Busy Days at the Third Circuit

Though the Supreme Court of New Jersey and the Appellate Division are only just beginning to ramp up in the new Term, the Third Circuit has been pumping out published opinions in bulk, as it did late in August. Here are summaries of some of the five published opinions that the Third Circuit issued today:

Bank of Hope v. Chon, 938 F.3d 389 (3d Cir. 2019). This opinion by Judge Bibas resulted from a suit by plaintiff against a number of defendants. One of those defendants began sending letters to plaintiff’s shareholders, asserting that plaintiff’s claims were groundless and were ruining his reputation. At plaintiff’s request, the District Court banned that defendant from contacting plaintiff’s shareholders. On appeal, however, the Third Circuit reversed, finding that there was no evidence that this ban on the defendant’s speech was necessary to preserve the fairness and integrity of proceedings in this case, and the District Court had not considered less restrictive means. Accordingly, the ruling below violated the defendant’s First Amendment rights and could not stand.

Fed Cetera, LLC v. National Credit Services, Inc., 938 F.3d 466 (3d Cir. 2019). Defendant plaintiff’s assignor entered into an agreement providing, effectively, for payment of finder’s fees for any contract that defendant “consummated” during the term of the contract as a result of plaintiff’s introduction of defendant to the other contracting party. Defendant signed a contract with the federal government during the term of the agreement with plaintiff. But defendant did not begin to perform under the contract until after the finder’s fee agreement had expired. Plaintiff sued for the fee, but the District Court granted judgment on the pleadings, ruling that without some performance by defendant, the agreement with the government had not been “consummated.” In an opinion by Judge Fuentes that applied plenary review, the Third Circuit reversed. The agreement was “consummated” when it was formed, not when performance began.

Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System, 938 F.3d 424 (3d Cir. 2019). This appeal produced a 2-1 split in the Third Circuit. Judge Hardiman wrote the majority opinion, in which Judge Porter joined. Judge Cowen dissented. Plaintiff sought to places in defendant’s public buses advertisements containing the word “Atheists,” along with plaintiff’s name and website. But defendant had a policy that excluded religious and atheistic messages from advertising on the buses. Accordingly, defendant rejected plaintiff’s ads. After a bench trial, the District Court ruled for defendant. But on appeal, the majority held that defendant’s policy violated the First Amendment.