Recent Blog Posts

    • The Entire Controversy Doctrine -Don't Waive Your Rights In arguably the best episode of Seinfeld ever, Frank Costanza invented a new holiday called Festivus (for the rest of us), which started with the “airing of grievances.” Similar to Mr. Costanza notifying his dinner guests “I gotta lot of problems with you people, now, you’re gonna hear about it,” New Jersey’s Entire Controversy Doctrine requires parties to plead claims in a lawsuit that are related to or arise out of the same transaction or event.   The Entire Controversy Doctrine “is intended to be applied to prevent a party from voluntarily electing to hold back a related component of the controversy in the first proceeding by precluding it from being raised in a subsequent proceeding thereafter.”  Oltremare v. ESR Custom Rugs, 330 N.J. Super. 310, 315 (App. Div. 2000).   For example, if a condominium association sues a residential developer for construction defects but fails to plead under the Consumer Fraud Act (which ....
    • Condominium Board Members Must Treat All Unit Owners Equally Under the New Jersey Condominium Act and related case law, the boards that manage condominium or homeowners associations are required to treat their members fairly and equally. Most boards conform to that standard as a matter of course – they are, after all, made up of volunteers who want to maintain their community and help their neighbors. However, board members are regular people and as such, are capable of making decisions based upon personal feelings, bias and other improper basis, which, if challenged, could cause the Association to incur significant expense. A matter with similar issues was recently litigated by Stark & Stark, which acquired a cash-settlement and a new roof on behalf of its clients, amidst evidence that the Board refused to replace the unit owner’s roof contrary to the advice of the Association’s long time roofer.   After initial inquiries regarding the timing of the replacement of their aging roof, the unit owners were advised that ....
    • Requirements for a Proper Privilege Log Martin P. Schrama, Shareholder in Stark & Stark’s Litigation Group, and Stefanie Colella-Walsh, member of Stark & Stark’s Litigation Group, authored an article for the December 12, 2011 New Jersey Law Journal Product Liability & Toxic Torts Supplement entitled, Requirements for a Proper Privilege Log: The significance of these often overlooked rules. The article discusses the importance of discovery, and more specifically the privilege log, in complex product liability and toxic tort litigation cases. The authors state that a proper privilege log is critical to avoiding wasted time and resources, as well as any potentially misinformed rulings on privilege log entries at issue. You can read the full article online here. (PDF) ....
    • Stark & Stark Shareholder Comments on FINRA's Actions Against Former Citigroup Managers Thomas B. Lewis, Chair of Stark & Stark’s Employment Group, was quoted in the December 2, 2011 Reuters.com article, Heading up a branch office seen as risky game.    The article discusses the Financial Industry Regulatory Authority’s recent disciplinary actions against Brandon Tompson and Patricia Collantes, former Citigroup managers in California, after they failed to supervise a sales assistant who stole $750,000 from client’s accounts. Mr. Lewis states that becoming a branch managers comes with great risk and by electing o become a branch manager, brokers are effectively signing up to be responsible for every action of every employee, all day long. You can read the full article online here. ....
    • Attention Mediators: Be sure to finalize your settlement agreement in writing A colleague of mine, Noah Schwartz, assisted me in writing and researching the following blog. Together, we want to alert mediators of the potential risks they could encounter according to a recently published Appellate Division case.   Mediators face yeoman’s work- bringing battling litigants together and assisting them to resolve their dispute without further resort to the judicial process is by no measure an easy task. However, mediators should always be careful to heed the lessons of a recently published Appellate Division case, Willingboro Mall, Ltd. V. 240/242 Franklin Avenue, L.L.C., __ N.J. Super. ___ (App. Div. 2011), and ensure that the mediated settlement is quickly reduced to writing or run the risk of being brought into the fray as a witness when a party seeks to enforce the terms of the unwritten settlement.   In Willingboro Mall, the parties engaged a retired judge who mediated the dispute and precipitated a resolution among the parties. That resolution ....
