New Jersey Lawyer & Attorney : Stark & Stark Law Firm : New Jersey Law Blog

On Tuesday August 17, 2010, Scott I. Unger, Shareholder in Stark & Stark’s Litigation Group, successfully negotiated a multi-million dollar settlement in a complex shareholder oppression case in Monmouth County, New Jersey. The $3,000,000 settlement (including counsel fees) was approved by the Honorable Thomas W. Cavanagh, Jr. P.J.Ch., Monmouth County. 

Mr. Unger represented a minority shareholder of two family owned companies: Bilkays Express Co., a regional trucking and commercial real estate company located in Elizabeth, New Jersey, and The Bobby Corporation, a company which owns and leases commercial properties throughout New Jersey and New York.

It was alleged that the Defendants breached fiduciary duties by operating the companies in a manner which benefitted themselves at the detriment of the Plaintiff. Moreover, it was alleged that the Defendants failed to share a substantial offer to purchase two of the companies’ commercial real estate properties with the Plaintiff, who was also a board of director. Finally, the Plaintiff alleged that the defendants threatened to remove the Plaintiff from the board of directors, instructed company employees not to speak with the Plaintiff, and failed to provide requested financial information. Mr. Unger argued that the Plaintiff was entitled to a buyout of his ownership interests in Bilkays and The Bobby Corporation as an oppressed minority shareholder. The case settled prior to verdict.

Over the past ten years, Mr. Unger has successfully represented numerous oppressed minority shareholders. Mr. Unger writes extensively on the topic of shareholder oppression and has given lectures on this topic for the New Jersey State Bar Association, The Institute for Continuing Legal Education, the Mercer County Bar Association and the Bucks County Bar Association.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In preparing or reviewing an architectural services agreement on behalf of an owner for the design of a high performance building, it is important to negotiate and settle on a standard of care to which the architect will be subject and then make sure that the architect’s professional liability insurance covers any breach of that standard.  Indeed, in designing sustainable structures an architect may be expected to improve health and energy efficiency through architecture and materials selection and to achieve certification under a particular green building protocol, such as the U.S. Green Building Council's Leadership in Energy and Environmental Design (LEED) Green Building Rating System.  However, the architect’s professional liability insurance policy may not cover the architect’s breach of an elevated or heightened standard of care or a guarantee or warranty related to certification.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Scott I. Unger, Shareholder in Stark & Stark’s Litigation Group, was quoted in the August 25, 2010 New York Post article, FedEx: Cuomo suit 'pie in the sky. The article discusses New York Attorney General Andrew Cuomo’s recent review of the insurance policies FedEx sells to customers. FedEx claims Mr. Cuomo doesn’t have the authority to pursue the investigation because they are under the jurisdiction of the federal government, not the state of New York. However, Mr. Unger states that there are several ways in which the Attorney General could prove that he does in fact have the authority to pursue the investigation.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

While perusing the internet, I came across an interesting article published, yesterday, online by Advertising Age.  This article indicates that the Federal Trade Commission is getting ready to release the long-awaited updates to its “Green Guides” and predicts that these new guidelines “could radically reshape how far marketers can go in painting their products, packaging or even corporate images green.”  For example, according to Advertising Age, “[t]he guides are expected to tighten standards for packaging claims such as ‘recyclable’ or ‘ biodegradable’; regulate how marketers use such terms as ‘carbon neutral’; and how quickly and close to the source of carbon output ‘carbon offsets’ must be executed[.]”
 

The FTC first issued the Green Guides, also known, more formally, as the Guide for the Use of Environmental Marketing Claims, in 1992 to assist marketers of products and services having environmental attributes to avoid running afoul of the Federal Trade Commission Act.  Over the years, the FTC has amended and supplemented the Green Guides and in 2008 the FTC held a series of workshops on the ever-expanding green product markets with an eye to broadening the scope of and the detailed guidelines within the Green Guides.  The draft updates have not yet been made available to the public on the FTC’s website, but according to an FTC spokesman quoted in the Advertising Age article, “the commission is on track to meet its schedule of issuing updated guidelines by the end of the summer, and that they’re likely to cover areas that were the subject of FTC workshops[.]” 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

With college education costs soaring (approximately $50,000 per year for private college tuition, room, board and fees) and unemployment still hovering near 10%, the payment for a child’s college education is an issue for all families. The issue becomes even more difficult for divorced parties.

