Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

Plaintiffs Must Cast a Wide Net for Spill Act Claims

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Posted in Environmental and Green Issues

On January 14, 2019

The New Jersey Appellate Division has applied the doctrine of judicial estoppel to uphold the dismissal of a Spill Act contribution action on the grounds that the plaintiffs failed to seek contribution from all potentially responsible parties that were known (or reasonably knowable) in an earlier action. The court ruled that the application of judicial estoppel in the case before it was consistent with the Spill Act’s objective to cast a wide net over those responsible for hazardous substances and their discharge on the land and waters of the state. “Plaintiffs are precluded from floating a lazy cast toward one discharger and then shooting a second line toward others, seeking contribution for cleanup of the same property.” The plaintiffs in Terranova v. Gen. Elec. Pension Trust (Docket No. A-5699-16T3), owners of commercial property that had long been used as a gas station, brought this action in 2015. The defendants were owners/operators of the property from 1960 through 1980, during which time soil and groundwater at the property had allegedly been contaminated by three underground storage tanks. Of consequence to the court’s decision, the plaintiffs had previously filed an action in 2010 against two separate individuals that had operated the gas station from 1981 through 2008, but the plaintiffs had failed to assert claims against the current defendants...

Third Circuit Relies on Spokeo to Shed Light on What is Needed For Article III Injury-in-Fact Standing

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Posted in General Litigation

On October 16, 2018

In Long v. SEPTA, the Third Circuit considered whether and when a violation of a statute is a standing-conferring injury-in-fact satisfying the Constitution’s “case or controversy” requirement. At issue in Long was whether the plaintiffs, who were denied employment by SEPTA when background checks disclosed disqualifying criminal histories, could sue SEPTA for failing to provide them with copies of their rights under the Fair Credit Reporting Act (FCRA) and copies of their background consumer reports before being denied employment, both of which are required by FCRA. The district court dismissed the complaint, stating that the plaintiffs did not allege a “concrete injury in fact,” because the alleged FCRA violations were “bare procedural violations.” On appeal, the Third Circuit affirmed the dismissal of the claim based on SEPTA’s failure to provide the plaintiffs notice of their FCRA rights. The Court held that, because the plaintiffs understood their rights well enough to bring the suit, they were not injured by SEPTA’s failure to give them notice of those rights and, therefore, lacked standing to pursue the claim. But the Third Circuit reversed the dismissal of the claim based on SEPTA’s failure to provide copies of the plaintiffs’ consumer reports. The Third Circuit applied the two tests “for whether an intangible injury can be . . . concrete”...

New Jersey Appellate Division Finds Individual Causation Issues Related to Ascertainable Loss Detrimental to Class Certification

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Posted in Class Action Defense

On September 21, 2018

In Polanco v. Star Career Academy, the New Jersey Appellate Division vacated a $10.7 million final verdict against Star Career Academy (“Star”), a New Jersey for-profit school. At issue in the New Jersey Consumer Fraud Act (“CFA”) class action trial below was whether Star concealed and failed to disclose necessary information to Surgical Technology (“ST”) program applicants and students. Specifically, it was alleged that the school did not have the required accreditation needed for students to gain employment upon graduation. Trial resulted in a verdict against Star in the amount of $9 million, with a $1.7 million fee award. On appeal, the appellate panel first found that students seeking an education from a school like Star have the right to know, before enrollment, whether the school has proper accreditation. This is to afford students the opportunity to attend an accredited institution instead. The panel found that because the record contained evidence that Star had made material misrepresentations to students regarding the lack of proper accreditation, Star’s pre-trial summary judgment motion had properly been denied. However, the appellate panel concluded that the trial court had improperly certified the class because the class-wide claims did not predominate over individual allegations by the class members for the following reasons: First, there was a “disparate series of alleged misrepresentations,”...