    • Expungement Statute Amended: New ruling allows permit of expungement after five years The Expungement statute codified by N.J.S.A. 2C:52-1, et al., previously required a mandatory ten year waiting period prior to filing an Expungement Petition for an indictable offense. Recently, however, the Expungement statute has been amended to permit an Expungement after five years has expired from the date of the conviction, payment of fine(s), satisfactory completion of probation or parole, or release from being incarcerated, whichever is later. The new statute also requires that the person has not been convicted of any crime, disorderly persons offense, or petty disorderly persons offense since the time of the conviction and the Court must find in its discretion that it is in the public’s interest, giving due consideration to the nature of the offense and the applicants character and conduct since the date of conviction that the Expungement is appropriate.   In determining whether compelling circumstances exist in order to grant an Expungement, the Court may consider ....
    • Settlement in Slimquick/Liquid Hoodia Class Action Stark & Stark is representing a group of plaintiffs in a class action arising from the sale of several weight loss products in the United States including, Liquid Hoodia, Slimquick and NV products. If you, or someone you know, has purchased these products in the United States for personal use and not for resale between January 1, 2003 and August 5, 2011, you could receive a cash payment from a class action settlement.   A hearing is scheduled for November 2011 – at that time, if the Court approves the proposed settlement, anyone who purchased the products could be entitled to a cash refund. In order to obtain your refund, you must submit a claim form by October 24, 2011. For more information and to submit a claim form, visit: www.WellNXUSASettlement.com. If you know of someone who has taken these products, we encourage you to share this information with them as well. If you would like to discuss this matter in more detail, please feel free to contact us at 609.895.7324. ....
    • Trademark Infringement in Keyword Advertising Craig S. Hilliard, Shareholder in Stark & Stark Intellectual Property Group, co-authored the article, Trademark Infringement in Keyword Advertising, for the September 26, 2011 edition of The New Jersey Law Journal. The article discusses the challenges electronic media poses for the interpretation of the Lanham Act.  It presents situations where marks are used in non-traditional ways.  In particular, the use of keyword advertising, where words are linked to advertisements in a web page, may stretch the limits of the Lanham Act.  Recently, a Second Circuit decision in Rescuecom Corp. v. Google, Inc., redefined a “use in commerce”, one of the basic criteria required to prove trademark infringement.  This article will address the changes in the Second Circuit’s position on keyword advertising, and how its position compares to other Circuits.   ....
    • Jurisdiction in Internet Defamation Cases Recently, I was the attorney who prosecuted the matter of Dana Goldhaber vs. Charles Kohlenberg. This case dealt with Internet defamation and the jurisdiction of Courts to hear a matter. This case has been widely cited by Courts across the Country and its importance continues to grow. My words of wisdom that are bestowed upon any party that participates in Internet news groups, Facebook, or other chat rooms, is that they should not post anything on the internet that they wouldn’t want their own mother to read. Moreover, they should not assume that an Internet chat room or a similar board is a “free for all” and that there are no potential repercussions for things they have posted. On the contrary, information posted on the Internet is akin to publishing the information in print. If the information posted is willfully false, or constitutes defamation per se, which is defined by statute, this party may be subject to a lawsuit by the aggrieved individual.    As ....
    • Stark & Stark Shareholder Comments on AllianceBernstein's Decision Not to Sign Protocol for Broker Recruiting Thomas B. Lewis, Chair of Stark & Stark’s Employment Group, was quoted in the September 13, 2011 FundFire article, AllianceBernstein Sues More Departed Advisors.   The article discusses the continiuing legal battle AllianceBernstein is engaged in with financial advisors who recently left their firm and took clients with them. The firm filed suit against eight former brokers, claiming that they violated their non-solicitation agreements after they left without giving sufficient notice and taking their client lists and other confidential information with them.   Mr. Lewis comments on AllianceBernstein’s choice not to partake in the Protocol for Broker recruiting. He states, “The reason they have not joined is because they are concerned that it will make it easier for people to leave AllianceBernstein. They don’t want to join the protocol right now because there’s a great concern that there might more people who would want to leave than join, ....
