NEW JERSEY LAWYER

DAILY BRIEFING      01/11/2005


News Briefs

NEARLY $950,000 FOR ROOFER INJURED IN FALL
Jaime Cerdas of Iselin has received $941,600 in settlement of injuries resulting from a 20-foot fall from the roof of a house where he was doing renovation work as an employee of Sculley Roofing in Point Pleasant. Cerdas sued both Scully and the general contractor, Beachcraft Builders of Sea Girt, for failure to provide a safe work environment. Cerdas v. Beachcraft was settled through mediation by former Middlesex County Judge Edward J. Seaman, prior to setting a trial date. Lawrenceville attorney Edward S. Kahn was counsel for Cerdas. Sculley Roofing, represented by Joseph F. Trinity of Clinton, paid 75 percent of the settlement and Beachcraft Builders, represented by Michael B. Oropollo of Hackensack, paid 25 percent. 1-10-05

LAW FIRM MERGERS UP IN 2004
Law firm merger activity accelerated in 2004, according to Hildebrandt International, a multi-disciplinary consulting firm whose five offices include one in Somerset. Mergers and acquisitions involving U.S. law firms totaled 47 — up from 35 in 2003, but still down from the 2001 peak of 82. Twenty-one of the mergers took place in the first quarter last year, historically the most active period, with 10 during the second quarter, 14 in the third, and two in the fourth. 1-10-05

CONCEPT OF PERSON AS PROPERTY ASSET ‘ABHORRENT’
A record company cannot sue over the death of star singer Aaliyah, who died in a 2001 plane crash, ruled New York’s Appellate Division, 1st Department, reversing Manhattan Supreme Court Justice Carol Edmead’s decision that Aaliyah was an asset rather than an employee of Blackground Records. Blackground sued Instinct Productions, which had produced an Aaliyah video in the Bahamas and arranged for the fatal flight, claiming Instinct’s negligence in failing to arrange safe transportation resulted in the singer’s death. Instinct Productions moved for dismissal, arguing an employer has no right to recover damages resulting from an employee’s death. Edmead found for Blackground Records, holding Aaliyah was the company’s “primary asset,” but a unanimous appeals panel found that analysis unfounded. “The concept that a person is a property asset of another is, of course, abhorrent to modern-day thinking,” wrote Justice Joseph Sullivan in Barry v. Instinct. 1-10-05

ABA SURVEY EXAMINES DISABILITY LAW IN ALL STATES
A recent survey by the American Bar Association’s Commission of Mental and Physical Disability Law presents a comprehensive compilation of disability discrimination laws in all 50 states and the District of Columbia. Written by John W. Parry, commission director, the report discusses disability law related to employment, state and local public services, public accommodations and housing. For more information, contact Letty Brown at HYPERLINK "mailto:BrownL2@staff.abanet.org" BrownL2@staff.abanet.org or (202) 662-1576. 1-10-05

U-MASS PLANS STATE’S FIRST PUBLIC LAW SCHOOL
University of Massachusetts trustees have paved the way for the state’s first public law school, voting to acquire the 260-student Southern New England School of Law in Dartmouth. The plan now goes before the state Board of Higher Education, which will review the proposal in mid-February. University leaders say the effort is an inexpensive way to add a law school to the U-Mass system, but critics have suggested it could cost as much as $40 million to bring the school up to American Bar Association standards. Officials say reports show the school is in good shape financially, and accreditation can be achieved for less than $1 million without spending tax dollars. The 16-year-old school, which last sought accreditation five years ago, has capacity for 550 students, a 5.6-acre campus valued at almost $10 million and a $1.5 million surplus. 1-10-05



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FROM THE NEW JERSEY SUPREME COURT, MONDAY, JANUARY 10, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, JANUARY 10, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, JANUARY 11, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON MONDAY, JANUARY 10, 2005.

NOT APPROVED FOR PUBLICATION
 
NO OPINIONS NOT APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON MONDAY, JANUARY 10, 2005.

