The Last Few Weeks, Part 1

Due to an unusual amount of business travel (alas, only to three cold-weather locations) and a hefty appellate brief, I have not been able to keep up with the courts in recent weeks.  Here is a belated, and far from complete, summary of some of the decisions that our appellate courts have made in that time:

Ardan v. Board of Review, ___ N.J. ___ (2018).  In a relatively unusual (for the Supreme Court of New Jersey) 4-3 decision, the Court ruled that the Board of Review properly denied plaintiff’s application for unemployment benefits.  Justice Patterson wrote the majority opinion, in which Chief Justice Rabner and Justices Fernandez-Vina and Solomon joined.  Justice LaVecchia wrote the dissent, speaking also for Justices Albin and Timpone.

A.W. v. Mount Holly Tp. Bd. of Educ., ___ N.J. Super. ___ (App. Div. 2018).  With Judge Geiger writing for the panel, the Appellate Division held that the limitation on contingent attorneys’ fees that is contained in Rule 1:21-7(c)(6) applies to a minor plaintiff’s settlement of claims under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42, and the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2, where the plaintiff does not apply for a fee-shifting award of attorneys’ fees under either of those statutes.  The panel rejected the argument that an amendment to Rule 1:21-7(c)(6) “excluding statutorily based discrimination and employment claims” from its ambit allowed any percentage to which counsel and client agreed.  In all cases, a fee must be reasonable and is subject to judicial review.

Garza v. Citigroup, Inc., ___ F.3d ___ (3d Cir. 2018).  Judge Joy Flowers Conti, sitting by designation, wrote the Third Circuit’s opinion in this case.  The panel ruled that where a plaintiff voluntarily dismisses a case and then files a new case against the same defendant based on  claim asserted in the first action, an award of the “costs” of the first action, which is permitted by Federal Rule of Civil Procedure 41(d), may not include attorneys’ fees unless “the substantive statute under which the lawsuit was filed defines costs to include attorneys’ fees.”

Curran v. Curran, ___ N.J. Super. ___ (App. Div. 2018).  In an opinion by Judge Currier in a matrimonial appeal, the Appellate Division held that an unenforceable provision inserted into an agreement to arbitrate would be stricken, and that since doing so did not “affect or defeat the dominant purpose of he agreement,” the agreement would otherwise be enforceable.  Plaintiff sought to modify or vacate the arbitration award, but the panel concluded that he had not proven any of the limited grounds that the New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 to -32, offers as grounds to modify or vacate an award.

Kite v. Director, Div. of Taxation, ___ N.J. Super. ___ (App. Div. 2018).  Judge Yannotti, who was a Deputy Attorney General in the Division of Taxation prior to taking the bench, wrote this opinion in this tax case.  He held that monies that a taxpayer who was a relator in a qui tam action had received from that successful case were not exempt from income tax.  The Division of Taxation had determined that those monies were a “prize or award” under N.J.S.A. 54A:5-1(1).  The Tax Court affirmed that ruling, and so did the Appellate Division.

New Jersey Department of Env. Protection v. Exxon Mobil Corp., ___ N.J. Super. ___ (App. Div. 2018).  This was a highly-publicized, closely watched case, in which challenges were brought regarding the Department of Environmental Protection’s decision to settle, with a consent judgment, a claim against Exxon Mobil for what the challengers asserted was inadequate consideration.  Judge Messano, in a lengthy and detailed opinion for the panel, concluded that one challenger, a state senator, lacked standing to attack the consent order, but that other challengers, who were environmental groups, did have standing.  On the merits, in a decision that is apparently one of first impression, the panel applied a “mistaken exercise of discretion” standard of review, and held that the trial level judge did not err in approving the settlement.  This matter is certain to be brought to the Supreme Court, so stay tuned.

Hayes v. Turnersville Chrysler Jeep, ___ N.J. Super. ___ (App. Div. 2018).  Writing for the Appellate Division in this consumer case, Judge Fuentes held that the denial of a motion to compel arbitration is not an interlocutory decision that may be reconsidered at any time.  Instead, it is a final decision that can be reviewed only by a timely (within 20 days) motion for reconsideration or by an appeal as of right to the Appellate Division, as permitted by Rule 2:2-(a)(3).  Here, defendant moved for reconsideration over 100 days after its motion to compel arbitration was denied.  Since Rule 1:3-4(c) forbade an extension of the time for motions for reconsideration under Rule 4:49-2, the motion was improper.  The Law Division too had ruled against defendant, though on other grounds.

Tatis v. Allied Interstate, LLC, ___ F.3d ___ (3d Cir. 2018).  This was a class action under the federal Fair Debt Collection Practices Act (“FDCPA”).  The question presented was “whether a collection letter sent to collect a time-barred debt that makes a ‘settlement offer’ to accept payment ‘in settlement of’ the debt could violate the Act’s general prohibition against ‘any false, deceptive, or misleading representation or means in connection with the collection of any debt.’ 15 U.S.C.  1692e.”  In an opinion by Judge Hardiman, the Third Circuit reversed the District Court, which had granted a defense motion to dismiss plaintiff’s Complaint, and held that such a statement could violate the FDCPA.

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