New Jersey Courts Hands Victories to Open Government Records Advocates

Over the past month, the New Jersey courts have handed down several rulings clarifying the scope of New Jersey’s Open Public Records Act, or OPRA.   The rulings have resulted in several significant victories for advocates of more access to public records.

In Paff v. Galloway Township, the New Jersey Supreme Court addressed the scope of a municipality’s obligation to disclose electronically stored information.  The plaintiff had requested specific information fields from emails sent between the Township Clerk and Chief of Police, including “sender,” “recipient,” “date” and “subject” over a two-week period.    The Supreme Court found that this information about the emails—in legal parlance, “metadata”— is a government record under OPRA and must be produced.  Although this may impose some burden on a municipality, the Court point to the ability under OPRA to charge a service fee where the records requested require “a substantial amount of manipulation or programming of information technology.”

In North Jersey Media Group, Inc. v. Township of Lyndhurst, the New Jersey Supreme Court addressed the issue of public access to criminal investigatory records associated with the shooting of an individual by police following a high-speed chase.  The Court ultimately ruled that the plaintiff was entitled to disclosure of unredacted Use of Force Reports under OPRA and dash-cam recordings of the incident under the common law, but not to investigative reports, witness statements, and similarly detailed records while the investigation remained ongoing.

The next case, in re New Jersey Fireman’s Association Obligation to Provide Relief Applications Under the Open Public Records Act, involved the polar opposite of the typical OPRA case.  In that case, the question was whether, after a public entity denies a citizen’s record request, the public entity may institute a court action to obtain a judgment from the court declaring the record to not be subject to disclosure.  The Court ultimately ruled that this procedure may be proper in some instances, but under the facts of the case, since the public entity had already denied the OPRA request, only the requestor may file an action to compel the disclosure.

In North Jersey Media Group v. State of New Jersey Office of Governor, a case stemming out of the “Bridgegate” scandal, New Jersey’s Appellate Division held that the court has the authority under OPRA to impose civil penalties for knowing and willful violations of OPRA, and remanded the case for a ruling on whether certain individuals in the Governor’s office intentionally violated OPRA.

In Verry v. Franklin Fire District No. 1, the Appellate Division held that a local a fire department should be considered an “instrumentality” of the larger fire district, and is therefore a public agency required to comply with OPRA.

For more information, please contact Kathleen Barnett Einhorn, Esq., Chair of the Firm’s Complex Commercial Litigation Group, at keinhorn@genovaburns.com or Jennifer Borek, Esq., Partner in the Complex Commercial Litigation Group, at jborek@genovaburns.com.

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Supreme Court Clarifies Rules on International Service by Mail

Resolving an issue that has divided state courts and the federal circuit courts, the U.S. Supreme Court ruled today in Walter Splash, Inc. v. Menon, No. 16-254, that the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (referred to colloquially as the Hague Service Convention), permits parties to serve documents by mail so long as the recipient’s country has not objected.

At issue was Article 10(a) of the Hague Service Convention, which reads: “Provided the State of destination does not object, the present Convention shall not interfere with— (a) the freedom to send judicial documents, by postal channels, directly to persons abroad.”  Rejecting a narrower reading, the Court held that the phrase “send judicial documents” must be read broadly to include service of initial process.  The Service Convention allows for service by mail, the Court reiterated, if the recipient’s country has not objected and such service is otherwise authorized under applicable law.

Beyond resolving a previously unresolved issue, Justice Alito’s unanimous opinion for the Court is notable for another reason:  unlike other opinions interpreting domestic statutes in which Justice Alito and other Justices have refused to look at “legislative history,” the Walter Splash decision looks to various “external” sources as an aid to interpretation.  The French version of the Hague Service Convention must also be considered as “equally authentic,” Justice Alito wrote, and it includes the word addresser, which has been interpreted to mean “service or notice.”  Justice Alito also pointed to the statements and testimony of Philip Amram, member of the U.S. delegation involved in drafting Hague Service Convention, and his article written shortly after the treaty’s passage, earlier drafts of the Convention, which stated that service by mail would be allowed.  Justice Alito also pointed to the decisions of courts in other countries – Canada, the U.K., Greece, and the Court of Justice of the European Communities – that have similarly decided the issue.

