In the Fall 2005 Arbitration & Mediation newsletter, a publication of the Pennsylvania Bar Association Alternative Dispute Resolution Committee, Lew Pepperman, co-managing partner and member of the Alternative Dispute Resolution discussed the growth of mediation in New Jersey and Pennsylvania and where he sees mediation in the future.
Read the full article here(PDF).
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Some practitioners and commentators have proposed a "bright line" rule for the inclusion of stock options in the marital estate. Those who favor such a rule argue/suggest that the "bright line" should be the filing date of the divorce complaint. If the option was granted prior to the filing date, it is included; if not, it is excluded. The Connecticut trial judge in the much publicized Wendt case described such a rule as tantamount to a "serbonian bog" (a fascinating term which the reader should research and define).
In the recent New Jersey Appellate decision in Robertson v. Robertson, the New Jersey Court agreed. The New Jersey Court rejected a "bright line" rule finding instead that stock options must be analyzed in the factual context of each grant and each case. The critical determination in each case is whether they have been awarded for past services rendered to the recipient's employer during the marriage or are an inducement for future employment.
Technorati Tags: New Jersey Divorce Estate
Recently, the Superior Court of New Jersey affirmed a trial court's decision finding that New Jersey School Construction Corporation ("NJSCC") negotiated in good faith prior to filing a condemnation action. New Jersey School Construction Corporation v. Guppy Holdings, LLC, Docket No. A-2831-04T32831-04T3 (App. Div. Oct. 6, 2005). In Guppy Holdings, an individual acquired title to real estate through a tax foreclosure after negotiations for the purchase of the property had begun. The initial offer of $40,000 was based upon an appraisal prepared by the NJSCC. The property owner rejected the offer and questioned the appraisal in light of the fact that the property's current tax assessment was $179,600. The NJSCC made a final offer which was ignored by the property owner.
After the NJSCC filed a complaint to take the property, the property owner filed a motion to dismiss the complaint arguing that the NJSCC failed to negotiate in good faith for the purchase of the property as required by New Jersey law (N.J.S.A. 20:3-6). Under this law, a condemning authority must enter into bonafide negotiations for the purchase of property before filing a lawsuit to condemn property. In denying the motion to dismiss the case, the court held that (1) a tax assessment is not conclusive evidence of valuation in a condemnation proceeding, and (2) the property owner failed to even suggest an amount that would address the deficiencies in the appraisal. The court also noted that a state's "duty to negotiate in good faith can be tempered by a property owner's failure to cooperate."
If a property owner intends to challenge a condemnation based upon the condemning authority's failure to enter into bonafide negotiations prior to filing the complaint, the property owner must not only reply to the initial offer within 14 days, but produce concrete and credible evidence that casts a doubt on the condemning authority's valuation. Such evidence includes a bank appraisal, offer to purchase the property, and comparable sales that challenges the validity of the appraisal.
Technorati Tags: New Jersey Eminent Domain
Robert J. Durst, Chair of the Divorce group, was interviewed for the article "When Your Ex Blabs: Corzine Divorce Spotlights Difficulty Getting and Enforcing Gag Orders" in the November 14 edition of New Jersey Lawyer.
The article discussed Joanne Corzine's public attack in the New York Times on John Corzine during the last days before the election. In commenting on the problem, Mr. Durst said, "What would we expect the jilted ex-spouse to say - a glowing testament of his integrity and reliability? Why even print it?...If I represented Mrs. Corzine and if she wanted to go on Lynn Doyle's (Comcast cable television) show and criticize her ex-husband, I'd tell her, 'You have the right to do it, but the First Amendment doesn't give you the right to slander him.' "
Technorati Tags: New Jersey Divorce
In the context of a contested 2002 election for the condominium's board of trustees, an owner e-mailed a candidate in which she alleged misconduct on that candidate's opponent's behalf. Some of the facts alleged by Ms. Petricha about candidate Gulrajaney were false, unbeknownst to Ms. Petricha. The e-mail recipient forwarded that e-mail onto others, thus "publishing" a possible defamatory statement. Gulrajaney's defamation against everyone was dismissed.
