Being A Compulsive Gambler Is No Defense To Breaching Line Of Credit With Casino

In Harrah’s Atlantic City Operating Co. v. Dangelico, plaintiff, a casino, lent defendant, a “casino gambler,” $160,000 against a $200,000 line of credit. The loan was secured by checks drawn on defendant’s bank account, coupled with defendant’s representation that he had sufficient funds in that account to cover the loan. Want to bet how this story unfolds?

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Three Contracts, But Only One Arbitration Provision, Means Arbitration Cannot Be Compelled

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

What happens when the same parties enter into three contracts, all related to the same underlying services, the first two of which require the parties to litigate any disputes while the third provides that the parties “may” settle any disputes through binding arbitration? When a dispute arises, do you have to sue in court, can you arbitrate instead, if one side chooses arbitration, is the other side stuck with that choice? These were the issues in the Appellate Division’s recent decision in Medford Township School District v. Schneider Electric Building Americas, Inc.

In Medford Township, plaintiff contracted with defendant to “design and implement upgrades to several of [plaintiff’s] schools and its transportation and operations center.” The initial contract between the parties did not contain an arbitration provision. To the contrary, it contained a provision requiring that any disputes be resolved under the law of the state where the services were provided, and in the “federal, state, or municipal courts serving the county in which the services [were] performed.”

Some time later, plaintiff issued a request for proposals (RFP) for a related job. The RFP did not contain an arbitration provision. Instead, it required the winning bidder to agree that “any action or proceeding that [arose] in any manner out of performance of the RFP [or the resulting contract] . . . shall be litigated in the Superior Court of New Jersey, Burlington County.”

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Segregated Swimming Pool Not Allowed, Even When Purportedly Necessary To Prevent Discrimination

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Some time ago, I wrote a blog post about a sign I saw at the beach, “Swimmers Only Between Flags.” It was a lighthearted post about the limitations of seemingly “plain” language. In Curto v. A County Place Condominium Association, the U.S. Circuit Court for the Third Circuit addressed a more serious issue involving swimming restrictions. Curto involved a challenge to a condo association’s policy of having gender-specific swimming hours at the community pool. The case presents an interesting intersection of discrimination — gender discrimination that was purportedly necessary to prevent religious discrimination. Read more about it below, and stay tuned because I am certain that the Curto decision will not be the last word on the issue.

In Curto, plaintiffs were residents of a condominium, A Country Place, which was governed by the defendant community association. A Country Place is a “55 and over,” age-restricted condominium located in Lakewood, New Jersey. As the Third Circuit noted, “Lakewood has a large and growing Orthodox Jewish population, and so does A Country Place.” Nearly two-thirds of defendant’s residents were Orthodox when the underlying events in Curto occurred. Defendant established single sex swimming hours for the community pool to accommodate “the Orthodox principle of tznius, or modesty, according to which it is improper for men and women to see each other in a state of undress – including bathing attire.”

Prior to 2016, defendant only had “a handful of sex-segregated swimming hours throughout the week.” But, “as the Orthodox membership at A Country Place increased, [defendant] increased the number of sex-segregated hours.” By 2016, over two-thirds of all swimming hours throughout the week were sex segregated.

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Do New Jersey Employers Have To Accommodate Medical Marijuana Use? Maybe.

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

In New Jersey, cannabis is a hot topic. The laws regulating its use for medicinal purposes are evolving, and the legislature may soon legalize it for recreational use. Cannabis issues also continue to percolate through New Jersey courts. On Wednesday, the Appellate Division issued its opinion in Wild v. Carriage Funeral Holdings, Inc., an important decision on whether employers must accommodate medical marijuana use by their employees. When this case was decided by the trial court, most employers interpreted it as not requiring them to do so. This may not be the case after the Appellate Division’s decision. The Appellate Division reversed the trial court but stopped short of declaring that employers must always accommodate their employees use of medical marijuana.

In Wild, plaintiff worked as a funeral director at a funeral home owned by one of the defendants. Two years after he started working at the funeral home, he was diagnosed with cancer. As part of his treatment, plaintiff was prescribed medical marijuana as permitted by New Jersey’s Compassionate Use Act, which allows individuals who are suffering from “debilitating medical conditions” to use marijuana for medicinal purposes. The act also protects those individuals, along with their doctors, from criminal prosecution for marijuana possession and from other civil and administrative penalties. But the Act does not “require . . . an employer to accommodate the medical use of marijuana in any workplace.” This provision was at the heart of the dispute in Wild.

In 2016, plaintiff was driving a hearse for a funeral when another driver ran a stop sign and collided with the hearse. Plaintiff was injured and was taken to the emergency room. Plaintiff advised the treating physician that he had a license to possess marijuana. The physician stated that it was “clear plaintiff was not under the influence of marijuana, [ ] therefore no blood tests were required.” After being examined, plaintiff was given pain medication and sent home. When he went home, plaintiff took the pain medication and used his medical marijuana.

