NEW JERSEY LAWYER

DAILY BRIEFING      08/16/2005


News Briefs

STATE BAR SEEKS CANDIDATES FOR EXECUTIVE COMMITTEE, OTHER POSTS
The New Jersey State Bar Association is seeking applicants for the position of president-elect and other key leadership posts to be filled in 2006. These include first and second vice presidents, treasurer and secretary. The Bar Association’s nominating committee also seeks applicants for three ABA House of Delegates seats, one Young Lawyers Division trusteeship, three section/committee trustee positions, two nominating committee members, two at-large trustee seats and county trustee seats for Bergen, Burlington, Cumberland, Essex, Gloucester, Hudson, Mercer, Morris, Passaic, Salem and Warren counties. Interested candidates should send a letter of intention that includes the position sought and their e-mail address to Ellen O’Connell, Nominating Committee chairwoman, New Jersey State Bar Association, One Constitution Square, New Brunswick, N.J. 08901. Letters should be marked to the attention of Carol A. Howardson. The deadline is Oct. 19. 8-15-05.

LAW FIRM MERGER ACTIVITY INCREASES
Law firms nationally were involved in 34 mergers and acquisitions during the six months ending June 30, up from 30 such transactions during the first half of 2004 and 25 in the first half of 2003, reports management consultants Hildebrandt International. Most involve mergers with firms in neighboring states. New Jersey firms expanding out-of-state this year include Newark’s Gibbons, Del Deo, Dolan, Griffinger & Vecchione, which added a Philadelphia office, and Roseland’s Grotta, Glassman & Hoffman’s expansion into Melville, N.Y. California and New York are the greatest inbound markets with five mergers each this year, reports Hildebrandt, which has an office in Somerset. 8-15-05

PATENT ISSUES DECLINE FOR FIRST TIME SINCE 1995
The number of U.S. patents issued in 2004 — 164,402 — was 2.7 percent less than 2003, reports Philadelphia-based Wolters Kluwer Health, a subsidiary of legal profession publisher Wolters Kluwer in Amsterdam. This marks the first time since 1995 that the number of patents declined. Darlene Slaughter, a general manager at Wolters Kluwer, said it’s too soon to predict a trend because last year’s numbers cover only patents issued and not applications. Murray Hill-based Lucent Technologies and Honeywell International in Morristown led all New Jersey companies in patents approved with 546 and 536, respectively. IBM was the overall leader with 3,277. 8-15-05

FIRST-YEAR ASSOCIATES SALARIES FLAT
Salaries for first-year associates have remained essentially level the past few years, but it’s still far more lucrative to start a legal career at a large firm, according to the National Association for Legal Career Professionals. Its 2005 report on associate salaries finds a $100,000 median nationwide, ranging from $67,500 at firms with two to 25 attorneys to $125,0000 for firms with more than 500. While first-year associates’ pay in some markets increased 30 percent between 1999 and 2000, there’s been little change since. NALP notes the prevailing large-firm median of $125,000 is the same reported in 2000. 8-15-05

INSURER SUED FOR FAILING TO APPROVE ALCOHOLISM TREATMENT
Philadelphia-based health insurer Independence Blue Cross is fending off a lawsuit’s claim it usurped a doctor’s role when it denied coverage to an insured who later died. The estate of Sandra S. Lobb, who died from alcohol-related problems in 1997, sued in U.S. District Court in Philadelphia alleging the insurer engaged in “the unauthorized practice of medicine” when it denied coverage for an alcoholism treatment program. The insurer says its coverage decisions are based on whether the treatment sought meets accepted medical standards. 8-15-05



Today's Decision Summaries

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ATTORNEY'S FEES
NEW JERSEYANS FOR A DEATH PENALTY MORATORIUM v. NEW JERSEY DEPARTMENT OF CORRECTIONS
New Jersey Supreme Court, A-63, August 15, 2005. (32 pages). Facts-on-Call Order No. 92626

If the trial court concludes that the requester in an action under the Open Public Records Act obtained a high degree of success, the requester should recover the full lodestar amount of attorney’s fees. To reach that conclusion, the trial court should conduct a qualitative analysis that considers the number of documents received versus the number requested, whether the litigation vindicated the purpose of OPRA, and the factors set forth in Rule of Professional Conduct 1.5(a). Justice LaVecchia concurred in part and dissented in part.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, AUGUST 16, 2005.


FROM THE NEW JERSEY SUPREME COURT, MONDAY, AUGUST 15, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, AUGUST 15, 2005:


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON MONDAY, AUGUST 15, 2005.

NOT APPROVED FOR PUBLICATION
DOMESTIC VIOLENCE
COSTANTE v. COSTANTE
Appellate Division, A-349-04T1, August 15, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18370

Final domestic violence restraining order entered against the defendant husband affirmed; the plaintiff wife began changing the diaper of the parties’ child in the back seat of her car, which blocked the driveway where the defendant’s car was parked; when the plaintiff refused to move her car, the defendant got in and moved it, with the child lying unrestrained in the back seat and with the back seat door open; the trial court found that this constituted harassment under the domestic violence law; the trial court “appropriately” found that the defendant’s driving of the car had exposed the child to a risk of injury, that the action was “a communication to plaintiff with a purpose to alarm or seriously annoy her,” and that this constituted harassment.

