Maia v. IEW Construction Group

In this case, the New Jersey Supreme Court was called upon to decide whether the 2019 New Jersey Wage Theft Act’s amendments to the New Jersey Wage and Hours Law and the New Jersey Wage Payment Law should apply retroactively to claims that accrued before the effective date of the Amendments.  Appearing as an amicus curiae in support of defendants, NJCJI argued that when the Legislature enacts legislation that changes the legal consequences of acts that transpired before a law’s effective date, courts must conduct a multi-step analysis to determine if such legislation should apply retroactively.  Here, the Appellate Division failed to conduct such an analysis.  NJCJI also explained that the plaintiffs misread the Court’s prior decision in W.S. v. Hildreth to suggest that there was no need to conduct this retroactivity analysis because applying new laws to newly filed cases is not retroactive application.  In a unanimous decision, the Court adopted much of NJCJI’s reasoning and held that the 2019 amendments should not be applied retroactively to the plaintiffs’ claims.

A copy of the Court’s unanimous decision can be found here. Copies of NJCJI’s amicus curiae brief can be found here.

Padilla v. Young Il An

In this case, the Court was asked to decide whether the owners of vacant commercial properties had a duty to remediate poorly maintained, public sidewalks that abut their properties.  NJCJI appeared as amicus curiae in support of the defendants.  NJCJI argued that, in accordance with the principles set forth by the Court in Stewart v. 104 Wallace Street, Inc., sidewalk liability should be limited to commercial property owners with active businesses or extant facilities on-site because they received direct benefits from public sidewalk access and could defer the cost of liability and insurance through increased prices. In in 4-3 decision, the Court adopted a brightline rule holding that all commercial property owners had a duty to maintain abutting public sidewalks.  The dissent maintained that the majority unduly abandoned the economic activity requirements of Stewart and that without those limitations, owners of vacant lots would be unfairly impacted.

NJCJI’s amicus brief can be found here.  A copy of the Court’s majority and dissenting opinions can be found here.

A link to the oral argument in this matter can be found here. NJCJI’s argument begins at 1:01:58.

Robey v. SPARC Group LLC

This matter required the Supreme Court to address whether a plaintiffs’ allegations that defendant falsely advertised clothing as being discounted when it had never been sold in those stores at a higher price was sufficient to show that plaintiffs suffered an “ascertainable loss” under the Consumer Fraud Act (“CFA”), or for the plaintiff to qualify as an “aggrieved consumer” under the Truth in Consumer Contract, Warranty, and Notice Act (“TCCWNA”). NJCJI appeared as amicus curiae in support of the defendant, arguing that so-called “illusory discounts” were insufficient to support an ascertainable loss.  NJCJI also maintained that an entirely separate New Jersey regulation sanctioned defendant’s practices.  Ultimately, the New Jersey Supreme Court held in a 4-3 decision that private plaintiffs could not sue a retailer under the CFA or TCCWNA for advertising allegedly illusory discounts.

A copy of the Court’s decision can be found here.  Copies of NJCJI and the U.S. Chamber of Commerce’s joint amicusbrief can be found here.

A link to the oral argument in this matter can be found here.  NJCJI’s argument begins at 30:10.

County of Passaic v. Horizon Healthcare Services, Inc.

In this case, the New Jersey Supreme Court was asked to determine whether an arbitration provision was unenforceable under the principles articulated in Atalese v. U.S. Legal Services Group, L.P., because did not include an explicit waiver of the right to seek relief in a court of law.  NJCJI appeared as amicus curiae and argued that longstanding principles of contract law militated against requiring an explicit waiver of the right to access courts in an arbitration agreement between sophisticated parties that were both were represented by counsel and engaged in arm’s length negotiations.   NJCJI highlighted that substantial legal uncertainty would result if the Court held that such explicit waivers were required between sophisticated contracting parties.  Before oral argument could be held in this matter, the parties entered into a settlement agreement and terminated the appeal.

A copy of NJCJI’s amicus curiae brief can be found here.