More often than not, divorcing parties provide for the probability that their children will incur college education expenses in the future, in their Marital Settlement Agreement. However, because that eventuality has not yet occurred, the language in the agreement is usually in general terms, such that the parties’ desire for their children to attend college, and when the time comes, they will agree to participate in the payment of said costs dependent upon their income and assets at the time. Usually, there is also language that the parties will cooperate in having their child apply for scholarships, grants and loans to help defray the costs of said education. 

In the best of all possible worlds, during their child’s senior year in high school, the parents and child will collaborate and reach an agreement as to which institution the child will attend and what percentage of the costs each parent will pay. Yet, that does not always happen between divorced parties, who many times refuse to discuss anything civilly after a divorce has occurred. 

As a result of the lack of communication, all or some of the following problems arise:

• One parent and the child choose a school without consulting the other parent;
• The other parent refuses to respond to communications from the parent and/or child requesting input;
• The child chooses a school, a contract is signed, and one of the parents has not agreed to that school;
• The child attends a college for one or more years before the paying parent requests payment from the non-paying parent.   

If a paying parent does not communicate with the other parent, or does not bring the matter to the court in a timely manner, he/she may not be able to receive the contribution contemplated. In a recent New Jersey case, a mother accepted negligible contributions from the father for the first two and a half years of their daughter’s college education (less than 7% of the total cost).  During the child’s junior year, the mother requested a greater contribution, commensurate with the father’s income – which would have been 68% of the total cost. When he did not agree, she filed a motion with the court. While the trial court ordered the father to pay for 68% of the daughter’s college education costs for all four years (less what he had already paid), the Appellate Division disagreed. That court held that the father did not have to make additional contributions toward the first two and a half years of his daughter’s education, but must pay his 68% proportionate share for the last year and a half. 
   

The Appellate Court felt that the delay in seeking contribution by the paying parent resulted in a huge accumulation of college expenses which was not anticipated by the other parent, and he did not have the funds to pay it out of his current income or assets. Once the request had been made during the daughter’s junior year to pay his proportional share, he could have then planned for those payments. 
   

The lessons to take from this case are clear: as soon as practical, the parents should communicate concerning the many issues inherent in selecting a college; a parent or child seeking contribution toward those expenses must request it before the expenses are incurred; and, if the requested parent refuses to pay his/her proportionate share, the parent seeking contribution should initiate the application to the court before the expenses are incurred.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In most eminent domain cases, the government will deposit the pre-litigation offer with the Superior Court of New Jersey shortly after the complaint is filed.  The property owner (or lien holders) is entitled to withdraw the funds without effecting his or her right to seek additional money from the government. If the property owner is successful in recovering additional money (ie., proving the property is worth more than the government’s appraised value), the government must pay interest on any additional money awarded to the property owner.

   

Recently, the Appellate Division reversed a trial court judge who held that the property owner was limited to the judgment rate of interest on the additional award of just compensation.  The property owner wanted to present evidence of a more reasonable rate of interest, (10 year treasury rate plus 290 basis points) which was much higher than the judgment rate of interest.  At stake was an additional $500,000 for the property owner.

   

The Appellate Division agreed with the property owner and held that the judgment rate of interest is not controlling in eminent domain cases.  Rather, the court held that the trial court should have held an evidentiary hearing to determine the applicable rate of interest.  The Appellate Division did not think an evidentiary hearing was not required in all cases and that under certain circumstances, the trial court can make its determination based upon certifications.  However, in this case, an evidentiary hearing was merited.

   

This case is an important decision for larger cases where there are substantial amounts of time between the filing of a complaint and the ultimate conclusion of the case.  In this particular case, the complaint was filed on March 7, 2001, funds deposited on May 3, 2001, but the award was not finally confirmed until March 28, 2008.  The property owner was entitled to just additional interest which accrued over approximately 7 years.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On June 2, 2010, the California State Senate passed a bill known as SB 1454 that makes it illegal to use the terms “biodegradable,” “degradable” or “decomposable” or any similar term in advertising plastic products.  The reasoning behind this prohibition, according to the legislative findings, is the promotion of a public policy that requires environmental marketing claims “be substantiated by competent and reliable evidence to prevent deceiving or misleading consumers about the environmental impact of plastic products.”  The only terms relating to the green attributes of a plastic product that are expressly permitted in advertising, under the proposed legislation, are “compostable” and “marine degradable;” provided, however, that at the time of sale the plastic product bearing such term shall meet the applicable American Society for Testing and Materials (ASTM) standard specification approved by the Legislature (all such approved standard specifications being set forth in the bill).
 

