Joseph C. Cascarelli, a member of the Securities group, will be speaking at Financial Research Associates' 2nd Annual IA Compliance Seminar & SEC Audit Survival Guide on July 19, 2006 in New York City. Mr. Cascarelli will be part of a panel on Addressing Conflicts of Interest. Some of the points covered will be indentifying conflicts, violations that arise from unaddressed conflicts and compliance procedures.
This week's New Jersey Legal Update podcast will discuss the recent decision in The Jayson Company v. Vertical Market Software where the court ruled on the enforcement of arbitration clauses in commercial contracts.
This week's New Jersey Legal Update is presented by Scott Unger, a member of the Firm's Litigation group.
You can download the New Jersey Legal Update Podcast # 34 here.(9.6MB)
Technorati Tags: New Jersey : Podcast : Arbitration : Contract
If a will has been admitted to probate by the Surrogate's Court, New Jersey Court Rule 4:85-1 allows a party four months to file a complaint to set it aside. However, if the complaint is not filed within the four month period, a party may seek relief under the "escape provision" of Rule 4:85-1 and file the complaint within a "reasonable time under the circumstances". Under section (f) of New Jersey Court Rule 4:50, this relief can only be secured where there are exceptional, extraordinary and compelling grounds for such relief.
In The Matter of the Estate of Florence Schifftner, Deceased, decided on April 25, 2006, the Appellate Division of the New Jersey Superior Court dealt with the issue of whether an inability to afford counsel constitutes "exceptional, extraordinary and compelling grounds" and therefore a reason to allow a litigant to attack the probate of a will after the four month period.
The plaintiff in the Schifftner case was seeking to overturn a judgment admitting the will of his late mother to probate. The will had been probated after due notice to the plaintiff and he did not file an appeal. The plaintiff argued that although he was aware of the will being probated, he was unable to take appropriate action as his did not have sufficient funds at the time to hire an attorney. The Appellate Division concluded that indigence, under the circumstances of this case, was not an "extraordinary" reason justifying relief. The Court noted that it was an unfortunate fact that many litigants were unwilling to obtain, or unable to afford, representation. The Court went on to say that pro se litigants are allowed the same protection afforded to represented litigants and pro se litigants are given the right to be heard. The Court held that counsel is only required when a litigant faces a "consequence of magnitude" such as a criminal prosecution that threatens actual incarceration or the loss of a fundamental constitutional right such as an interference with the parental relationship.
The Court went on to say that where the consequences are less severe, the failure of representation is not fatal. The possibility of losing a civil suit does not implicate the need to have counsel. The plaintiff in Schifftner, having filed his complaint to overturn probate of a will more than four months after probate, was therefore not allowed to use the Rule 4:50 "escape provision" based upon the fact that he could not afford to hire a lawyer during the applicable time period.
David Krulewicz, a member of the Employment group at Stark & Stark, was quoted in an article in CSO: The Resource for Security Executives regarding the use of PC monitoring and internet security measures in the workplace. You can read the article here.
Dave discusses the subject in greater detail in his podcast on an employers' right to monitor their employees use of the internet, email, voicemail and telephone.
There is a lot of buzz in the media today about the study on eminent domain issued yesterday by New Jersey's Public Advocate Ronald Chen. In his report, Mr. Chen stated that the use of municipal condemnation power has "expanded to the point where it provides virtually no limitation on the taking of private property for redevelopment, in apparent violation of the constitutional intent to limit this power."
Timothy Duggan, Chair of Stark & Stark's Condemnation Group, spent time speaking to the media yesterday about the Public Advocate's report. Below are links to articles which appeared in the Bergen Record, The Press of Atlantic City (Registration Required) and New York Newsday.
You can download a copy of the Public Advocate's report here (PDF).
If national census data is extrapolated to New Jersey, there are as many as 7,700 children being raised by same-sex couples in the Garden State. What happens if the couple decides to separate or terminate their domestic partnership?
The 2004 New Jersey Domestic Partnership Act did not address these issues. As a result, attorneys have looked for guidance in other contexts, such as whether a "psychological parent-child relationship" exists. This would be of significant importance with regard to custody and visitation upon the breakup of a relationship.
