In a recent published opinion, State v. Perini Corporation, et al., the New Jersey Appellate Division addressed the ten-year Statute of Repose, N.J.S.A. 2A:14-1.1, which bars claims for damages for any “...deficiency in the design, planning, surveying, supervision or construction of an improvement to real property … arising out of the defective and unsafe condition of an improvement to real property ... more than 10 years after the furnishing of such services and construction.” The Statue of Repose has essentially acted as a roadblock to recovery for Plaintiffs seeking damages for faulty work that did not become evident until years after the construction took place.  This issue often arises in common interest communities (i.e. town homes or condominiums) where construction defects often do not reveal themselves until many years after construction is completed.  The Statue of Repose can render developers and their contractors immune from suit, leaving the unit owners and/or Association with no recourse.
                                               

The Perini opinion offers a glimmer of hope to individuals and/or entities who otherwise may have thought all was lost due to the harsh realities of the State of Repose.  In Perini, the State asserted claims against four contractors who built a state prison in multiple phases.  The suit was filed more than ten-years after most of the prison facilities were completed and more than ten-years after prisoners were housed in the facility.
 

The Court held that the State was permitted to pursue claims against three of the four contractors because their work was not “substantially completed” until actual certificates of substantial completion were issued for the phase of the project on which they were still involved.  The State’s case was filed more than ten-years after most of the prison facilities were put to use, but not more than ten-years after the issuance of the certificates of substantial completion for the final phase of the project still under construction, which included the hot water system that was connected to all phases of the project.
 

The defective condition involved the hot water system, which the Court found was not a separate “improvement” but rather a component of the overall “improvement” being constructed.  Regardless of the fact that the hot water system had been put to use in two of the phases of the project, it was connected to and ran throughout all phases.  Since it was not delineated as being part of any one phase in particular, the Court found that the use of the system in the other phases and the occupancy of a majority of the buildings was irrelevant.
 

This case is significant because it allows for claims to be pursued against contractors whose work is not yet substantially completed on a multi-phase project, despite the fact that the project itself is mostly completed.   Further, in the context of a common interest community, the case implies that the fact that owners may be residing in units during multi-phase construction has little bearing on whether “substantial completion” of a component of the project has occurred. Although the Court did not completely overhaul the Statute of Repose through this opinion, the refinement of this issue provides ammunition for attorneys representing common interest associations, seeking the broadest recovery sources.

In general, a party has a duty to preserve evidence when there is:

1. pending or probable litigation;
2. knowledge by the party of the existence or likelihood of litigation;
3. foreseeability of harm to the other party, or in other words, discarding the evidence would be prejudicial; and
4. the evidence is relevant to the litigation. Aetna, supra, 309 N.J. Super. at 366-67

The party who destroys such evidence, commonly referred to as the “spoliator,” can be held liable regardless of whether he or she intentionally or merely negligently destroyed the evidence. Various civil remedies are available to rectify the spoliation. One such remedy is that the Court infers that the evidence the spoliator destroyed would have been unfavorable to him or her, as if it were a fact established at trial. A second remedy is a discovery sanction in which the Court designates that certain facts be taken as established, or refuses to permit the spoliator to support or oppose designated claims or defenses. Finally, Courts may prohibit the introduction of designated matters into evidence, dismiss an action, enter judgment by default, or may order the delinquent party to pay reasonable expenses resulting from his or her conduct, including attorney's fees.
 

In addition to the above remedies, the New Jersey Supreme Court held that if spoliation of evidence is discovered during the course of litigation, the offended party can receive an adverse inference jury charge in its case in chief and still assert a completely separate cause of action for fraudulent concealment of evidence. Tartaglia v. UBS PaineWebber, Inc., et al., 197 N.J. 81 (2008)
 

Even if the prospect of litigation is questionable, best practices therefore require parties, and especially those regularly conducting business, to preserve all evidence such as letters, emails, pictures, video recordings and audio recordings that might be relevant to a dispute. But go ahead and delete that Glee episode from your DVR.

Cary Kvitka is a member of Stark & Stark's Lawrenceville, New Jersey Litigation Group. For questions, or additional information, please contact Mr. Kvitka: ckvitka@stark-stark.com.

