NEW JERSEY LAWYER

DAILY BRIEFING      03/31/2005


News Briefs

SUPREME COURT ORAL ARGUMENT WEBCASTS TO BE ARCHIVED
Videotaped webcasts of New Jersey Supreme Court oral arguments will be permanently archived for public access on the website of Rutgers Law School-Newark, HYPERLINK "http://njlegallib.rutgers.edu" njlegallib.rutgers.edu. Response to the court’s webcasting of arguments, begun in January, has been so great, said Stephen W. Townsend, clerk of the Supreme Court, that the court recognizes the value archiving will provide lawyers, students and legal scholars “well into the future.” Webcasts will remain on the judiciary’s website, HYPERLINK "http://www.njcourtsonline.com" njcourtsonline.com, for 30 days before they’re archived in Rutgers’ digital library. 3-30-05.

EIGHT STATES JOIN NEW JERSEY IN EPA FIGHT
As expected, eight states’ attorneys general have joined Peter C. Harvey of New Jersey in a lawsuit challenging the Environmental Protection Agency’s new standards for mercury emissions from power plants. In the suit, filed in the U.S. Court of Appeals for the District of Columbia, the states charge that the standards, which are less stringent than New Jersey’s regulations, fail to protect children and pregnant women. The other states are California, Connecticut, Maine, Massachusetts, New Hampshire, New Mexico, New York and Vermont. 3-30-05

JUDGE STICKS WITH $31 MILLION FEE AWARD
U.S. District Judge Stewart Dalzell of the Eastern District of Pennsylvania has again awarded more than $31 million in attorney fees to the team that secured a $126 million settlement from the accounting firm KPMG. That decision came two months after an appeals court ruled the award may have been too high because the judge’s lodestar calculation focused only on the hourly rates for the top lawyers. The 3rd U.S. Circuit Court of Appeals sent the case back to Dalzell, who held that although the multiplier he used in his original calculation is now higher, his calculation is still justified The fees will be shared by 34 firms who represented shareholders of Rite Aid Corp., which was involved in an accounting scandal while being audited by KPMG. According to The Legal Intelligencer, more than 80 percent of the fee will go to two lead firms, Berger & Montague in Philadelphia and Milberg Weiss Bershad Hynes & Lerach in New York. 3-30-05

OMITTING FACTS CAN BE GROUNDS FOR DEFAMATION
A reporter’s omission of facts from a story can be grounds for a defamation suit, the Washington Supreme Court has ruled. A Spokane businessman sued alleging the station’s televised report about his alleged harassment of an employee left out major portions of an interview he granted the station. The court ruled the report was not defamatory, but its majority opinion noted that defamation could apply if a report leaves “a false impression that would be contradicted by the inclusion of omitted facts.” 3-30-05

SEC SHOWS LENIENCY IN STOCK OPTION EXPENSING
Companies have wider latitude in calculating expenses recorded to stock options issued to employees under a new Securities and Exchange Commission ruling. The SEC, in a staff accounting bulletin, notes that similar option plans at different companies may produce widely differing expense reports, but it will temporarily accept the variances. It added, though, its view of reasonable conduct on the expensing might change over time as certain tactics emerge as best practices. 3-30-05

CORRECTION
A news item in the March 29 Daily Briefing confused the issue of teen-agers getting abortions without parental consent with the separate issue of parental notification in such matters. The New Jersey Supreme Court in August 2000 struck down as unconstitutional a 1999 law requiring notification. The U.S. Supreme Court this week declined to hear an appeal to reinstate an Idaho law requiring parental consent for girls under 18 in most instances. The issue before the U.S. justices had nothing to do with notification. 3-30-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, MARCH 30, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, MARCH 30, 2005:

TRIAL BY JURY
STATE v. GENTRY
New Jersey Supreme Court, A-27, March 30, 2005. (8 pages). Facts-on-Call Order No. 92383

The New Jersey Supreme Court reversed substantially for the reasons expressed by the dissent in the Appellate Division’s opinion reported at 370 N.J. Super. 413 (2004). The use of “force on another” is a critical element of robbery, and the jury must agree unanimously on which acts were committed against each victim when deliberating on a charge of that offense.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, MARCH 31, 2005.



APPROVED FOR PUBLICATION
CONSUMER PROTECTION
RYAN v. AMERICAN HONDA MOTOR CORP.
Appellate Division, A-2975-02T2, approved for publication March 30, 2005. (23 pages). Facts-on-Call Order No. 92384

The Magnuson-Moss Warranty Federal Trade Commission Improvement Act allows a cause of action for breach of warranty to a lessee of a new car because a lessee is a “consumer” under the Act.