EMPLOYMENT LAW
FELDMAN v. HUNTERDON RADIOLOGICAL ASSOCIATES
Appellate Division, A-4732-03T3, August 15, 2005, not approved for publication. (28 pages). Facts-on-Call Order No. 18371

Summary judgment for the defendants in an action under the Conscientious Employee Protection Act reversed and remanded; the plaintiff physician entered into an employment agreement with and was an equal shareholder in the defendant radiological group; the plaintiff became the chairperson of the radiology department at the Hunterdon Medical Center, where she began to receive complaints about one of her fellow shareholders; the plaintiff recommended that the shareholder’s application for privileges be subject to conditions; the plaintiff alleged that her position as to the shareholder “created friction” and that the other shareholders retaliated against her; the evidence was sufficient to allow a rational juror to find that the plaintiff physician was an “employee” who had been retaliated against in violation of CEPA; applying the elements of CEPA, there was “insufficient justification” to grant the defendants’ motion for summary judgment.

WORKERS’ COMPENSATION
TLUMAC v. HIGH BRIDGE STONE
Appellate Division, A-3635-04T2, August 15, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18369

Division of Workers’ Compensation order that awarded the petitioner truck driver medical and temporary disability benefits affirmed; the truck driver was injured when he fell asleep while driving and lost control of his truck at about 4 a.m.; the respondent employer relied on the statutory defense of intoxication to deny compensability; the judge of compensation properly observed that the truck driver’s intoxication may have contributed to the accident but that the truck driver’s fatigue and lack of sleep arising from his work schedule and his activities at home also may have contributed; compensation was warranted because the judge’s conclusion that intoxication was not the sole cause of the accident was fully supported by the record.

CONSTITUTIONAL LAW
LANCE v. CODEY
Law Division, Mercer County, MER-L-2087-05, August 11, 2005, not approved for publication. By Feinberg, A.J. (20 pages). Facts-on-Call Order No. 18367

Sale by the State of New Jersey of $150 million in Series 2005 Tobacco Settlement Asset-backed Bonds enjoined; the Series 2005 Bonds were designed to restructure the Series 2003 Tobacco Settlement Asset-backed Bonds, and $150 million of their anticipated proceeds was counted as anticipated revenues in the defendant Acting Governor’s certification that anticipated revenues exceeded anticipated expenditures in the Fiscal Year 2006 Appropriations Act; the plaintiff legislators were entitled to injunctive relief (1) because, under Lance v. McGreevey, the $150 million could not be used to fund or balance the State budget without violating the Appropriations Clause of the New Jersey Constitution, (2) because the $150 million would be used for an unconstitutional purpose if no injunction was issued, and (3) because the State could not establish that it would suffer a legitimate injury if the sale of $150 million in Series 2005 Bonds was enjoined.

EMPLOYMENT LAW
ACTIVES INTERNATIONAL L.L.C. v. REITZ
Chancery Division, Bergen County, BER-C-239-05, August 5, 2005, not approved for publication. By Doyne, J. (13 pages). Facts-on-Call Order No. 18368

On an order to show cause, the defendant vice president of sales and marketing declared preliminarily disassociated from the plaintiff limited liability company without prejudice, the vice president’s request for the appointment of a custodial receiver denied, and case management conference scheduled to determine how to proceed in an action arising from the vice president’s alleged competition against the company; the vice president held a one-third interest in the company, but he was suspected of violating the non-compete provisions of the company’s operating agreement by diverting opportunities from the company to himself and the defendant competitor, which was controlled in whole or in part by the vice president and his brother; in light of the parties’ assertions and concessions, it was not “reasonably practicable” for the vice president to continue as a member of the company; a custodial receiver was not required in the absence of “concrete” assertions of fiscal mismanagement, absconding with funds, or other improprieties.

ESTATES AND TRUSTS
IN RE PROBATE OF THE ALLEGED WILL OF LEE
Chancery Division, Bergen County, BER-P-146-03, August 5, 2005, not approved for publication. By Doyne, J. (14 pages). Facts-on-Call Order No. 18364

Application by two beneficiary charities for an order providing that the federal and State estate taxes assessed against two qualified terminal interest property trusts should be charged to the shares of the beneficiary daughter alone denied; the trusts were created pursuant to the will of the decedent’s wife; the QTIP trusts were to be distributed as follows: $165,000 to the daughter, $600,000 to a trust for the daughter’s benefit during her lifetime and then to her children, and the remainder to the two charities; the estate taxes were due on the trusts because they had been included in the decedent’s gross estate; based on the wife’s will, it was “quite clear” that the specific legatees — the daughter and her children — were to receive their distribution before the charities, which were residual beneficiaries; therefore, the estate taxes that were assessed against the trusts had to be paid out of the trusts’ corpora before distribution.


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Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


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