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.

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.

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.

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.

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.
 

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. 

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.”

 

Mr. Lewis states that, “lawyers for the former Lehman brokers may try to argue ‘impossibility’ as a defense against the firm's note claims.  It's impossible to do your job if it's no longer there." 

You can read the full article online here.

 

The plaintiffs in Gupta v. Asha Enterprises, LLC, __ N.J. Super.__ (App.Div. 2011) had unquestionably been quite specific when they ordered vegetable samosas from the defendant Indian restaurant for take-out; they were being purchased for a group of individuals who were strict vegetarians. When the time came for the plaintiffs to pick up their order, they were handed a tray indicating the samosas were, in fact, vegetarian, and were reassured of the “vegetarian nature of the food.”

Notwithstanding their abundance of care, plaintiffs were served and began to consume meat-filled samosas. The Indian restaurant was insistent that the samosas were vegetarian, however the plaintiffs returned to verify the samosas’ content. Once there, an employee of the Indian restaurant confirmed that is was he who was mistaken; the samosas contained meat. The Indian restaurant then prepared an order of vegetable samosas for the plaintiffs and delivered it to them without additional payment.

The plaintiffs brought their complaint alleging that consumption of the meat contained in the samosas caused them spiritual injuries resulting in damages. The motion judge subsequently granted the defendants’ motion to dismiss.

On appeal, plaintiffs argued that the motion judge erred in her dismissal of their CFA claim. The appellate panel agreed, noting that the CFA specifically forbids “act[s] constituting misrepresentation of food.” However, the panel declined to recognize the plaintiffs’ spiritual loss and need to travel to India to undergo a purification ritual as an ascertainable loss cognizable under the CFA, which requires evidence of loss of “moneys or property.” Because the Indian restaurant provided the plaintiffs with an order of vegetable samosas, the plaintiffs were demonstrably made whole, and the panel explicitly declined to recognize a spiritual loss in the absence of any supporting precedent.

Here is what you can restrict:

• You may impose restrictions against commercial solicitations, (such as prohibiting outside advertisers from placing advertising materials on cars parked in the lots).
• You may also impose some restrictions on the time, place and manner of non-commercial speech activities at your shopping malls.

However, even if you believe that the “time, place and manner” restrictions meet the general standard of balancing the commercial interest of minimizing the disruption at the shopping malls with the constitutionally protected interest of public expression, you would still open yourself to liability by enforcing those restrictions by yourself or through the use of a private security force.  Further, the local police departments would probably not help you to enforce those restrictions because they are agents of the government, and are therefore only permitted to curtail free-speech activities under extremely limited circumstances.

Therefore, there is little that you can do as a shopping mall owner or manager in New Jersey to prohibit non-commercial speech at your shopping malls.  You could only curtail non-commercial speech activities and/or expect the police to take significant action if a public gathering at your shopping mall becomes unruly, blocks pedestrian or automobile traffic, involves harassing behavior, involves the use of megaphones or disrupts the ability to reasonably conduct business.  If any of that happens, you can call the police and file a complaint.  However, most police departments would only disperse such protests if they become unruly, and they would most likely not take any action simply because the protesters failed to obtain a permit.

If you are a party to a pending litigation, you must comply with the request in order to prevent the destruction of any documents that could be relevant to the pending litigation. Failure to comply with the litigation hold letter may lead to sanctions. See F.R.C.P. 37(b).

Generally, if you are not a party to a pending litigation, then there is no duty to preserve the evidence. Conversely, one would have a duty to preserve the evidence if they anticipated being made a party to a lawsuit. In re NTL Sec. Litig., 244 F.R.D. 179, 194 (S.D.N.Y. 2007). A party or anticipated party must retain all relevant documents in existence at the time the duty to preserve attaches, and any relevant documents created thereafter. Id. at 194. The obligation to preserve evidence arises when the party has “noticed that the evidence is relevant to litigation – most commonly when suit has already been filed” or when a party should have known that the evidence may be relevant to future litigation. Orbit One Commc’n, Inc. v. Numerex Corp., 271 F.R.D. 429, 436 (S.D.N.Y. 2010). Thus, if a party anticipates litigation, then the duty to preserve evidence relevant to the litigation attaches. Accordingly, once litigation is filed, a party in the action who destroyed evidence prior to the issuance of a discovery order may still be sanctioned by the court. See F.R.C.P. 37(b). 

