A selection of the need-to-know civil justice news for the week of March 11-17.
A selection of the need-to-know civil justice news for the week of March 11-17.
Red Bull does not actually give you wings. Some of Subway’s famous footlongs do not measure exactly twelve inches. Chobani Greek yogurt is made in the United States, not Greece. None of these statements are shocking, but each of them has recently been the subject of well-publicized lawsuits filed on behalf of consumers. Continue reading
Due to the impending snow storm, our annual Winter Policy Forum has been rescheduled for Thursday, March 30, from Noon-1:30 PM, at the Trenton Country Club. Asm. Jack Ciattarelli (R-Somerville), one of the top Republican candidates for governor, will be our featured speaker.
If you had already registered to attend, but can longer make it, please email us.
A selection of the need-to-know civil justice news for the week of February 18-24.
S.P. Sullivan | NJ Advance Media for NJ.com
In 2016, New Jersey taxpayers were on the hook for $87.7 million in lawsuits paid out by the state Attorney General’s Office, according to data obtained by NJ Advance Media through a public records request.
Matt Arco | NJ Advance Media for NJ.com
It’s common for Lt. Gov. Kim Guadagno to receive letters of resignation from judges as part of her job as New Jersey’s secretary of state. But only one was ever signed: “Your loving husband.”
Michelle M. Bufano & Rachel B. Sherman of Patterson Belknap Webb & Tyler | New Jersey Law Journal
The New Jersey Supreme Court has changed the rules of the game with respect to statute of limitations and choice of law for tort actions. Again.
Tommy Tobin | Minnesota Journal of Law, Science & Technology
Is food medicine? The answer to this simple question is surprisingly complicated. The name of the Food and Drug Administration (FDA) seems to distinguish between foods and drugs. So too does the Federal Food, Drug, and Cosmetics Act, which helpfully defines “food” as “(1) articles used for food or drink for man or other animals, (2) chewing gum, and (3) articles used for components of any such article.”
While it is not difficult to swallow the concept of chewing gum being food, the broad legal definition of “food” is somewhat circular and does not provide much guidance by itself. Indeed, the definition of “drug” under the same law notes that drugs are, in relevant part, “articles (other than food) intended to affect the structure or any function of the body of man or other animals.”
Ben DiPietro | Wall Street Journal
The number of class-action securities fraud lawsuits filed against life sciences companies in 2016 was 70% higher than the number brought in 2014, and there are no reasons to expect a slowdown in litigation in 2017, according to a report. “Although the majority of cases decided this last year were decided in the defendant company’s favor, life sciences companies remain attractive targets for class-action securities fraud claims,” the report from law firm Dechert LLP stated.
Beth S. Rose & Charles J. Falletta of Sills Cummis & Gross | The National Law Review
On January 24, 2017, the New Jersey Supreme Court reinstated a $25 million verdict in favor of an Alabama plaintiff in the Accutane litigation, a Multi-County Litigation, that has been pending in the Superior Court of New Jersey, Atlantic County, since 2005. See McCarrell v. Hoffman-La Roche, Inc., 2017 N.J. LEXIS 19 (N.J. Jan. 24, 2017). In a unanimous ruling, the Court reversed the Appellate Division’s application of long standing New Jersey precedent and determined that Plaintiff’s lawsuit, time barred under Alabama law, was not time barred under New Jersey’s statute of limitations. The issue before the Court was which state’s statute of limitations applied under New Jersey’s choice-of-law jurisprudence. In reaching a decision that reinstated the verdict and applied New Jersey’s discovery rule, the Court adopted a new test under Restatement (Second) of Conflict of Laws (“Restatement”), § 142, and determined that when New Jersey has a substantial interest in litigation brought in its courts, New Jersey’s statute of limitations should ordinarily apply absent exceptional circumstances.
A selection of the need-to-know civil justice news for the week of February 25-March 3.
Samantha Marcus | NJ Advance Media for NJ.com
$35.6 billion, total revenues
$35.5 billion, total proposed spending
$493 million, reserves
$9.2 billion, school aid
$2.5 billion, public pensions
$125 million, health care cuts
$25 million, charity care
John Council | Texas Lawyer
When East Texas plaintiff lawyer Jim Parsons learned that a trucking company was willing to pay $1.6 million to end his client’s tort case, he got the defendants to agree to something else that’s exceedingly rare in modern civil litigation: a sincere personal apology. Apologies are unusual in tort cases for a variety reasons, chief among them that defendants are loath to offer anything more than broad condolences to a plaintiff that has sued them for fear of admitting liability. But in the right set of circumstances, an apology is all it takes for a defendant to end a civil dispute amicably.