    • Lehman Pursues Former Brokers' Bonuses Thomas B. Lewis, Chair of Stark & Stark’s Employment Group, was quoted in the August 16, 2011 Wall Street Journal article, Lehman Pursues Former Brokers' Bonuses. The article discusses Leahman Brothers Holdings, Inc.’s decision to go after former brokers in an attempt to collect bonus money they received when they joined the firm.    Mr. Lewis states that, “lawyers for the former Lehman brokers may try to argue ‘impossibility’ as a defense against the firm's note claims.  It's impossible to do your job if it's no longer there."    You can read the full article online here.   ....
    • Under the Consumer Fraud Act, a Spiritual Loss Is Not an Ascertainable Loss A recent published case with a unique set of circumstances serves as a reminder that for a plaintiff to prevail and secure treble damages under the Consumer Fraud Act (CFA), not only must the plaintiff show that the defendant committed unlawful conduct, that plaintiff must also be able to demonstrate that he suffered an ascertainable loss.    The plaintiffs in Gupta v. Asha Enterprises, LLC, __ N.J. Super.__ (App.Div. 2011) had unquestionably been quite specific when they ordered vegetable samosas from the defendant Indian restaurant for take-out; they were being purchased for a group of individuals who were strict vegetarians. When the time came for the plaintiffs to pick up their order, they were handed a tray indicating the samosas were, in fact, vegetarian, and were reassured of the “vegetarian nature of the food.”   Notwithstanding their abundance of care, plaintiffs were served and began to consume meat-filled samosas. The Indian restaurant was ....
    • A Note to New Jersey Shopping Mall Owners and Managers about Protesters and Solicitors Protesters and solicitors have been granted wide latitude to gather, speak, and pass out leaflets about non-commercial issues at shopping malls in New Jersey.  As a shopping mall owner or manager, your right to curtail those activities at your shopping malls is far more limited in New Jersey than it would be in practically any other state.   Here is what you can restrict: You may impose restrictions against commercial solicitations, (such as prohibiting outside advertisers from placing advertising materials on cars parked in the lots). You may also impose some restrictions on the time, place and manner of non-commercial speech activities at your shopping malls. However, even if you believe that the “time, place and manner” restrictions meet the general standard of balancing the commercial interest of minimizing the disruption at the shopping malls with the constitutionally protected interest of public expression, you would still open yourself to liability by ....
    • Litigation Hold Letters - Do I Need to Comply? So you’ve received a litigation hold letter demanding that you cease from destroying any evidence. One of the first questions that comes to mind is - “Do I need to comply?” Essentially, a litigation hold letter requests that the recipient (either an individual or company) cease from destroying any documents, both physical and electronic, that may be relevant to litigation. The litigation may be currently pending or the party may be threatening future action. Compliance with the letter depends upon whether you: (1) are a party to the pending litigation; (2) are a non-party to a pending litigation; or (3) anticipate being made a party to a lawsuit.   If you are a party to a pending litigation, you must comply with the request in order to prevent the destruction of any documents that could be relevant to the pending litigation. Failure to comply with the litigation hold letter may lead to sanctions. See F.R.C.P. 37(b).   Generally, if you are not a party to a ....
    • New Jersey Supreme Court "Splits the Baby" on the Entire Controversy Doctrine In any complex litigation, there are potentially numerous claims that could be asserted against an even greater number of parties. For example, a Condominium Association could bring a construction defect claim against a developer. The developer, in turn, could have claims against the subcontractors it used, its insurance carrier, its suppliers and its consultants. Those parties could then have their own claims against any number of other parties. If left unchecked, there could be a staggering number of separate lawsuits involving the same issues and parties, all transpiring at the same time. As a result, the “Entire Controversy Doctrine” has evolved to require that all of the parties with claims regarding the same transaction or event must litigate the matter in one comprehensive lawsuit.   Rule 4:5-1(b)(2) of the New Jersey Rules of Court enforces the Entire Controversy Doctrine, by imposing a continuing obligation upon litigants to identify all parties to pending or ....