NOT APPROVED FOR PUBLICATION
CHARITABLE IMMUNITY
OGRODNIK v. PRINCETON UNIVERSITY
Appellate Division, A-2160-03T3, March 30, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17778

Summary judgment for the defendant University based on the Charitable Immunity Act affirmed; the 89-year-old plaintiff fell on an outdoor stairway on the defendant’s campus, and he claimed that the defendant was negligent based on the stairway’s configuration, its lack of railings, and the lack of markings on its steps; although the plaintiff stated in his brief that he was not touring the campus but that he was on his way to the bookstore when he fell, his answers to interrogatories admitted that he had been on the campus with his family for sightseeing; in light of the Legislature’s intent that “charitable” immunity be liberally construed, the trial court properly determined that the defendant had made visitors to the campus beneficiaries of its mission within the meaning of the Act by opening the campus to the public.

VERBAL THRESHOLD
PEDREIRA v. DeJESUS
Appellate Division, A-2541-03T1, March 30, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 17779

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold affirmed; the 45-year-old plaintiff pedestrian sustained an injury to her right knee when she was struck in the right leg by the defendants’ vehicle at an intersection in Newark, and she claimed that her injury affected her ability to dance, run, exercise, use stairs, and perform housework; the plaintiff was unable to satisfy either prong of the Oswin test (1) where her orthopedic surgeon’s bare conclusion that the plaintiff had sustained a permanent injury was unsupported by factual evidence and (2) where she was still able do the activities that she had previously participated in, even though she might experience some discomfort or have to modify those activities.

DOMESTIC VIOLENCE
TORIS v. HART
Appellate Division, A-5937-03T2, March 30, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17783

Final domestic violence restraining order against the defendant affirmed; the plaintiff and the defendant were members of the same first aid squad and briefly dated from December 2002 to January 2003; the trial court found that the defendant blocked the plaintiff’s exit from an ambulance and hugged her against her will on April 6, 2004, blocked her from entering her vehicle on May 4, 2004, and left annoying messages on her cell phone; those findings provided a sufficient basis to find harassment, and the trial court’s findings were “amply” supported by the evidence; contrary to the defendant’s argument on appeal, his actions were not “domestic contretemps” that should not be considered domestic violence because this case involved a brief dating relationship rather than a deteriorating marriage.

HUSBAND AND WIFE
NIE v. ZOU
Appellate Division, A-3495-03T1, March 30, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17782

Amended judgment of divorce affirmed; the Family Part did not err by denying the defendant ex-wife’s claim for alimony where, after reviewing the statutory factors, the court found that the parties’ incomes were “substantially the same” and that the defendant did not need the plaintiff ex-husband’s assistance to enjoy a lifestyle that was similar to the one that she enjoyed during the marriage; the Family Part’s formulation for child support met the requirements of N.J.S.A. 2A:34-23 and the Child Support Guidelines where the court found that the “variable nature” of the plaintiff’s income and bonuses required an accounting twice a year; the Family Part did not abuse its discretion by failing to require the plaintiff to maintain life insurance to secure his child support obligation or by declining to award attorney’s fees to the defendant.

PUBLIC EMPLOYEES
PALAMARA v. TOWNSHIP OF IRVINGTON
Appellate Division, A-6877-02T1, March 30, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17781

Final decision of the Merit System Board demoting the petitioner to the position of Deputy Chief and adopting the administrative law judge’s findings and conclusions that the petitioner was guilty of insubordination affirmed; the petitioner had been charged with deliberately failing to turn over certain Internal Affairs Unit files that had been requested by the acting police director and that were part of an investigation in response to an Attorney General’s report that was critical of the Police Department; the ALJ rejected the petitioner’s assertion that he was authorized to withhold the release of the files and concluded that the acting police director was authorized to order the petitioner to release the files; the petitioner’s arguments were “without sufficient merit,” and the Board’s findings were “amply supported” by the record.

APPELLATE PROCEDURE
CURRAN v. TCA BOULDER, INC.
Appellate Division, A-3882-03T3, March 30, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17780

Judgment for the plaintiff entered on remand following a reversal by the Appellate Division affirmed; the Appellate Division in its reversal did not grant more relief than was sought by the plaintiff on appeal, and that was exactly what the trial court ordered in the judgment that it entered; the trial court’s judgment properly reflected what the Appellate Division had decided, and the plaintiff was bound by what was argued in the Appellate Division and by the Appellate Division’s resulting decision; the trial court (1) properly rejected the plaintiff’s effort to provide new evidence that was not offered during the original trial and (2) did not abuse its discretion by denying the plaintiff’s attempt to amend the complaint.


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