In order to determine whether you should comply with a litigation hold letter, it is advised that you consult with an attorney to formulate the necessary response.

Rule 4:5-1(b)(2) of the New Jersey Rules of Court enforces the Entire Controversy Doctrine, by imposing a continuing obligation upon litigants to identify all parties to pending or contemplated legal actions, which are related to the matter in controversy. If a party fails to comply with that requirement in a first lawsuit, and then files a second lawsuit against a different party, the Court may dismiss that second lawsuit if “the failure of compliance was inexcusable and the right of the undisclosed party to defend the successive action has been substantially prejudiced by not having been identified in the prior action.”
 

The New Jersey Supreme Court recently addressed this issue under the Consumer Fraud Act. In Kent Motor Cars, Inc. d/b/a Honda of Princeton v. Reynolds and Reynolds, Co. (A-102/103-09), the Defendant, a printer (“Reynolds”), sold pre-printed "Buyer's Order" forms to the Plaintiff automotive dealerships (collectively, the “Dealerships”). The Dealerships were named defendants in a class action lawsuit that alleged, among other things, violations of the Consumer Fraud Act (“CFA”). Even though the Dealerships knew that the class action lawsuit involved the Buyer’s Order forms that they purchased from Reynolds, they did not comply with Rule 4:5-1(b)(2) by identifying their potential claim against Reynolds. 
 

After settling the class action lawsuit, the Dealerships filed a complaint against Reynolds under the CFA because its Buyer's Order forms violated regulations. Notably, violations of the CFA can result in treble (3X) damages.
 

The Supreme Court held that the Dealerships’ failure to comply with Rule 4:5-1(b)(2) in the class action lawsuit was inexcusable. It also held that allowing the matter to proceed against Reynolds under the CFA would result in “substantial prejudice” to Reynolds because:

If Reynolds had been joined in [the class action lawsuit], its liability would have been limited to a portion of damages, trebled under the CFA, and a portion of counsel fees associated with the claim against Reynolds for a regulatory violation. By ignoring [Rule 4:5-1(b)(2)] and filing a successive CFA claim, the Dealerships seek from Reynolds all of their damages and counsel fees incurred in Wilson, and they seek trebling of both under the CFA. The Court cannot endorse a plan to permit trebling of damages already trebled.” [Emphasis added]
 

Therefore, the Supreme Court prohibited the Dealerships from pursuing the CFA claim against Reynolds. However, the Court permitted the Dealerships to pursue their claim for a contribution from Reynolds toward the damages they incurred in the class action lawsuit because in that scenario:

The Dealerships must prove what parts of the [class action] settlement and attorneys' fees are attributable to Reynolds' [Buyer’s Order] form. Thus, although the violation of Rule 4:5-1(b)(2) was inexcusable and it would have been more efficient to address the contribution claim in [the class action lawsuit], to the extent that its form violated regulations, dismissal of the entire complaint would unjustly allow Reynolds to avoid any responsibility.

The Court’s decision clearly seeks to balance the injustice of allowing the Dealerships to recoup three-times their damages against Reynolds under the circumstances; while also seeking to hold Reynolds liable to the extent that their Buyer’s Order forms were deficient. Even though the Court essentially “split the baby,” this case should serve as a reminder to any party involved in complex litigation (including commercial litigation, condominium transition litigation, construction litigation, etc.) that it has a continuing obligation to identify related parties.  The more ominous message from the New Jersey Supreme Court is that by failing to join those related parties, litigants run the risk of permanently waiving their rights to pursue the damages that they could otherwise recover.