Michelle Yeary | Drug & Device Law Blog
We’ve talked a fair amount about forum shopping on this blog. Forum shopping is largely in the control of plaintiffs’ counsel because they, within reason, get to choose where to file their clients’ lawsuits… But what about when plaintiff’s choice of forum doesn’t turn out like he/she hoped? Should they get a do-over? A mulligan? A second chance? We don’t think so and neither did the court in Zarilli v. Johnson & Johnson…
Matthew P. Horvitz and Timothy H. Watkins | Retail Law Advisor Blog
The proliferation of accessibility lawsuits under Title III of the Americans with Disabilities Act (ADA) has not abated. It is well-documented that ADA-related litigation increased by 37% from 2015 to 2016, which is symptomatic of long-term trends. Growth is fueled in part by litigants’ increased focus on internet-based technologies, including websites and mobile applications. This trend is unlikely to wane in the near future, especially given the continued expansion in e-commerce and internet-enabled applications that retailers, hospitality providers, and other commercial enterprises rely on for advertising, customer engagement, and sales growth.
Eric Strauss | NJBIZ
Thomas Scrivo, Gov. Chris Christie’s chief counsel, will be the new chairman of the New Jersey Economic Development Authority, Christie announced Thursday. Scrivo is also stepping down as the governor’s chief counsel to return to private practice.
Hugh Son | Bloomberg
At JPMorgan Chase & Co., a learning machine is parsing financial deals that once kept legal teams busy for thousands of hours. The program, called COIN, for Contract Intelligence, does the mind-numbing job of interpreting commercial-loan agreements that, until the project went online in June, consumed 360,000 hours of work each year by lawyers and loan officers. The software reviews documents in seconds, is less error-prone and never asks for vacation.
A selection of the need-to-know civil justice news for the week of March 4-10.
Sen. Kevin OToole | Insider NJ
“The Governor shall nominate and appoint, with the advice and consent of the Senate, the Chief Justice and Associate Justices of the Supreme Court, the Judges of the Superior Court, and the judges of the inferior courts with jurisdiction extending to more than one municipality; except that upon the abolition of the juvenile and domestic relations courts or family court and county district courts as provided by law, the judges of those former courts shall become the Judges of the Superior Court without nomination by the governor or confirmation by the Senate.”
That’s Article 6 section 6 of the New Jersey Constitution and it outlines the power to appoint judges to the executive branch with co-equal commitment by the legislature to advise and consent.
Now let’s talk about what really happens…
Brett Johnson | NJBIZ
A legislative bout that began eight years ago to shorten New Jersey’s statute of limitations for malpractice claims filed against professionals is starting another round.
Brett Johnson | NJBIZ
What sounds like a quibble in the legal world actually makes a huge difference for businesses. At least that’s the argument from the New Jersey Civil Justice Institute in its push to put a cap on appeal bonds. These bonds are verdict awards posted by a defendant upon proceedings concluding in favor of plaintiffs, prior to a defendant fighting for a judgment reversal.
Carl Straumsheim | Insider Higher Ed
The University of California, Berkeley, will cut off public access to tens of thousands of video lectures and podcasts in response to a U.S. Justice Department order that it make the educational content accessible to people with disabilities.
Certain New Jersey businesses have a hard time appealing verdicts against them because it is simply too expensive to do so. The cost comes not just from the expense of hiring attorneys, but from having to post a bond for the full amount of an adverse verdict before being allowed to appeal. In this day and age, eye-popping jury verdicts are not uncommon, but financial regulations and the nature of certain businesses makes it challenging to get funding for appeal bonds.
This issue was highlighted in a recent article in the business newspaper NJBIZ. The article points out that professional services firms, technology companies, and other businesses that lack hard assets they can use for appeal bond collateral are being priced out of the market for justice.
New Jersey is one of a handful of states that has taken action to make appeal bonds fairer, but only for the tobacco industry.
“We think the cap that industry enjoys should be extended to all businesses,” Rayner said. “Companies should be able to appeal up to the Supreme Court and their bank account shouldn’t be a limiting factor.”
An example Rayner believes demonstrates its potential impact is a 2007 case involving BDO International, an accounting firm that has a United States arm with an office in Woodbridge. The firm was held liable for $522 million in a Florida court ruling that was later overturned at the state’s Supreme Court level.
The firm, which had around 2,700 employees, was able to appeal with a bond capped at $50 million instead of the full $522 million due to legislation that had been enacted in Florida only the previous year.
Ralph Thomas, CEO and executive director at New Jersey Society of CPAs, said firms in similar situations in New Jersey would likely have been closing the doors instead of getting their day in court.
An article in the latest edition of the business newspaper NJBIZ highlights a disagreement between lawyers that has delayed an important change to our civil justice system for nearly a decade. As the article explains, plaintiffs’ attorneys have protested attempts by the New Jersey State Bar Association and other non-legal professional associations to standardize the statute of limitations in professional malpractice cases.