For more information about the Hague Service Convention or managing litigation against a non-U.S. based entity please contact Kathleen Barnett Einhorn, Esq., Chair of the Firm’s Complex Commercial Litigation Group, at keinhorn@genovaburns.com or Jennifer Borek, Esq., Partner in the Complex Commercial Litigation Group, at jborek@genovaburns.com.

 

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Procedural Issues May Determine Immediate Fate of President’s Executive Order Before Diverse Panel of Ninth Circuit Judges

The near-term fate of President Trump’s Executive Order barring entry from seven Muslim-majority countries was before the Ninth Circuit Court of Appeals on February 7, 2017.  The Court must decide whether to stay a Temporary Restraining Order, or “TRO,” entered by U.S. District Judge James L. Robart, stopping enforcement of the Executive Order in response to a challenge by the States of Washington and Minnesota.  The three judges on the panel exemplify judicial diversity: Hon. William C. Canby, Jr., is an 85-year old Carter appointee based out of Phoenix; Hon. Richard Clifton is a 66-year old George W. Bush appointee from Hawaii; and Hon. Michelle Friedland is a 44-year old Obama appointee from San Francisco.

Although many controversial and politically charged issues are ultimately at play, the oral argument stands as a reminder to all that sometimes procedural issues are outcome determinative.  Washington’s Solicitor General Noah G. Purcell, representing the two plaintiff states, explained that a TRO is not normally appealable to the Circuit Court unless it is functionally a full preliminary injunction.  Thus, he urged the Court to consider the Government’s application as one seeking a writ of mandamus, under which the Court may only overturn a district court decision in the most extraordinary of circumstances.   And although the states had a heavy burden to obtain the TRO in the first place, the panel was quick to point out that it was the Government that was seeking a stay of the District Court’s TRO and the Government, therefore, bore the burden of persuading the Court that a stay was necessary.

On the merits, both sides faced tough questions. All three judges questioned Department of Justice Attorney, August E. Flentje, on whether there was any evidence supporting the Government’s assertion that there would be “irreparable harm” if the Executive Order were not allowed to go into effect. The Government, the judges observed, was hard pressed to point to a single example in the recent past of an entrant from one of the seven banned countries that had been arrested for terrorism related activities.  For his part, Mr. Purcell was peppered with questions about whether the Executive Order is different from other immigration orders, like President Reagan’s ban on entry by most Cuban immigrants.

The Ninth Circuit panel took the case under advisement, noting its understanding of the time sensitive nature of the issue and the need for a prompt decision.

For more information, please contact Kathleen Barnett Einhorn, Esq., Chair of the Firm’s Complex Commercial Litigation Group, at keinhorn@genovaburns.com or Jennifer Borek, Esq., Partner in the Complex Commercial Litigation Group, at jborek@genovaburns.com.

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No Right of Public Performance for Sound Recordings Under New York Common Law

Answering a question certified to it by the Second Circuit Court of Appeals, the New York Court of Appeals held in Flo & Eddie, Inc. v. Sirius XM Radio, Inc., that New York’s common law does not protect the right to publicly perform a sound recording. The plaintiff is a company formed by two former members of the “Turtles,” a band most famous for its 1967 hit, “Happy Together.” Federal Copyright law began to recognize limited protection for sound recordings in 1971: owners of sound recordings produced after February 15, 1972, were granted the exclusive right to reproduce, distribute and prepare derivative works of those recordings. In 1995, Congress passed the Digital Performance Right in Sound Recordings Act (DPRA), now codified at 17 U.S.C. § 114, which afforded a limited right of public performance with respect to copyrighted sound recordings. The DPRA was aimed at prohibiting public performance of sound recordings by digital radio services, and excluded AM/FM radio stations, bars, restaurants, and stores, which maintain the ability to play (i.e., “perform”) copyrighted sound recordings.

