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

In arguably the best episode of Seinfeld ever, Frank Costanza invented a new holiday called Festivus (for the rest of us), which started with the “airing of grievances.” Similar to Mr. Costanza notifying his dinner guests “I gotta lot of problems with you people, now, you’re gonna hear about it,” New Jersey’s Entire Controversy Doctrine requires parties to plead claims in a lawsuit that are related to or arise out of the same transaction or event.

The Entire Controversy Doctrine “is intended to be applied to prevent a party from voluntarily electing to hold back a related component of the controversy in the first proceeding by precluding it from being raised in a subsequent proceeding thereafter.”  Oltremare v. ESR Custom Rugs, 330 N.J. Super. 310, 315 (App. Div. 2000).

For example, if a condominium association sues a residential developer for construction defects but fails to plead under the Consumer Fraud Act (which carries lucrative treble damages), the Entire Controversy Doctrine would likely prevent the association from recovering in a later lawsuit under the Consumer Fraud Act. By contrast, if the developer and the association’s president get into a car accident after a deposition about the construction defect suit, the personal injury claims from the car accident would not have to be joined in the construction defect suit because those two claims do not arise out of the same transaction or event.

It is therefore invaluable for litigants to identify all possible causes of action related to a transaction or event, preferably before commencing suit.

Stark & Stark’s Litigation Group has extensive experience navigating such complex issues, to maximize your relief and avoid legal pitfalls like the Entire Controversy Doctrine. If you have questions regarding this, or other similar complex issues, please feel free to contact me: ckvitka@stark-stark.com.

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Under the New Jersey Condominium Act and related case law, the boards that manage condominium or homeowners associations are required to treat their members fairly and equally. Most boards conform to that standard as a matter of course – they are, after all, made up of volunteers who want to maintain their community and help their neighbors. However, board members are regular people and as such, are capable of making decisions based upon personal feelings, bias and other improper basis, which, if challenged, could cause the Association to incur significant expense. A matter with similar issues was recently litigated by Stark & Stark, which acquired a cash-settlement and a new roof on behalf of its clients, amidst evidence that the Board refused to replace the unit owner’s roof contrary to the advice of the Association’s long time roofer.
 

After initial inquiries regarding the timing of the replacement of their aging roof, the unit owners were advised that roofs were replaced when they leaked. Associations generally have a duty to repair, replace and maintain the Association’s common elements in an effort to prevent damage to unit owner property, and thus a policy which requires association members to incur property damage to their home before the Board will even investigate the integrity of a Common Element may be a per se violation of the Association’s fiduciary duty to each and every unit owner. Moreover, Associations hire experts in various fields to give them advice on many issues of governance. Board members should generally rely upon the opinions of the Association’s experts, unless there are compelling reasons to ignore those opinions.
 

Sworn testimony in this matter established that after complaints of leaks, the board hired a roofer to make a minor repair only, with specific instructions not to evaluate the overall condition of the roof. More problematic for the Association, was evidence that showed when the Association’s roofer later recommended a complete replacement of the roof, the board ignored that opinion, and instead hired a different roofer who provided them with an opinion that the roof would last several more years. Although the Association was replacing newer roofs in the community, these unit owners were forced to endure ever increasing leaks. 
 

Deposition testimony obtained in the matter appeared to point to a personal animus against these unit owners, rather than an objective determination of the condition of their roof, as conducted by the Association’s experts.  After months of litigation and expense, and faced with unfavorable testimony from various sources, the Association ultimately agreed to replace the unit owners’ roof and to pay a significant cash-settlement.
 

This matter should serve as a cautionary tale to all Associations. Notwithstanding their volunteer status, board members have a fiduciary duty to each and every unit owner, which requires them to treat constituents equally and set personal feelings aside to when rendering business decisions that affect everyone in the community. Boards that operate outside of these boundaries run the risk of inviting lawsuits and potentially paying money to aggrieved unit owners.
 

Stark & Stark represents over 300 condominium and homeowners associations in New Jersey, Pennsylvania and New York, and can advise your Association of ways to ensure that your Association’s Board operates properly and legally.

Cary Kvitka is a member of Stark & Stark’s Lawrenceville, New Jersey's Litigation Group. For more information, please contact Mr. Kvitka.