Here, the Appellate Court continued and affirmed the general rule that a candidate for a seat on a community association's board of trustees is a limited public figure, for purposes of defamation law. In the context of these elections, comments about candidates constitutes "political speech", which "presents the strongest possible case for applications of" the First Amendment. Since a candidate for a community association's board of trustees is a limited public figure, that candidate can only win a defamation suit if he demonstrates, "by clear and convincing evidence," that alleged defamatory statement was "made with the knowledge of its falsity or with reckless disregard for the truth." Here, since Ms. Petricha did not know the statements were false when made, and the topic related to the contested election, she could not be found to have committed to tort of defamation.
This case extended similar protections to persons that take the alleged defamatory statements and publish them or forward them to others. Since the e-mail involved the board election in question and the recipients, and then publishers, had an interest in that election, their distribution of the e-mail to others was protected by "conditional or qualified privilege." As long as the statement is not "excessively published" or the publisher knows it's false, the privilege is preserved. Important for the publishers, this privilege is utterly unrelated to the initial author's protection under the limited public figure doctrine.
In the end, this case and the appellate court's opinion in Verna v. the Links at Valleybrook Neighborhood Ass'n, 371 N.J. Super. 77 (App. Div. 2004), make it clear that speakers and publishers have wide latitude in speaking, writing, etc. within the context of a community association election or other matters of concern to that association.
Technorati Tags: New Jersey Condo Community Association
The November 20 issue of the Trentonian featured article regarding a franchise dispute between Casino Tony Goes, a New Jersey restaurant, and Coney Joe's of Pennsylvania regarding the use of the term "Jersey Italian Hot Dog." Adam Siegelheim, a member of the Franchise group, represents Casino Tony Goes.
Read the full article here.
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Stark & Stark is pleased to announce that the firm was recently awarded the Business Service Award by the Lawrence Township Growth and Redevelopment Committee for our ongoing contributions to the community of Lawrence.
The Growth and Redevelopment Committee awards are presented each year to businesses, individuals, and civic groups that have enhanced the community in a special way. The Business Service Award is presented to a business that has made a significant contribution to the Township's business or civic community, which may be include a major building or renovation project.
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In a reported decision, a New Jersey Appellate Court recently invalidated a $750.00 non-refundable working capital contribution created by a condominium by board vote and resolution. The Board's resolution provided, "[u]pon acquisition of title to a unit, the unit owner shall pay to the Association a one time non-refundable working capital contribution of $750.00". That resolution also created a "one time processing fee of $125.00" upon acquisition of title.
Parties to a unit's sale in 2003 challenged the working capital contribution fee. Those parties did not challenge the $125.00 processing fee. In invalidating the $750.00 fee, the court found that New Jersey's Condominium Act mandates that all of the condominium's expenses be charged to owners in accordance with their percentage interests, or as otherwise set forth in the master deed or bylaws. Thus, since the disputed fee was intended to offset common expenses, it was a discriminatory fee, not assessed against all owners.
Additionally, since the condominium's master deed contained identical language regarding the allocation of common expenses, the fee was not protected by the business judgment rule. The court found that the "business judgment rule, which governs judicial review of decisions within the scope of a" condominium's "discretionary authority", was not applicable.
First, this case leaves untouched any closing-related or processing fees charged by management companies or condominiums for insurance information, certificates of sale, copies of public offering statements, etc. Second, this case leaves untouched any and all working capital contribution-type fees in the context of cooperatives or homeowners associations. Third, this case leaves untouched any and all working capital contribution fees authorized by either a condominium's master deed or its bylaws. Even if this decision stands ( i.e., it is not reversed by the New Jersey Supreme Court), its prohibition against fees due upon the acquisition of title is limited strictly to those fees that are created by board vote and resolution.
