The New Jersey Supreme Court’s recent opinion in Petro-Lubricant Testing Laboratories, Inc. v. Adelman left unanswered significant questions as to what constitutes a republication when corrections or modifications are made to an online publication, thereby retriggering the statute of limitations for defamation. In a 4-3 opinion, the majority established a test for whether a correction or modification is a republication that increases the likelihood that trial courts will deny summary judgment motions, leaving the question of republication for the jury. The practical effect of this will likely be far fewer corrections to online publications for fear of reviving or extending the applicable statute of limitations. Specifically, the majority held that an online article is republished if an author makes a material and substantive change to the original defamatory article. According to the majority: A material change is one that relates to the defamatory content of the article at issue. It is not a technical website modification or the posting on the website of another article with no connection to the original defamatory article. A substantive change is one that alters the meaning of the original defamatory article or is essentially a new defamatory statement incorporated into the original article. It is not the mere reconfiguring of sentences or substitution of words that are not susceptible of...
Tagged: Statute of Limitations
The Supreme Court has given a boost to companies defending against securities claims, ruling in California Public Employees’ Retirement System v. ANZ Securities that a statute of repose cannot be extended by the doctrine that the filing of a class action tolls the statute of limitations for the claims of absent class members. The case emanated from a prior class action that had alleged, in connection with certain offerings by Lehman Brothers Holdings Inc., violations of Section 11 of the Securities Act of 1933, which relates to misrepresentations and omissions made in a securities registration statement. Section 13 of the Act provides that any such claim must be brought within “three years after the security was bona fide offered to the public.” CalPERS, which was an absent class member in the original class action, filed its own class action complaint more than three years after the transactions at issue and then opted out of the original class action. Affirming the decisions of the Southern District of New York and the Second Circuit, the Supreme Court held that the three-year limit in Section 13 is a statute of repose, and that such a limit cannot be extended by any court-made tolling doctrine. CalPERS argued that the statute was tolled under American Pipe & Construction Co. v. Utah during...
Class actions brought under the New Jersey Truth-in-Consumer Contract, Warranty, and Notice Act (“TCCWNA”) are on the rise. This year alone, Wal-Mart, J. Crew, Avis, Toys R Us, and Apple – among many others – have been sued under this unique state statute that prohibits certain types of unlawful provisions in consumer contracts and other documents. In the past decade, courts have continued to expand the scope of this law – from the New Jersey Supreme Court, which, in 2013, instructed lower courts to construe the statute broadly, to the District of New Jersey, which, in 2014, allowed a TCCWNA class action to go forward against contracts containing commonly-worded exculpatory and indemnification provisions.
On May 23, 2016, the U.S. Supreme Court, in Green v. Brennan, held that the statute of limitations for a constructive discharge claim begins to run when the employee gives notice of his or her resignation, not at the time of the employer’s last allegedly discriminatory act giving rise to the resignation. The “constructive discharge” doctrine refers to a situation in which an employer discriminates against an employee to the point that the employee’s working conditions become so intolerable that a reasonable person in the employee’s position would feel compelled to resign.
On June 15, 2016, the New Jersey Supreme Court, in Rodriguez v. Raymours Furniture Company, Inc., held that an agreement by an employee to bring claims against his employer within six months of the allegedly wrongful employment action was unenforceable insofar as the agreement applied to claims brought under the New Jersey Law Against Discrimination (“the LAD”). In 1993, the Court had held that New Jersey’s general two-year statute of limitations for personal injury actions provides the appropriate limitations period for LAD claims. In Raymours, the Court ruled that the employer’s attempt to reduce this limitations period to six months undermined the LAD’s specific enforcement scheme for the elimination of discrimination and thus, for public policy reasons, could not be judicially sanctioned. In addition, the Court found that the particular agreement at issue, set forth as part of the boilerplate in the employer’s standard employment application form, constituted an unenforceable contract of adhesion.
Missed the Starting Gun? Application of the Statute of Repose in Construction and Defective Product Cases
On April 30, 2015, the New Jersey Supreme Court decided State of New Jersey v. Perini Corporation, et al., which is likely to become a seminal case on how the ten-year limitations period of New Jersey’s Statute of Repose is applied in construction cases, in particular those involving multi-phase projects. The Perini case is also noteworthy for its ruling that the statute of repose does not apply to claims against manufacturers and suppliers of allegedly defective materials supplied on a project.
New Jersey Appellate Court Upholds Agreements Shortening the Statute of Limitations for Employment-Related Claims
On June 19, 2014, in Rodriguez v. Raymours Furniture Company, Inc., the New Jersey Appellate Division upheld the validity of a provision in an employment application form by which the job applicant agreed that, if hired, he or she would bring any employment-related claim within 6 months after the claim arose. Plaintiff alleged he was terminated because of a disability in violation of the New Jersey Law Against Discrimination (“LAD”) and in retaliation for having filed a workers compensation claim. The Appellate Division held that because the plaintiff brought these claims 9 months after his termination they were barred by the 6-month limitations period in the application form even though they were brought well within the 2-year statute of limitations period otherwise applicable to these types of claims.
In a decision that expands the ability of plaintiffs to bring class actions in Delaware, the Delaware Supreme Court in Dow Chemical Corp. & Dole Food Company, Inc. v. Blanco adopted so-called cross-jurisdictional tolling, holding that the statute of limitations as to the claims of individual members of a putative class is tolled while a putative class action on their behalf is pending, regardless of “whether the class action is brought in Delaware or in a foreign court.”
Performance of Corrective Work Does Not Extend the Deadline to File Mechanics’ Lien Claims in Pennsylvania
Mechanics’ liens are powerful remedies for contractors involved in payment disputes with owners of construction projects in Pennsylvania, but the six month deadline under the Mechanics’ Lien Law is strictly construed and contractors who delay filing them may lose their rights. In Neelu Enterprises, Inc. v. Agarwal, the Pennsylvania Superior Court considered the deadline for a contractor to file lien claims “within six months after the completion of his work” set forth in Section 502 of the Pennsylvania’s Mechanics’ Lien Law. Specifically, the two issues in the case were whether the deadline begins to run after a contractor is terminated and whether the deadline can be extended by the subsequent performance of corrective or remedial work.
Contracting Around the Discovery Rule: The Oregon Court of Appeals Enforces a Clause in a Construction Contract That Defined the Date of Accrual
Parties to construction contracts often include provisions that set forth time frames to file actions arising out of the contract that are different than the applicable statute of limitations. In the absence of any statutory prohibition, contract provisions limiting the time to file an action to less than the applicable statute of limitations are generally enforceable provided the time frame is reasonable. Although perhaps less common, some construction contracts include provisions that attempt to define when the applicable limitations period begins to run (i.e. when causes of action arising out of the contract accrue).