The California State Assembly began considering SB 1454 shortly after passage by the Senate and has amended the bill several times since then, the most recently having occurred on August 16, 2010.  The bill passed by the State Senate, as amended from the original bill introduced on February 19, 2010, and the various legislative amendments put forth by the Assembly may be viewed by logging onto the California State Legislature’s website.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Thomas B. Lewis, Chair of Stark & Stark’s Employment Group, was quoted in the August 17, 2010 article, J.P. Morgan sues former adviser. The article discusses J.P. Morgan Chase & Co’s recent decision to sue a former financial adviser who defected to Morgan Stanley Smith Barney. Since leaving, Michael Lupia has already transferred $30 million of client assets.
 

Mr. Lewis states that while Morgan Stanley is a signatory to Protocol for Broker Recruiting (which allows advisers to take basic client contact information when they change firms without fear of being sued) because JPMorgan is not, they are free to sue advisers and firms in these situations.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

If you are denied the issuance of a permit on the basis that the proposal violates the zoning ordinance, you may wish to seek an appeal of the zoning officer’s decision.  An appeal of any order, requirement, decision or refusal made by an administrative officer based on the zoning ordinance is brought by an appellant to the zoning board of adjustment. N.J.S. 40:55D-70a.  The review of the decision by the board is to determine whether there was an error under the provisions of the zoning ordinance and applicable statutes.  For example, a zoning officer may refuse to issue a zoning permit because the applicant’s proposal does not conform to a particular bulk standard required by the zoning ordinance.  The zoning board has the power to reverse the decision of the zoning officer and require the officer to issue a permit if the evidence presented to the board supports such result. Nevertheless, if the zoning officer is correct in the decision, then the board must affirm the zoning officer’s action.

When appealing the decision of an administrative officer, an applicant can make a simultaneous application seeking in the alternative variance relief if the board should affirm the officer’s determination.  If the board denies the appeal, then an appeal may be made to Superior Court.  The general rule is that all administrative remedies must be exhausted before seeking relief in Superior Court.  In the context of the decision of an administrative officer, an appellant must first seek relief from the zoning board, before filing an action in Superior Court.  21st Century v. D’Allessandro, 257 N.J.Super. 320 (App. Div. 1992). 
   

Appeals to the zoning board of adjustment from the decision of an administrative officer must be taken within 20 days by filing a notice of appeal with the officer from whom the appeal is taken specifying the grounds of such appeal.  N.J.S. 40:55D-72a.   Failure to adhere to the time for appeal will result in the zoning board not having jurisdiction to consider the appeal.  See Sitowski v. Zoning Bd. Of Adj., 238 N.J. Super. 255 (App. Div. 1990)(the Law Division set aside the board’s consideration of an untimely appeal framed as an interpretation and the Appellate Division affirmed).  All proceedings in furtherance of the matter being appealed are stayed when an appeal of an administrative officer is taken to the zoning board.  N.J.S. 40:55D-75.  However, the officer whose decision is appealed may certify to the board after the notice of appeal is filed with him that a stay would in his opinion cause imminent peril to life and property by reason of the facts stated in the certification, and in such case the proceedings are not stayed.  For example, an appeal by a neighboring property owner of the issuance of a zoning permit would stay the right to build until the zoning board rules on the zoning officer’s decision. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A recent case filed with the New Jersey Superior Court in Burlington County on July 19, 2010, captioned Auburn Road Associates v. Alberto & Associates, shows just how important it is to maintain careful attention to detail when designing or planning for a high performance building.  In this case, the plaintiff alleges in its complaint that the architectural and planning services firm it had retained to assist in the planning and development of a 38,750 square-foot shopping center “failed to include energy calculations in the relevant plans for the Woowich Center project.”  The complaint charges the defendant firm with negligence and breach of contract and seeks damages in the amount of $250,000 for delays and expenditures incurred as a result of the alleged omissions.
 

The Auburn Road Associates case may or may not have merit, but it demonstrates the potentially severe consequences that professionals may suffer if they fail to do their homework in preparing plans for improvements that are intended to meet the stringent energy efficiency goals or other “green” objectives of the project owner.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The parties involved in the YAZ® Mass Tort litigation have been ordered file a Master Consolidated Complaint (“Master Complaint”).  The Master Complaint will supplement the Complaints that have been filed in the individual cases, as well as serve as a reference for incoming plaintiffs.  The Master Complaint will allege a variety of counts for Negligence, Fraud, and other causes of action.