All in the Family: N.J. Appellate Division Holds That Status of Pre-1983 Purchaser as “Innocent Party” Applied to Current Owner Despite Property Transfers Among Family Members Via Trusts

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Posted in Environmental and Green Issues

On September 22, 2017

Reversing the denial of an application for an “innocent party” grant, the New Jersey Appellate Division recently held in an unpublished opinion, Cedar Knolls 2006, LLC v. New Jersey Department of Environmental Protection, that property transfers among family members, even through the use of trusts, are not “changes of ownership.” Thus, a corporation that acquired a parcel of land in 2006 was eligible to seek an “innocent party” grant that is available only to pre-1983 transferees because the property had remained within the same family since its original acquisition in 1977. The property at issue was originally acquired in 1977 by Robert Higginson, well before the December 31, 1983 cutoff for eligibility as an “innocent party” under New Jersey law. Upon his death 16 years later, he bequeathed the property to his wife through two 50% shares placed into separate trusts. His wife then assigned her shares in the property to two new trusts. The interests of those trusts in the property were subsequently transferred to their son, who created a new entity, Cedar Knolls 2006, LLC, to which he transferred the two 50% shares, making Cedar Knolls the sole owner of the property. Nine years later, Cedar Knolls applied for an innocent party grant to cover the costs of remediating the property. NJDEP denied the...

Slow Down You’re Moving Too Fast: Third Circuit Directs District Court to Resolve Motion to Compel Arbitration Before Motion to Dismiss

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Posted in General Litigation

On August 2, 2017

In a recent decision, the Third Circuit made it abundantly clear that a motion to compel arbitration must be decided before a Rule 12(b)(6) motion to dismiss. Joshua Silfee filed a lawsuit against ERG Staffing Service, his former employer, in the Middle District of Pennsylvania, claiming the company’s payroll policies violated state law because workers were required to use a fee-carrying debit card. ERG filed a motion to compel arbitration pursuant to Section 4 of the Federal Arbitration Act, asserting that the arbitration agreement between Silfee and ERG’s payroll vendor precluded the suit against ERG. ERG also filed a Rule 12(b)(6) motion to dismiss Silfee’s complaint based on the merits of his state law claims against the company. The district court decided to delay consideration of ERG’s motion to compel arbitration and denied the company’s motion to dismiss the case. ERG appealed. The Third Circuit concluded that the district judge erred in delaying the arbitrability inquiry, explaining that arbitrability is a “gateway” issue and that, after a motion to compel arbitration is filed, a court “must refrain from further action until it determines arbitrability.” The Third Circuit noted that “[t]he seeds of the District Court’s confusion may have been sown by our decision in Guidotti,” where the court explained that a motion to compel arbitration...

Don’t Ask For Too Much: Court Strikes Balance in Addressing Dispute Over Discoverability of Social Media

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Posted in E-Discovery: Legal Decisions and Court Rules

On July 11, 2017

In a recent case, Magistrate Judge Mark L. Carman of the United States District Court for the District of Wyoming reminds practitioners that requests for social media data still must be relevant and proportional to the dispute. In this auto accident case, the Court found a balance between the need for defendants to determine whether a plaintiff is lying or exaggerating and the possibility that allowing defendants too much leeway in seeking social media could dissuade injured plaintiffs from pursuing legitimate claims for fear of humiliation and embarrassment. Plaintiff alleged she sustained physical injuries, traumatic brain injury, posttraumatic stress disorder, anxiety, and depression. In an extraordinarily broad discovery request, defendant requested that plaintiff produce “an electronic copy of your Facebook account history.” Plaintiff downloaded and produced information from her Facebook accounts gathered by using several keyword search terms. However, plaintiff refused to produce her entire Facebook archive, and defendant moved to compel. The Court explained that “[s]ocial media presents some unique challenges to courts” in determining the proper scope of discovery. In particular, Judge Carman explained: “People have always shared thoughts and feelings, but typically not in such a permanent and easily retrievable format. No court would have allowed unlimited depositions of every friend, social acquaintance, co-employee or relative of a plaintiff to inquire as...