Unfortunately, in many cases, the Courts have not made the daunting task of policy interpretation any easier for the lay person.  Insurance policy terms are generally interpreted by the Courts in  favor of the insured, where a fair interpretation, based upon the policy language, may be made, in accordance with the reasonable expectations of a policy-holder.  However, as is evidenced by two recent Appellate Division decisions, it isn’t always that easy. Despite the tendency of most Courts to favor policy-holder friendly interpretations, legal principals often dictate a different result which may have significant effects for both the insured and any third parties seeking indemnification from an insured. 
 

The New Jersey Appellate Division recently reaffirmed the finding that an “occurrence” does  not actually take place when a wrongful act is committed, but, rather, when the complaining party is damaged.  Often times these may not be one and the same.  On the surface, this tends to defy logic, since many insureds may assume that an “occurrence” takes place (or “occurs”) when the offending party does something wrong, thereby causing harm.  However, in legal terms, the resulting damage is the basis for a recovery, and, hence, that is what ultimately matters.  This principal is evident in instances where a party is not actually damaged until he or she learns of the wrongful act and/or its effects.  Unfortunately, since this may be weeks, months or even years later, there can be substantial insurance coverage implications as a result.
 

The importance of damages was the focus of two rather morbid cases recently reviewed by the Appellate Division involving schemes to pilfer tissue and bone from corpses. In both Adams-Stiefel Funeral Home v. Zurich American Insurance Company, No. A-0829-09 (March 10, 2011) and  Memorial Properties LLC v. Zurich American Insurance Co. No. A-0109-09 (March 10, 2011) the aggrieved family members were not alerted to the wrongdoing until years after it took place. Suits were ultimately filed, seeking damages for mental anguish and intentional and negligent infliction of emotional distress, among other things. 
 

Both funeral homes had different insurance policies in effect when the wrongdoing occurred, as compared with when the family members ultimately found out about the wrongdoing.  In the end, the Court held that the insurance policies that were in effect when the wrongdoing occurred were not implicated, even though there likely would have been coverage available under those policies, because the damage or harm (mental anguish/emotional distress, etc.) did not occur until the family members became aware of what had happened. 

The Court also determined that the policies that were in effect when the family members were notified, although implicated, were not obligated to respond to cover the claims or offer defenses to the insured because of relevant policy exclusions. Ultimately, the accused parties were found to have had no insurance coverage to pay the claims and the victims thereby lost a viable source of recovery. 
 

It is impossible for the eventual victims of wrongdoing to anticipate every possible action of those with whom they conduct business.  Requiring proof of insurance coverage from parties with whom you do business and consulting an attorney to review contracts and explain your rights is prudent advice and may save you time and frustration down the road.  Additionally, insureds should make every effort to understand the terms of the insurance policies they purchase and should be mindful of coverage exclusions which could leave them footing the bill in the event of a loss or lawsuit. It is always good practice to have a professional review your policies and explain your rights.  

New Jersey, like most states, recognizes this right of publicity.  The right of publicity “signifies the right of an individual, especially a public figure or celebrity, to control the commercial value and exploitation of his name and picture or likeness and to prevent others from unfairly appropriating this value for commercial benefit.”  Hart v. Electronic Arts, Inc., 2010 WL 3786112 *5, (D.N.J. Sept. 22, 2010; citing McFarland v. Miller, 14 F.3d 912, 918 (3d Cir. 1994); Prima v. Darden Rest., 78 F.Supp.2d 337, 348 (D.N.J. 2000); also citing Jarvis v. A&M Records, 827 F.Supp. 282, 297 (D.N.J. 1993) (“[t]he right of publicity generally applies to situations where the plaintiff’s name, reputation or accomplishments are highly publicized and the defendant used that fact to his or her advantage”).  Fundamentally, the right of publicity acknowledges the validity and legality of a person’s interest in his/her name or likeness in the nature of a property right.  Restatement (Second) of Torts, § 652C comment a.  The courts have further articulated this right, recognizing that “a celebrity has the right to capitalize on his persona, and the unauthorized use of that persona for commercial gain violates fundamental notions of fairness and deprives the celebrity of some economic value in his persona.”  Hart, supra, at *5 (citing Prima, 78 F.Supp.2d at 349).  The violation of an individual’s right of publicity and unauthorized use of his/her likeness - especially celebrities whose status often generates wealth - harms the individual by diluting the value of his/her name and depriving that individual from just compensation.  Id.   
 