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Martin P. Schrama, Shareholder in Stark & Stark’s Litigation Group, and Stefanie Colella-Walsh, member of Stark & Stark’s Litigation Group, authored an article for the December 12, 2011 New Jersey Law Journal Product Liability & Toxic Torts Supplement entitled, Requirements for a Proper Privilege Log: The significance of these often overlooked rules.

The article discusses the importance of discovery, and more specifically the privilege log, in complex product liability and toxic tort litigation cases. The authors state that a proper privilege log is critical to avoiding wasted time and resources, as well as any potentially misinformed rulings on privilege log entries at issue.

You can read the full article online here. (PDF)

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Thomas B. Lewis, Chair of Stark & Stark’s Employment Group, was quoted in the December 2, 2011 Reuters.com article, Heading up a branch office seen as risky game. 

The article discusses the Financial Industry Regulatory Authority’s recent disciplinary actions against Brandon Tompson and Patricia Collantes, former Citigroup managers in California, after they failed to supervise a sales assistant who stole $750,000 from client’s accounts. Mr. Lewis states that becoming a branch managers comes with great risk and by electing o become a branch manager, brokers are effectively signing up to be responsible for every action of every employee, all day long.

You can read the full article online here.

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A colleague of mine, Noah Schwartz, assisted me in writing and researching the following blog. Together, we want to alert mediators of the potential risks they could encounter according to a recently published Appellate Division case.
 

Mediators face yeoman’s work- bringing battling litigants together and assisting them to resolve their dispute without further resort to the judicial process is by no measure an easy task. However, mediators should always be careful to heed the lessons of a recently published Appellate Division case, Willingboro Mall, Ltd. V. 240/242 Franklin Avenue, L.L.C., __ N.J. Super. ___ (App. Div. 2011), and ensure that the mediated settlement is quickly reduced to writing or run the risk of being brought into the fray as a witness when a party seeks to enforce the terms of the unwritten settlement.
 

In Willingboro Mall, the parties engaged a retired judge who mediated the dispute and precipitated a resolution among the parties. That resolution was communicated to the General Equity judge by counsel for the defendants 3 days after the mediation and in the days that followed, defense counsel placed settlement funds into escrow.  However, plaintiff refused to consummate the settlement. The defendants filed a motion to enforce the settlement and after discovery and a plenary hearing lasting four days, the General Equity judge, relying heavily on the testimony of the mediator, ruled that the oral settlement agreement was enforceable.
 

On appeal, relying on R. 1:40-4(i), plaintiff advocated the position that the Rule mandates that a settlement be reduced to writing during the mediation. Writing for the appellate panel, Judge Cuff found plaintiff’s arguments unpersuasive and found that hewing so rigidly to the Rule becomes an “impediment to resolution of the matter through mediation.” Focusing on the reason for mediation, which “is utilized to afford the parties an opportunity to present their position before an experienced professional with the goal of resolving some or all of the differences between the parties,” Judge Cuff held that the writings prepared in the days following the mediation, stating the terms of the settlement and informing plaintiff that settlement funds had been placed in escrow, sufficed under the Rule.
 

The careful mediator ensures that the terms of the settlement reached by the parties is reduced to a writing as quickly as possible after the successful mediation. This diligence helps ensure that memories do not fade and that no party has time to develop a case of “buyer’s remorse.” Moreover, this practice helps ensure that significant sums are not expended by the parties in litigating the enforceability of an oral settlement and keeps the mediator on the sidelines where he belongs, not in the middle of the dispute as a witness.

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The Expungement statute codified by N.J.S.A. 2C:52-1, et al., previously required a mandatory ten year waiting period prior to filing an Expungement Petition for an indictable offense. Recently, however, the Expungement statute has been amended to permit an Expungement after five years has expired from the date of the conviction, payment of fine(s), satisfactory completion of probation or parole, or release from being incarcerated, whichever is later. The new statute also requires that the person has not been convicted of any crime, disorderly persons offense, or petty disorderly persons offense since the time of the conviction and the Court must find in its discretion that it is in the public’s interest, giving due consideration to the nature of the offense and the applicants character and conduct since the date of conviction that the Expungement is appropriate.

