Gibbons Law Alert

Gibbons Law Alert

Category: Appellate

Express Waiver of Rights in Arbitration Provisions Called Into Question by Recent New Jersey Appellate Decision

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Posted in Appellate

On February 21, 2023

In an opinion issued on February 8, 2023, the New Jersey Appellate Division carved out an exception to the New Jersey Supreme Court’s requirement in Atalese v. U.S. Legal Services Group, L.P. that arbitration provisions must contain clear and unambiguous waiver-of-rights language, holding that Atalese does not apply to sophisticated commercial parties with relatively equal bargaining power. An agreement that the County of Passaic entered into with Horizon Healthcare Services, Inc. contained a dispute resolution provision simply stating that “the parties shall submit the dispute to binding arbitration under the commercial rules of the American Arbitration Association.” After the trial court granted Horizon’s motion to compel arbitration based on this provision, the county appealed, arguing that the arbitration clause was unenforceable because it lacked an express waiver of access to the courts, as required by Atalese. The Appellate Division affirmed, relying on section 2 of the Federal Arbitration Act, which provides that a written arbitration provision “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” That provision, the Appellate Division reasoned, requires courts to apply standard contract principles, including “notions of unconscionability,” in order to determine whether mutual assent to the arbitration clause exists, thus rendering the arbitration clause enforceable. Importantly, whether such assent...

NJ Supreme Court to Decide Whether Counsel Fees Are to Be Awarded to a Prevailing Requestor of Government Records Under the Common Law

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Posted in Appellate / General Litigation

On September 26, 2022

New Jersey provides a statutory and common law right of access to government records. While New Jersey’s Open Public Records Act (OPRA), the statutory right of access, expressly mandates an award of counsel fees to a prevailing requestor, there has been some confusion among New Jersey courts, based upon the New Jersey Supreme Court’s decision in Mason v. City of Hoboken, as to whether there is a corresponding right to an award of counsel fees to a prevailing common law requestor. The New Jersey Supreme Court has recently granted certification on this issue and will now have the opportunity to unequivocally clarify the right of a prevailing common law requestor to recover the attorney’s fees incurred in challenging a wrongful denial of access. The case before the Supreme Court involves a request by the Asbury Park Press for access to the internal affairs file of a Township of Neptune police sergeant who chased down his ex-wife’s car and executed her with his service revolver in the summer of 2015. That internal affairs file contained more than 25 reports for a host of incidents, including domestic violence and assaultive behavior on the job. There was, understandably, strong public outcry over the horrific event, and the Asbury Park Press sought information about the sergeant’s internal affairs history...

No Property Damage, No Claim for Business Interruption: New Jersey Appellate Division Affirms Dismissal of Six COVID-19 Business Loss Claims

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Posted in Appellate

On July 13, 2022

In a recent decision, the New Jersey Appellate Division held that six businesses were not entitled to insurance coverage for losses sustained when they were forced to close or limit their operations as a result of Executive Orders (“EOs”) issued by Governor Phil Murphy to halt the spread of COVID-19. This ruling follows the general trend nationally in which courts have rejected claims by insureds for business interruption losses incurred due to government orders related to the spread of COVID-19. The decision arose from the consolidated appeals of six businesses that reported losses as a result of the EOs and sued their insurance companies, alleging they improperly refused to cover the plaintiffs’ insurance claims for business losses sustained due to the issuance of the EOs. All six suits were dismissed with prejudice at the trial level pursuant to Rule 4:6-2(e) for failure to state a claim, because the plaintiffs’ business losses were not related to any “direct physical loss of or damage to” covered properties as required by the terms of their insurance policies. The Appellate Division affirmed all six dismissals and further concluded that the losses were not covered under “their insurance policies’ civil authority clauses, which provided coverage for losses sustained from governmental actions forcing closure or limiting business operations under certain circumstances.”...

