NEW JERSEY LAWYER

DAILY BRIEFING      01/19/2005


News Briefs

NEW LAW CRACKS DOWN ON INTERNET PREDATORS
Signed into law Tuesday by acting Gov. Richard J. Codey was A-2864, which makes it illegal to lure another person into committing a crime, by electronic or any other means, including the internet. The bill was introduced after Wood-Ridge resident Patricia Barteck was menaced by a stranger who came to her home intending to sexually assault her. He had been enticed by an online message he thought she had posted, giving her name, address and physical description and saying she was inviting men to rape her. Barteck knew nothing about the message; it had been posted by a Bergen County man, Jonathan Gilberti, posing as a housewife in a chat room. Authorities also connected Gilberti to a similar incident involving a former neighbor who lived in Beach Haven. 1-18-05

CONTROVERSY CONTINUES OVER OPRA EXEMPTIONS
Critics say proposed changes to New Jersey’s Open Public Records Act could impose some of the country’s most restrictive rules in the name of security. The law allows the public to promptly see any document from state, county or local government unless the record is specifically exempted. Just one day after OPRA went into effect in July 2002, former Gov. James E. McGreevey exempted more than 400 types of public records. But he backed off amid criticism and instead requested the rules now under review by the Attorney General’s Office, which would allow government agencies to seal disaster-response plans, bridge and tunnel diagrams, contagious-disease reports, layouts of utilities like water and sewer lines, construction proposals, and data on chemicals and hazardous materials stored within the state. One of OPRA’s main sponsors, Sen. Robert J. Martin of Morris County, says the restrictions run counter to the act’s intention, and other critics say the changes would force people to prove why they need to see specific documents now available without restriction. A panel comprised mostly of Codey administration officials is reviewing objections filed during the recently concluded public comment period. 1-18-05

SURVEY SHOWS MALPRACTICE FEARS OVERSTATED
Despite the Bush administration’s assertion that medical malpractice lawsuits are a major cause of high medical bills, most Americans see other problems as more pressing, according to a survey by the Kaiser Family Foundation, a non-profit that studies health care issues, and the Harvard School of Public Health. Sixty-three percent of 1,396 respondents think lowering the cost of health care and insurance should top health care priorities for the president and Congress, followed closely by making Medicare more financially sound and increasing the number of Americans with insurance. Reducing malpractice jury awards ranked 11th on a list of 12 items, just behind a better flu vaccine system, and ahead of increasing federal money for stem cell research. 1-18-05

LAW FIRM CHARGED WITH AGE BIAS
In a case that may have major ramifications for the legal business, the Equal Employment Opportunity Commission has charged 1,500-lawyer Sidley Austin Brown & Wood with age discrimination, contending the firm has had an illegal “age-based retirement policy” since at least 1978, and arbitrarily forced out 32 partners in 1999. According to the lawsuit, the Chicago-based firm, which always had a mandatory retirement age of 65, informed the lawyers — all over age 40 — that their status was downgraded, their pay was reduced about 10 percent and they would soon have to leave. Historically, law firm partnerships have not been subject to discrimination laws because partners, as co-owners, were considered employers. But the EEOC is alleging the 32 plaintiffs were partners in name only because they had no voice in the firm’s hiring, firing and salary decisions. Consequently, they were employees entitled to protection of the Age Discrimination in Employment Act. The 7th U.S. Circuit Court of Appeals in Chicago determined the EEOC was entitled to records critical in determining whether the lawyers should have been protected, but no judgment has been reached on the merits of the case.1-18-05

$220 MILLION UPHELD FOR CLASS-ACTION LAWYERS IN CREDIT-CARD SUIT
The 2nd U.S. Circuit Court of Appeals in New York has upheld an antitrust class-action settlement said to be the largest in history, along with a $220 million fee award to lawyers who brought the $3 billion case that targets MasterCard and Visa for requiring merchants to accept debit cards if they take traditional credit cards. Lawyers for the merchants contended combining the two products violates antitrust laws. About 5 million merchants are entitled to share in the $3 billion litigation fund. The class-action attorneys sought 18 percent of the settlement, about $600 million, to make the complex case worthwhile, but the court disagreed. The award compensated plaintiffs’ counsel “handsomely” without creating a “windfall detrimental to the class,” wrote Judge Richard C. Wesley. 1-18-05



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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, JANUARY 18, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, JANUARY 18, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, JANUARY 19, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON TUESDAY, JANUARY 18, 2005.

NOT APPROVED FOR PUBLICATION
 
NO OPINIONS NOT APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON TUESDAY, JANUARY 18, 2005.