In determining whether compelling circumstances exist in order to grant an Expungement, the Court may consider the amount of fine(s) imposed, the applicant’s age at the time of the offense, the applicant’s financial situation and other relevant circumstances regarding the person’s ability to pay. This new section of the Expungement statute allows individuals who previously had to wait ten years to apply for an Expungement to now be able to file after only five years. This statute is relatively new, and thus, the Court typically holds hearings on these applications after a thorough review of the applicant’s history. Judges are inclined to grant the Expungement unless there are extenuating circumstances which show that it would not be in the public’s interest to grant the Expungement.

It is important that an applicant review their paperwork thoroughly to determine if they meet this new five year statute. This amendment is certainly good news for many people who may have made an error at some time in their life and are now dealing with the consequences of same.
 

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Stark & Stark is representing a group of plaintiffs in a class action arising from the sale of several weight loss products in the United States including, Liquid Hoodia, Slimquick and NV products. If you, or someone you know, has purchased these products in the United States for personal use and not for resale between January 1, 2003 and August 5, 2011, you could receive a cash payment from a class action settlement.
 
A hearing is scheduled for November 2011 – at that time, if the Court approves the proposed settlement, anyone who purchased the products could be entitled to a cash refund. In order to obtain your refund, you must submit a claim form by October 24, 2011.

For more information and to submit a claim form, visit: www.WellNXUSASettlement.com. If you know of someone who has taken these products, we encourage you to share this information with them as well. If you would like to discuss this matter in more detail, please feel free to contact us at 609.895.7324.

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Craig S. Hilliard, Shareholder in Stark & Stark Intellectual Property Group, co-authored the article, Trademark Infringement in Keyword Advertising, for the September 26, 2011 edition of The New Jersey Law Journal.

The article discusses the challenges electronic media poses for the interpretation of the Lanham Act.  It presents situations where marks are used in non-traditional ways.  In particular, the use of keyword advertising, where words are linked to advertisements in a web page, may stretch the limits of the Lanham Act.  Recently, a Second Circuit decision in Rescuecom Corp. v. Google, Inc., redefined a “use in commerce”, one of the basic criteria required to prove trademark infringement.  This article will address the changes in the Second Circuit’s position on keyword advertising, and how its position compares to other Circuits.
 

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Recently, I was the attorney who prosecuted the matter of Dana Goldhaber vs. Charles Kohlenberg. This case dealt with Internet defamation and the jurisdiction of Courts to hear a matter. This case has been widely cited by Courts across the Country and its importance continues to grow. My words of wisdom that are bestowed upon any party that participates in Internet news groups, Facebook, or other chat rooms, is that they should not post anything on the internet that they wouldn’t want their own mother to read. Moreover, they should not assume that an Internet chat room or a similar board is a “free for all” and that there are no potential repercussions for things they have posted. On the contrary, information posted on the Internet is akin to publishing the information in print. If the information posted is willfully false, or constitutes defamation per se, which is defined by statute, this party may be subject to a lawsuit by the aggrieved individual. 

As discussed in Goldhaber vs. Kohlenberg, the Courts have extended the long reach of jurisdiction to parties well outside of the State of the victim, as long as the original party understood that his conduct might reach inside the State of the victim and affect that individual. As such, a strong word of wisdom for those posting to Internet news groups is to assume that what they are posting was published and passed out amongst their neighbors. To assume otherwise, may only lead to an unpleasant and costly lawsuit in the future. 

If you have questions regarding Internet defamation and would like to discuss this matter in more detail, feel free to contact me in my firm's Lawrenceville, New Jersey office. 

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Thomas B. Lewis, Chair of Stark & Stark’s Employment Group, was quoted in the September 13, 2011 FundFire article, AllianceBernstein Sues More Departed Advisors.

The article discusses the continiuing legal battle AllianceBernstein is engaged in with financial advisors who recently left their firm and took clients with them. The firm filed suit against eight former brokers, claiming that they violated their non-solicitation agreements after they left without giving sufficient notice and taking their client lists and other confidential information with them.

Mr. Lewis comments on AllianceBernstein’s choice not to partake in the Protocol for Broker recruiting. He states, “The reason they have not joined is because they are concerned that it will make it easier for people to leave AllianceBernstein. They don’t want to join the protocol right now because there’s a great concern that there might more people who would want to leave than join, and in that situation, the protocol would not be a good mechanism for them to use.”

 

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