ABA Publishes Robert Bartkus Article on Arbitration Standard
The American Bar Association has published a piece by Robert E. Bartkus analyzing a Third U.S. Circuit Court of Appeals ruling that clarifies the standard for finding an agreement to arbitrate.
The piece posted by the ABA Section of Litigation-Alternative Dispute Resolution on June 7, 2017 examined the recent ruling in Aliments Krispy Kernels, Inc. v. Nichols Farms. As Bob explains, the court confirmed the demise of a 1980 circuit precedent because it conflicted with a 1995 U.S. Supreme Court ruling that ordinary contract and agency principles must be applied when determining the existence of an arbitration contract.
In his analysis, Bob, of counsel at MARC, also noted that the Aliments decision leaves open questions about the interplay between the Federal Arbitration Act and the Uniform Commercial Code.
Read Bob’s commentary and the circuit decision.
Ex-Employee Who Sued Novartis Ends Up Being Ordered to Pay $1.85M
Novartis Pharmaceuticals Corp. has been awarded $1.85 million from a former employee who worked for competitors while on the payroll and lied in a suit against the company and on her job application.
U.S. District Judge Susan D. Wigenton set the amount of damages and sanctions on June 5, after finding for Novartis on fraud as well as breach of conflict of interest policy, duty of loyalty and contract counterclaims.
Her ruling follows the dismissal last year of the plaintiff’s federal and state disability claims.
At that time, Wigenton concluded that the plaintiff, physician Afoluso Adesanya, deceived Novartis and the court by misstating her employment history, outside consulting, income sources and other matters.
In her most recent ruling, the judge said the company was due $457,040 in attorney’s fees and costs and $1,393,918 in damages from Adesanya, and an additional $23,714 from her husband/business partner.
The damages include repayment of almost $500,000 in income from other companies while a full-time Novartis employee, $647,694 in cash compensation and company benefits, $210,403 in bonuses and $26,818 in relocation expenses.
Wigenton said the deceptions and discovery violations forced Novartis to "incur additional effort and expense to obtain additional information plaintiffs should have provided."
Novartis was represented by MARC partners John B. McCusker and Patricia Prezioso, of counsel Suzanne M. Murphy and associate Bianca M. Olivadoti.
Adesanya sued under the Americans with Disabilities Act and the New Jersey Law Against Discrimination, claiming Novartis failed to accommodate her back and neck problems by not permitting her to work from home more than two days a week.
But MARC showed she was engaging in other employment—jointly owning a pharmaceutical company and holding outside pharmaceutical consulting jobs. The attorneys also discovered she had misrepresented her prior salary and other information when she applied to Novartis.
Read sample news coverage of Wigenton’s ruling.
John Skarbnik To Co-Present at Seminar for Accounting-Firm Leaders
John H. Skarbnik will address partners and managers of the accounting firm of Eisner Amper during a tax training session on May 15, 2017 in New Brunswick.
He will focus on compensatory distributions of partnership interests, passive activity loss rules, and real estate professionals, among other topics.
John, of counsel at MARC, practices trusts and estates law, is a CPA, is a professor of taxation at Fairleigh Dickinson University's master's of science in taxation program and has written extensively on tax issues.
The Tax Adviser Publishes Accrued Liabilities Article Co-Written by John Skarbnik
MARC of counsel John H. Skarbnik has co-authored an article, "Giant Eagle and Economic Performance Under Sec. 461(h)," in the April 2017 issue of The Tax Adviser.
John and Frank L. Brunetti analyzed the holding and reasoning of the U.S. Court of Appeals for the Third Circuit in Giant Eagle Inc. v. Commissioner, which allowed the grocery chain’s tax deductions on shoppers’ earned, but not yet redeemed, loyalty discount rewards.
The court found that Giant Eagle “demonstrated the existence — as of year’s end — of both an absolute liability and a near-certainty that the liability would soon be discharged by payment.” The court reasoned that Giant Eagle entered into a binding, unilateral agreement with customers when groceries were purchased, which established liability.
As a result, the court held that Giant Eagle was entitled to a $3.7 million tax deduction. The ruling reversed a U.S. Tax Court decision that the liabilities were not yet fixed.
The Tax Adviser is a monthly publication of the American Institute of CPAs.
Robert Bartkus Co-Authors Arbitration Book With Judge Dreier
Robert E. Bartkus and Hon. William A. Dreier, P.J.A.D. (Ret.), have co-written the New Jersey Arbitration Handbook, 2017 edition.
The handbook, published in April 2017 by Law Journal Press, is a guide for lawyers and arbitrators from the perspective of two experienced arbitrators
The authors provide practical, valuable information about arbitration in New Jersey, from the reasons for arbitrating disputes, making the selection and conducting the arbitration, to enforcement of the award.
In particular, the handbook draws attention to differences in the process between New Jersey and other states and between federal and state statutes and cases. Appendices include the text of relevant rules and statutes and descriptions of the most recent New Jersey cases in state and federal courts, including a new subject index of cases.
Bartkus, of counsel at MARC, focuses on business and international arbitration and litigation.
AG Loses Bid To Reinstate Prior Restraint Against Newspaper
A New Jersey appeals court handed the state a loss on April 24, 2017 in its effort to gag the Trentonian and its reporter from writing about a 5-year-old boy who brought drugs to school.
At issue was a child-abuse complaint obtained by reporter Isaac Avilucea, who was represented by MARC partner Bruce S. Rosen.
Publication restraints had been in place for five months during arguments over the order’s legality. In March, a trial judge dissolved the restraints after finding that Avilucea obtained the documents lawfully. The Trentonian then published the documents, omitting the boy’s name.
Noting that the information in the complaint had been published, Appellate Division Judges Mitchel E. Ostrer and George S. Leone rejected as moot the state’s motion for an emergent stay of the order that allowed publication.
The judges also found that the state Division of Child Protection and Permanency did not show that the relief was needed to prevent irreparable harm. In addition, they noted that "prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights."
Rosen said, "The court could have just checked off the box that said ‘denied.’ Instead, it issued a strong, seven-page statement against prior restraint that was virtually unequivocal in its tone."