Pace v. Hamilton Cove

This case required the Court to address whether stand-alone, contractual, class action waivers, not tied to arbitration agreements, are per seunenforceable under New Jersey law.  NJCJI appeared as amicus curiae to argue that both prior New Jersey case law and the overwhelming majority of out-of-state authorities provide that stand-alone class actions waivers are enforceable.  The New Jersey Supreme Court agreed with NJCJI’s position and found that the specific stand-alone, class action waiver in this case was not unconscionable.  However, the Court cautioned that class action waivers may still be held unconscionable under certain circumstances if the usual tests are met.

A copy of the Court’s decision can be found here.  A copy of NJCJI’s amicus curiae brief can be found here.

A link to the oral argument in this matter can be found here.  NJCJI’s argument begins at 17:15.

Achey v. Cellco Partnership

In this case, the New Jersey Supreme Court was called upon to decide whether an arbitration provision contained in the defendant’s cellular service agreement was unconscionable because it contained, among other things, a bellwether provision that took effect whenever twenty-five or more customers brought similar claims.  The purpose of the bellwether provision was to curb abuses associated with so-called “mass arbitration”—a tactic in which plaintiffs’ lawyers file thousands of identical arbitrations at once to generate leverage to force large settlements.  NJCJI appeared jointly alongside the United States Chamber of Commerce to argue: (1) that the Federal Arbitration Act directly preempts state court efforts to stymie arbitration, (2) that the bellwether process was not unconscionable, and (3) that the Appellate Division erred by relying on contractual provisions outside the arbitration clause to invalidate it.  Due to a settlement agreement, the appeal terminated before the Court could render a decision in this case.

A copy of NJCJI and the Chamber’s amicus curiae brief can be found here.

DeSimone v. Springpoint Senior Living, Inc.

In this case, the plaintiffs sought to expand the scope of consumer fraud liability for businesses throughout the State by arguing that a refund provision buried in the Truth in Menus Act (“TMA”) applied to all claims under the Consumer Fraud Act (“CFA”), and not just claims arising from fraudulent restaurant menus.  NJCJI appeared as amicus curiae and successfully argued that neither the relevant case law nor the legislative history surrounding the TMA supported applying the TMA’s refund remedy beyond the narrow context to consumer fraud in restaurant menus.

A copy of the Court’s opinion can be found here.  A copy of NJCJI’s amicus curiae brief can be found here.

A link to the oral argument in this matter can be found here.  NJCJI’s argument begins at 35:39.

McGinnis v. C.R. Bard, Inc. / Hrymoc v. Ethicon, Inc.

This consolidated matter arose from injuries related to pelvic mesh medical devices.  The matter focused on the exclusion of “Section 510(k) clearance” evidence by the trial courts as well as the availability of punitive damages in certain product defect cases.  NJCJI appeared as amicus curiae in this case in support of the defendants’ position on the narrow issue of punitive damages.  The Court ultimately held that, while 510(k) evidence is generally inadmissible, it can be proffered by a medical device manufacturer to demonstrate the reasonableness of the manufacturer’s conduct in not performing clinical trials or safety studies.  However, the Court found that the New Jersey Products Liability Act, which governed the plaintiffs’ claims for damages, did not preclude punitive damages against a medical device manufacturer whose device was approved for introduction to the market through the 510(k) process.

A copy of the Court’s opinion can be found here.  A copy of NJCJI’s amicus curiae brief can be found here.

A link to the oral argument in this matter can be found here.  NJCJI’s argument begins at 2:05:00.

Dennehy v. East Windsor Board of Educ., et al. 

The issue in this case was whether a personal injury claim against a high school coach is subject to the heightened standard of care. NJCJI argued as amicus curiae that coaches should be held to a recklessness/intentionality standard of care like any other sport participant to reduce fear of liability and promote their participation. In a narrow holding, the Court concluded that an ordinary negligence standard applied to the facts of the case and declined to adopt a heightened standard for all coaches.

A copy of the Court’s decision can be found here.  A copy of NJCJI’s amicus curiae brief can be found here.

