Douglass v. Convergent Outsourcing, ___ F.3d ___ (3d Cir. 2014).  The Fair Debt Collection Practices Act, 15 U.S.C. §1692f(8) (“FDCPA”), forbids debt collectors from putting on the envelopes of debt collection letters “any language or symbol, other than the debt collector’s address.”  In this putative class action case, defendant sent plaintiff a collection letter that contained plaintiff’s account number with defendant, and that account number showed through the clear glass window of the envelope.  Plaintiff sued for violation of the FDCPA.  Defendant moved for summary judgment, on the grounds that the account number constituted “benign language” that was permitted on the face of the envelope despite section 1692f(8).  The district court agreed and granted summary judgment.  On appeal, applying the plenary standard of review applicable to decisions on motions for summary judgment,  the Third Circuit reversed, with Judge Scirica writing the panel’s opinion. read more

Vosough v. Kierce, ___ N.J. Super. ___ (App. Div. 2014).  Plaintiffs, all “highly-regarded OB/GYN specialists,” had independent contractor agreements (“ICA’s”) with St. Joseph’s Regional Medical Center in Paterson.  Under those ICA’s, plaintiffs served as attending physicians in St. Joseph’s; OB/GYN department, handling patients who came in without their own doctors, supervising residents and other medical students, and performing other duties.  Plaintiffs were paid hourly under the ICA’s, and the ICA’s were terminable “without cause, reason or justification” by either party on 60 days’ notice. read more

Ferring Pharmaceuticals, Inc. v. Watson Pharmaceuticals,, Inc., ___ F.3d ___ (3d Cir. 2014).  Plaintiff Ferring and defendant Watson (now known as Actavis, Inc.) are competing pharmaceutcial companies.  Each company markets a prescription progesterone product.  Watson presented a webcast for medical professionals to promote Watson’s product, in the course of which statements were made about Ferring’s competing product.  Ferring sued under the Lanham Act, 15 U.S.C. §1125(a), the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 et seq., and common law, asserting that the statements made about Ferring’s product were false.  Ferring sought a preliminary injunction to prevent Watson from making any more false statements about Ferring’s product and to compel Watson to present corrective advertising.  read more

Heine v. City of Paterson, 2014 N.J. Super. Unpub. LEXIS 2094 (App. Div. Aug. 26, 2014).  This per curiam opinion, issued today by Judges Nugent amd Carroll, affirms a decision of the Law Division, essentially on the opinion below.  The Law Division held that a municipal ordinance that rezoned certain property from I-2 Heavy Industrial to MU Mixed Use was valid, and that plaintiff had not overcome the presumption of validity to which municipal ordinances are entitled.  Victor Afanador and Michael Goldman of my firm, Lite DePalma Greenberg, LLC, represented the City. read more

The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has proposed amendments to various sets of federal procedural rules.  The entire set of proposals can be viewed here.  Of particular interest to appellate practitioners are the proposed amendments to the Federal Rules of Appellate Procedure. read more

On this date in 2002, the Supreme Court decided Kemp ex rel. Wright v. State, 174 N.J. 412 (2002).  The Court split 4-3.  Justice Stein wrote the majority opinion, in which Justices Coleman, Long, and Zazzali joined.  Chief Justice Poritz issued a dissent, which was joined by Justices Verniero and LaVecchia.  Kemp has become one of the leading opinions in New Jersey jurisprudence as to the standards for admissibility of expert testimony.  read more

Walters v. YMCA, ___ N.J. Super. ___ (App. Div. 2014).  This decision by Judge Fuentes, issued today, reverses a grant of summary judgment in favor of the YMCA in what Judge Fuentes called a “garden variety slip and fall case.”  Plaintiff had slipped on a step and fallen while walking to use the YMCA’s indoor pool.  He asserted that the stair tread had been negligently maintained.  Relying on a broad “hold harmless” provision in plaintiff’s membership agreement, which stated that the YMCA “will not be responsible for any personal injuries or losses sustained by me while on YMWCA premises or as a result of a YMWCA sponsored activities [sic],” the YMCA obtained summary judgment in the Law Division.  That court believed that the Supreme Court’s opinion in Stelluti v. Casapenn Enterprises, Inc., 203 N.J. 286 (2010), controlled the case.  Stelluti, however, upheld a hold harmless on facts that involved an injury from “inherently risky,” strenuous activities at a health club.  Here, in contrast, plaintiff’s injury from the allegedly negligently maintained step “was not caused by or related to an inherently risky physical fitness activity,” but “could have occurred in any business setting.”  Judge Fuentes concluded that the hold harmless in this case was unenforceable as against public policy, since it allowed the YMCA to ”shield itself from all civil liability, based on a one-sided contractual arrangement that offers no countervailing or redeeming societal value.”  Accordingly, the panel reversed the summary judgment in favor of the YMCA. read more

Dwyer v. Cappell, ___ F.3d ___ (3d Cir. 2014).  Andrew Dwyer is a lawyer who handles plaintiffs’ employment law litigation.  Evidently, some judges have said favorable things about him in opinions that awarded him fees under the New Jersey Law Against Discrimination, which provides for fee-shifting in favor of successful plaintiffs.  Dwyer posted some of those positive comments on his law firm’s website.  One of those judges learned that his comment about Dwyer had been posted and asked that it be taken down.  The judge was concerned that his remark might be seen as a “blanket endorsement” of Dwyer by the judge.  Dwyer declined to remove the quote from the website. read more