Because the Turtles’ music was recorded before 1972, the band members were forced to rely on state common law protection. Analyzing the history of the common law in the state, a majority of New York’s highest court held that no such protection exists under New York’s common law. Analyzing cases going as far back as 1872, the Court found that, in contrast to federal statutory protection, New York’s common law copyright protection is “very slight at best,” and is limited to the right of first sale of a work.

The Court’s ruling does not address other causes of action like unfair competition and does not overrule cases that disapprove of “piracy,” i.e., surreptitiously recording a live performance and selling it. Nonetheless, the Court’s decision is a victory for digital radio services like Sirius, Pandora, and the like, which have fought nationwide over the right to play older un-copyrighted works without paying licensing fees.

For more information on copyright law or the New York Court’s decision in Flo & Eddie, Inc. v. Sirius XM Radio, Inc., please contact Kathleen Barnett Einhorn, Esq., Chair of the Firm’s Complex Commercial Litigation Group, at keinhorn@genovaburns.com or Jennifer Borek, Esq., Partner in the Complex Commercial Litigation Group, at jborek@genovaburns.com.

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Supreme Court to Review Whether “Offensive” Names Can Be Trademarked

The U.S. Supreme Court agreed today to review the Federal Circuit’s decision to strike down the Lanham Act’s ban on “disparaging” trademarks.  The case, Lee v. Tam, No. 15-1293, involved an Asian American dance-rock band’s attempt to trademark their name THE SLANTS. The U.S Patent and Trademark Office (USPTO) refused, citing the Lanham Act’s prohibition on “disparaging” trademarks. The Federal Circuit held that this prohibition violated trademark applicants’ First Amendment Rights. (See Litigation Law Blog’s previous post about the Federal Circuit’s decision from December 23, 2015.)

The Supreme Court’s decision could impact the more famous battle over an attempt to cancel the trademark registration for the NFL’s Washington Redskins as disparaging to Native Americans.

In the Washington Redskins case, a federal district court had ruled that the football team’s trademark disparaged Native Americans.  The team had appealed the case to the Fourth Circuit Court of Appeals, which was scheduled to hold oral argument in December.  On October 18, 2016, the Fourth Circuit agreed to stay consideration of the appeal until the Supreme Court decides Lee v. Tam.

For more information on the Lanham Act or the Supreme Court’s grant of certiorari in Lee v. Tam, please contact Kathleen Barnett Einhorn, Esq., Chair of the Firm’s Complex Commercial Litigation Group, at keinhorn@genovaburns.com or Jennifer Borek, Esq., Partner in the Complex Commercial Litigation Group, at jborek@genovaburns.com.

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Federal District Judges May Recall Discharged Civil Jury To Correct Errors, Supreme Court Holds

Eschewing an old common-law rule for practicality, the U.S. Supreme Court held today in Dietz v. Bouldin, No. 15-458, that federal district judges may recall a civil jury it has discharged to correct errors in certain circumstances.  In the case, an automobile accident trial in the federal district court in Montana, the jury was tasked with determining if the plaintiff was entitled to additional damages over the $10,136 in medical expenses the parties stipulated were reasonable.  The jury returned a verdict for $0 and the district judge discharged the jurors before realizing that the verdict was “legally impossible” because of the parties’ stipulation.  At common law, when jurors were always formally sequestered, once a court discharged the jury, its only option to correct an error was to call for a new trial.