Read the order, the supplemental order and a sample of media coverage in New Jersey Division of Child Protection & Permanency v. T.F., M.L. & E.W. v. The Trentonian & Isaac Avilucea.
College of Commercial Arbitrators Publishes Robert Bartkus Blog Item
MARC’s Robert E. Bartkus wrote an article for the College of Commercial Arbitrators’ (CCA) blog on two recent precedential Third Circuit cases that clarify standards for finding an arbitrable contract.
Bob wrote that in Aliments Krispy Kernels, Inc. v. Nichols Farms, __ F.3d __, 2017 U.S. App. LEXIS 4991 (3d Cir. Mar. 21, 2017), the court confirmed the demise of part of a 36-year-old circuit precedent.
And in James v. Global Tel*Link Corp., __ F.3d __, 2017 WL 1160893 (3d Cir. Mar. 29, 2017), the court affirmed an order declining to require arbitration for most plaintiffs in a proposed class action over pricing for inmate telephone services. Bob wrote that the clarity and brevity of the legal reasoning warrant attention.
Bob’s article was posted on the CCA site on April 7, 2017.
Bruce Rosen To Discuss Emerging Legal Challenges for the Media
MARC partner Bruce S. Rosen will serve on a panel, "Walk the Line With Media Law," during the Society for Professional Journalists (SPJ) regional conference in New York on April 8.
Bruce and co-panelist Robert Penchina, a partner with Levine Sullivan Koch & Schulz in New York, will speak on the current state of media law and the First Amendment in a contemporary post-Trump world. Libel, privacy, newsgathering and intellectual property law as it relates to journalists in today’s precarious environment will be addressed.
Roy Gutterman, an associate professor at Syracuse University’s S.I. Newhouse School of Communications, will moderate the panel, to be held at John Jay College. The theme of the conference is "Practicing Journalism in Dangerous Times."
Media Victory in NJ A.G.’s Censorship Suit
A New Jersey judge has dismissed the state attorney general’s prior-restraint case against The Trentonian and a reporter who gained access to a child-abuse complaint.
Mercer County Superior Court Judge Lawrence De Bello ruled on March 27, 2017 that the state presented no evidence that reporter Isaac Avilucea illegally obtained the verified complaint.
De Bello had previously ruled that under U.S. Supreme Court precedent, lawfully obtained information cannot be the subject of a prior restraint.
At issue was the complaint against family members of a 5-year-old boy, who was found with drugs at school twice in six weeks.
Avilucea, represented pro bono by MARC partner Bruce S. Rosen, said he obtained the complaint from the child’s mother in a courtroom hallway.
The Attorney General’s Office, on behalf of the New Jersey Division of Child Protection and Permanency, contended that Avilucea did not receive the complaint legally. The state moved to bar the newspaper from publishing the information, and last October, Judge Craig Corson issued a temporary injunction.
In February, De Bello said Avilucea’s testimony on how he got the complaint was credible.
The suit is unusual because courts rarely issue prior restraint orders against media outlets.
Read De Bello’s order here.
ABA Publishes Robert Bartkus' Analysis of 2 New ADR Business Rulings
Two recent ADR decisions provide valuable lessons on negotiated contracts and commercial terms between merchants, according to an article written by Robert E. Bartkus and published by the American Bar Association.
The rulings by the Third U.S. Circuit Court of Appeals and the New Jersey Supreme Court guide lawyers and others in drafting and enforcing arbitration clauses. Although both cases were in the context of consumer transactions, they hold useful direction on fair notice and arbitration rules for businesses.
The ABA’s Section of Litigation published the article on March 22, 2017.
Bob, of counsel at MARC, concentrates on business and international arbitration and litigation. He is the author or editor of numerous legal treatises and is co-author of the New Jersey Arbitration Handbook, to be published by Law Journal Press in April.
Seven at MARC Named to New Jersey Super Lawyers Lists for 2017
Super Lawyers* announced on March 14, 2017 the selection of seven MARC lawyers for recognition in 2017.
The attorneys chosen for the New Jersey Super Lawyers list are:
- Andrew E. Anselmi, who practices complex commercial litigation, environmental law, employment law, products liability and criminal defense.
- Robert E. Bartkus, alternative dispute resolution, and business counseling and litigation.
- Paul F. Carvelli, commercial litigation and business disputes, employment litigation, environmental litigation, real estate litigation, securities and shareholder litigation, and special education and related areas.
- Bruce I. Goldstein, complex business litigation, mediation and white-collar criminal defense.
- John B. McCusker, employment litigation defense, environmental litigation, criminal defense and complex commercial litigation.
- Bruce S. Rosen, complex commercial litigation, criminal defense, employment law, environmental law and media law / First Amendment.
Chosen for the New Jersey Rising Stars list is:
- Michael R. Futterman, employment litigation defense, employment counseling, commercial litigation and complex business litigation.
Super Lawyers is a rating service of lawyers who have attained a high degree of peer recognition and professional achievement. The annual selections are based on a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area.
* The Super Lawyers list is published by Thomson Reuters; its selection methodology is here. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.
U.S. News & World Report Quotes John Skarbnik on Probate Disputes
John H. Skarbnik was quoted in U.S. News & World Report on how to avoid a lengthy probate process with family members.
John, who is of counsel at MARC, said in the Jan. 27, 2017 article that the best way around family friction is to explain intentions as specifically as possible in the will or side letters. One possibility, depending on the state, is to add a clause to the will that anyone who legally challenges it will lose his or her bequest.
Clarity is especially important as most family litigation is rooted in disputes that began in childhood, John said.
John concentrates on corporate, shareholder, tax, and trusts and estates law. He is a certified public accountant and a professor of taxation at Fairleigh Dickinson University’s master’s of science in taxation program.
Read the article here.
Third-Party OPRA Requests Available to Records Seekers
In a defeat for the Christie Administration, a New Jersey appeals court ruled on Jan. 27, 2017 that government-record seekers may have access to document requests filed by third parties.
The Appellate Division held in Scheeler v. Office of the Governor that the administration erroneously relied on dicta in a 2005 case to justify not releasing third-party requests under the Open Public Records Act.
The appeals court ruling affirms a decision by Mercer County Assignment Judge Mary Jacobson and $29,000 in attorney’s fees so far.