A link to the oral argument in this matter can be found here.  NJCJI’s argument begins at 33:34.

NJDOL v. East Bay Drywall LLC 

This case addressed the amount of evidence required to satisfy Prong C of the “ABC test” used to determine whether a worker should be classified as an employee or independent contractor. Appearing as amicus curiae, NJCJI successfully pushed back against the State’s invitation for the New Jersey Supreme Court to expand Prong B of that test in a manner that would make it impossible to pass.

A copy of the Court’s decision can be found here.  A copy of NJCJI’s amicus curiae brief can be found here.

A link to part one of the oral argument in this matter can be found here and part two can be found here.  NJCJI’s argument begins at 0:02 in part two of the argument.

Crystal Point Condominium Association, Inc. v. Kinsale Insurance Company 

NJCJI and the Insurance Council of New Jersey appeared in this case as friends of the court, successfully arguing in support of an insurance carrier seeking to enforce a lawful arbitration clause in an insurance contract against a third-party seeking relief under that contract. The New Jersey Supreme Court reversed an Appellate Division decision that allowed the third party to avoid arbitration, which ran afoul of state and federal law by asking more of an arbitration agreement than an ordinary contract.

A copy of the Court’s decision can be found here.  A copy of NJCJI’s amicus curiae brief can be found here.

A link to part one of the oral argument in this matter can be found here and part two can be found here.  NJCJI’s argument begins at 0:00:01 in part two.

Fowler v. Akzo Nobel Chemicals, Inc. 

NJCJI and the U.S. Chamber of Commerce appeared as friends of the court in this case regarding the duty to warn workers about risks of workplace products. NJCJI argued that the totality of a manufacturer or supplier’s efforts to communicate risk and safety information, such as flyers for an employer to hang in the workplace, should be considered. However, the New Jersey Supreme Court held that a manufacturer or supplier that places insufficient warning labels on the products themselves has breached its duty to warn workers.

A copy of the Court’s decision can be found here.  A copy of NJCJI’s amicus curiae brief can be found here.

Haviland v. Lourdes Medical Center of Burlington County, Inc. 

This case addressed application of New Jersey’s Affidavit of Merit (“AOM”) statute to malpractice claims against hospitals related to the conduct of hospital staff who are not “licensed persons” under the statute. NJCJI argued as amicus curiae that the AOM statute was applicable to the plaintiff’s claims because hospitals were enumerated as a “licensed person” under statute, and they act through their employees. However, the New Jersey Supreme Court allowed plaintiff to bring claims against the hospital for the alleged malpractice of an “unlicensed person” without obtaining an AOM since the claims against the hospital were based on vicarious liability and arose only from the actions of an “unlicensed person.”

A copy of the Court’s decision can be found here.  A copy of NJCJI’s amicus curiae brief can be found here.

A link to the oral argument in this matter can be found here.  NJCJI’s argument begins at 34:03.

New Jersey Civil Justice Institute v. Grewal

NJCJI and the United States Chamber of Commerce successfully challenged an amendment to the New Jersey Law Against Discrimination that subjected arbitration provisions in employment contracts to “uncommon barriers,” therefore violating the Federal Arbitration Act.

A copy of the Court’s decision can be found here.

Skuse v. Pfizer

NJCJI joined an alliance of trade and commerce organizations as amici curiae. They successfully persuaded the New Jersey Supreme Court that the plaintiff’s proposed test for assent for determining the validity of an arbitration clause violates the Federal Arbitration Act.

A copy of the Court’s decision can be found here.  A copy of NJCJI’s amicus curiae brief can be found here.

Spade v. Select Comfort Corp.

NJCJI’s position as amicus curiae prevailed in this case. Here, the New Jersey Supreme Court held that a consumer who received a contract that includes language prohibited under the Truth-In-Consumer Contract, Warranty and Notice Act (TCCWNA) but did not suffer any adverse consequences from the noncompliance is not an “aggrieved consumer” under the TCCWNA and therefore cannot sue under the TCCWNA.

A copy of the Court’s decision can be found here.  A copy of NJCJI’s amicus curiae brief can be found here.