Instruction on Nominal Damages Was Anything but Instructive as Jury Returns $800,000 “Nominal” Damage Award

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Posted in Appellate / General Litigation

On March 9, 2022

In its recent opinion in Graphnet, Inc. v. Retarus, Inc., the New Jersey Supreme Court revisited the role of nominal damages in the defamation context. This time, the issue arose after trial in connection with a jury instruction that advised the jury, in part, that it may award nominal damages to compensate a plaintiff for injury to reputation caused by a defendant’s defamation. In 2014 defendant Retarus published a brochure that contained allegedly defamatory statements about one of its competitors, plaintiff Graphnet. The jury found that Retarus did defame Graphnet but that Graphnet had not shown any actual loss. The jury, nonetheless, awarded Graphnet $800,000 in nominal damages. This exorbitant nominal damage award was, at least in part, the result of a confusing and contradictory jury instruction, which advised the jury both that it was “permitted to award nominal damages to compensate the plaintiff” and that “[n]ominal damages…are not designed to compensate a plaintiff.” Only the latter part of that instruction is correct. Nominal damages, as distinct from compensatory or actual damages, are not meant to compensate the plaintiff for actual loss. Rather, they serve the purpose of vindicating the character of a plaintiff who has not proved a compensable loss. Nuwave Inv. Corp. v. Hyman Beck & Co., Inc., 221 N.J. 495, 499 (2015)....

New Jersey Appellate Division Finds Parties’ Agreement for Arbitrator to Participate in Settlement Discussions and Continue as Arbitrator Need Not Be in Writing

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Posted in Appellate

On August 10, 2021

In Pami Realty, LLC v. Locations XIX Inc., the New Jersey Appellate Division, in a to-be-published opinion, reversed a trial court’s determination that an agreement between litigants that an arbitrator could participate in settlement discussions and then continue as arbitrator must be in writing. After commencing litigation over a construction contract dispute, the parties agreed to participate in arbitration proceedings to resolve their dispute. On the second day of arbitration, the parties discussed settlement. When the settlement negotiations were unsuccessful, the arbitration resumed for a final day of testimony. Six weeks after the submission of post-hearing briefs, the arbitrator reported that he had finished his opinion and would be finding in favor of the defendant. Plaintiff’s counsel responded that the arbitrator “had no authority to act as a mediator in this matter and then re-assume the role of arbitrator,” and his “decision to act as mediator created a conflict of interest that neither party waived through the arbitration agreement.” After the arbitrator issued an award in favor of the defendant, the defendant moved to confirm the award. The plaintiff filed a cross motion to vacate the award, again arguing that the arbitrator had “exceeded his powers when he resumed the role of arbitrator after acting as a mediator mid-arbitration.” In a one-page statement of reasons,...

New Jersey Appellate Division Holds Semblance of Acknowledgement Needed for Internet-Based Terms and Conditions Arbitration Clause to Apply

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Posted in Appellate

On July 16, 2021

In Wollen v. Gulf Streams Restoration and Cleaning LLC, the New Jersey Appellate Division, in a to-be-published opinion, reversed a trial court’s determination that a plaintiff was bound to an arbitration provision found on an internet-based company’s website. Specifically, the Appellate Court found that the plaintiff did not “knowingly and voluntarily agree to waive her right to resolve her disputes in court.” Defendant HomeAdvisor is an internet-based home improvement website that refers potential customers to third-party local service providers. A potential customer would log on to the HomeAdvisor website and create an online account in order to submit a service request. The customer was then required to provide information about the project before reaching the final webpage, which featured a button for the user to press requesting “free project cost information” from contractors in the area. An orange button with the words “View Matching Pros” was at the bottom of the page, with a line of text beneath it stating “[b]y submitting this request, you are agreeing to our Terms & Conditions.” The phrase “Terms & Conditions” was in blue and contained a hyperlink to a separate document entitled “HomeAdvisor Terms and Conditions.” However, a customer could click “View Matching Pros” without viewing the terms and conditions. Further, there was nothing to indicate that a...

Fourth Time’s a Charm: The Third Circuit Reverses Dismissal of Trade Secrets Complaint and Clarifies Pleading Standard