In 2000, the New Jersey Supreme Court developed a four-prong test to determine the existence of psychological parenthood. The scope of this article does not permit a detailed discussion and, as we lawyers like to say, every case is "fact specific". Anyone seeking an explanation of their legal rights and responsibilities should contact an experienced New Jersey Family Law attorney.
Technorati Tags: New Jersey : Divorce
With a recently retired Federal Judge playing the role of a mediator, a dispute between power giant American National Power ("ANP") and the Town of Blackstone ("Blackstone") in Massachusetts is taking a break from the Courthouse. The pending litigation concerns an estimated $10 million in tax revenue that Blackstone officials maintain the company must pay the town through 2019 concerning one of the company's co-generation plants. The mediation is an attempt to resolve two legal actions the company has filed in protest of its bills, which actions are pending before the Massachusetts Appellate Tax Board in Boston and the Middlesex County Superior Court in Framingham, MA.
The combatants met for two lengthy sessions of mediation and among those participating were Blackstone Town Administrator Raymond Houle, Selectman Chairman Charles Sawyer and other members of the selectmen's panel.
A mediated settlement will be of obvious benefit to all involved since it will allow the town and the company to avoid a costly litigation battle. During last October's financial town meeting, Blackstone voters, acting on the request of officials, appropriated $50,000 as a down payment on the legal costs of taking a stand against ANP in court. This year, officials are asking for an even heftier fortification of the war chest -- $250,000 -- to carry on the courtroom battle, if necessary.
Arguing that softening market conditions for electricity have lessened the value of its holdings, ANP wants the town to reduce its assessments, thereby lowering the company's tax bills. The town calculates ANP's taxes in two ways: Like any property owner, ANP gets a tax bills for its real estate and land. When the company built its plant in the late 1990s, it also negotiated a plan known as a Payment in Lieu of Taxes, or PILOT, fixing assessments on turbines and other business equipment for 20 years, through 2019.
The two methods resulted in a combined assessment of roughly $2.87 million on the company this year. But the company, as it did last year, protested the assessment in court and paid only a portion of it -- about $1.94 million. The payment represents 100 percent of the company's obligations on real estate, but only about two-thirds of what the town maintains it owes under the PILOT. If the trend continued for the life of the agreement, the town would stand to lose about $10 million in revenue.
This is another example of the beneficial role mediated resolutions can play in business litigation.
Technorati Tags: New Jersey : ADR : Alternative Dispute Resolution
This past Sunday the Courier News published a front page article, Eminent Domain Hits Home - What is Public Right to Private Property? which provided information about the redevelopment taking place in South Bound Brook. The article discussed how South Bound Brook's redevelopment of the GAF site is impacting local businesses including our client, Fanaro Partnership (story). We are challenging the amended redevelopment plan as being over inclusive since our client's property does not need to be included in the redevelopment plan in order for its stated goals to be achieved. This situation is another example of towns not fully understanding the due process and other implications of eminent domain.
Technorati Tags: New Jersey : Eminent Domain : Condemnation : Redevelopment
The New Jersey Court Rules do not specifically define whether a professional who is subpoenaed to testify at a deposition is entitled to be compensated for the time spent at the deposition. In the matter of Leonard Charles v. 1170 Apartment Corp. et. als., the New Jersey Apellate Division recently dealt with this issue. This case involved an attorney who was subpoenaed to testify at a deposition involving a former client. The attorney was no longer involved in the case and had no interest in the outcome. The attorney requested that he be compensated at his usual hourly rate and the plaintiff that subpoenaed him refused to pay him.
New Jersey Court Rule 4:14-7(b)(1) provides that a subpoened witness shall be reimbursed for the "out-of-pocket" expenses and loss of pay incurred in attending the deposition. The plaintiff in the Charles case argued that the subpoenaed attorney should not be compensated as the Rule was only intended to protect individuals such as hourly employees. The plaintiff asserted that the Rule was not intended to cover professionals. The Appellate Division disagreed and held that a literal reading of the Rule would defeat the underlying intent. The Court noted that the overwhelming purpose of the Rule was to provide compensation to individuals who are compelled to appear at a deposition in a controversy in which they have no stake in the outcome. The Court went on to hold that the term "loss of pay" includes an actual loss of income, as in the case of a salaried employee, or in the case of a professional, loss of billable time. It does not matter whether the professional is a member of a firm or is a single practitioner.