MARC partner Bruce S. Rosen, pro bono counsel for the ACLU of New Jersey Foundation, represented the plaintiff, Harry Scheeler.
The citizen activist had asked the governor’s office for OPRA requests it received in January 2014 as well as requests, from Sept. 1, 2013 to Feb. 10, 2014, about the closure of George Washington Bridge lanes. Scheeler also filed OPRA requests with a host of state agencies, most anonymously.
His requests were denied by the governor’s office under Gannett N.J. Partners, LP v. County of Middlesex, a 2005 appeals court ruling, and on the ground that OPRA allows denials of anonymous requests.
But Jacobson found that the Gannett discussion about third-party requests was dicta and not binding precedent. She did allow the government to redact personal information from the records.
The appeals court said OPRA does not bar disclosure of requests, adding that the defendants did not cite a statute, legislative action, executive order or court rule to back up their claim.
The court also said the plaintiffs made their request with sufficient specificity, rejecting the defendants’ contention.
Rosen said the requests at issue are public in many other states and under the Freedom of Information Act. They were allowed in New Jersey from the beginning of OPRA in 2002 until 2013, after the first OPRA responses were produced in the George Washington Bridge case. At that point, the administration declared such requests improper.
Read sample news coverage of the decision.
TV Show Features Robert Bartkus on Creating a Corporation
Robert Bartkus was interviewed on "Today’s Verdict" - a television show about legal issues - on how to set up a business corporation.
During the half-hour, live show, which aired Jan. 17, 2017 on BronxNet, Bob instructed viewers on key points to keep in mind when creating a corporation.
He discussed topics such as pitfalls to avoid, taxes, debts, minority shareholders, the need to raise capital, shareholder agreements, steps to take when a shareholder wants to leave, and LLCs as opposed to corporations, among other subjects.
Bob was interviewed by the show’s host, trial attorney David Lesch.
Bob, of counsel at MARC, concentrates on business arbitration and litigation.
BronxNet Television is an independent, not-for-profit, local television station.
Watch the interview here.
Laura Siclari To Present on Special Education Law at NBI Seminar
Laura A. Siclari will speak on Unraveling the Complexities of Special Education Laws during a two-day National Business Institute (NBI) continuing education seminar for professionals.
On Feb. 22, she will present on “Fulfilling Critical Least Restrictive Environment and Placement Decision Obligations.” Laura will cover services schools must provide, the continuum of alternate placements, placement decision requirements, and factors that can and cannot be considered.
On Feb. 23, she will speak on “Bullying and Special Education Students.” She will focus on when bullying is a denial of free and appropriate public education (FAPE) mandates, legal considerations in moving bullied students to safe environments, ways to address bullying through IEPs and 504 plans, and appropriate school policies and staff training.
This basic-to-intermediate level seminar, to be given in Newark, is designed for school administrators, superintendents, principals, school board members, school psychologists, counselors, teachers and attorneys.
Details about the program are available here.
Laura concentrates on special education, disability, environmental and labor/employment law as well as general litigation.
Asaad Siddiqi Co-Edits Magazine Issue on Cyber Security
MARC partner Asaad K. Siddiqi served as a special co-editor of a series of articles on cyber-security in the December 2016 issue of New Jersey Lawyer, the New Jersey State Bar Association's bi-monthly magazine.
"With the rapidly changing legal landscape when it comes to technology and its impact, it’s crucial for attorneys to remain up to date. This timely collection of articles assists attorneys in guiding clients large and small," Asaad said.
The articles by various authors include suggestions for protecting trade secrets using the New Jersey Trade Secret Act and the Defend Trade Secrets Act, cyber risks posed by mobile health apps, an analysis of whether cyber-risk assessments may become discoverable in civil litigation following a data breach, ransomware attacks and risks of organizational liability for not being prepared, advice to clients responding to data breaches, guidance to businesses about staying current on cyber-security best practices, and cyber-insurance and related coverage issues.
Asaad concentrates on commercial litigation, corporate matters, criminal defense, employment & labor issues, federal and state investigations/compliance, insurance/indemnification and professional misconduct/attorney ethics.
Student Mentored by Michael Futterman Places First in Debate
A Newark high school student mentored by MARC partner Michael R. Futterman took home a first-place trophy on Nov. 11, 2016 in a debate over affirmative action in higher education.
NJ LEEP Inc., a college-preparation nonprofit in Newark, ran the debate on the constitutional implications of a race-conscious admissions program at a hypothetical public university. The debate judges included attorneys and Seton Hall University School of Law professors.
The organization, based at the law school, provides law-related and college-access programming to middle and high school students in Newark and offers guidance to its alumni who are in college.
Michael meets frequently with his mentee, and his role includes helping the student prepare and write briefs for four constitutional law debates.
MARC also offers NJ LEEP students a weeklong summer internship that exposes them to a range of practice areas, from employment to First Amendment law.
Andrew Moschella Brought on Board as MARC's Executive Director
Andrew Moschella, an experienced financial executive with law firms in New Jersey and New York, became MARC’s executive director on Nov. 1, 2016.
Most recently, he had been the controller at Mendes & Mount in New York City. Previously, he had served as the chief financial officer and controller at other firms.
Before his 12 years in the legal profession, Andrew was the accounting manager at a software company that was going through an initial public offering.
In his role at MARC, he oversees all aspects of the law firm’s administration, including accounting, IT, human resources, facilities and procurement.
Andrew earned an M.A. in Corporate Communications from Fairleigh Dickinson University in Florham Park, with an emphasis on investor relations and communication of financial data. He has a Bachelor of Business Administration from Kent State University, where he focused on finance.
John McCusker, Bianca Olivadoti Win Voluntary Dismissal of Employment Claims
John McCusker, with the assistance of Bianca Olivadoti, successfully defended employment claims by a former employee against a global oil company and two of his former supervisors.
Originally filed in October 2013 in Hunterdon County Superior Court, the complaint alleged causes of action under the New Jersey Conscientious Employee Protection Act (CEPA), the New Jersey Law Against Discrimination (LAD) and common law.