FROM THE FEDERAL COURTS
INTELLECTUAL PROPERTY:
SAINT-GOBAIN PERFORMANCE PLASTICS CORP., HCM DIVISION v. TRUSEAL USA, INC.
U.S. District Court (DNJ), Civil Action No. 04-5546 (JAP), January 6, 2005. By Pisano, U.S.D.J. (9 pages). Facts-on-Call Order No. 92252

In a patent infringement action, the District Court granted the plaintiff patent owner’s motion to strike and to dismiss the defendants’ affirmative defenses and counterclaims that challenged the validity of the plaintiff’s patent. The plaintiff’s predecessor had filed a patent application for an invention that was developed by the individual defendant and a co-worker, who were the predecessor’s employees and who had assigned their invention and any resulting patents to the predecessor. The individual defendant resigned to form the defendant corporation while the patent application was pending, and the patent was later issued to the plaintiff. The defendants conceded that the plaintiff was the rightful assignee of the patent based on the individual defendant’s assignment to the predecessor. Pursuant to Diamond Scientific Co. v. Ambico, Inc., the District Court applied the doctrine of assignor estoppel, which prevents the assignor of rights to a patent from later asserting that the rights it assigned were invalid.

DISCOVERY:
IN RE MERCEDES-BENZ ANTI-TRUST LITIGATION
U.S. District Court (DNJ), Master No. 99-4311 (WHW), January 6, 2005. By Walls, U.S.D.J. (23 pages). Facts-on-Call Order No. 92250

The District Court denied the plaintiffs’ motion to strike the affidavit of one defendant’s in-house counsel and the affidavit of the defendants’ economics expert and ordered that the plaintiffs should have the opportunity to depose the in-house counsel at the defendants’ expense. Both affidavits were filed in support of the defendants’ summary judgment motion. The plaintiffs sought to strike the affidavits pursuant to Federal Rule of Civil Procedure 37(c)(1) based on the defendants’ failure to comply with Rule 26 by disclosing the affiants’ identities and the subject matter of their evidence during discovery. The District Court determined that Rule 26 required the defendants to disclose the identity of the in-house counsel but not the expert. Even though the District Court concluded that the defendants’ violation of Rule 26 was “not harmless or substantially justified,” it ordered the deposition of the in-house counsel rather than the exclusion of his affidavit to avoid delay and the loss of “important” evidence.

IMMIGRATION LAW:
YAN LAN WU v. ASHCROFT
Third Circuit, No. 03-3761, January 4, 2005. By Van Antwerpen, C.J. Dissent by Nygaard, C.J. Also on panel: Ambro, C.J. Appealed from the Board of Immigration Appeals. (18 pages). Facts-on-Call Order No. 92253

The Third Circuit remanded the decision of the Board of Immigration Appeals that affirmed the immigration judge’s ruling that the petitioner Chinese citizen did not qualify for asylum or withholding of removal. While detained at an airport, the petitioner expressed her fear that she would be incarcerated if she returned to China because she was a Christian but that she faced harassment by “only the people in the village.” At a hearing, the petitioner testified that the police had broken up a religious service in her home and had arrested several attendees, including her father, and that she would be arrested if she returned to her home. The immigration judge found that the petitioner’s testimony was credible but determined that she would not face state-sponsored persecution if she returned home. The Third Circuit held that the immigration judge’s decision was not supported by substantial evidence in the record because the decision did not explain why the immigration judge relied on the petitioner’s statements at the airport and rejected her testimony at the hearing. Judge Nygaard dissented.

IMMIGRATION LAW:
LEIA v. ASHCROFT
Third Circuit, No. 03-2420, January 4, 2005. By Sloviter, C.J. Also on panel: Becker, C.J. and Stapleton, C.J. Appealed from the Board of Immigration Appeals. (19 pages). Facts-on-Call Order No. 92254

The Third Circuit vacated and remanded the Board of Immigration Appeals’ dismissal of the petitioner’s appeal of the denial of his application for asylum and withholding of removal. The petitioner, who was a Ukrainian citizen of Polish descent and a member of an organization that promoted the rights of non-ethnic Ukrainians, testified that he had been beaten on several occasions by the police and by other citizens. The immigration judge had “grave misgivings” about the petitioner’s credibility based on his failure to provide original documents to substantiate his claims or copies that were authenticated pursuant to 8 C.F.R. §287.6. At a later hearing, the petitioner’s political expert explained why the petitioner was unable to obtain authenticated documents, but the immigration judge found that testimony irrelevant. Applying Liu v. Ashcroft, 372 F.3d 529 (3d Cir. 2004), which was issued after the Board’s dismissal and which held that §287.6 is not the exclusive means of authentication and that asylum seekers must have an opportunity to authenticate documents by other means, the Third Circuit determined that the immigration judge had abused her discretion by refusing to consider the expert’s testimony.

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