Gibbons Law Alert

Gibbons Law Alert

Tagged: New Jersey Law

Fee Awards Under New Jersey Consumer Fraud Act Permitted Despite Failure to Show Ascertainable Loss at Trial

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Posted in General Litigation

On November 8, 2011

Defense attorneys, beware: your client’s technical violation of the New Jersey Consumer Fraud Act may result in its having to pay the plaintiff’s lofty legal bill despite the plaintiff’s failure to demonstrate any injury. The New Jersey Appellate Division recently held that plaintiffs who show a technical violation of the NJCFA but fall short of demonstrating an ascertainable loss at trial may still be entitled to counsel fees.

New Jersey Trial Court Can Sua Sponte Reconsider and Vacate Interlocutory Summary Judgment

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Posted in General Litigation

On October 18, 2011

Everyone makes mistakes — even judges. And a recent ruling by the New Jersey Supreme Court in Lombardi v. Masso declared it well within a trial court’s discretion to correct its own error. Specifically, the Supreme Court held that a trial court can sua sponte revisit and vacate an interlocutory order (including one granting summary judgment) provided that specific procedures are followed. In so holding, the court rejected the argument that the law-of-the-case doctrine barred such reconsideration.

Beware of Mutual Demand for Attorneys’ Fees in Arbitration Proceedings in Jurisdictions (Such as New York) Which Permit Award in the Absence of Statute or Agreement if Both Parties Demand Fees

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Posted in General Litigation

On October 14, 2011

It is well-known that, generally, an arbitrator may award attorneys’ fees where the award is authorized by statute or where the parties have agreed that the prevailing party is entitled to fees. Nonetheless, parties in an arbitration often include a demand for attorneys’ fees as a matter of course even where neither circumstance exists. Depending upon the jurisdiction, this practice may have a negative impact.

No Right of Access Under OPRA to Unfiled Discovery in NJDEP Litigation But Right of Access May Exist Under Common Law

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Posted in General Litigation

On September 27, 2011

Last month, in Drinker Biddle & Reath, L.L.P. v. New Jersey Department of Law and Public Safety, Division of Law, the Appellate Division held that un-filed discovery in an environmental lawsuit brought by the New Jersey Department of Environmental Protection was not subject to access pursuant to New Jersey’s Open Public Records Act (“OPRA”). But the Court also found that access to such information could be compelled under the common law, depending on whether the plaintiff’s need for disclosure outweighed the State’s need for confidentiality, and remanded the matter to the trial court to conduct the appropriate balancing test.

Limited Partners May Be Liable for Partnership’s Obligations Under Traditional Veil-Piercing Standards

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Posted in General Litigation

On September 19, 2011

In Canter v. Lakewood of Voorhees, the Appellate Division held that limited partners may be liable for their partnership’s obligations under traditional common-law veil-piercing standards, as well as under the circumstances set forth in the limited partnership statute. In a negligence suit against a nursing home and one of its limited partners, the limited partner sought to avoid liability by arguing that limited partners may be liable to third parties for the partnership’s obligations only under the narrow circumstances set forth in the New Jersey Uniform Limited Partnership Law, specifically N.J.S.A 42:2A-27(a) .

AT&T Mobility Permits Nullification of Arbitration Agreements Containing Class-Action Waivers When Agreements are so Ambiguous and Internally Inconsistent that Mutual Assent is Lacking

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Posted in Class Action Defense

On September 19, 2011

In AT&T Mobility LLC v. Concepcion, the United States Supreme Court held that the Federal Arbitration Act preempted state laws providing that arbitration agreements containing class-action waivers are unconscionable and therefore unenforceable. But the Supreme Court also stated that “generally applicable contract defenses” continue to apply to arbitration agreements, so long as such defenses do not conflict with the FAA or frustrate its purposes.

No Class Certification When Class Members Can Obtain Adequate Statutory Damages in Small Claims Court

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Posted in Class Action Defense

On September 19, 2011

In Local Baking Prods., Inc. v. Kosher Bagel Munch, Inc., the New Jersey Appellate Division held that private causes of action under the Telephone Consumer Protection Act (TCPA), which prohibits the sending of unsolicited faxes, cannot be prosecuted as class actions under Rule 4:32. The court reasoned that a class action is not a “superior” method for adjudicating such claims, as required by Rule 4:32-1(b)(3), because the TCPA entitles victims to at least $500 in statutory damages which can be recovered in the Small Claims section of the Special Civil Part in a matter of months.

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