After three years of protracted litigation, the plaintiff voluntarily dismissed all claims, with prejudice and without any concession—monetary or otherwise—against MARC's clients. The stipulation of dismissal was filed in late October 2016.
MARC Defeats Bid for Injunction Against Franchise Expiration, Allegation of Ill Motive
On October 24, 2016, a federal judge in Trenton denied a service station operator's application for an injunction that would have disrupted operations of MARC’s client, a petroleum distributor, by suspending the expiration of a franchise agreement and turnover of the station.
The agreement was set to expire after the plaintiff operator’s refusal to agree to the distributor’s renewal terms. The operator argued that the renewal terms included excessively high rents that reflected a bad-faith attempt to drive it out of the station so the distributor could replace the plaintiff with a company agent.
MARC partner Bruce S. Rosen and associate Zachary D. Wellbrock presented testimony of the distributor’s vice president and regional manager to show that the proposed rents were calculated in good faith and in the normal course of business and that the distributor had no interest in replacing its franchised operators with company agents.
Although the federal Petroleum Marketing Practices Act sets exceptionally relaxed requirements for issuing injunctions against the termination of a service station franchise, the court found that even this low hurdle had not been met.
After two days of testimony by representatives of the plaintiff and the distributor, U.S. District Court Peter Sheridan denied the requested injunction. He held that there were not "sufficiently serious questions” as to the distributor’s good faith and that the issue was therefore not “a fair ground for litigation."
Michael Gogal Settles Employment Case for Nuisance Value
MARC partner Michael Gogal successfully resolved a race discrimination and retaliation complaint on Oct. 20, 2016, including the withdrawal of EEOC charges.
A former employee filed the suit in U.S. District Court in Illinois against Michael’s client, a packaging and staffing company.
The settlement was for a nuisance value.
Michael concentrates on commercial, environmental and labor/employment law as well as tort and product liability defense.
MARC Seeks GWB Mistrial Documents on Behalf of Media Companies
Bruce S. Rosen and Zachary D. Wellbrock, representing a consortium of media companies, on Nov. 3, 2016 asked the judge in the case over the George Washington Bridge closures to release documents related to the defense’s mistrial motion.
The MARC attorneys said the case “is one of the highest-profile trials of public officials in state history and it continues to draw national attention.
"It is essential to public confidence in the integrity of the judicial system that the public be able to fully understand and discuss the issues at stake as to conduct of this trial," said Rosen, a partner, and Wellbrock, an associate.
They said their clients are seeking First Amendment and common law access to documents filed in redacted form in support of a mistrial. The media companies also oppose the government’s request to seal a letter it sent to the court in the matter, seek access to the transcripts of a sealed proceeding and ask the court not to exclude the media and public from access to proceedings without articulating a compelling need.
Two former Gov. Chris Christie allies—Bridget Anne Kelly, former deputy chief of staff to the governor, and Bill Baroni, former deputy executive director of the Port Authority of New York and New Jersey—are on trial for alleged roles in a plan to close bridge lanes as political retribution.
On Nov. 3, the defense filed a mistrial motion after U.S. District Judge Susan Wigenton told the jurors that the object of the alleged conspiracy was irrelevant.
Rosen and Wellbrock said the defense "filed the brief in support of the mistrial motion with every word of argument redacted and without any accompanying sealing motion, providing no public explanation or reasoning or for such redactions."
The media outlets seeking the documents include Gannett Co., Bloomberg L.P., The New York Times Co., ABC News, Politico, New Jersey Advance Media, Dow Jones & Co., the Associated Press, Public Media NJ Inc., and New York Public Radio.
Read the media companies' letter motion to unseal.
Diocese Honors Anselmi With Award at Red Mass
MARC partner Andrew E. Anselmi was honored on Oct. 2, 2016 with the inaugural Diocesan Advocati Christi Award and a portrait of St. Thomas More, the patron saint of lawyers, at the Paterson Diocesan Red Mass.
During its Red Mass, the Diocese recognized Andrew as a friend and supporter of the Evangelization Center and chairman of the board of trustees of St. Paul’s Inside the Walls in Madison, where the event took place. Anselmi also serves as chairman of the board of Assumption College for Sisters in Morristown.
The Red Mass is a time of reflection on the impact of faith on members of the legal profession – judges, attorneys, law school professors, students and government officials – and is celebrated annually in the Catholic Church around the world.
Anselmi concentrates on complex commercial, environmental and employment litigation.
Hackensack Starts $2.8M in Ordered Payments to Exonerated Ex-Chief
Former Police Chief Ken Zisa has received the first installment of a total of $2.8 million due from the city of Hackensack, six weeks after a judge dismissed the remaining official misconduct count against him.
The city paid $659,000 during the first week in October 2016 and will follow up with other payments on Jan. 10, 2017 and Jan. 10, 2018, said Zisa’s attorney, MARC partner Patricia Prezioso. Zisa spent six years awaiting trial or under house arrest.
The $2.8 million in court-ordered payments represents $1.7 million in lost wages and benefits and the rest in legal fees. Zisa was entitled to the money after the final charge was dismissed on Aug. 23, 2016.
In her ruling on the charge, Bergen County Superior Court Presiding Judge Susan Steele said the case was marred by prosecutorial misconduct that “shocks the conscience.”
Read samples of news coverage about the $2.8 million here and here.
Laura Siclari Garners Discovery Win in Case Against NYC Private School
The New York State Supreme Court on Sept. 22, 2016 ordered a Manhattan private school to produce documents and submit for depositions in an investigation that led to a student being told to leave or face expulsion.
Without the documents, the court said it could not determine whether the school followed its procedures and acted rationally.
The student, a ninth grader, was found to have inhaled from a water vaporizer pen at school with several other students, but was the only student forced to leave.
The family’s Article 78 proceeding/breach of contract action, brought by MARC attorney Laura A. Siclari, contends that the school failed to comply with its own rules. The school produced only heavily redacted and limited documents in its answering papers, prompting the petitioners to move for leave to conduct discovery.
In Article 78 special proceedings, discovery is not permitted absent an order of the court and only in exceptional circumstances. Historically, courts have granted such motions sparingly. Thus, the court’s ruling marks a strong win for the petitioners in their action against the school.
