Breaking the Silence

February 26 was the most recent post on this blog. From then until today, I have had an Appellate Division oral argument, an oral argument on a dispositive motion in the Law Division, and an oral argument in the Supreme Court of New Jersey. Meanwhile, the appellate courts have not been silent. Here is a summary of some of the decisions that have been issued during that window:

State v. Shaw, 241 N.J. 223 (2020). This was the Supreme Court’s only decision during this time period. It addressed whether there should be a limit on the number of times that a prosecutor can submit a case to a grand jury after one grand jury declined to indict the defendant. In a unanimous opinion by Chief Justice Rabner, the Court held that if two grand juries refuse to indict, a prosecutor must get advance approval from the Assignment Judge before the case can be presented to a third grand jury.

K.D. v. A.S., 462 N.J. Super. 619 (App. Div. 2020). This opinion by Judge Enright addressed the question “whether a child’s biological mother, who entered an identified surrender of her parental rights to her biological mother, the child’s maternal grandmother, has standing as the child’s legal sibling, per N.J.S.A. 9:2-7.1, to seek visitation rights against a non-relative adoptive mother.” The Appellate Division concluded that allowing standing to such a party would contravene Moriarty v. Bradt, 177 N.J. 84 (2003), and Major v. Maguire, 224 N.J. 1 (2016). The opinion also contains an interesting discussion about when it is proper for a court to grant amicus curiae status.

Baskin v. P.C. Richard & Son, LLC, 462 N.J. Super. 594 (App. Div. 2020). [Disclosure: I am one of the counsel for plaintiffs in this matter. I did not argue the appeal.] This was a putative class action under the Fair and Accurate Credit Transactions Act, 15 U.S.C. 1681. The appeal arose after the Law Division granted defendants’ motion to dismiss for failure to state a claim, a ruling that also declared that no class was proper in the case. In an opinion by Judge Firko, the Appellate Division held, based on the pleadings alone, that plaintiffs could not satisfy the numerosity, predominance, or superiority requirements for class certification. The ruling on superiority expanded and applied Local Baking Products, Inc. v. Kosher Bagel Munch, Inc., 421 N.J. Super. 268 (App. Div. 2011), which had found a lack of superiority in a case under the Telephone Consumer Protection Act, 47 U.S.C. 227. The court also upheld the dismissal of the claims of two New York plaintiffs, but reversed the dismissal of the individual claims of the New Jersey plaintiff in the case.

Razak v. Uber Technologies, Inc., 951 F.3d 137 (3d Cir. 2020). The question whether “gig economy” workers are employees or independent contractors has received much attention in the courts. This opinion by Judge Greenaway addressed that issue in a putative class action as to UberBLACK drivers. The District Court granted summary judgment to the defense, concluding that the drivers could not, as a matter of law, be considered employees. The Third Circuit reversed, applying de novo review. The court held that there were genuine issues of material fact as to the employee/independent contractor question. Judge Greenaway’s opinion centered on the six factors of Donovan v. DialAmerica Marketing, Inc., 757 F.2d 1376 (3d Cir. 1985).

United States ex rel. Druding v. Care Alternatives, 952 F.3d 89 (3d Cir. 2020). This False Claims Act opinion was also authored by Judge Greenaway. Reversing a summary judgment for the defense, the Third Circuit rejected the idea that an “objective falsehood” is required for False Claims Act liability. Because plaintiffs offered expert testimony that created genuine issues of material fact as to whether certain clinical judgments were “false” under a test that did not incorporate a requirement of “objective falsehood,” summary judgment was improper. The court differed with precedent from the Eleventh Circuit on this issue.