In re Accutane Litigation

Years of effort culminated in NJCJI’s position prevailing in In re Accutane Litigation. In this case, the New Jersey Supreme Court embraced the standard announced in Daubert v. Merrell Dow Pharma., 509 U.S. 279 (1993), for admitting expert testimony.

A copy of the Court’s decision can be found here. A copy of NJCJI’s amicus curiae brief can be found here.

Barbarino v. Paramus Ford

In this case, the New Jersey Civil Justice Institute asked the court to give meaning to the term “aggrieved consumer” as used in New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA).

A copy of the Appellate Division’s decision can be found here. A copy of NJCJI’s amicus curiae brief can be found here.

Dugan v. TGI Friday’s, Inc.

NJCJI filed an amicus brief in the highly anticipated pair of cases, Dugan v. TGI Fridays, Inc. and Bozzi v. OSI Restaurant Partners, urging the Court to address what it means to violate a clearly established legal right, and who is an aggrieved consumer. The Court responded by placing meaningful and much-needed limits on some of the most egregious TCCWNA suits.

A copy of the Court’s decision can be found here.

A link to the oral argument in this matter can be found here.  NJCJI’s argument begins at 1:33:28.

Kaufman v. Lumber Liquidators

The New Jersey Civil Justice Institute partnered with the United States Chamber of Commerce to file a friend of the court brief in this Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA) lawsuit.

A copy of the Appellate Division’s decision can be found here.

McCarrell v. Hoffmann-La Roche Inc. and Roche Laboratories Inc.

The New Jersey Civil Justice Institute filed a friend of the court brief in a long-running case over the acne medicine Accutane. Instead of throwing out the case as time-barred like NJCJI suggested it do, the Court adopted a new test for determining what statute of limitations should apply in case brought by an out-of-state plaintiff.

A copy of the Court’s decision can be found here. A copy of NJCJI’s amicus curiae brief can be found here.

A link to the oral argument in this matter can be found here.  NJCJI’s argument begins at 1:10:54.

Morgan v. Sanford Brown Inst.

On June 14, the New Jersey Supreme Court released its highly anticipated opinion in Morgan v. Sanford Brown Inst. The case has been closely watched because it is the first time the court has taken up an arbitration-related case since it began disfavoring arbitration during the 2013-14 court term.

A copy of the Court’s decision can be found here. A copy of NJCJI’s amicus curiae brief can be found here.

Myska v. NJM

The New Jersey Civil Justice Institute filed an amicus brief in the case Myska, et al. v. New Jersey Manufacturers Insurance Company. Just a few weeks after the filing deadline, we were notified that the New Jersey Supreme Court had dismissed the case as improvidently granted. The appellate division’s opinion, upholding dismissal of class allegations prior to discovery “when a court determines alleged claims do not properly lend themselves to class certification,” will stand.

ARCHIVED MATTERS

Korrow v. Aaron’s, Inc., Civil Action No. 10-6317.

NJCJI has filed an amicus curiae brief in a case that would upset the existing class action system by allowing plaintiffs who suffered no actual injury to bring a class action suit against businesses, without allowing the business to bring counterclaims against members of the class. NJCJI’s brief was filed in support of defendant Aaron’s motion to decertify the class of plaintiffs bringing suit against it.

DeMarco v. Stoddard, et al., 223 N.J. 363 (2015).

In a 5-2 majority opinion, the New Jersey Supreme Court overturned an Appellate Division decision that had treated medical malpractice insurance like auto insurance, and reaffirmed the court’s commitment to applying the law as written.

Joel S. Lippman, M.D. v. Ethicon, Inc., 222 N.J. 362 (2015).

Can an employee performing activities as part of his or her core job functions, on that basis alone and without further conduct by the employee, seek whistleblower protection under the Conscientious Employee Protection Act (CEPA) if they are fired? The New Jersey Supreme Court said yes. This decision raises serious concerns for some employers. Framing internal, debate-based decision-making as whistleblowing that is actionable under CEPA changes the workplace dynamic.