Laura Siclari To Present on Disciplining Students With Behavioral Issues
MARC attorney Laura A. Siclari will speak at a National Business Institute (NBI) seminar on the legalities of disciplining students with behavioral issues.
Her Oct. 19, 2016 presentations will cover laws such as the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act, No Child Left Behind Act, NJ Anti-Bullying Bill of Rights, Americans With Disabilities Act, other statutes and school district codes of conduct.
The program is designed for school administrators, teachers, principals and vice principals, counselors, psychologists, social workers, school nurses, special education program specialists, attorneys and paralegals. Continuing education credit is available.
Read about the seminar here.
Dismissal of Defamation Suit Over Republished Material Is Upheld
A New York appeals court on Sept. 21, 2016 affirmed the dismissal of a defamation suit against WPIX-TV by a man police identified in a photograph as an attempted rape suspect.
The police originally asked for help in identifying the suspect and later announced the arrest of someone else, but did not announce that the man in the photograph and the suspect were different people.
The New York Appellate Division: Second Judicial Department held that the news reports, based on emails from the NYC Police Department, were substantially accurate and were protected under the fair-report privilege.
"The privilege is not defeated by the NYPD's error in identifying the plaintiff by his photograph as the assailant," the court found.
WPIX’s attorney, MARC partner Bruce S. Rosen, said the TV station was unaware that the suspect was not the man in the photograph.
Read the ruling here.
Patricia Prezioso Chosen for Law Journal’s Top Women in the Law
The New Jersey Law Journal has selected MARC partner Patricia Prezioso for its Top Women in the Law for 2016.
The newspaper said its goal was to "attempt to shine a light on the outstanding work being done by female attorneys across New Jersey who have had notable achievements in recent years, or who have otherwise made an extraordinary impact on the legal profession."
The 25 women named to the list on Sept. 14, 2016 are in the private, public and public interest sectors.
MARC congratulates all of the phenomenal women receiving recognition, and we are especially proud of Patti.
Patti concentrates on corporate and individual criminal defense/white-collar criminal defense, employment defense litigation, in-house investigations and environmental litigation. She transitioned to private practice nine years ago, after a long career as a prosecutor. Patti’s vast trial experience, investigative skills and persistence have served our clients well.
MARC Welcomes Partner, Of Counsel
MARC has brought aboard two attorneys, broadening its corporate, employment and white-collar litigation work as well as its tax, trusts and estates, business structuring and other practice areas.
Asaad K. Siddiqi and John H. Skarbnik joined the firm on Aug. 22, 2016.
"Asaad deepens and expands our robust litigation practice, while John’s extensive corporate, tax and trusts and estates work brings a new dimension to the firm,” said Bruce S. Rosen, MARC’s managing partner. "It’s really a perfect match."
The additions boost MARC’s attorney count to 28.
Siddiqi, a partner, focuses on commercial litigation, federal and state investigations and compliance, insurance/indemnification, white-collar criminal defense, employment/labor, corporate and shareholder disputes, and professional licensing/attorney ethics. He also guides business clients on issues such as corporate governance, best practices, dispute resolution and international transactions.
Siddiqi graduated from St. John’s School of Law in 2001 and Rutgers University in 1998.
Skarbnik, of counsel, concentrates on tax, trust and estate planning, estate administration, business transactions, formation of businesses, and representation of taxpayers before the IRS and State of New Jersey
in tax controversies. Since 1988, he has been a professor at Fairleigh Dickinson University in its master’s of science in taxation program.
Skarbnik earned an LL.M. in Taxation from New York University School of Law in 1984, a J.D. from Rutgers University School of Law in 1979 and a B.A. from Rutgers University in 1976.
NJTV Interviews Bruce Rosen on Document-Access Denial
A NJ appeals court has unnecessarily narrowed the law that allows public access to government records, according to MARC partner Bruce S. Rosen in an interview with NJTV.
On Aug. 31, 2016, the court said the government can deny access to public records by neither confirming nor denying they exist.
The case, North Jersey Media Group v. Bergen County Prosecutor’s Office, involved a request for documents about a priest whom a reporter thought was under investigation but had not been charged.
In the Aug. 31 interview, Bruce said the ruling creates an exemption in the law, the Open Public Records Act. He also said it was a fallacy to conclude that the reputation of an individual who had not been charged would be damaged by release of the documents.
Read the interview and the court ruling.
Last Count Dismissed Against Ex-Chief; Judge Excoriates Prosecution
A New Jersey judge on Aug. 23, 2016 dismissed the remaining count of official misconduct against former Hackensack Police Chief Ken Zisa, finding prosecutorial behavior that "shocks the conscience."
Bergen County Superior Court Presiding Judge Susan Steele said "the state vaulted the threshold of prosecutorial misconduct to goad defendant to seek a mistrial not once, but repeatedly, five times."
In 2015, the Appellate Division directed an acquittal for insurance fraud, affirmed dismissal of three official misconduct counts, reversed the remaining official misconduct charge, and left room for Zisa's attorney to make further motions.
MARC partner Patricia Prezioso did just that, and Zisa's motion to dismiss the remaining charge was granted on double jeopardy and fairness grounds.
The judge harshly criticized the case's lead assistant prosecutor, noting he ignored the rules of evidence.
She termed as "inconceivable" the "notion that the prosecutor, in good faith, believed the inflammatory and prejudicial statements he completely derailed the trial with in his opening statement were admissible."
Suzanne M. Murphy, of counsel at MARC, and Louis C. Formisano, an associate, assisted Prezioso. Click here to read the news release, here to read the Aug. 23, 2016 Superior Court ruling and here to read the July 31, 2015 Appellate Division ruling.
Disability Claims Against Pharma Co. Dismissed; Sanctions Granted
Finding perjury and discovery violations, a federal judge in Newark has dismissed a former employee's federal and state disability claims, and granted the company sanctions against her.
In the Aug. 15, 2016 ruling, the court also awarded the global pharmaceutical company summary judgment on five of its eight affirmative claims against the plaintiff as well as sanctions against her husband/business partner for failure to comply with ordered discovery and for false testimony.