Technorati Tag: New Jersey
This week's New Jersey Legal Update will discuss the Third Circuit's recent decision in Reichley v. Pennsylvania Department of Agriculture (2005 WL 2861989). In this case, plaintiffs alleged their substanative and procedural due process rights under the 14th Amendment were violated when their flock of birds was purchased and then destroyed by Penn Ag Industries in order to prevent a potential outbreak of avian flu.
This week's New Jersey Legal Update is presented by Thomas Onder a member of the Firm's Litigation group.
You can download the New Jersey Legal Update Podcast # 17 here.(7.25MB)
Technorati Tags: New Jersey : Podcast : Avian Flu
Stark & Stark is proud to announce that it was named as The Mercer County Regional Chamber of Commerce's 2006 Corporation of the Year. The announcement was made at a press conference last evening at Mercer County Community College. Also recognized by the Chamber were Louis A. Natale, Jr. as Citizen of the Year and Hopewell Valley Community Bank as Small Business of the Year.
This year's winners were chosen by a premier panel of former Chamber Hall of Fame honorees who were assembled to make recommendations for this annual tribute to Mercer County's business community leaders. Each year, the Mercer County Regional Chamber of Commerce selects the person and companies it believes best embody the practice of "corporate social responsibility"; the concept of combining social values into how everyday business is conducted.
Rachel Stark, a shareholder in the Business & Corporate group, and Bill Tipton, Network Adminstrator, co-authored the article "Sender Beware" for BizTech Magazine, November 2005. They advise that devising a communications policy can help a company make sure that sensitive information doesn't travel out the office door via e-mail.
You can read the article here.
As reported recently in The Wall Street Journal, the SEC has reevaluated the manner with which it determines which investment advisers it will examine. According to the author, rather than ensuring that all advisers will receive an audit once every five years, firms are now divided it categories of risk based on a number of factors. Higher risk firms are more likely to have a more frequent audit timetable.
However, this does not necessarily mean that lower risk firms should consider themselves exempt from the audit process. For this reason, all firms should continue to establish strong compliance programs, an integral aspect of which must be the assessment of areas of compliance risk. The Chief Compliance Office should then establish and adopt policies and procedures to address those areas of compliance risk. Any policies adopted and procedures established should themselves be the subject of ongoing review by trained compliance professionals to ascertain their effectiveness and sufficiency.
As reported recently in The Wall Street Journal, the SEC has reevaluated the manner with which it determines which investment advisers it will examine. According to the author, rather than ensuring that all advisers will receive an audit once every five years, firms are now divided into categories of risk based on a number of factors. Higher risk firms are more likely to have a more frequent audit timetable. However, this does not necessarily mean that lower risk firms should consider themselves exempt from the audit process. For this reason, all firms should continue to establish strong compliance programs, an integral aspect of which must be the assessment of areas of compliance risk. The Chief Compliance Officer should then establish and adopt policies and procedures to address those areas of compliance risk. Any policies adopted and procedures established should themselves be the subject of ongoing review by trained compliance professionals to ascertain their effectiveness and sufficiency.
A case currently situated in the New York State Supreme Court, Manhattan County (trial court) involves a cooperative board's rejection of one member of an unmarried heterosexual couple as he was deemed "not financially qualified" on the one hand, and its approval of the other member of that couple. The coopertive board advised the couple that the rejected member was free to live in the apartment, but would be prohibited from signing the cooperative lease or owning cooperative shares. This couple contended that had they been married, their applications would have been treated jointly, with the pair's financial status considered in total. The couple filed a suit against the coopertive, contending that they had suffered discrimination as a result of their marital status. Altough most of the couple's lawsuit was dismissed this summer, the essential portion related to the different treatment will proceed.
It is expected that this case if allowed to proceed to the court system could impact cooperatives and their abilities to judge and/or exclude unmarried couples, whether heterosexual or not. Interestingly, New York City's administrative code prohibits the denial of housing based on an applicant's marital status, but current law also essentially allows for cooperatives to avoid advising rejected buyers the reasons behind the rejection.
