Zoom! Zoom! Zoom! Only One Witness In The Room (For Remote Trial Testimony)

Just before the pandemic turned nearly all New Jersey courtrooms virtual, the Appellate Division issued its decision in Pathri v. Kakarlamath, which dealt with the standards trial courts should use to assess a party’s request to appear remotely for trial. I wrote about it here “Before Applying a 30-Year Old Decision to Modern Technology, A New Jersey Court References A Musical From the 1890’s.” Who knew at the time how timely that decision would become?

Now the Appellate Division has revisited the issue (minus theatrical references). In D.M.R. v. M.K.G., the Appellate Division acknowledged the issues courts have faced since Pathri , and addressed the challenge of ensuring that remote hearings are as fair as possible:

Little did we know that within two months our entire court system would begin to rapidly transform from in-person to virtual court proceedings, utilizing various remote video and telephonic platforms, in an effort to continue operations amid the social distancing measures necessitated by the COVID-19 pandemic. Since that time, New Jersey Courts have operated primarily remotely via platforms like Zoom, Microsoft Teams, and telephone conferences, with the goal of preserving the quality of justice our courts have traditionally striven to provide when court was conducted in-person. Trial courts and staff have undertaken a herculean effort in rising to this unprecedented challenge. However, despite their efforts, the formality of the courtroom can fall away. Everyone may not have the same access to technology. These proceedings often involve unrepresented litigants unfamiliar with court proceedings, which presents its own challenges now amplified by the virtual proceeding. Moreover, judges do not have the same mechanisms to control the proceeding that they would have in a live courtroom

It was “through this lens” that the Appellate Division addressed the issues in D.M.R.

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In life, obey the “golden rule;” at trial, avoid it.

By: Peter J. Gallagher (LinkedIn)

It is not often that my fondness for both hip hop and interesting legal decisions collide, but the Appellate Division’s recent decision in Morgan v. Maxwell is one such occasion. The lead defendant in Morgan was Willie Maxwell II, known to his fans as Fetty Wap. And the issue in the case was the so-called golden rule. Not the “do-unto-others” golden rule we teach our children, but the golden rule that prevents attorneys from asking jurors, during closing arguments, to put themselves in the shoes of an injured person and deliver the verdict they would want if they were in that person’s position.

(To be honest, I am not much of a Fetty Wap fan and he settled with plaintiff before the case went to trial so he did not factor much in the appeal. So hip hop and the interesting legal issue are not really colliding here, but please continue reading nonetheless.)

In Morgan, plaintiff worked for defendants – Fetty Wap, his management company, and his record label. There was some disagreement between the parties over plaintiff’s responsibilities, which changed over time, but part of her job eventually involved booking tours and shows for Fetty Wap. A dispute arose between plaintiff and defendants over her compensation in connection with the tours and shows she booked, and plaintiff was eventually fired. A few months later, a story appeared on “Thirty Mile Zone (TMZ), a popular entertainment gossip website,” reporting that “sources close” to defendants told TMZ that plaintiff was fired for misrepresenting herself as Fetty Wap’s booking manager and misappropriating booking fees. A few days later, Fetty Wap’s management company released a statement similar to the reports in the TMZ story.

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Read or Not, Arbitration Agreement Emailed To Employee Deemed Enforceable

By: Peter J. Gallagher (LinkedIn)

There may come a day when the law regarding the enforceability of arbitration agreements is so well settled that courts no longer have to deal with the issue, but that day has not yet arrived. In Jasicki v. Morgan Stanley Smith Barney, LLC, the Appellate Division was once again asked to determine the enforceability of an arbitration agreement between employer and employee. Unlike many cases, however, the wording of the agreement in Jasicki was not the issue. Instead, the case turned on the manner in which the employer delivered the agreement to the employer.

In Jasicki, plaintiff was employed by defendants. She sued defendants (company and supervisor), claiming that she had been harassed by her supervisor and that the company protected the supervisor and retaliated against her after she complained about the harassment. Defendants moved to compel arbitration. The motion was based on an email that was sent by defendants’ human resources department, which announced the expansion of the company’s arbitration program and included a detailed arbitration provision. The email provided that employees could opt out of the arbitration program within 30 days of receiving the email. If they failed to do so, but continued their employment with the company, then they would be deemed to have consented and agreed to the terms of the arbitration program.

In their motion, defendants introduced evidence from their IT professional demonstrating that plaintiff received the email and that it was marked “read” in her mailbox. Plaintiff never opted out of the arbitration program, so defendants argued she was required to arbitrate.

Plaintiff countered that “the mere receipt of an email was not enough to compel her to arbitrate her claims.” She also argued that certain disclaimers in the company’s email rendered the agreement illusory and that she did not knowingly or voluntarily waive her right to a jury trial.