    • Conflicting Loyalties: When corporate counsel should not represent a shareholder Scott I. Unger, Shareholder in Stark & Stark’s Shareholder & Partner Dispute Group, authored the article, Conflicting Loyalties: When corporate counsel should not represent a shareholder, for the May 23, 2011 New Jersey Law Journal Complex Litigation & E-Discovery Supplement. The article discusses the ethical mine field of general outside counsel representing one shareholder over another in a minority oppression case. Mr. Unger states that, often times, the general counsel will be retained by one shareholder to represent them in the minority oppression case, and sometimes, that choice could result in serious ethical problems. According to Mr. Unger, “General outside counsel should consider referring litigation between the shareholders to another attorney because of the potential for ethical issues. The article will touch on various Rules of Professional Conduct which needs to be considered before general outside counsel takes sides in a minority oppression ....
    • Timing is Everything: The Paradox of the "Occurrence" in Coverage Litigation Very few things in life are “cut and dried” and the interpretation of words used in insurance policies is certainly no exception. Insurance policies can be difficult to read and interpret, even for the most skilled reviewer. To make matters worse, even a diligent attempt to decipher the policy’s ever alluring “definitions” section may often prove a frustrating exercise.  Yet, despite the convoluted terms and phrases, like it or not, insurance is something most of us cannot afford to ignore or live without.  The question becomes, how do we manage our affairs in reliance upon what is a “covered” claim?   Unfortunately, in many cases, the Courts have not made the daunting task of policy interpretation any easier for the lay person.  Insurance policy terms are generally interpreted by the Courts in  favor of the insured, where a fair interpretation, based upon the policy language, may be made, in accordance with the ....
    • Protect your Identity: Exercise your Right of Publicity Have you ever wondered what you’re worth?  No, not your “net worth” (i.e. the cumulative value of your assets less any debts or liabilities), but the commercial value of your name, identity, image or likeness.  Yes, you have a right of publicity: the right to control the use of your name, picture, voice, image or likeness, and to prevent another from using the same for commercial benefit without your consent.                                        New Jersey, like most states, recognizes this right of publicity.  The right of publicity “signifies the right of an individual, especially a public figure or celebrity, to control the commercial value and exploitation of his name and picture or likeness and to prevent others from unfairly appropriating this value for commercial benefit.”  Hart ....
    • The Seller's Disclosure Statement The completion of the Seller’s Disclosure Statement is a task that is often taken lightly by a Seller of residential real estate when they are preparing to sell their house.  In fact, many individuals when faced with completing this task give it little thought and complete it in a cursory fashion. What a Seller should be aware of, however, is that any misstatement of fact, whether intentional or not may subject a Seller to liability post-closing.  In the State of New Jersey a Seller of residential real estate has a duty to disclose any and all latent defects with regard to the condition of their property.  A latent condition is a condition that is not otherwise observable, or in essence, hidden.  Examples of latent conditions are radon contamination, underground oil tank leaks, or a history of water problems.  If a Seller fails to disclose the existence of a latent defect of which they have knowledge, this party may be subject legal claims post closing ....
    • Postings on Social Networking Sites are Discoverable You are more than likely one of the 500 million active users on Facebook who willingly choose to share your comments, pictures, and status updates with friends and family.  It is easy to lose sight of the gross reality that our “second self,” or our presence on the Internet, is anything but private.   The belief that one retains a privacy interest in their social networking accounts is being dispelled by a recent decision in the Pennsylvania Court of Common Pleas of Jefferson County.    In McMillen v. Hummingbird Speedway, Inc., a personal injury action, the defendant questioned in a set of interrogatories whether the plaintiff belonged to any social networking sites and to provide plaintiff’s usernames, login names, and passwords. McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010).  Upon reviewing the public portion of plaintiff’s Facebook account, the defendant discovered comments relating to ....
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