Gibbons Law Alert

Gibbons Law Alert

Tagged: New Jersey Law

New Jersey Appellate Division Holds Consumer Fraud Act Plaintiffs Can Recoup Attorneys’ Fees for Successfully Defending Against Counterclaims

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Posted in General Litigation

On January 9, 2017

In an issue of first impression, the New Jersey Appellate Division held in Garmeaux v. DNV Concepts, Inc. t/a The Bright Acre that a prevailing plaintiff in a Consumer Fraud Act (“CFA”) case is entitled to recover attorneys’ fees expended to defend an “inextricably intertwined” counterclaim. The to-be-published opinion also reaffirmed that New Jersey does not impose a strict proportionality requirement on attorney fee awards.

New Jersey Supreme Court Holds Denial of Right to Jury Trial Not Within Panoply of Sanctions in a Trial Court’s Arsenal

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Posted in General Litigation

On August 4, 2016

Recently, the New Jersey Supreme Court unanimously held that trial courts may not deprive civil litigants of their constitutionally protected right to a jury trial as a sanction for failure to comply with a procedural rule. In Williams v. American Auto Logistics, the pro se plaintiff’s complaint did not include a jury demand, but the defendant’s answer did. The defendant later sought to waive its jury demand, but the plaintiff withheld his consent, which was required by court rules. Notwithstanding the lack of consent, the trial judge granted the request to waive the jury as a sanction against the plaintiff for his failure to provide the pre-trial disclosures required by Rule 4:25-7. The Appellate Division affirmed the trial court’s waiving of the jury as a sanction for the plaintiff’s failure to comply with Rule 4:25-7.

New Jersey Appellate Division Agrees: EIFS is EIFS (Even If Technically It Isn’t)

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Posted in Insurance

On June 27, 2016

EIFS litigation is no stranger to New Jersey. EIFS (or “exterior insulation and finish system”) – a popular, post-World War II building system that resembles stucco while simultaneously providing watertight exterior insulation – originated in Europe and migrated to American homes in the late 1960s and early 1970s. According to The New York Times, it was utilized in the construction of “countless homes built in New Jersey,” which meant that the state was deeply affected when it became evident that, installed in a certain way, EIFS trapped water behind its siding and led to crumbling wall sheathing and rampant mold. Nationwide lawsuits ensued and, while a class action settlement was eventually reached with the largest EIFS manufacturer in 2003, New Jersey courts – at every level – returned to EIFS litigation again and again.

Attention Corporate Policyholders: Comply With All the Notice Requirements of Your Insurance Policies When Reporting a Claim or Risk Losing All Available Coverage

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Posted in Insurance

On April 25, 2016

A recent decision by the New Jersey Supreme Court serves as a strident warning to commercial insureds to make prompt notice of claims under claims-made policies. In Templo Fuente de Vida Corp. v. National Union Fire Insurance Company of Pittsburgh, P.A., the claims-made D&O policy at issue required written notice of a claim “as soon as practicable … and … during the Policy Period.” The insured was served with an underlying complaint on February 21, 2006. It retained defense counsel and filed an answer, but did not provide notice of the claim to its insurer until August 26, 2006 — a delay of six months, yet still within the policy period. The insurer denied coverage for various reasons, including that notice was not provided “as soon as practicable.”

Jersey City Restriction on Chain Stores and Restaurants Could be Unconstitutional

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Posted in General Litigation

On September 24, 2015

Jersey City, New Jersey’s second largest city, recently passed an ordinance that restricts “formula businesses” in certain neighborhoods. The ordinance defines a “formula business” as one which is “contractually obligated” to maintain certain “standardized characteristics” such as merchandise, menu items, design, signage, and trademarks. In other words, Jersey City is seeking to limit chain restaurants and stores from opening in certain city neighborhoods.

Supreme Court Declines to Hear Challenge to New Jersey’s Requirement of Express Waiver Language for Enforcement of Arbitration Provision in Consumer Contracts

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Posted in Class Action Defense / General Litigation

On July 6, 2015

The Supreme Court of the United States declined to review the New Jersey Supreme Court decision in U.S. Legal Services Group v. Atalese, holding that an arbitration provision in a consumer contract was not enforceable because the contract’s language waiving the consumer’s right to sue was not clear and unambiguous. The New Jersey Supreme Court’s decision, which affects the enforceability of arbitration provisions interpreted under New Jersey law, directs that such provisions must clearly notify the parties of their waiver of the right to bring a lawsuit.

Online News Sources Have Standing to Protect Free Speech Rights for Anonymous Users, According to New Jersey Appellate Division

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Posted in General Litigation

On June 29, 2015

Online newspapers, internet service providers, and website hosts have standing to assert the constitutional rights of their users, according to the New Jersey Appellate Division’s recent unpublished decision in Trawinski v. Doe. In Trawinski, the Appellate Division affirmed the denial of a plaintiff’s request for a subpoena requiring NJ.com to disclose the identity of an anonymous commenter. Underlying plaintiff’s request were allegedly defamatory remarks made by an anonymous poster using the screen name “EPLifer2” concerning plaintiff and her husband, a borough council member of Elmwood Park.

New Jersey Appellate Division Says Experts Cannot Serve as Conduits for Hearsay Conclusions from Non-testifying Experts

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Posted in General Litigation

On April 13, 2015

After our recent report concerning a recent New Jersey Supreme Court opinion on the use of hypothetical questions with expert witnesses, New Jersey’s Appellate Division, in a to-be-published opinion, also placed limits on appropriate questions for experts, holding that non-testifying experts’ opinions cannot be “bootstrapped” into the record by asking testifying experts if their conclusions are “consistent” with a non-testifying expert’s. James v. Ruiz, No. A-3543-13T2, 2015 N.J. Super. LEXIS 46 (App. Div. Mar. 25, 2015).

New Jersey Supreme Court Says Hypothetical Questions Can’t Save Expert Opinions that Contradict Uncontroverted Facts in Evidence

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Posted in General Litigation

On March 23, 2015

In Townsend v. Pierre, the New Jersey Supreme Court clarified that the net opinion rule bars expert testimony that contradicts uncontroverted factual evidence and further held that the use of hypothetical questions at trial cannot be used to salvage such an opinion. While the net opinion rule is usually formulated as “forbid[ding] the admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data,” Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008), the Court definitively stated that the rule also operates to bar expert testimony where the expert rejected as “mistaken” uncontroverted facts in evidence.

Bill to Expand Data Breach Notification Requirements Passes New Jersey Assembly

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Posted in E-Discovery: Legal Decisions and Court Rules / General Litigation / Privacy and Data Security

On January 28, 2015

On December 15, 2014, the New Jersey Assembly voted 75-to-0 to advance a bill that would expand the existing data breach notification requirements for companies doing business in the state. The bill, A3146, would broaden the type of information that, if compromised, would trigger a company’s obligation to notify customers of the breach. The proposal now heads to the Senate, where a similar bill, S2188, has been pending in the Commerce Committee since June.

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