The prima facie case for infringement of the right to publicity is, in essence, a two-fold requirement: validity and infringement.  Validity relates to whether the individual has an enforceable “property” right in his likeness.  Hart, 2010 WL 3786112 at *6.  Infringement speaks to whether the defendant, without permission, used the likeness in such a way that plaintiff is identifiable and in a manner likely to cause damage to the commercial value of the individual.  Id.

Over time, this right of publicity has evolved (some states have adopted statutes protecting rights of publicity) and the number of publicity rights disputes has increased.  Athletes, in particular, are moving the chains.  Ed O’Bannon, who starred on UCLA’s 1995 NCAA basketball title team, filed a class-action lawsuit against the National Collegiate Athletic Association (“NCAA”) and Collegiate Licensing Company (“CLC”) for the use of his and other players’ images and likenesses in video content, photos and other memorabilia.  Sam Keller, a former quarterback at Arizona State and Nebraska, filed suit against Electronic Arts, Inc. (“EA Sports”) for replicating his likeness in its NCAA Football video games.  NFL great Jim Brown sued EA Sports over the use of his likeness in the popular Madden NFL video games, and most recently, NBA legend Oscar Robertson has filed suit against the NCAA, CLC and EA Sports arguing that the defendants have attempted to control his likeness into perpetuity.

Ryan Hart is advancing the ball in New Jersey.  On June 15, 2009, Hart filed a putative class action lawsuit, on behalf of himself and all others similarly situated, against EA Sports alleging, among other things, that EA Sports invaded his right of privacy by misappropriating his likeness for commercial purposes and violating his right of publicity.  In his complaint, he claims EA, without his consent, used his likeness in its NCAA Football video game series for the years in which Hart was quarterback of the Rutgers University football team, and again in 2009, in which Hart claims a photograph of him appears in a montage of actual college football players.
 

According to Hart, the similarities between he and the “virtual” Rutgers quarterback in the video game are palpable, the commonality of the attributes unmistakable.  For example, the virtual quarterback in the video game shares the same height and weight as Hart.  Aside from those immutable traits, the virtual quarterback dons jersey number 13, wears a left wrist band and has a helmet visor, just as Hart did when he ran the Rutgers offense.  Hart points out that the virtual quarterback, like Hart, hails from Florida.  Hart also has alleged that EA, in the promotion of its video game, used actual video footage of him throwing a pass in Rutgers’ 2005 Insight Bowl game against Arizona State.
 

The NCAA, CLC and EA Sports have raised several defenses to these claims.  After all, the doctrine has discernible standards.  For example, in Hart’s case, EA Sports has argued that Hart’s likeness was not used for a commercial purpose.  The use of a person’s likeness for non-commercial purposes, such as the dissemination of news or information, generally is not actionable.  See Castro v. NYT Television, 370 N.J. Super. 282 (App. Div. 2004) (disallowing emergency room patients filmed for a reality TV show to recover for misappropriation of their likeness).  Not every use of one’s image by a commercial publication is considered a commercial use.
 

EA Sports also has sought safe harbor under the First Amendment, arguing that the medium in which the alleged misappropriations have occurred - the video games - are creative, expressive works entitled to First Amendment protection.  According to the court in Hart’s case, the applicability of this defense depends on whether the video game is considered commercial speech or an artistic work.  Hart, supra, *10 (citing Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1018 (3d Cir. 2008).  In these cases, the defendants also have pointed to the existence of various federal laws under which the claim may be preempted.
 

The plaintiffs, however, maintain that the misappropriation of their likeness is tantamount to stealing; they otherwise would be entitled to market and promote themselves and reap the financial benefits.       
 

Many of these cases (including Hart’s) are pending, and it remains unclear how these disputes will resolve.  Still, what is clear is that a right of publicity exists, and it gives an individual, especially a public figure or celebrity, the right to control the exploitation of his likeness and to prevent others from infringing upon that right for commercial benefit.