Sufferers of PTSD Gain Access to Medicinal Marijuana

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Posted in Healthcare

On October 14, 2016

On September 14, 2016, New Jersey amended its medicinal marijuana law to add post-traumatic stress disorder (‘PTSD’) as a qualifying condition, permitting PTSD sufferers to gain access to this unconventional therapy for the first time. Some background — In 2009, New Jersey became the 14th state to allow access to medicinal marijuana. Over the past seven years, 11 additional states have expanded their laws to allow access to medical marijuana. In New Jersey, the original law provided access to medical marijuana for the following conditions: Amyotrophic lateral sclerosis; Multiple sclerosis; Terminal cancer; Muscular dystrophy; Inflammatory bowel disease, including Crohn’s disease; Terminal illness, if the physician has determined a prognosis of less than 12 months of life; Seizure disorder, including epilepsy; Intractable skeletal muscular spasticity; Glaucoma; Positive status for human immunodeficiency virus; Acquired immune deficiency syndrome; and Cancer. Under the amended law signed by Governor Christie, a patient with PTSD would be eligible for medicinal marijuana if she has been unsuccessful alleviating her symptoms with conventional medical therapy. Additionally, the patient would have to obtain certification of her condition from a physician with whom she has a “bona fide physician-patient relationship.” Several other recent developments on this issue merit a brief review. In August 2016, the Department of Health (“DOH”) asked for public input on additional...

Data Breach Victims Grounded: Third Circuit Affirms Dismissal of Putative Class Action Based on Economic-Loss Doctrine and Absence of Explicit Contractual Obligations

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Posted in General Litigation

On September 21, 2016

The Third Circuit’s recent decision affirming the district court’s dismissal of a proposed class action in its entirety highlights the difficulties faced by Plaintiffs pursuing data-security class actions in situations where the claims are not based upon explicit contractual language. This is an important decision for defense counsel to keep in mind in considering options to get rid of a class action before it takes off.

Why and How – Basics of Government Affairs (Part 1 of 2)

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Posted in Regulatory Counseling and Departmental Action

On September 6, 2016

“Don’t you know someone in the Governor’s Office?” “You know the Senate President, right?” “That woman we met at that Chamber of Commerce event last month, she is the Chief of Staff to the Assembly Speaker, right?” After a lobbyist hears these words, most times the next sentence goes something like this: “We are having a problem with … and our CEO asked me to see what we can do in order to …” Then the client relates to us the sad tale of a difficult piece of legislation, or regulation, or land use development that will negatively impact the client’s core business. The CEO then asks you to fix the problem and save the day. And more times than not, the final nail in the coffin necessary to sink the client’s business interest in this bill, regulation, or development is being acted upon by the government … in a matter of days. In these types of cases, it is simply too late. Too late to begin to think about a government affairs strategy. The cake has already been baked. These scenarios happen, unfortunately, more frequently than one would think, even among sophisticated businessmen and-women across a myriad of industries. It cannot be overstated that if your company is a serious player in your industry,...

New Jersey Moves Forward with Attempts to Regulate E-Cigarettes

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Posted in Healthcare

On June 16, 2016

On May 16, the New Jersey Senate Health, Human Services and Senior Citizens Committee heard more than three hours of testimony from a variety of groups on a bill — S.298, introduced by Senator Joe Vitale — that would prohibit the sale of flavored electronic cigarettes. New Jersey banned the sale of flavored traditional cigarettes in 2008 because of concerns regarding their attractiveness to children. The sponsor believes that the same concerns apply to electronic cigarettes today, making this legislation necessary to create uniformity in the state’s public health laws, all of which are designed to keep children from starting a smoking habit. Opponents contend that this bill would reduce adults’ access to a product that has enabled many tobacco-addicted people to quit smoking. According to NCSL, 48 states and two territories currently prohibit sales of electronic cigarette products to minors. (Michigan and Pennsylvania still permit the sale of electronic cigarette products to minors.) In 2010, New Jersey was one of the first states to include electronic cigarettes among other tobacco items that would not be sold to minors when it expanded the New Jersey Smoke-Free Air Act. S.298 was released from committee by a vote of 6-2 and now awaits action by the Senate Budget and Appropriations Committee. Several other bills that would impact...

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