The State Bar and other professional organizations want to make the statute of limitations for all sorts of professional malpractice cases two years. Right now the length of time one has to sue a professional varies by industry.
Plaintiffs’ attorneys argue that shortening the statute of limitations will prevent people from seeking justice, but at the same time they also claim, somewhat incongruously, that changing the law will result in more frivolous suits being filed.
NJCJI President Marcus Rayner rebuts this argument by pointing out that proposed reforms would keep New Jersey’s generous “discovery rule” in place, which ensures injured parties have enough time to fully vet and bring cases:
The discovery rule makes it so that, if a person was not aware that he or she had a cause for a malpractice claim, the statute of limitations is not imposed until the person could have reasonably discovered it. As the bill is written, the rule still applies with the shorter statute of limitations.
“Two years is ample, considering that,” Rayner said.
Rayner also pointed out that lawyers in New Jersey are much more likely than those in other states to file a claim with a malpractice insurer. He believes the longer statute of limitations contributes to New Jersey’s excessive malpractice litigation.
The article goes on to explain the impact our state’s current law has had on malpractice insurance rates, which are much costlier here than in our neighboring states:
New York and Pennsylvania have three-year and two-year statutes of limitations, respectively, for claims based in tort. Both states apply the discovery rule as well.
When measured in terms of malpractice insurance, the impact of this is that New Jersey’s rates are anywhere from 46 to 69 percent above those in New York, depending on the size of the firm, according to the bar association. Compared with Pennsylvania, New Jersey’s insurance rates range from 17 to 40 percent higher.
In short, supporters make the case that getting this legislation enacted after an almost decade-long fight for it would make malpractice insurance more affordable for small professional service firms with already-limited resources.
NJCJI will continue to work with the State Bar Association and other professional organizations to advocate for reasonable statute of limitations. People who have worked hard to earn a professional degree should not be priced out of the market because a certain class of attorneys wants to protect their bottom line.
The New Jersey Civil Justice Institute is thrilled to announce that our chief counsel, Alida Kass, is a finalist for NJBIZ’s General Counsel of the Year Award. The General Counsel of the Year Award honors the state’s most dynamic General Counsels and Chief Legal Officers.
It is hard to imagine what NJCJI would be without Alida. 2016 marks our 10th year of advocating for a civil justice system that treats all parties fairly and discourages lawsuit abuse, and we are doing so more effectively than ever thanks in a large part to Alida’s work.
As NJCJI’s voice in the State House, Alida has become known as an outspoken advocate for fairness and equal justice for all, which she is determined should include the business community. She has developed a reputation for being the go-to expert on what legal impact pending legislation will have on the business community. NJCJI has also expanded its work in the courts under Alida’s influence.
Alida will be recognized as a finalist during an awards breakfast and ceremony on May 19, which will be held at The Palace at Somerset Park. The award winners will be announced at the ceremony.
Balancing the state budget and funding all of the programs the state thinks are important is not an easy task. Revenue growth is steady, but slow, and we are already one of the highest taxed states in the nation, so there is little room to maneuver.
In order to attract business investment and spur economic growth, the government must look at innovative policies that improve the economy without depleting needed revenue. One promising solution is legal reform. Improving our state’s legal climate could improve our economy as well.
75% of attorneys at U.S. companies say a state’s lawsuit environment is likely to impact important business decisions at their company, including where to locate or expand.
States with predictable legal systems that discourage lawsuit abuse allow businesses to more accurately project what future legal expenses will be, allowing them to free up capital for business expansion and job creation.
Right now, the same attorneys that said a state’s lawsuit environment is likely to impact important business decisions ranked New Jersey’s legal climate as 38th in the nation. That is a drop of six spots from 2012, when the survey was last conducted.
We must work on improving our state’s legal climate and repairing our reputation.
When businesses fear lawsuits, they are overly cautious about launching new ventures and bringing innovative products to market.
New Jersey currently ranks 7th on the Kauffman Foundation’s Startup Activity Index, which is designed to measure new business creation activity and people engaging in business startup activity. Improving the state’s litigation climate would reassure entrepreneurs, inventors, and investors that New Jersey is open for business.
Contrary to popular belief, most companies being sued are not “deep pockets.” Lawsuits are frequently filed against small businesses. In fact, 43% of small business owners report having either been threatened with or involved in a civil lawsuit.
According to the U.S. government’s Small Business Administration, “The impact of litigation on businesses goes well beyond the purely financial impact of legal fees and damages. Most small business owners are invested personally in their businesses; litigation causes not just financial loss, but also substantial emotional hardship, and often changes the tone of the business.”
Legal reform is a win-win when it comes to the state budget.
In the short run, legal reform can provide an economic stimulus without loss of tax receipts or an increase in spending. In the long run, states with improved litigation climates see more economic activity, leading to increased revenue collections.