U.S. Legal Services Group, L.P. v. Patricia Atalese, 219 N.J. 430 (2014).

The New Jersey Civil Justice Institute filed a joint amicus brief with the U.S. Chamber of Commerce asking the United States Supreme Court to overturn a recent New Jersey Supreme Court ruling that places limits on arbitration agreements. The Supreme Court denied cert on June 8, 2015.

Wadeer v. New Jersey Manufacturers Insurance Co., 220 N.J. 591 (2015).

On February 18, 2015, the New Jersey Supreme Court issued its opinion in Wadeer and a companion case involving similar issues. The court resolved both cases on limited grounds that upheld pre-existing expectations while clarifying the law prospectively, as NJCJI urged it to do in its amicus brief. The court also directed the Civil Practice Committee to take up broader policy questions for further study.

Kendall v. Roche, 209 N.J. 173 (2012).

NJCJI joined with the Health Care Institute of New Jersey to argue to the New Jersey Supreme Court that an FDA-written, FDA-approved warning should be presumed adequate, and that presumption of adequacy should be dispositive, absent evidence of fraud.

In re Pelvic Mesh/Gynecare Litigation, Docket No. ATL-L-6341-10

Forbidding physicians who had even the most minimal contact with a plaintiff from serving as an expert for the defense greatly diminishes the pool of potential experts able and willing to testify in court, particularly in mass tort cases.

Allen v. V. and A. Brothers, Inc., 204 N.J. 38 (2011).

In an amicus curiae brief to the New Jersey Supreme Court, NJCJI argued that the Appellate Division’s decision improperly eliminated long-standing protections against liability granted to corporate employees and shareholders under common-law and the state’s Business Corporations Act. Disregarding the traditional tests for determining individual liability puts the personal assets of New Jersey employees, corporate officers, and shareholders at risk, which will discourage businesses from doing business in this state.

Blessing v. Johnson & Johnson, 206 N.J. 36 (2011).

As an amici, NJCJI argued that the lower courts correctly ruled that plaintiff’s claims for compensation for injuries were untimely under New Jersey’s statute of limitations. Under New Jersey’s discovery rule, the plaintiff should have reasonably known at the time of the injury that her injuries may have been caused by the product. The brief explains that the proper application of the discovery rule encourages prompt resolution of claims, which balances the need for redress of harms with the state’s interest in fostering a thriving pharmaceutical and medical device industry.

Voss v. Tranquilino, 206 N.J. 92 (2011).

NJCJI argued in an amicus curiae brief that the plain language of the No Fault Act clearly provides that that an impaired driver may not sue for recovery of his or her injuries.

Lee v. Carter-Reed, 203 N.J. 496 (2010).

NJCJI joined with the New Jersey Business & Industry Association (NJBIA) in a brief to the appellate court arguing the lower court was right to strictly enforce the predominance requirement when determining whether to certify a class of plaintiffs for a class action suit. The predominance requirement ensures all the plaintiffs’ complaints are addressed appropriately while preserving the defendant’s right to due-process.

Bosland v. Warnock Dodge, 197 N.J. 543 (2009).

NJCJI filed an amicus curiae brief arguing that opening the court to Consumer Fraud Act cases where no private problem solving has been attempted would create a perverse incentive system whereby the courts would become a first rather than last resort for consumers.

McCarrell v. Hoffmann-La Roche Inc. and Roche Laboratories Inc., Docket No. ATL-L-1359-03

NJCJI argued that the high court should take up this case in order to clarify the law on expert testimony by setting a single standard for admissibility, and reiterate the importance of the judiciary’s gatekeeping role.

Briest v. Wyeth, Docket No. MID-L-1045-06

NJCJI filed a joint amicus brief with NJBIA and the Health Care Institute of New Jersey arguing that the lower court misapplied the balancing test the New Jersey Supreme Court developed for choice-of-law decisions by placing too much weight on the fact that the defendants’ headquarters are in New Jersey. Emphasis on headquarter location puts New Jersey businesses at a disadvantage and could encourage forum shopping, particularly in class action suits.