New Jersey Appellate Division Clarifies Rights to Disclosure of School Records Under Public Records Law

In a lengthy, published opinion, the New Jersey Appellate Division recently ruled on four appeals from different trial courts (that had reached conflicting results) about the ability of a nonprofit advocacy organization for disabled students and one of the parent’s efforts to obtain copies of settlement agreements from public school districts relating to the provision of special services to other qualified students.

The issue was how to strike a balance between privacy rights in educational records reflected in the New Jersey Pupil Records Act, and the Federal Family Educational Rights and Privacy Act of 1974, on the one hand, and the broad right to obtain public records under New Jersey’s Open Public Records Act or OPRA, on the other hand.  (See Litigation Law Blog’s Post on a Series of Recent OPRA Decisions by the New Jersey courts.)

The Appellate Division Panel held that the non-profit entity plaintiffs in three of the cases were entitled to copies of the requested records with personal identifying information redacted, if they establish that they are “bona fide researchers” under the New Jersey Public Records Act or if they obtain in advance an order from the trial court granting them access. The school districts were directed to not turn over the redacted records until first providing reasonable advance notice to the parents or guardians of the affected students.

The Court distinguished one of the cases on appeal in which the requestor sought a report that exclusively mentioned her own child, affirming parents’ right to obtain unredacted records relating to their children.

For more information on OPRA, 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 at jborek@genovaburns.com.

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New Jersey Supreme Court Holds that Consumers Cannot Pursue Class Action Claims Against TGI Fridays for Inflated Drink Prices, But May Do So Against Carrabba’s Italian Grill

The New Jersey Supreme Court issued a decision on two consumer class actions under the New Jersey Consumer Fraud Act (“CFA”) and the Truth in Consumer Contract, Warranty and Notice Act (“TCCWNA”).  In two separate cases, consumers sought damages against TGI Fridays and the operator of several Carrabba’s Italian Grill, respectively, alleging unlawful practices with respect to the disclosure of prices for alcoholic and non-alcoholic beverages to customers.

With respect to TGI Fridays, the Court held that the named plaintiffs failed to show that common questions of law and fact predominate over individual issues.  The plaintiff had advanced a “price inflation” theory – that the fraudulent marketing drove up the cost of the drinks – but the Court rejected it noting that its prior decisions had found this theory did not support a claim under the CFA.

With respect to Carrabba’s, on the other hand, the plaintiff’s allegations focused on specific pricing practices, which plaintiff claimed are supported by receipts showing that each customer making this claim was charged different prices for the same brand, type, and volume of beverage in the course of a single visit. Because the proposed class had been redefined to only include customers who make that specific CFA claim, they met the predominance requirement for class certification.

In both cases, the Court found that the plaintiffs had failed to meet the standards for a class action as to their TCCWNA claims. Under TCCWNA, a claimant must prove that they received a written sign (here, a menu), which contained information in violation of a consumer law.  Because each individual claimant would have to prove that they received a menu, the Court held, the cases were not suitable for resolution as a class action.

For more information on class actions, the CFA or TCCWNA, 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 Circuit Paves Way for Additional Discovery in Autonomous Car Case

The Federal Circuit reinforced limits on its own jurisdiction by rejecting an appeal brought by intervenor Anthony Levandowski in the much-publicized case Waymo LLC v. Uber Technologies, Inc., et al., No. 17-cv-00939-WHA (N.D. Cal.). The Federal Circuit’s September 13, 2017, decision relies heavily on – and leaves intact – two District Court rulings compelling the production of certain potentially important discovery materials.

According to Waymo’s allegations, Levandowski, its former employee, improperly downloaded information relating to Waymo’s driverless vehicle technology, and then left Waymo to found Ottomoto (“Otto”), which was subsequently acquired by Uber.  Before Uber’s acquisition was complete, attorneys for Otto and Uber jointly retained Stroz Friedberg, LLC (“Stroz”) to investigate Otto employees who had previously worked for Waymo, including Levandowski.  The resulting report by Stroz is at the heart of the discovery dispute at issue.