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New Trial Ordered Where Juror Objected To Defendant Not Putting Hand On Bible When Being Sworn In

Trial lawyers warn young lawyers to be careful because jurors are always watching. You never know when what you do or say will be seen by a juror and color his or her impressions of you. This can sometimes make you paranoid. I had a Starbucks coffee with me on the first day of a jury trial but, after noticing several jurors with Dunkin Donuts coffee drinks, I switched to Dunkin. I doubt this was crucial to the jury’s deliberations, but sometimes the results are far more significant. Such was the case in Davis v. Husain, where a juror’s observation that defendant did not place his hand on the Bible when being sworn in led to the jury’s verdict being reversed and defendant being granted a new trial.

In Davis, plaintiff sued defendant under New Jersey’s Law Against Discrimination. The jury ruled in plaintiff’s favor, and awarded her damages. After the trial, the judge met ex parte with the jury. During that meeting, “a female juror mentioned that [plaintiff] had not placed his hand on the Bible when taking the oath.” The judge told counsel about this revelation, but refused to make any further inquiries of the jurors or grant a new trial.

Defendant appealed the jury’s verdict, and the case eventually made its way to the New Jersey Supreme Court, which “flatly prohibit[ed] ex parte post-verdict communications between trial judge and jurors,” like the ones that had occurred in Davis. (That decision can be found here.) The Supreme Court remanded the matter to a different trial judge to determine whether the juror’s “actions or comments affected others on the panel,” and whether “a good case showing [could be] made that the jury’s decision was tainted by misconduct.”

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Judges Voting From Beyond The Grave?

“May a federal court count the vote of a judge who dies before the decision is issued?” The cynical New Jersey resident in me thinks the answer to this question is simple – people vote all the time in New Jersey after they die. But this was not what the Supreme Court was after in Yovino v. Rizo.

Yovino was before an en banc panel of 11 judges at the U.S. Court of Appeals for the Ninth Circuit. One judge participated in oral argument, voted, and wrote a decision on the case, but died before the decision was released. The Ninth Circuit nonetheless counted his vote, which was significant, because it was the deciding vote. By counting his vote, the judge’s decision became the majority opinion and thus binding precedent in the Ninth Circuit. If his vote had not been counted, then the case would have ended in a 5-5 tie with no majority opinion, and thus no binding precedent.

The Ninth Circuit claimed that it was justified in counting the judge’s vote because “the majority opinion and all concurrences were final, and voting was completed by the en banc panel prior to his death.” The Supreme Court disagreed. It held that, by statute, only active or senior-status judges can participate on en banc panels. It further held that judges’ votes and opinions do not become “immutable at some point in time prior to their public release,” but instead, “a judge may change his or her position up to the very moment when a decision is released.” Thus, a decision is not final until the date of its release. And if a judge dies or retires before that date, then he or she is no longer an active judge or a senior judge when the decision is made, therefore his or her vote does not count.

Applying this standard to Yovino, the Supreme Court held:

Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.

(Although the lede is sufficiently buried at this point, that last sentence is the main reason why I wrote this post.)

Where Are We Arbitrating Again? Parties Must Identify Forum And Process For Arbitration Provision To Be Enforceable

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

arbitration (PD)New Jersey courts frequently invalidate arbitration provisions that do not clearly and unambiguously explain that plaintiffs are waiving the right to seek relief in court and have their claims decided by a jury (see here, here, and here for examples). In Flanzman v. Jenny Craig, Inc., the Appellate Division invalidated one for an even more basic reason — the provision did not identify any arbitration forum or any process for conducting the arbitration.

In Flanzman, plaintiff worked for defendant. After she was terminated, she sued, alleging age discrimination. Defendant moved to compel arbitration under an agreement with plaintiff that provided:

Any and all claims or controversies arising out of or relating to [plaintiff’s] employment, the termination thereof, or otherwise arising between [plaintiff] and [defendant] shall, in lieu of a jury or other civil trial, be settled by final and binding arbitration. This agreement to arbitrate includes all claims whether arising in tort or contract and whether arising under statute or common law including, but not limited to, any claim of breach of contract, discrimination or harassment of any kind . . . [Plaintiff] will pay the then-current Superior Court of California filing fee towards the costs of the arbitration (i.e., filing fees, administration fees, and arbitrator fees).

Plaintiff did not agree to this when she began her employment with defendant. Instead, defendant presented it to her 20 years after she was hired, and plaintiff signed it to keep her job.

The flaw in the provision is that, even if it adequately advised plaintiff that she was giving up her right to a jury trial, it says “nothing about what forum generally replaced that right.” The trial court recognized this shortcoming, but instead of declaring the provision unenforceable, simply allowed plaintiff to choose the forum. Plaintiff appealed, arguing that the arbitration agreement lacked mutual assent and was therefore invalid.

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