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Posted in Appellate

On June 29, 2021

The Third Circuit issued a precedential decision in Oakwood Laboratories LLC v. Bagavathikanun Thanoo et al. that clarified the pleading requirements for trade secrets misappropriation claims under the Defend Trade Secrets Act, 18 U.S.C. § 1836(b) (DTSA). In that decision, the Third Circuit held that the Third Amended Complaint was “so factually detailed that, on appeal, we conclude it easily meets the pleading requirements of the Federal Rules of Civil Procedure and pertinent substantive law.” Earlier, the District Court for the District of New Jersey had dismissed four of Oakwood Laboratories LLC’s (“Oakwood”) complaints on the grounds that each complaint was not specific enough to support a claim. The District Court dismissed Oakwood’s Third Amended Complaint (its most recent attempt), because it did not show precisely how defendants misappropriated Oakwood’s trade secrets, but noted that Oakwood did plead facts sufficient to identify its trade secrets and support the information’s protected status. Oakwood appealed, and the Third Circuit reversed. Oakwood alleged that defendants Aurobindo Pharma U.S.A. and its subsidiaries misappropriated Oakwood’s trade secrets regarding microsphere technology when Aurobindo hired an Oakwood employee who specializes in this technology, Dr. Bagavathikanun Thanoo, and relied on a memorandum provided for the limited purpose of exploring a business opportunity to develop Aurobindo’s own microsphere technology. In reversing the District Court’s...

Redacted Use of Force Report in Which the Subject of the Force Is a Minor Must Be Disclosed, Appellate Division Holds

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Posted in Appellate

On March 27, 2020

A recent Appellate Division decision provides for increased transparency into the activities of law enforcement, ruling that a use of force report (“UFR”) involving a minor should not have been withheld under New Jersey’s Open Public Records Act of 2001 (“OPRA”). A UFR is a one-page report required by a New Jersey Attorney General directive to be filed in all circumstances in which law enforcement personnel use physical, mechanical, or deadly force against a civilian. In January 2018, a Trentonian reporter received a tip that Ewing Township law enforcement used excessive force against a minor. The reporter filed a public records request for any UFRs generated as a result of the encounter. Ewing denied the request, citing OPRA, which provides that “records of law enforcement agencies, pertaining to juveniles charged as delinquent or found to be part of a juvenile-family crisis, shall be strictly safeguarded from public inspection.” The Trentonian sued Ewing and its municipal clerk for release of the UFR, arguing that the UFR should be released in redacted form, removing the identifying information about the minor but leaving the information about the police officer’s use of force. The trial court upheld Ewing’s denial of access, finding that the UFR was a juvenile record protected from disclosure under OPRA. The Trentonian appealed, joined by...

FOI-led: Supreme Court Restricts Public Access to Confidential Business Information

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Posted in Appellate / General Litigation

On July 11, 2019

In Food Marketing Institute v. Argus Leader Media, the United States Supreme Court expanded the meaning of “confidential” information exempt from disclosure under Exemption 4 of the Freedom of Information Act (FOIA). In doing so, the Court reversed the decision of the Court of Appeals for the Eighth Circuit and definitively rejected the “competitive harm” requirement adopted by the D.C. Circuit in National Parks & Conservation Assn. v. Morton. Respondent Argus Leader Media filed a FOIA request with the United States Department of Agriculture (USDA), seeking the names and addresses of all retail stores that participate in a federal food stamp program known as SNAP. Argus Leader also sought each store’s annual redemption data from 2005 to 2010. The USDA declined to disclose store-level SNAP data based on Exemption 4 of FOIA, which precludes disclosure of “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Argus Leader sued the USDA. The district court ordered disclosure based upon the failure to satisfy the “competitive harm” test, which requires a party to establish confidentiality by proving that disclosure is “likely … to cause substantial harm to [its] competitive position.” The Eighth Circuit affirmed the judgment. In a 6-3 decision delivered by Justice Gorsuch, the Court rejected the competitive harm test and...

11th Circuit’s Stay Suggests that the FTC’s Final Order Against LabMD May Itself be “Unfair” and “Unreasonable”

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Posted in Appellate / General Litigation

On November 16, 2016

As reported on this blog on September 27, 2016, the FTC issued a Final Order holding that LabMD’s data security practices were “unreasonable” and constituted an “unfair” business practice in violation of Section 5 of the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. §45(a) and (n). The findings were a clear signal of the FTC’s expanding efforts to regulate data security and to incentivize companies handling sensitive data to implement and maintain strong data security practices. On Thursday, November 10, 2016, the 11th Circuit stayed enforcement of the FTC’s Final Order pending a full hearing and final decision on LabMD’s appeal, and called into question the validity of the FTC’s conclusions as to what may constitute an actionable “privacy harm” following a data security breach.

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