punchline after a federal judge threw the case out of court.   The comedian's descriptions of her in-laws, though laced with implications of racism, were merely "colorful, figurative rhetoric," U.S. District Judge Mary Cooper said in dismissing the suit, Edelman v. Croonquist , 09-cv-1938.   Sunda Croonquist, whose comedy routine for years has been to describe her life as a half-black, half-Swedish woman who looks Puerto Rican and marries into a Jewish family, was sued two years ago after her mother-in-law, sister-in-law and brother-in-law claimed her jokes were subjecting them up to public ridicule. On her website, Croonquist published video clips of her routines about her in-laws and also made online postings to her blog and on MySpace.  In one clip called "Jewish Friends"Croonquist says the voice of her sister-in-law Sh...

In an extremely important case that we have followed closely over the past year, the New Jersey Supreme Court recently confirmed that the attorney-client privilege protects an employee's e-mails sent to her attorney through her private Yahoo account while accessing her work computer.  Stengart v. Loving Care Agency, Inc. (A-16-09) (March 30, 2010). We first reported on this case in March 2009 , when the trial judge found in favor of the employer by holding that the employee's e-mails to her attorney were discoverable in her wrongful discharge case against her employer. On appeal, in July 2009 , the New Jersey Appellate Division reversed the trial court, finding that the employee had a reasonable expectation of privacy when she used her private Yahoo e-mail account to communicate with her attorney, notwithstanding that she used her company's computer to access her Yahoo account. The New Jersey Supreme Court, an ardent advocate of protecting its citizens...

In this article I discuss the rights and remedies available to a New Jersey homeowner who has lost his or her property to a sheriff's sale because the lender failed to provide actual notice of the sheriff's sale date. The state of confusion that can be created by the lender's failure to communicate with the borrower can be grounds to vacate a sheriff's sale under New Jersey law. But the homeowner must get to the court quickly upon learning of the sale. For purposes of this article I ask my readers to make the following assumptions: (1) a foreclosure suit has been filed in New Jersey; (2) the borrower has requested a loan forbearance/modification from the lender either by initiating the court ordered mediation process or by participating in any of the lender's voluntarily homeowner assistance programs; (3) during the period of time when the borrower and lender are in the midst of the loan forbearance/modification process a sheriff's sale is schedule...

(November 2009) Levinson Axelrod, a prominent New Jersey personal injury law firm, has filed suit against its former disgruntled associate, Edward Heyburn, who in September 2009 registered and published a website domain using Levinson Axelrod's name for the purpose of airing his grievances against them. The firm filed suit in the Superior Court of New Jersey on an emergent basis, seeking to shut down the website, www.levinsonaxelrod.net, alleging, among other claims, that the content posted on the site is defaming the firm's reputation, the site is diverting traffic from the firm's legitimate website, www.levinsonaxelrod.com, and the use of the firm's name in the domain registration constitutes cybersquatting and trademark infringement. However, Heyburn quickly removed the lawsuit to the United States District Court for the District of New Jersey because Levinson Axelrod’s complaint provides a federal question basis for removal by claiming violations of the federal Anti...

In a published decision issued on June 26, 2009 in an employment litigation case, a New Jersey appeals court held that the attorney-client privilege applies to e-mails that the employee sent to her attorney while accessing the company's computer to send the e-mails through her private Yahoo! e-mail account. ( Stengart v. Loving Care Agency Inc. , A.-35-6-08T1). With all due respect to the trial court, in my March 9, 2009 post discussing this case I expressed my opinion that the trial judge's decision was incorrect and predicted that an interlocutory appeal would be forthcoming because of the far-reaching effects of the trial court's decision. Both predictions turned out to be accurate. For the convenience of our readers, although I extensively commented on the facts of this case in my March 9, 2009 post, the brief facts of the case are as follows: The plaintiff was the executive director of nursing at Loving Care Inc. ("Loving Care"). During her employment, Lo...

Before Maria Stengart quit her job, she was already making plans to sue her employer. She e-mailed her lawyer during business hours from her company-issued laptop, though she was circumspect enough to use her personal Web-based Yahoo e-mail account. It was not until discovery in the ensuing hostile-workplace, constructive-discharge case that she learned company lawyers had a copy of the message, which was automatically saved on the laptop's hard drive as a temporary file. Now a Bergen County judge, Estella De La Cruz, has held the e-mail isn't protected as an attorney-client communication, finding Stengart waived the privilege by using the company computer and network even though she sent the e-mail from her personal e-mail account with Yahoo!. The ruling, in Stengart v. Loving Care Agency , BER-L-858-08, is a first for a New Jersey state court and one of only a few across the country to deal with the factual scenario presented. The other cases cited by De La Cruz turned on whe...

A Superior Court judge in Bergen County New Jersey dismissed a defamation case against a number of defendants based on the claims of two women who sued over photographs taken of them clubbing at a Clifton, NJ bar which were included in a book titled, "Hot Chicks With Douchebags," published by a Simon & Schuster division. In a 9-page written opinion granting summary judgment, the trial judge dismissed the complaint finding there was no actionable defamation claim because the photographs and accompanying text are used for humorous social commentary and the book is protected by the First Amendment. The photos showed the women with one or more men described as "douchebags", which the book's author describes as men with "Greasy foreheads, spiked frosted hair, oiled up faces dripping with Tag Shot spray", dressed in "Armani Exchange T-shirts and rank cologne wafting off their backs like fetid pollen clouds as they pump their fists and attempt to gri...