A handful of states, including New Jersey, have been thumbing their nose at the United States Supreme Court’s rulings on arbitration. Last month, the Court once again said this needs to stop. Will the New Jersey Courts listen? Or are they waiting to be called out by the High Court?
Archis A. Parasharami of Mayer Brown, one of the nation’s leading experts on arbitration law, answered these questions and more during the latest NJCJI Policy Teleforum.
This is an edited recording of a call that took place on May 23, 2017. If you would like to participate in future calls as they happen, and receive CLE credit for them if you are an attorney, please contact NJCJI President Marcus Rayner.
Earlier this week, the United States Supreme Court issued its ruling in a closely watched case concerning state based mass actions. The decision, which shuts down certain forms of forum shopping, might lead to more lawsuits being filed in New Jersey state courts because of our state’s plaintiff-friendly laws and the fact that many major businesses call New Jersey home. Continue reading
Last week, the New Jersey State Bar Association held its annual convention in Atlantic City. Over 2,500 judges, lawyers, law clerks, and law students headed down the shore in search of CLEs and the scoop on emerging legal issues. In the following post, NJCJI’s Emily Kelchen reveals her insights on issues of interest to the civil justice community that were discussed at the convention. Continue reading
On Thursday, May 18, the Assembly Judiciary Committee is holding a hearing on A4173. The bill, which is being sponsored by Asw. Marlene Caride (D-Ridgefield), would prohibit employers and employees from agreeing by contract to arbitrate any employment disputes, all under the guise of codifying a couple of New Jersey Supreme Court rulings.
Although the bill does not mention arbitration by name, it forbids employers from even offering contracts that include many characteristics of arbitration agreements.
While this change may skate by under the dubious arbitration doctrine adopted by the New Jersey Supreme Court, it is in direct conflict with federal law and United States Supreme Court doctrine. It would clearly be barred by yesterday’s Supreme Court decision in Kindred Nursing Centers v. Clark.
Writing for a 7-1 majority, Justice Kagan noted that rules that hinge on a “primary characteristic” of an arbitration agreement, such as a trial by jury, fail to “put arbitration agreements on an equal plane with other contracts,” and therefore violate the Federal Arbitration Act, even if those rules are not limited to arbitration but also apply to “some other contracts implicating ‘fundamental’ constitutional rights.”
We are urging the Assembly Judiciary Committee to hold the bill.
A recent article in the Star Ledger is getting quite a bit of attention for revealing something the Civil Justice Institute has known for quite some time: we all pay for excessive litigation. The article, which takes an in-depth look at lawsuits filed by public workers, found that over $100 million of taxpayer money is spent on such suits each year. Continue reading
We have seen an explosion in the number of Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA) lawsuits and demand letters over the past couple of years. While many businesses settle such suits so they can focus on the business of doing business rather than spending a bunch of money on litigation, a few intrepid companies have fought the claims brought against them. Continue reading
The New Jersey Civil Justice Institute is proud to announce that both of our attorneys will be honored at the New Jersey Law Journal’s annual awards banquet on June 20. Alida Kass is receiving a GC Impact Award, and Emily Kelchen is being recognized as a New Leader of the Bar.
2016 marks NJCJI’s 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 and Emily’s work.
NJCJI President, Marcus Rayner, has been asked to speak about the rising tide of food label lawsuits at NJBIZ’s upcoming Food BizNJ event.
Lawsuits about food and beverages gain notoriety because they are viewed by the public as a shocking or humorous anomaly. But as the number of these suits grows, the novelty wears off. People begin to view these sorts of lawsuits as legitimate, and the prediction that food is the next tobacco (aka the next big payday for trial attorneys) begins to sound less far-fetched.
What is driving the uptick in food-related lawsuits?
Between 2015 and 2016, there were 425 active food class-action suits in federal courts, while in 2008 there were only about 20. This data comes from a report by the U.S. Chamber’s Institute for Legal Reform. The report suggests that the increase in lawsuits is due to the fact that food labels, advertising, and packaging make suing easy, and every person in the world is a potential class member since we all have to eat and drink to survive.
We see a large number of food lawsuits filed in New Jersey because our state’s legal system welcomes them. Plaintiffs like our evidence rules and our expert witness rules, and our state’s consumer protection laws are some of the strongest in the nation.
Having strong consumer protection laws is a good thing. Having strong consumer protection laws that are virtually impossible to comply with, and that generously reward attorneys for bringing lawsuits under them is a recipe for disaster. Even New Jersey’s Law Revision Commission, which has been tasked with cleaning up the New Jersey Consumer Fraud Act, has noted that in its current form, the CFA is “infirm” and “one of the state’s most complicated statutes.”
These “Consumer” Lawsuits End Up Hurting Consumers
No matter how ridiculous the subject of a food-based consumer lawsuit is, defending against it is always costly. Those costs are passed along to consumers in the form of higher retail prices. So, ironically enough, excessive litigation in the name of consumer protection actually ends up hurting consumers.
Despite this, the number of food-based CFA lawsuits filed in New Jersey remains high thanks to the incentive structure set up in the Act’s remedy provisions. The law requires judges to award treble damages (triple damages in non-lawyer speak) and attorneys’ fees in all CFA cases. There are few other types of lawsuits that allow attorneys to reap such bountiful rewards.
It Is Time For Common Sense Reform
Unfortunately, the nature of the food industry – highly regulated and dependent on advertising – makes it an easy target. That’s why the New Jersey Civil Justice Institute is asking for some common sense reform to New Jersey’s Consumer Fraud Act and other state laws and court rules that make our state a magnet for food lawsuits.
New Jersey saw a 17.62% increase in total medical liability payouts last year. This statistic alone is shocking, but it is even more eye-popping when you consider overall payouts nationwide and in the Northeast region decreased in 2016. Continue reading