During discovery, the Magistrate Judge granted Waymo’s motion to compel Otto and Uber to produce the Stroz report, and also refused to quash Waymo’s subpoena to Stroz seeking the report and related documents.  Both rulings were affirmed by the District Court.  His subsequent appeal to the Federal Circuit acknowledged that the appellate court’s two main avenues to jurisdiction – final judgments relating to patents and certain special categories of interlocutory orders – would not apply in this case.  Instead, Levandowski argued that his appeal should be treated as a petition for a writ of mandamus pursuant to 28 U.S.C. 1651(a), a general statute that grants all courts created by Congress the power to issue “all writs necessary or appropriate in aid of their jurisdictions[.]”  Levandowski argued that such a writ was necessary because disclosure of the Stroz report would violate his Fifth Amendment right against self-incrimination.  He also argued that the Perlman doctrine, which permits a privilege-holder to immediately appeal a discovery order aimed at a disinterested third-party custodian, should apply.

In rejecting each of Levandowski’s arguments, the Federal Circuit first noted that a writ of mandamus was only appropriate if, among other things, the petitioner had no other adequate means of relief, and could show a clear and indisputable right to issuance of the writ.  According to the court, a post-judgment appeal would suffice to protect Levandowski’s rights.  Additionally, he failed to establish a clear right to issuance of the writ, as the District Court’s legal conclusions were proper, including the findings that Levandowski couldn’t invoke the attorney-client privilege, work-product doctrine, common interest doctrine, or Fifth Amendment to prevent disclosure of the Stroz report.  Lastly, the court rejected the doctrine’s application in this case because Uber is not a disinterested third-party, but is instead a defendant in the case.

For more information on intellectual property law, trade secret issues, or the implications of Waymo, 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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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 Narrows Choice of Court to File Patent Infringement Actions

The Supreme Court used a dispute over flavored drink mix to settle a question regarding the proper venue for patent infringement actions, unanimously ruling in TC Heartland LLC v. Kraft Foods Group Brands LLC, No. 16-341, that such actions, when brought in the venue where a defendant corporation “resides”, may only be brought in the judicial district where the corporation is incorporated.

The patent venue statute, 28 U.S.C. §1400(b), provides that patent infringement actions may be brought in “the judicial district where the defendant resides or where the defendant has committed acts of infringement and has a regular and established place of business.”  Interpreting that law in Fourco Glass Co. v. Transmirra Prods. Corp., the Supreme Court held that a domestic corporation “resides” only in its state of incorporation for patent venue– differing from the general venue statute, 28 U.S.C. §1391(c), which provided that a corporate defendant “resides” in any state in which it is subject to personal jurisdiction, including any state in which the corporation conducts a sufficient amount of business.  A 1988 congressional amendment to the general venue statute appeared to expand its scope and undermine the holding in Fourco.  Indeed, in 1990, the Court of Appeals for the Federal Circuit held that the general venue statute had generally supplanted the patent venue statute, and that corporations could be sued for patent infringement in any venue where the corporation was subject to personal jurisdiction.

However, the Supreme Court held in TC Heartland that Congress did not intend to supplant or change the meaning of the patent venue statute as set forth in Fourco.  The Court noted, among other things, that congressional amendments to the general venue statute in 2011 clarified that it does not apply when venue is “otherwise provided by law,” and deleted statutory language broadening the scope of the law.

Although the Court’s ruling is technical in nature, it will have a real effect on where patent infringement plaintiffs can file lawsuits.  Commentators have predicted that the decision will increase litigation in Delaware, New York, and California.

For more information on intellectual property law or the implications of TC Heartland, 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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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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N.J. Supreme Court Finds Material Breach by Company That Knowingly Refused to Cooperate with Arbitration Demands Filed in Compliance with the Arbitration Agreement

The New Jersey Supreme Court has ruled that a company’s refusal to cooperate with plaintiffs’ arbitration demands was a material breach of their arbitration agreement, which barred the company from later compelling arbitration. Tahisha Roach v. BM Motoring, LLC 

The plaintiffs had purchased cars from BM Motoring, LLC and Federal Auto Brokers, Inc. d/b/a BM Motor Cars (BM).  As part of the transaction, each plaintiff signed an arbitration agreement requiring resolution of disputes through arbitration in accordance with the rules of the American Arbitration Association (AAA).  The plaintiffs had filed demands for arbitration against BM with AAA.  In one case, despite repeated requests by AAA, BM refused to advance the filing fees that the arbitration agreement obligated BM to pay, resulting in dismissal of the arbitration for nonpayment of fees. In another case, a plaintiff’s claims were dismissed based on BM’s failure to comply with AAA’s rules and procedures.  The plaintiffs then jointly filed the present action against BM, who moved to dismiss the complaint in favor of arbitration.