Stark & Stark’s Mass Tort/Pharmaceutical Litigation Team pursues claims throughout the nation against drug manufacturers, so they can be held accountable when the drugs they market are proven to be defective or cause catastrophic injury to the people who use them. If you feel you have experienced any side-effects from taking YAZ® or Yasmin® (or the generic brand, Ocella®), you can contact Stark & Stark and speak to one of the Mass Tort/Pharmaceutical Litigation attorneys, free of charge, who can help assess any claims that you might have against the YAZ®, Yasmin® or Ocella® manufacturers.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On July 15, 2010, the U.S. Department of Energy (DOE) announced that it was making available $30,000,000 in federal funds for qualified small businesses to support the commercialization of “near-term clean energy technologies,” such as innovations that utilize solar, wind, biomass or fuel cell technologies and nuclear or fossil energy through the Small Business Innovation Research program and the Small Business Technology Transfer program. Applicants may receive up to $3,000,000 over three years for research and development and distribution of these and other new technologies.

Interested small business owners may find more information about this funding program on the DOE’s website here.  The deadline for filing an application with the DOE is today, August 4, 2010, at 8 p.m. (Eastern Standard Time).

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Northgate Tenants Corporation v. Tsai, App. Div. (per curiam)

On June 22, 2010, the Appellate Division affirmed the trial court's order, finding that the trial judge properly applied the doctrine of res judicata to bar relitigation of the validity of a sublease fee imposed by a co-operative, which was determined valid and enforceable in a prior litigation.

 

The plaintiff is a nonprofit corporation responsible for the administration, maintenance and operation of a community of residential cooperative units (the “Corporation”). The defendant is a shareholder of the corporation, holding a proprietary lease to a residential unit.

 

The Corporation’s Board adopted a resolution that imposed a monthly sublease fee on all unit owners who rented their units (the “Sublease Fee”). The defendant refused to pay the Sublease Fee on the grounds that he felt it was unfair and discriminatory. The plaintiff filed a complaint against defendant for unpaid Sublease Fees, late fees and attorneys’ fees and costs incurred in the collection of the Sublease Fee.

 

Following a bench trial, the trial court found the Sublease Fee fair and properly adopted and entered judgment against the defendant. Rather than appeal the judgment, the defendant satisfied the judgment and then refused to pay any further Sublease Fees. The plaintiff filed a second complaint against the defendant for unpaid Sublease Fees, late fees and attorneys’ fees and costs incurred in the collection of the Sublease Fee. The defendant filed an Answer and Counterclaim again challenging the Sublease Fee as being unfair and discriminatory. The Court granted the plaintiff’s motion to dismiss the defendant’s pleadings on grounds of res judicata, and subsequently granted the plaintiff summary judgment for unpaid Sublease Fees, late fees and attorneys’ fees and costs.  

The defendant appealed the order granting summary judgment to the plaintiff. On June 22, 2010, the appellate panel affirmed the order, finding that the trial judge properly applied the doctrine of res judicata to bar relitigation of issues determined in the prior litigation.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As we have discussed in previous posts, studies have shown that the ingredients contained in YAZ®, Yasmin® and Ocella® have been linked to various forms of severe side-effects. Reportedly, these side-effects include: heart attack, stroke, deep vein thrombosis (also known as DVT or blood clots), internal organ damage (including gallbladder damage), myocardial infarction and pulmonary embolism. Recently, a large number of YAZ® lawsuits have been designated as Mass Tort or Multidistrict Litigation (MDL) cases.
 

The parties involved in the Mass Tort litigation have agreed upon the wording of a form called the Plaintiff Fact Sheet.  In pharmaceutical cases with Mass Tort or MDL designations, plaintiffs are required to submit a detailed Plaintiff Fact Sheet.  The Plaintiff Fact Sheet requires the plaintiff to supply medical, liability and general background information within a specified time period, usually subject to periodic updating and revision.  While much of the information requested in the Plaintiff Fact Sheet may seem cumulative or irrelevant, that information is crucial to gauging the relative strengths and weaknesses of each plaintiff’s respective claim.  In this manner, the Plaintiff Fact Sheet is instrumental in permitting both parties, as well as the Court, to choose “bellwether cases” for case specific discovery and, possibly, trial.

• Email This
• Print
• Comments
• Trackbacks
• Share Link