The plaintiff claimed she was discriminated and retaliated against on the basis of neck and back issues when she was not permitted to work from home more than two days a week. She sued under the Americans with Disabilities Act and the New Jersey Law Against Discrimination.
MARC investigated her claims and background and discovered she jointly owned a "specialty pharmaceutical company" and misrepresented herself during the employment application process. Then, despite the plaintiff's attempts to obstruct discovery and further mislead the company, MARC uncovered two additional outside pharmaceutical consultancies she simultaneously held while at the company.
The case highlights the importance of a thorough investigation. The court stated that this decision should serve as "an object lesson to future litigants who may desire to follow the same path," as a warning to litigants seeking to mislead opposing counsel and manipulate the judicial process with frivolous claims.
The company's legal team was led by MARC partners John B. McCusker and Patricia Prezioso; of counsel Suzanne M. Murphy; and associate Bianca M. Olivadoti.
Four at MARC Named to Best Lawyers List for 2017
Four partners at McCusker, Anselmi, Rosen & Carvelli were selected on Aug. 15, 2016 for inclusion in the 2017 edition of Best Lawyers in America.
Paul F. Carvelli was chosen for Commercial Litigation; Bruce I. Goldstein for Appellate Practice, Bet-the-Company Litigation and Commercial Litigation; John B. McCusker for Employment Law-Management and Litigation-Environmental; and Bruce S. Rosen for Commercial Litigation, First Amendment Law, Litigation-First Amendment, and Lawyer of the Year in Newark for Litigation-First Amendment.
Best Lawyers in America* is a guide to legal excellence based on peer reviews.
*The Best Lawyers list is published by Best Lawyers in America and U.S. News & World Report; its selection methodology is here. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.
MARC Wins Dismissal of Claims Against Dry-Cleaning Company
A New Jersey judge tossed all claims on July 15, 2016 against a dry-cleaning company named in a civil suit for contribution and apportionment of remediation costs under the New Jersey Spill Act.
The dispute arose from tetrachloroethylene (PCE) contamination at a strip mall in Freehold, NJ. The resulting complex environmental litigation consisted of two consolidated actions involving claims among and against the owner of the underlying property, the mall's owner and landlord, the landlord's commercial tenant who subleased out the mall’s individual commercial storefronts, at least four subtenants who operated dry-cleaning businesses at the property at some time between 1979 and 2009, and an environmental consultant who investigated the property in 2007.
Michael R. Futterman and Zachary D. Wellbrock obtained summary judgment ordering that all claims against MARC's client be dismissed after nearly three years of discovery and litigation.
Monmouth County Superior Court Judge Jamie S. Perri held that, despite ample time for investigation and discovery, there was no evidence that MARC's client, which ceased operations at the property in 1989, was responsible for the property contamination or that the contamination existed before the client ceased operations.
The plaintiff had therefore failed to establish the required nexus between MARC's client and the contamination so as to trigger potential liability under the Spill Act.
NJ.com Quotes Bruce Rosen on Shared Streaming-Services Passwords
A California federal appeals court has ruled that sharing passwords for streaming services, such as Netflix and HBO Go, might be a federal crime. But in a July 13, 2016 NJ.com story, several experts, including MARC’s Bruce S. Rosen, said those worries are overstated. "I don't think anyone is going to be knocking on your door soon to take you away if you share these passwords," Bruce said. "If anything, it may give companies some comfort that they can legally restrict use to the paying customer, but that's a business decision that will cut against common practice for many streaming services."
Bruce Goldstein Speaks at Civil Trial Advocacy Institute
Bruce I. Goldstein presented on July 11, 2016 at the Civil Trial Advocacy Summer Institute, sponsored by the New Jersey State Bar Association and the American College of Trial Lawyers. Bruce, a fellow of the College and a partner at MARC, gave a demonstration of the direct examination of an economics expert.
Robert Bartkus, Bruce Goldstein To Provide Expertise at Arbitration Seminar
MARC’s Robert E. Bartkus
will moderate and Bruce I. Goldstein will serve as a panelist at an American Arbitration Association program, "New Jersey Commercial Arbitration Clauses: A Seminar for Transactional Lawyers." The program will focus on ADR clauses that maximize party choice, arbitration/mediation issues, NJ commercial arbitration clauses before and after Atalese v. U.S. Legal Services Group, L.P., recent NJ case law on ADR clauses and international issues for NJ clauses. The Sept. 13 seminar will take place at the AAA offices in Somerset. Click
here to read about the program.
Law360 Quotes Robert Bartkus on Arbitration Pacts That Survive Scrutiny
MARC’s Robert E. Bartkus
was mentioned on July 6, 2016 in a Law360 article on how to craft an arbitration agreement so it meets recent NJ case law. In Morton v. Sanford Brown Institute (2016) and Atalese v. U.S. Legal Services Group LP (2014), the NJ Supreme Court reinforced that arbitration agreements must include a waiver of one's right to go to court and a clause that an arbitrator will decide whether the parties agreed to arbitration. Bob advises that contract writers use plain English and make sure the arbitration clause complies with recent law. "Do not simply go to an old form book or an old contract and copy what someone else has used," Bartkus said. "Those were probably written without taking into account the court's current concerns." Click here to read the article.
Judge Prevents Student From Graduating, Says High School Owes Him More
A NJ judge granted a high school student’s request that he not be forced to graduate because he lacks the basic reading skills needed to even pass a driver’s education exam or fill out a job application.
The June 2016 ruling granted emergency relief and directed that the student be provided with further educational services in September while the merits of his case are pending.
The student’s attorney, MARC’s Laura A. Siclari, says the school district ignored his severe learning disabilities by not providing specialized reading and math instruction. As a result, he did not receive a Free Appropriate Public Education (FAPE), as required by law. The district wanted to graduate him anyway.
The judge said graduation would interrupt the specialized Orton Gillingham reading instruction the district began to provide only two months ago at the demand of counsel, and which finally permitted the student to begin to make meaningful progress after reading at a third grade level for years. The judge also said the student showed he would otherwise be irreparably harmed and suffer greater harm than the district if relief were not granted.