The Court concluded by quoting President Lincoln and noting that "a lawyer's time and advice are his (or her) stock in trade." This opinion is extremely helpful to all involved as it resolves as issue that has caused uncertainty where none should exist.
Technorati Tags: New Jersey : Litigation
Individuals preparing to begin the divorce process often interview multiple attorneys prior to deciding on who to retain. Such a practice is prudent given the importance of the attorney-client relationship. A litigant's impressions of the legal system and their acceptance of the divorce are influenced greatly by their relationship with their attorney. Just as a consumer should not buy a car without a test drive or purchase clothes without trying them on, a legal consumer should invest the time necessary to meet with potential attorneys in order to achieve the most beneficial result. Selecting an attorney involves establishing a relationship with the intended attorney and should involve an in-person interview or consultation whenever possible
Once an attorney has met with a potential client and obtained confidential information, that attorney is then precluded from representing the other spouse. This reality has lead many litigants to schedule interviews with multiple attorneys for no other purpose than preventing the attorney from representing the other party. Attorneys in New Jersey have recently been advised that encouraging such conduct on the part of a potential or new client is unethical. After considering this issue, the Advisory Committee on Professional Ethics authored and released Opinion - #73 - which serves notice that an attorney who advises his/her client to contact other lawyers for the purpose of denying their spouse from obtaining representation by counsel of his or her choice constitutes conduct prejudicial to the administration of justice.
Technorati Tags: New Jersey : Divorce
A New Jersey Appellate Court recently upheld a trial court's refusal to force a condominium owner to pay an assessment levied to cover the replacement of each unit's sliding glass doors. In Regent Beach Condominium Association v. Capolino, the Appellate Court ruled that this condominium was without the power to assess owners to pay the replace those items included within the definition of "unit".
Here, sliding glass doors were clearly part of of the "unit", pursuant to New Jersey's Condominium Act and that condominium's master deed. Since the Condominium Act permits assessments to maintain, repair, protection and/or replace common elements, and the assessment in question in this case related to the replacement of items other than common elements, the assessment was invalid and not due from the complaining owner.
The Appellate Court also rejected the condominium's argument - one made often by condominiums in similar circumstances - that this assessment, and the condominium's replacement of the sliding glass doors, were necessary because if owners were left to replace these doors themselves, the replacement doors might not match those of other units. The Appellate Court felt that even if the Condominium Act allowed the condominium to do this, which it did not, the condominium could have protected against this possibility simply by requiring each owner to replace his door, and then identifying doors similar in style, quality and aesthetic standards, and requiring their use.
The case makes it clear, yet again, that condiminiums are authorized to raise and spend owners' funds to maintain, protect, replace and/or repair only common elements, not units, even if, practically speaking, the owners may be better off in that particular situation if portions of units are replaced using those same owners' funds.
Technorati Tags: New Jersey : Community Associations
In a recent case argued before the United States Supreme Court, Burlington Northern Santa Fe Railway v. White, the issue of what constitutes a material adverse employment change was debated.
Justice Antonin Scalia was concerned that a jury may be able to award an employee damages for "every little thing" instead of the requirement of a material adverse change. Justice Scalia continued that an angry supervisor who stops saying "good morning" or taking to lunch an employee who alleged discrimination may give rise to an adverse employment change, thus subjecting the employer to liability.
In the Burlington Northern case, the railroad is seeking the United States Supreme Court to overturn a decision by the 6th Circuit Court of Appeals which found that suspending an employee for 37 days without pay and transferring her to a more physically demanding job was a material adverse change in her employment.
Businesses warn that the Court should not create a super protected class of employees who cannot be disciplined or transferred once they file a discrimination complaint. The employee alleges that any change in her employment duties, compensation, title or tasks would give rise to a material adverse employment change, thus holding the Company liable under retaliation-based claims.
The Burlington Northern decision is expected to be published in late 2006. With the recent conservatism of the Court, it is likely that the decision will permit an employer to escape liability and discipline an employee as long as the employer is exercising good faith and has a legitimate business purpose in the discipline.
Technorati Tags: New Jersey : Employment : Retaliation
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