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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Supreme Court : Classwide Arbitration Unavailable Under Ambiguous Agreement

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

Keith Richards once said: “I look for ambiguity when I’m writing because life is ambiguous.” This would probably be number one on the list of things a lawyer would never say. Lawyers generally do not like ambiguity. Courts don’t like it either, including the U.S. Supreme Court, and including when it evaluates the availability of class arbitration under an arbitration agreement. Several years ago, in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., the Supreme Court held that courts could not compel class arbitration when the underlying agreement was “silent” on the issue. In Lamps Plus, Inc. v. Varela, the U.S. Supreme Court extended this holding to ambiguous agreements, holding that class arbitration is not available under an arbitration agreement that is ambiguous about the availability of such arbitration.

Plaintiff in Lamps Plus was a company that sold, you guessed it, “lighting fixtures and related products.” In 2016, the company suffered a data breach that revealed the tax information of approximately 1,300 of its employees. Soon after, a fraudulent tax return was filed in defendant’s name. He sued in California federal court on behalf of himself and a putative class of employees whose tax information had been compromised. But, like most of plaintiff’s employees, defendant had signed a broad arbitration agreement when he started working at the company. Thus, in response to defendant’s complaint, plaintiff moved to compel arbitration on an individual, not classwide, basis. The district court granted the motion to compel arbitration, but rejected plaintiff’s request for individual arbitration. The U.S. Court of Appeals for the Ninth Circuit affirmed.

The Ninth Circuit determined that the arbitration agreement was ambiguous on the issue of classwide arbitration. So it applied the state law doctrine of contra proferentem – an equitable principle under which any ambiguities in a contract are construed against the drafter – and construed this ambiguity against plaintiff. The Ninth Circuit held that Stolt-Nielsen was not controlling because the arbitration agreement in that case was silent on classwide arbitration, while the arbitration agreement in Lamps Plus was ambiguous on the issue. The Ninth Circuit used contra proferentum to resolve that ambiguity.

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Lawyer Suspended One Year For Creating Fake Facebook Account To “Snoop” On Defendants And Witnesses

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

Social media can be a valuable tool for litigators. Every state or local ethics authority that has considered the issue has held that public social media profiles are fair game. So litigators can generally mine the public profiles of witnesses, jurors, or even their own clients for useful information. But the same is not true for private social media profiles. Lawyers attempting to access anyone’s private social media profile are entering an ethical minefield. If someone is represented by counsel, then an attorney requesting access to that person’s private profile violates RPC 4.2, which prohibits communicating with individuals represented by counsel. Even if the person is not represented by counsel, some jurisdictions hold that it is still improper for lawyers to request access to private social media profiles unless they identify themselves and explain why they are requesting access. (Good luck getting someone to accept that friend request.) And requesting access from jurors is always improper because RPC 3.5 prohibits ex parte communications with jurors.

A recent ethics opinion from the Supreme Court of Pennsylvania, Office of Disciplinary Counsel v. Miller, offers another example of lawyers using social media improperly. In that case, respondent was the elected district attorney of Centre County, Pennsylvania. The Centre County judiciary had declared the sale of bath salts to be a nuisance and had enjoined three stores from selling them. Purportedly to track the sale of bath salts and enforce these injunctions, respondent created a fictitious Facebook account under the name “Brittney Bella.” To “portray a connection to the local community,” respondent created a fake backstory for “Brittney Bella,” claiming that she was a Penn State dropout who had moved to State College from Pittsburgh. She also included photos “from around the internet of young female individuals” on Bella’s Facebook profile, “to enhance the page’s allure.”

Once she established the fake Facebook account, respondent “liked” local establishments that sold bath salts, which led people who also “liked” those establishments to send “friend” requests to the fictitious Ms. Bella. Respondent accepted these requests and sent her own “‘friend requests’ in order to appear legitimate.” Respondent also encouraged the attorneys and staff in her office to help her with the Brittney Bella gambit. She told her staff that she “made a Facebook page that is fake for us to befriend people and snoop.” She encouraged them to “use it freely to masquerade around Facebook.” Finally, she requested that they “edit it . . . to keep it looking legit,” and “[u]se it to befriend defendants or witnesses if you want to snoop.” Respondent did not provide any guidance to her staff to prevent contact with defendants or witnesses.

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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.)

Words Matter! “Acknowledgement” Of Company Policy Is Not “Agreement” To Be Bound By It

“This case exemplifies an inadequate way for an employer to go about extracting its employees’ agreement to submit to binding arbitration for future claims and thereby waive their rights to sue the employer and seek a jury trial.”

If you are an employer, and a court begins its decision this way, it is probably not going to be a good day for you. Such was the case for the defendant in Skuse v. Pfizer, Inc.

I know I have been writing a lot lately about arbitration agreements, and Skuse deals with this same topic. But it is different from other recent cases, and in an interesting way. In most of the cases I have written about, the question was whether a plaintiff’s claims fell within the scope of an arbitration agreement and, if so, whether the agreement adequately informed plaintiff that he or she waived the right to have those claims heard in court, by a jury. In Skuse, plaintiff did not argue that the text of defendant’s mandatory arbitration policy insufficiently explained the policy itself or the rights being waived. Instead, plaintiff challenged the the manner in which the policy was delivered to employees.

In Skuse, defendant sought to “extract[ ] its employee’s agreement” to arbitrate (as the Appellate Division characterized it) through what the company called a “training module.” Employees were sent an email with a link to a presentation that described the company’s mandatory arbitration policy. They were “assigned” the task of “reviewing” the presentation, which was comprised of four slides. The first slide explained that agreeing to the policy was a requirement of continued employment with the company, and indicated that employees would be required to “acknowledge” receipt of the policy in a later slide. The second slide contained a link to a “Resources” tab that contained the company’s five-page, single-spaced arbitration policy, which could be reviewed and printed by employees. The third slide contained a paragraph stating that the employee understood that agreeing to the policy was a requirement of employment and requiring the employee to click on a “rectangular box with rounded corners,” next to which was printed: “CLICK HERE to acknowledge.” This slide also indicated that even if employees did not click the acknowledgement, they would be deemed to have acknowledged the policy if they remained with the company for 60 days after receiving the presentation. The fourth and final slide thanked the employees for “reviewing” the arbitration policy.

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