Michael Futterman Named to Advisory Panel of NJ LEEP
Michael R. Futterman was appointed in May 2016 to the advisory board of NJ LEEP Inc. (New Jersey Law and Education Empowerment Project). The organization, based at Seton Hall University School of Law, provides law-related and college-access programming to middle and high school students in Newark. NJ LEEP also offers guidance to its alumni who are in college. The advisory board is made up of attorneys, state officials and corporate executives.
Unindicted Co-Conspirators' Names Ordered Released in GW Bridge Case
Bruce S. Rosen convinced a federal judge on May 10, 2016 to order release of unindicted co-conspirators’ names in the upcoming criminal trial over George Washington Bridge lane closures. U.S. District Judge Susan Wigenton in Newark said the public’s right of access outweighed the unnamed parties’ privacy interests. She also said the people on the list likely are public employees, or elected or appointed officials. Bruce represented a consortium of media companies – North Jersey Media Group, Bloomberg L.P., NBCUniversal Media, The New York Times Co., NJ Advance Media, Dow Jones & Co. Inc., the Associated Press, Public Media NJ Inc., New York Public Radio, American Broadcasting Cos. Inc., Philadelphia Media Network, PBC and Politico. Click here to read the opinion and here and here to read sample news coverage. Click here and here to read sample news coverage of the filing by Bruce and Sarah Fehm Stewart. Other documents about the case are available here.
Consumer Fraud Suit Yields $910,000 Judgment
Andrew E. Anselmi, Rosemarie DaSilva, and Zachary D. Wellbrock obtained summary judgment of $910,000, including treble damages, in a consumer fraud suit that alleged a general contractor and an affiliated subcontractor overbilled in a housing venture, misappropriated project funds and failed to pay some subcontractors. The plaintiff alleged Consumer Fraud Act violations as well as breach of contract, breach of the covenant of good faith and fair dealing, fraud, unjust enrichment and negligence. On April 29, 2016, Essex County Superior Court Judge Dennis Carey III granted MARC’s motion for summary judgment, which was argued by Wellbrock. Anselmi, DaSilva and Wellbrock had previously obtained summary judgment dismissing all claims asserted against their clients.
Click here to read an article in the New Jersey Law Journal about the case (second item).
Robert Bartkus Becomes College of Commercial Arbitrators Fellow
Robert E. Bartkus was elected a fellow of the College of Commercial Arbitrators on April 14, 2016. The college, made up of nationally and internationally recognized arbitrators, promotes high standards of conduct, develops best practices, and provides training and professional development in the field of complex arbitration. Bob concentrates on multiparty business and international arbitration and litigation.
Defamation Suit Over Book About Cross-Country Trek Is Tossed
A federal judge has dismissed a defamation suit over a coming-of-age book about two high school friends who hitchhiked across the country. Their names were changed in the book, We Picked Up, but the plaintiff claimed he was depicted as a character who engaged in larceny, promiscuity and drug use. Judge Noel L. Hillman, sitting in Camden, held on April 6, 2016 that the suit was filed past the deadline. Bruce S. Rosen, who represented the company that helped the author self-publish the book, argued that the suit was filed late, and even if it wasn’t, the book wasn’t defamatory. Click here to read the decision.
Persecution Suit Dismissed Against Chinese Journalist
A federal judge has dismissed the case of a Chinese journalist accused in the U.S. of aiding persecution for allegedly writing and broadcasting hate speech against the Falun Gong in China. Several Falun Gong followers, who have since left China, claim the work of journalist Zhao Zhizhen incited torture by police and prison guards there. But on March 31, 2016, a judge in Hartford, Conn., said the Falun Gong, which advocates a spiritual practice banned in China, failed to surmount the requirements in Kiobel v. Royal Dutch Petroleum Co., a 2013 U.S. Supreme Court ruling. Zhao was represented by Bruce S. Rosen. Click here to read the ruling in Chen Gang v. Zhao Zhizhen and here to read a news article about it.
Jury Verdict in CEPA Suit
Michael R. Futterman obtained a jury verdict on Feb. 25, 2016 in Essex County Superior Court after a seven-day trial asserting claims under the New Jersey Conscientious Employee Protection Act.
AP Interviews Bruce Rosen on NJ’s Move To Bar Release of State Records
Bruce S. Rosen was quoted in an Associated Press story on New Jersey’s payment of $1 million since 2012 in failed attempts to keep state records secret. The money was paid to plaintiffs’ lawyers in 54 Open Public Records Act cases. In the March 15, 2016 article, Rosen questioned why Gov. Chris Christie’s administration would fight to keep the records secret. Click here to read the story.
Seven MARC Lawyers Chosen for 2016 Super Lawyers Lists
Six lawyers at McCusker, Anselmi, Rosen & Carvelli have been selected for the 2016 New Jersey Super Lawyers© List, and a seventh has been chosen for the 2016 New Jersey Super Lawyers© Rising Star List.
The lawyers named to the Super Lawyers List are Andrew E. Anselmi, complex business litigation, employment law, environmental law, antitrust litigation and criminal defense; Robert E. Bartkus, alternative dispute resolution and business counseling/litigation; Paul F. Carvelli, commercial litigation/business disputes, employment litigation, environmental litigation, real estate litigation, securities/shareholders’ litigation, commercial business matters and special education; Bruce I. Goldstein, complex business litigation, mediation and white-collar criminal defense; John B. McCusker, labor/employment litigation, environmental litigation, complex commercial litigation and criminal defense; and Bruce S. Rosen, complex commercial litigation, media law, employment law, environmental law and criminal defense.
Michael R. Futterman was named to the Rising Star List. He concentrates on employment litigation/counseling, commercial litigation/business disputes and complex business litigation.
The lawyers were named to the lists on March 11, 2016.
Super Lawyers is a rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. The annual selections are based on a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area.
Laura Siclari Provides Pointers at Seminar on NJ Special-Education Law
Laura A. Siclari presented on the topics of protecting the rights of the child and handling ethical issues in special education on Feb. 24, 2016 at a National Business Institute seminar in Newark. The program, "New Jersey Special Education Law," was attended by school administrators, superintendents, board members, principals, teachers and attorneys. Laura concentrates her practice on special education/disability law, environmental law, labor/employment law and general litigation.