Ruling in the plaintiffs’ favor, the Court noted that arbitration agreements are governed by general principles of contract law.  BM’s arbitration agreement required arbitration in accordance with AAA’s rules and therefore permitted arbitration before the AAA.  The Court held that BM’s failure to pay the AAA fees or to respond to plaintiffs’ arbitration demands violated BM’s duty of good faith and fair dealing that New Jersey law implies in all contracts.  Specifically, BM’s actions destroyed the benefit plaintiffs expected in signing the arbitration agreement, namely, the ability to arbitrate claims.  Accordingly, BM was barred from later compelling arbitration.

The New Jersey Supreme Court refused to enact a bright-line rule on the issue, emphasizing the fact-sensitive nature of its determination.  Nonetheless, businesses that include standard arbitration clauses in their agreements, should be aware that a failure to cooperate in bringing the case before an arbitrator may result in a waiver of the arbitration agreement.

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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Third Circuit Rules that Samsung Cannot Compel Arbitration Based on Clause “Buried” in Safety and Warranty Guide

The Third Circuit Court of Appeals recently held that Samsung cannot force arbitration in a consumer fraud class action about the battery life of its Galaxy Gear S Smartwatch.  Noble v. Samsung Electronics America, Inc.

Plaintiff had purchased a smartwatch but found, after trying three of them, that the battery lasted for only a few hours, compared to the advertised “24 to 48 hours with typical use.” Finding that others were in a similar position, Noble filed a class action complaint in federal court in New Jersey. Samsung sought to compel arbitration based on an arbitration clause in the company’s 143 page “Health and Safety and Warranty Guide,” included in the Samsung Smartwatch box.

Affirming the district court’s decision denying Samsung’s motion to compel arbitration, the Third Circuit found that Noble had no actual or constructive notice of the arbitration provision because it was not “reasonably conspicuous.”  The “Guide” in which the arbitration clause was included, “buried” the terms on page 97 of the document.  Unlike previous cases involving “shrinkwrap” or “clickwrap” agreements, Samsung’s “Guide” did not clearly inform customers that they are agreeing to certain terms upon purchase and use of the product.

The Third Circuit’s decision is a reminder to businesses to ensure not only the visibility of their terms and conditions, but also an indication that the terms are a contract to which a consumer is binding himself.

For assistance in editing your company’s agreements or product enclosures, or for further information on the Noble decision, 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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News-Gatherer not Nightcrawler: District Court Denies NYPD’s Motion to Dismiss Photojournalist’s First Amendment Complaint

The U.S.  District Court in Manhattan recently allowed a photojournalist’s complaint against the New York Police Department (NYPD) and City of New York to go forward.  In Jason B. Nicholas v. The City of New York, 15-CV-9592, the photojournalist-plaintiff alleged that the NYPD’s and City’s revocation of his press credentials violated his First Amendment and Fourteenth Amendment rights.

Nicholas recounted a series of encounters with the NYPD that led to the revocation, including an altercation with a retired NYPD detective while on assignment for the New York Daily News.  On multiple occasions, Nicholas refused to stay in an NYPD-imposed “press pen,” resulting in his press credentials being seized.  In the most recent incident, while photographing a rescued worker being loaded into an ambulance on-scene at a building collapse in Manhattan, Nicholas’s credentials were seized and revoked by the NYPD for allegedly not being in the press pen near the scene, although he alleges that other photographers were outside of the press pen and operating unimpeded.  The credentials were not returned until nearly eight months later.

Refusing to dismiss Nicholas’s complaint, the Court held that he had stated a viable claim for violation of his First Amendment rights.  The Court reiterated that “under the First Amendment, press organizations have a . . . right of access to newsworthy events in their capacity as representatives of the public and on their own behalf as members of the press.” The Court observed that “[e]qual press access is critical” to news-gatherers, citing case law extending protections against content-based or arbitrary exclusions.

The Court also allowed Nicholas’s due process claim, finding he had sufficiently alleged facts to show he had a protected interest in his press credentials; he was deprived process for revocation of his protected interest by the NYPD’s establishment of a “frozen zone” post-exigency; he was injured as a result of an official policy, custom, or practice of the municipality; and he was in danger of future harm, as evidenced by the pattern of multiple revocations of his press credentials by the NYPD.

Commentators and scholars have pointed to this recent decision, as well as decisions dating back decades upholding First Amendment claims by journalists excluded from covering public officials, including a case from the District of Columbia Circuit that found it impermissible to exclude White House press passes in a content-based or arbitrary fashion.

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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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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