Read a related New York Times article here.
Please be aware that New Jersey's current posture is to require firm employees receiving compensation for referring business to the firm to be registered as investment adviser representatives. Note, this requirement does not depend upon the nature of the employee's position with the firm. Thus, for example, an administrative employee who has referred a family member to the firm cannot receive additional compensation related to that referral unless the employee is first registered as an investment adviser representative.
This is an important decision since it sets a deadline for the filing of a declaration of taking. Under New Jersey law, a condemning authority is allowed to "test the waters" by filing a complaint in a condemnation action without filing a declaration of taking or depositing funds into court. The purpose for filing the declaration of taking at a later point is to allow the condemning authority to know how much it will cost to acquire the property before it commits itself to purchase the property. However, this creates a substantial hardship on property owners since they do not know whether the property will be ultimately taken while they litigate the case (which could take years).
In Berardi, the Township of Pemberton filed a complaint seeking to condemn property on September 30, 2002. After the complaint was filed, the parties proceeded forward with the litigation while continuing to negotiate a settlement. However, after two years elapsed without the filing of a declaration of taking, the Berardis filed a motion to compel Pemberton to either file a declaration of taking or abandon the proceedings. The court denied the motion, but ordered Pemberton to deposit the amount determined by the Commissioners into court. The Berardis waited three months and refiled their motion to compel the filing of a declaration of taking or that abandonment of the action, relying upon the following statute. (N.J.S.A. 20:3-25):
If within 6 months from the date of appointment of commissioners, the condemnor fails to file a declaration of taking, the court, upon application of any condemnee, and on notice to all parties in interest, may require the condemnor, at its election, to either file a declaration of taking and make the deposit hereinabove provided, or abandon the proceedings pursuant to section 35 hereof. For good cause and upon terms, the court may extend the time for the filing of such declaration of taking, but not more than 3 months after the commencement of the action.
Pemberton focused on the word "may" and argued that the trial court has discretion to extend the deadline to file a declaration of taking beyond the 6 month time period.
After reviewing the legislative history of the law, the Appellate Division noted that the purpose of this section of the condemnation law (N.J.S.A. 20:3-25) was to protect property owners. The court concluded that a fair reading of this section is that it was "enacted to ameliorate perceived hardships, inequality and unfairness to property owners." Under Pemberton's reading of the statute, a condemning authority would be permitted to try it's case to conclusion and then make a determination of whether or not to acquire the property. Clearly, this would be an extreme hardship on the property owner since the property would be tied up during the litigation. For example, some cases take two to three years to try to conclusion. During this time period, a property owner would not be able to effectively rent his or her property or make any improvements because the owner may ultimately lose title to the property.
The Appellate Division held that once a condemnee files an application to compel the condemning authority to file its declaration of taking or abandon the proceedings, the condemning authority must either file its declaration of taking and deposit the funds with court, or abandon the action. The trial court has the discretion to extend the deadline to file the declaration of taking and to deposit the funds for an additional three months after the filing of the application. However, this is the deadline. In the event the condemning authority does not file its declaration of taking within six months of the filing of the complaint, a prudent condemnee should immediately file an application to compel the taking and deposit of funds (assuming it is not appealing or otherwise litigating the right to take). This would provide a property owner with more certainty as to the outcome in regards to the ownership of the property.
This week's New Jersey Legal Update podcast will discuss IBM's recent announcement that it will not use genetic information when making employment decisions or when determining eligibility for employee health care programs.
This week's New Jersey Legal Update is presented by David Krulewicz a member of the Firm's Employment Litigation group.
You can download the New Jersey Legal Update Podcast # 16 here.(12MB)
The September 2005 issue of Railway Age magazine featured an article by Vincent J. Mangini, a member of the Real Estate & Land Use group.
The article, "Smart Growth - It Takes a Transit Village" discusses how transit-oriented development has become a popular means of increasing public transit use while promoting economic development.
You can read the article here (PDF).
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