Patricia Prezioso Presents on Effective Cross Examination
Patricia Prezioso participated in a panel discussion on "Effective Cross Examination," sponsored by the Criminal Law Section of the New Jersey Association for Justice. The program took place on April 7, 2016 during the organization’s Boardwalk Seminar 2016 in Atlantic City. Patti’s practice is focused on litigation in the areas of white-collar crime, employment defense, environmental defense and commercial matters.
Victory for School Board Before NJ’s Top Court
MARC won a N.J. Supreme Court ruling that defined when administrative agencies’ decisions may be properly appealed to the Appellate Division. Bruce S. Rosen and Michael R. Futterman represented the Elizabeth school board in the case. Click here to read the Jan. 27, 2016 decision in Silviera-Francisco v. Board of Education of the City of Elizabeth.
Judge Tosses Defamation Suit Over Interpretation of Sharia Law
A Bergen County Superior Court judge on Jan. 7, 2016 dismissed a defamation suit by a woman in Saudi Arabia against her half-sister in New Jersey. The plaintiff said she was falsely accused of having sexual relations with many men under the guise of an untraditional marriage known in Saudi Arabia and other countries as a Misyar. Bruce S. Rosen, who represented the defendant, argued that the allegations were religious in nature and could not be decided by a secular court. Click here to read the opinion and here to read a sample of the press coverage.
Robert Bartkus Highlights Impact of New Federal Rules
Debate about proportionality in the federal discovery rules that took effect on Dec. 1, 2015 may be misdirected, Robert E. Bartkus wrote in the Jan. 4, 2016 issue of the New Jersey Law Journal. He said the amendments will have the greatest impact on rules governing document discovery and setting a national standard on spoliation of electronically stored information. Click here to read the article. Bob concentrates on multiparty business and international arbitration and litigation.
MARC on Best Lawyers' Tier 1 for Commercial Litigation, First Amendment Law
McCusker, Anselmi, Rosen and Carvelli is pleased to be named a Tier 1 firm in New Jersey for Commercial Litigation and First Amendment Law by U.S. News – Best Lawyers® "Best Law Firms" for 2016. Firms included on the Nov. 2, 2015 list are recognized for professional excellence marked by persistently impressive ratings from clients and peers.
Four MARC Attorneys Chosen for Best Lawyers in America for 2016
McCusker, Anselmi, Rosen and Carvelli is pleased to announce that four of its attorneys were selected on Aug. 17, 2015 for the 2016 edition of Best Lawyers in America.
John B. McCusker was named for Litigation-Environmental; Bruce S. Rosen for Commercial Litigation, First Amendment Law, Litigation-First Amendment and Lawyer of the Year for First Amendment Law in the Newark area; Paul F. Carvelli for Commercial Litigation; and Bruce I. Goldstein for Bet-the-Company Litigation, Commercial Litigation and Appellate Practice.
Best Lawyers in America is a guide to legal excellence based on peer reviews.
Order Lifted in Newspaper's Unsealing Motion
A N.J. appeals court on Aug. 11, 2015 vacated orders barring the New York Daily News from reporting on its own unsealing motion. Bruce S. Rosen and Daily News in-house counsel Matthew Leish argued on the newspaper’s behalf in the paternity case involving a famous rap artist and impresario. Click here to read the decision in L.C. v. S.C. and L.F. and here to read an article, written by Bruce and Matthew and published in the Media Law Resource Center’s MediaLawLetter, about the case.
Media Outlets Not Liable for Reporting a Wrongful Arrest
Bruce S. Rosen and a New York Daily News in-house counsel convinced a federal judge in Newark on Aug.10, 2015 that news organizations are not liable for reporting a wrongful arrest. The judge found in Lee v. TMZ et al. that reporters from four publications, including the Daily News, fairly and accurately reported on a press conference and news release by the N.Y. attorney general. Click here to read the decision and here (page 19) to read an article about the case in the Media Law Resource Center’s MediaLawLetter.
Win for Employer Over Benefits Sought by Employee Who Left Voluntarily
Michael Futterman, on behalf of an employer, successfully appealed an unemployment decision of the state Department of Labor and Workforce Development’s Appeal Tribunal. The New Jersey Appellate Division on July 31, 2015 upheld and agreed with MARC's underlying argument that under N.J.S.A. 43:21-1 to -24.30, the employee at issue was disqualified from receiving unemployment benefits because he left work voluntarily without good cause attributable to his work.
Bruce Rosen Quoted in Article on Motorists Videotaping Traffic Stops
First Amendment expert Bruce S. Rosen was quoted on Aug. 5, 2015 in an nj.com article on whether motorists are allowed to video police during traffic stops. The answer is generally yes, but there are some case-by-case gray areas. Read the article here.
NJ Official’s Misconduct Conviction Overturned
The New Jersey Appellate Division on July 31, 2015 affirmed a trial judge's JNOV (judgment notwithstanding the verdict), reversed an official misconduct conviction and acquitted our client of insurance fraud. Our client, a high-profile police chief, was represented at trial by Patricia Prezioso. The appeals panel noted troubling details exposed by the law firm's investigation, including that three law enforcement witnesses testified that they were directed by their superior at the prosecutor's office to destroy evidence after receiving Patricia’s demand for it. The client was released from house arrest after a bail application within hours of the receipt of the appeals court decision. Click here to read the decision.
John McCusker Named to Advisory Panel of NJ LEEP
John B. McCusker was appointed in July 2015 to the advisory board of NJ LEEP Inc. (New Jersey Law and Education Empowerment Project). The organization, which is based at Seton Hall University School of Law, provides law-related and college-access programming to urban middle and high school students in northern New Jersey. NJ LEEP also offers guidance to its alumni who are in college. The advisory board is made up of attorneys, state officials and corporate executives.
Mayor Wrongly Denied Trial Diversion; Prosecutorial Abuse Cited
Patricia Prezioso won a big victory before the New Jersey Supreme Court on behalf of a client seeking admission to the state’s Pretrial Intervention Program (PTI). On June 18, 2015, the justices unanimously found the prosecutor abused his discretion in denying PTI admission to the client, a mayor. Click here to read the opinion, and here and here to read sample media coverage of the ruling, and here to read the news release.