The trial court granted defendants’ motion and plaintiff appealed. On appeal, plaintiff argued that there was no agreement to arbitrate and that the trial court erred by relying on metadata showing that the company’s email was marked “read” to conclude that plaintiff had read the email and agreed to arbitrate.

The Appellate Division affirmed the trial court’s decision. The court noted that arbitration provisions between employers and employees will generally be enforced as long as they reflect that the employee clearly and unambiguously agreed to arbitrate. The Appellate Division observed that an employee’s signature to an arbitration agreement is the “customary and perhaps surest indication” that an employee knowingly and voluntarily waived its rights and agreed to arbitrate, but an employee’s signature was not required. Instead, the employee’s waiver could be reflected in a “properly couched” email, even one that refers to an arbitration policy contained in a separate writing, provided that the email reflects the employee’s knowing and voluntary waiver of rights in unambiguous terms.

The Appellate Division held that the email in Jasicki met this standard. It held that there was no dispute that plaintiff received the email and that the email’s subject line “unmistakably pertained” to the company’s arbitration program. That plaintiff may not have actually read the email was of no moment because, as the Appellate Division held, “an employee’s failure to review the contents of an email does not invalidate an arbitration agreement.” (In reaching this conclusion, the Appellate Division rejected plaintiff’s reliance on Skuse v. Pfizer, Inc., a case that I discussed here, which involved an employee clicking on a link to “acknowledge” receipt of an arbitration agreement.) In support of its decision, the Appellate Division also noted that arbitration was not unilaterally imposed on plaintiff – she had the ability to opt out, but chose not to. Accordingly, the Appellate Division affirmed the trial court, and rejected plaintiff’s argument that the dispute “center[ed] on metadata or that defendants were required to prove the extent to which she read the [ ] email, beyond presenting objective evidence that she received the email, in order to compel arbitration.”

Court Approves Service Of Complaint Through Facebook

by: Peter J. Gallagher (LinkedIn)

In what has become more and more common in recent years, a New Jersey court recently had to decide whether to allow a plaintiff to serve a defendant over Facebook rather than in person or through other more traditional means. In 252 Main NM, LLC v. John R. Heywang, Lauran Heywang, and American Express Centurion Bank, the trial court’s ruling was a mix of the old and the new. It held that plaintiff could serve defendant via Facebook, but that plaintiff also had to serve defendant via publication in a local newspaper.

In 252 Main, plaintiff sued defendant to foreclose on a tax lien. Plaintiff’s counsel attempted to locate defendant’s address so it could serve him with the complaint. Counsel performed an internet search for defendant’s address; arranged for a skip trace search; submitted an Open Records Act request for defendant’s voter registration records; and submitted an inquiry to the New Jersey Motor Vehicle Commission. All of these efforts yielded the same address in Teaneck, New Jersey. Defendant owned that property at one time, but lost it to foreclosure in June 2018 and was evicted in January 2019.

“Having exhausted traditional modes to locate defendant,” plaintiff’s counsel turned to social media. He located a Facebook account for defendant, which included pictures of defendant. The Facebook page indicated that defendant was from Teaneck and was living in Cancun. But defendant’s only post on the page was from January 2016.

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Before Applying A 30-Year-Old Decision To Modern Technology, A New Jersey Court References A Musical From The 1890’s

by: Peter J. Gallagher (LinkedIn)

In Pathri v. Kakarlamath, the issue before the court was whether a witness could testify via contemporaneous video transmission in a divorce trial. The trial court denied the witness’s request to do so and the issue went up on appeal, where the Appellate Division began its decision, naturally, by referencing Gilbert & Sullivan’s “The Major General’s Song” from The Pirates of Penzance:

In most respects, the bench and the bar might – with apologies to Gilbert and Sullivan – proclaim the court rules to be “the very model of a modern” set of civil guidelines. But, in one respect, the rules haven’t quite caught up to the technological revolution. So, feeling “plucky and adventury,” we granted leave to appeal to consider how a judge should assess a party’s request to appear at trial and present testimony by way of contemporaneous video transmission.

Pathri was a matrimonial action. Plaintiff and defendant, both of whom were originally from India, came to the United States in 2007. Plaintiff sued defendant in 2018 and moved back to India shortly thereafter. Defendant countersued for divorce. One week before the scheduled trial, plaintiff requested that he be allowed to appear and testify at trial via “contemporaneous video transmission” from India. He claimed he could not obtain a visa to enter the United States. Plaintiff opposed the request and the trial judge denied it, because it would “inhibit her ability to assess plaintiff’s testimony and credibility.” Plaintiff appealed.

The Appellate Division stayed the divorce trial and heard the appeal on an emergent basis. It vacated the trial court’s decision and remanded the matter back to the trial court with instructions on how to address the issue.

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