Gibbons Law Alert

Gibbons Law Alert

Tagged: New Jersey Law

Streamlined Judicial Process Signals Good News for Business Litigation

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Posted in General Litigation

On December 10, 2014

On November 13, 2014, the New Jersey Supreme Court approved implementation of the Complex Business Litigation Program for the handling of complex business, commercial, and construction cases. The Program, based on the report and recommendations of the Supreme Court Working Group on Business Litigation chaired by Bergen Vicinage Assignment Judge Peter E. Doyne, will begin on January 1, 2015 for those complex cases filed on or after that date that fulfill certain eligibility criteria.

“Safe and Effective,” Without More, Does Not Warrant Unqualified Safety and Efficacy

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Posted in Class Action Defense / General Litigation

On December 1, 2014

The Third Circuit in In re: Avandia Marketing Sales Practices & Products Liability Litigation recently refused to revive a putative class action accusing GlaxoSmithKline PLC (“GSK”) of violating an express warranty allegedly contained on the label of its diabetes drug, Avandia, which declared the drug “safe and effective.” In so doing, the Court reaffirmed the narrow scope of a breach-of-express-warranty claim under New Jersey law and the requirements necessary to sustain such a claim.

NJ Businesses Should Reassess Arbitration Waiver Provisions in Consumer Contracts

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Posted in General Litigation

On October 27, 2014

Companies that do business in New Jersey should carefully review arbitration provisions in their contracts after a unanimous decision by the New Jersey Supreme Court that marks a departure from recent federal opinions. In Atalese v. U.S. Legal Services Group, the Court held that “[t]he absence of any language” in an arbitration provision that a consumer is waiving his or her “statutory right to seek relief in a court of law renders the provision unenforceable.”

New Jersey Supreme Court Formally Adopts and Defines the Scope and Application of the Common Interest Rule

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Posted in General Litigation

On July 30, 2014

In a matter of first impression, the New Jersey Supreme Court in O’Boyle v. Borough of Longport expressly adopted the common interest rule in New Jersey as articulated in LaPorta v. Gloucester County Board of Chosen Freeholders. Although previously addressed and analyzed by lower courts within New Jersey, the Court’s ruling clarifies the boundaries of the rule and offers guidance in resolving the scope of its application.

Appellate Division Rules Arbitrator Exceeds Powers by Modifying Award to Add Unaddressed Claims

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Posted in General Litigation

On April 17, 2014

In a recent unpublished opinion, the Appellate Division ruled that, although an arbitrator may modify an award to fix technical errors, he cannot include relief for claims not addressed in the original award, even if the failure to address those claims was due to an oversight by the arbitrator. In Merion Construction Management, LLC v. Kemron Environmental Services, Inc., subcontractor Kemron commenced arbitration alleging that although Kemron had substantially performed its obligations, contractor Merion had not paid its invoices. The arbitrator agreed with Kemron and awarded $873,758.56.

What is the Status Quo? How Waste Management Changed the Game in Obtaining Injunctive Relief

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Posted in General Litigation

On March 4, 2014

On December 16, 2013, in a published decision, the New Jersey Appellate Division in Waste Management of New Jersey, Inc. v. Morris County Municipal Utilities Authority clarified the standard governing interlocutory injunctions in New Jersey state courts. The court held that a trial judge’s denial of an interlocutory injunction based solely on the determination that the plaintiffs were not likely to succeed on the merits constituted reversible error because “the judge mistakenly overlooked his authority to impose interlocutory relief to preserve the parties’ positions and subject matter of the suit[.]” Stated otherwise, Waste Management holds that one can obtain an injunction preserving the status quo even where he or she cannot show a likelihood of success on the merits.

Third Circuit Holds That Personal Injury Plaintiffs’ “Mere Continuation” Successor Liability Claims Against Purchaser of Bankrupt Debtor’s Assets Belong to Bankruptcy Estate, Not Plaintiffs

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Posted in General Litigation

On February 11, 2014

In In re Emoral, Inc., the Third Circuit, in a decision of first impression, held that personal injury claims of individuals allegedly harmed by a bankrupt debtor’s products cannot be asserted against the purchaser of the debtor’s assets since they are “generalized claims” which belong to the debtor’s estate and not to the harmed individuals.

Prolonged Litigation Can Constitute Implicit Waiver of Right to Arbitrate

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Posted in General Litigation

On September 25, 2013

The New Jersey Supreme Court has ruled that a party’s active participation in a lawsuit for 21 months, up to the eve of trial, constitutes an implicit waiver of its right to invoke an arbitration clause. The plaintiff in Cole v. Jersey City Medical Center was a certified registered nurse anesthetist providing anesthesiology services on behalf of third-party defendant Liberty Anesthesia Associates, LLC (“Liberty”) at the defendant medical center. The plaintiff’s employment with Liberty was governed by a contract containing an arbitration clause. Liberty terminated the plaintiff when the medical center detected that controlled substances had gone unaccounted for and plaintiff refused to submit to a drug test.

New Jersey Supreme Court Upholds Oral Settlement Reached During Mediation, But Requires Future Settlements to Be Written

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Posted in General Litigation

On September 12, 2013

In a recent 6-0 opinion, the New Jersey Supreme Court has held that, going forward, settlement agreements reached during court-ordered mediation must be reduced to a signed writing before mediation ends in order to be enforceable. The Court also found that a party waives New Jersey’s mediation-communication privilege, set forth in N.J.R.E. 519, by not objecting to evidence of conversations that took place during the mediation and by offering evidence of mediation communications.

New Jersey Supreme Court Limits Emerging “Intertwinement” Theory of Compelling Arbitration

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Posted in General Litigation

On September 9, 2013

The New Jersey Supreme Court, in Hirsch v. Amper Financial Services, LLC ruled that “intertwined” parties and claims alone are insufficient to compel arbitration on grounds of equitable estoppel. The plaintiffs in Hirsch purchased two securitized Med Cap notes worth $550,000 through a financial advisor representing broker-dealer Securities America, Inc. (“SAI”). They ultimately lost their investment after an SEC investigation indicated that Med Cap was a Ponzi scheme. Pursuant to an arbitration clause in their purchase applications, plaintiffs initiated FINRA arbitration proceedings against SAI and the financial advisor. In tandem with their arbitration claims, plaintiffs filed a civil action against their accountant EisnerAmper, LLP—who had recommended the financial advisor—and Amper Financial Services, LLC (“AFS”) of which the financial advisor was managing partner and 50% shareholder. EisnerAmper and AFS impleaded SAI for indemnification and contribution. In response, SAI moved to compel arbitration, despite the fact that plaintiffs had not agreed to arbitrate claims with either EisnerAmper or AFS. EisnerAmper and AFS joined in SAI’s motion to compel arbitration, which the trial court granted.

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