THE FOLLOWING OPINIONS NOT APPROVED FOR PUBLICATION HAVE BEEN RELEASED:


HUSBAND AND WIFE
TIBERIO v. JOHNSON
Appellate Division, A-1658-03T3, January 14, 2005, not approved for publication. (22 pages). Facts-on-Call Order No. 17519

Post-divorce-judgment orders denying the defendant ex-husband’s motion for termination or modification of his alimony obligation, requiring the defendant to sell his guitar collection to pay his alimony arrears, and awarding attorney’s fees to the plaintiff ex-wife affirmed; contrary to the defendant’s arguments on appeal, (1) the Family Part’s determination that the defendant had not experienced a change in circumstances that warranted a reduction in his alimony obligation was supported by the record, (2) the Family Part did not err by ordering the sale of the guitars even though they were exempt from equitable distribution, and (3) the Family Part did not abuse its discretion in awarding attorney’s fees to the plaintiff.

HUSBAND AND WIFE
OHEBSHALOM v. OHEBSHALOM
Appellate Division, A-1229-03T5, January 14, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17518

Denial of the plaintiff ex-husband’s motion to reduce his child support obligation remanded for the defendant ex-wife’s disclosure of her current finances, additional discovery, and a plenary hearing; the parties’ property settlement agreement fixed the plaintiff’s child support obligation and required that a plenary hearing be held to resolve child support disputes that could not be resolved based on the motion papers; the Family Part erred (1) by denying the plaintiff’s motion without affording him the opportunity for oral argument because his motion was not a calendar matter or a discovery application and (2) by failing to conduct a plenary hearing pursuant to the PSA because the parties’ dispute could not be resolved on the motion papers where the plaintiff had established a prima facie case of changed circumstances.

HUSBAND AND WIFE
RUCKER v. RUCKER
Appellate Division, A-389-03T3, January 14, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17517

Post-divorce-judgment orders addressing equitable distribution and child support, denying the plaintiff ex-wife’s motion for reconsideration, and awarding $9,188 in attorney’s fees to the defendant ex-husband reversed and remanded; in an earlier decision, the Appellate Division had remanded the Family Part’s initial decision for reconsideration in light of the defendant’s finances, including the money he received as a result of his mother’s death; on remand, the Family Part properly considered the defendant’s $606,875 inheritance, but it erred by failing to consider the defendant’s receipt of $412,000 of life insurance proceeds; a second remand was required for reconsideration of equitable distribution, child support, and attorney’s fees based on the defendant’s “overall financial picture,” including the insurance proceeds.

PREMISES LIABILITY
DARATZIS v. VIP RESTAURANT DINER
Appellate Division, A-5515-03T5, January 14, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 17516

Dismissal of the plaintiff’s complaint in a personal injury action for failure to provide an engineer’s report and denial of his motion for reconsideration reversed; the plaintiff — who worked periodically for the defendant diner but was a customer and was not working on the day of the accident — fell from a ladder while attempting to repair a leaky pipe in the defendant’s basement; the trial court erred because an expert witness was not required where the plaintiff was not contending that his fall was caused by a defective ladder; there was “nothing esoteric” about the plaintiff’s allegations that the defendant’s owner breached his duty of care by failing to hold the ladder, by failing to warn the plaintiff to be careful, or by failing to prevent the plaintiff from attempting the repair.

JUDGMENTS
MARKO v. PEOPLE PLEASERS, INC.
Appellate Division, A-4039-03T5, January 14, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17521

Judgment for the plaintiff in a personal injury action affirmed; the jury awarded $40,000 for past lost wages, $316,800 for future lost wages, $35,795.36 for past medical expenses, $64,000 for future medical expenses, and $50,000 for pain and suffering; the jury found the plaintiff 49 percent negligent, and the trial court molded the verdict accordingly; the trial court allowed prejudgment interest of $14,896.65 based on Rule 4:42-11(b), which prohibits prejudgment interest for future economic losses; contrary to the plaintiff’s arguments on appeal, (1) Rule 4:42-11(b) applies to judgments rendered after its July 1, 2003 effective date, even if the underlying lawsuit was filed before that date, and (2) there was no injustice in applying Rule 4:42-11(b) to the judgment in this case.

PARTNERSHIPS
CANGER v. DORINE INDUSTRIAL PARK PARTNERSHIP
Appellate Division, A-4743-02T2, January 14, 2005, not approved for publication. (34 pages). Facts-on-Call Order No. 17520

Judgment awarding the plaintiff $93,875.92 on his claim for conversion of loan proceeds, $29,966 on his claim for conversion of management fees, $64,128.40 on his claim for violating an assignment agreement, and $24,037.56 in prejudgment interest affirmed in part, reversed in part, and remanded; the plaintiff was entitled to disbursements from the defendant partnership based on his purchase of the interest of the estate of one of the defendant’s founding partners at a sheriff’s sale and based on the assignment agreement that arose from his lawsuit against another partner; a reduction of the award on the assignment claim to $45,884.06 was required to reflect the calculations of the plaintiff’s accountant; remand was required (1) to recalculate the $29,966 award, which was not supported by the record, and (2) to determine the value of the interest that the plaintiff purchased as of the date of the founding partner’s death.

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