This bright-line rule should give way to modern trial practice, the Supreme Court held in a 5-2 decision.  Writing for the Court, Justice Sotomayor noted that district judges have the inherent authority to control the proceedings before them, including the analogous ability to amend interlocutory orders at any time before final judgment.  Although judges should exercise their inherent authority cautiously, the recall of a discharged jury may be appropriate if the court is confident that the jurors were not “tainted” by outside influences.  Federal district judges should look to factors such as the length of time between discharge and recall, whether the jurors spoke to anyone about the verdict in person or on their smart phones, and the reaction to the verdict in the courtroom—a gasp or sob in the gallery might cause the jurors to question their decision and affect the jurors’ impartiality.  Finally, the majority limited its holding to civil juries.  The Court left the issue of whether the rule should extend to criminal juries for a different day because criminal jury practice raises different issues, such as whether double jeopardy would attach.

With respect to Dietz, the Court affirmed the district court’s decision to recall the discharged jury because the jurors had only left the courtroom minutes before and only one had left the building (to retrieve a hotel receipt).  When questioned, the jurors indicated that they had not spoken to anyone about the case.

“All judges make mistakes. (Even us.),” Justice Sotomayor quipped. Although district judges must exercise their authority cautiously, they should retain the ability to correct a civil jury verdict error even if the jury has already been discharged.

For more information regarding Dietz v. Bouldin, No. 15-458, or jury practice please contact Kathleen Barnett Einhorn, Esq., Director of the firm’s Complex Commercial Litigation Group at keinhorn@genovaburns.com, or Jennifer Borek, Esq., a Partner in the Complex Commercial Litigation Group at jborek@genovaburns.com.

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U.S. Supreme Court to Alabama: Full Faith and Credit Must Be Given to Out-of-State Adoption

In a unanimous, per curiam opinion in V.L. v. E.L., the U.S. Supreme Court has reversed the Supreme Court of Alabama’s refusal to enforce a Georgia adoption order.  V.L. and E.L., two women, were involved in a 25-year relationship. E.L. gave birth to three children over the course of several years. The couple rented a house in Georgia and formalized the relationship between the children by V.L. petitioning for an order of adoption.  A Georgia court entered a judgment of adoption and recognized that V.L. and E.L. were the legal parents of the children.

After V.L. and E.L. ended their relationship in 2011, V.L. sued in Alabama arguing that E.L. had denied her access to the children.  The Supreme Court of Alabama however, refused to recognize the Georgia judgment as valid, reasoning that Georgia law precluded Georgia’s courts from recognizing two legal parents after one parent consented to the adoption.  The case was decided in the context of a broader political controversy brewing over Alabama state courts’ refusal to grant marriage certificates to same-sex couples in the face of the U.S. Supreme Court’s ruling last year in Obergefell v. Hodges

After staying the Alabama Supreme Court’s judgment in December, the U.S. Supreme Court took three months and six pages to summarily reverse the judgment.  Although a state need not afford full faith and credit to another state’s judgment if that state’s courts did not have subject matter jurisdiction, the Supreme Court reasoned, “[t]hat jurisdictional inquiry . . . is a limited one.”  The state court must only look to see “[i]f the judgment on its face appears to be a record of a court of general jurisdiction, such jurisdiction over the cause and the parties is to be presumed unless disproved by extrinsic evidence, or by the record itself.” Slip. Op. at 3 (quotations and citations omitted).  Because under Georgia law, the state superior court has exclusive jurisdiction over adoption matters, the Supreme Court held, Alabama courts were required to enforce the Georgia judgment.  Whether the Georgia judge erred in applying Georgia adoption law did not strip that court of jurisdiction.

The unanimity of the Supreme Court’s decision is a reminder that the diverse views of the various “laboratories of democracy”  does not permit one state to ignore a valid court order entered in another.

For more information regarding the Full Faith and Credit Clause or the Court’s decision in V.L. v. E.L., please contact Kathleen Barnett Einhorn, Esq., Director of the firm’s Complex Commercial Litigation Group at keinhorn@genovaburns.com, or Jennifer Borek, Esq., a Partner in the Complex Commercial Litigation Group at jborek@genovaburns.com.

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