Sessner v. Merck Sharp & Dohme Corp., ___ N.J. Super. ___ (App. Div. 2014).  “Dilatoriness in … promptly notifying the court that [settlement] has occurred reflects not only a lack of consideration but a lack of concern for the wasted time and expense thereby incurred.”  Citizens State Bank v. Schneider, 198 N.J. Super. 518, 519 (App. Div. 1984).  Today’s opinion by Judge Koblitz, in a Fosamax mass tort case that went to a jury verdict and generated an appellate record of over 4,700 pages of trial transcript and more than 600 pages of appendices, is what she called an “emphatic reminder” of that principle. read more

In W.J.A. v. D.A., 210 N.J. 229 (2012), discussed here, the Supreme Court issued an important decision about presumed damages in defamation cases.  Now, the Supreme Cout has granted review of the Appellate Division’s decision in Nuwave Investment Corp. v. Hyman Beck & Co., 432 N.J. Super. 539 (App. Div. 2013).  There, among other rulings, the Appellate Division relied on W.J.A. to vacate a damage award in its entirety, including a component of over $1 million in presumed damages for defamation.  The questions presented to the Supreme Court, as phrased by the Supreme Court Clerk’s Office, are “Following the Court’s decision in W.J.A. v. D.A., 210 N.J. 229 (2012), may presumed damages be awarded in a defamation action where actual damages are proven, and, if so, may presumed damages be awareded in more than a nominal amount?  Does the holding of W.J.A. v. D.A. apply retroactively?” read more

Cherilus v. Federal Express, ___ N.J. Super. ___ (App. Div. 2014).  Plaintiff Joseph Cherilus was injured while working on a Federal Express loading dock.  A “cargo lift” was the cause of his injury.  He and his wife sued Linc Facilities Services (“LFS”), which was responsible for maintaining the cargo lift.  LFS then filed a third-party complaint against Columbus McKinnon Corporation, also known as American Lifts, which manufactured the cargo lift. read more

In re Grant of Charters to Merit Preparatory Charter School and Newark Preparatory Charter School, ___ N.J. Super. ___ (App. Div. 2014).  Charter schools are the subject of much controversy.  In this case, the Commissioner of Education issued charters to two schools, Merit Preparatory Charter School of Newark and Newark Preparatory Charter School, each of which used a “teaching methodology that combines in-person, face-to-face teaching and online instruction by means of internet materials.”  The New Jersey Education Association (“NJEA”), unhappy with ”the diversion of public funds and resources from traditional public schools,” appealed the grant of the charters.  NJEA asserted that the Charter School Program Act, N.J.S.A. 18A:36A-1 to -18 (“the Act”), authorized charters only for “brick and mortar” schools, not for schools that provide online instruction.  In an opinion by Judge Ashrafi, the Appellate Division rejected NJEA’s appeal and affirmed the grant of the charters.  [Disclosure:  My firm, Lite DePalma Greenberg, LLC, was co-counsel for Newark Preparatory Charter School]. read more

New Jersey Div. of Child Protection & Permanency v. L.W., ___ N.J. Super. ___ (App. Div. 2014).  Impoverishment does not equal child neglect.  That is the conclusion of this opinion by Judge Koblitz.  The Appellate Division reversed a finding by plaintiff Division of Child Protection and Permanency (“the Division”) that defendant L.W. was guilty of child neglect.  That decision resulted from L.W.’s action in bringing her two small children to the Division for placement in foster care when L.W. “had explored all her options and could not find housing.”  A caseworker testified that the children “seemed healthy, safe and happy …. [and] were clean, well-fed and well-clothed” when L.W. brought them to the Division. read more

Thompson v. Real Estate Mortgage Network, ___ F.3d ___ (3d Cir. 2014).  This opinion, issued today by Judge Vanaskie, is an important one in that it clarifies the pleading standards in the context of a motion to dismiss a complaint under Rule 12(b)(6).  The panel reversed the dismissal of this Fair Labor Standards Act (“FLSA”) and New Jersey Wage and Hour Law complaint, a putative class action, finding it sufficiently pleaded.  Plaintiffs will find this case to be helpful to them in defending motions to dismiss. read more

Hersh v. County of Morris, ___ N.J. ___ (2014).  It is traditional for a new Justice’s first opinion to be a unanimous, relatively uncontroversial one.  Yesterday, Justice Fernandez-Vina issued his first opinion for the Court in this workers’ compensation case.  The decision reversed a ruling of the Appellate Division that had awarded compensation to an employee of Morris County who was hit by a car while crossing a public street on her way to work from a parking garage where she had parking for which her employer paid.  A judge of compensation had likewise awarded benefits. read more

Some dubious legislation, like a bad penny, keeps coming back on the scene.  For a number of years, a bill that would allow appeals as of right of orders granting or denying certification or decertification of a class action has been introduced in the Legislature.  As explained here, that legislation is unconstitutional, as violative of Winberry v. Salisbury, 5 N.J. 240 (1950), which commits the management of cases in our court system to the judicial branch, and is bad policy to boot.  Nonetheless, on March 27, Senator Peter Barnes (D-18th Dist.) introduced this same misguided bill, designated this time as Senate Bill 1911.  A companion bill is Assembly Bill 2756, introduced (as before) by Assemblyman John Wisniewski (D-19th Dist.). read more