“But you yada yada’d over the best part!”

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

As any Seinfeld fan knows, you cannot “yada yada” over the best part of a story. But in a recent decision, a New Jersey court did just that.

In Barry v. Melmed Construction Company, Inc., the court spent eleven pages discussing a relatively routine case where defendant waived the right to enforce the arbitration provision in its contract with plaintiffs – defendant waited too long to raise the issue, actively participated in litigation in state court, etc. – but then dropped this bomb at the very end of the decision:

We acknowledge the anomaly of plaintiffs’ assertion that they are not bound by the arbitration clause their counsel drafted and they insisted be included in the contract between the parties, particularly in light of counsel’s apparent admission that he drafted the clause to allow plaintiffs to argue it could not be enforced against them. While not endorsing such conduct, we do not address it in light of defendants’ waiver of an arbitration remedy.

So let me get this straight, plaintiffs demanded that their contract with defendant include an arbitration provision, and then had their counsel draft the provision so that they could later argue that the provision could not be enforced against them?!? And the court waited until the end of the case, in a footnote no less, to bring this up?!? This was the most interesting part of the case! Reducing it to a footnote on the last page, and then not even discussing it substantively, is the judicial equivalent of “yada yada-ing” the best part of the story.

Husband’s Foreclosure Defense? I Had No Idea My Wife Entered Into Those Mortgages (Or Had Those Credit Cards, Or Drained Our Savings . . . )

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

Unfortunately, New Jersey still has the highest foreclosure rate in the country. Most weeks, the Appellate Division issues several decisions related to residential foreclosure, and most follow a predictable pattern – a lender forecloses and obtains final judgement of foreclosure, the borrower appeals, claiming that the bank lacked standing to foreclose, and the Appellate Division affirms entry of final judgment of foreclosure. But every now and then a case comes along that breaks that mold. U.S. Bank National Association v. Gallagher is one of those cases. (Note: I am not related to the Gallaghers in this case or the Gallaghers in the Showtime series, Shameless, but the facts of this case might actually fit in that show.)

Gallagher starts off normal enough. Defendants were married in 1986. In 1996 they bought property and built their marital home. Two years later, they used the property as security for a loan. Over the next ten years, they refinanced the mortgage on the property four times. Eventually, however, they were unable to make the monthly payments and the bank foreclosed.

That is when it gets interesting.

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School Not Liable For Injuries To Student During Student/Teacher Basketball Game

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

My children’s school has a nice tradition for the fifth grade students. Towards the end of the year, the fifth graders play a basketball game against a group of teachers and parents. It is a fun event. I have played in it twice, once against my daughter and once against my oldest son. In each game, I was called for a foul. In each game, best as I can recall, I was the only person called for a foul. (Not to sound too much like Draymond Green, but neither call was warranted. My kids flopped.) But with this history in mind, I read C.H. v. Rahway Board of Education with some interest.

In C.H., plaintiff was an eighth grader and a member of her school’s basketball team. At the end of the school year, she was part of a team of students that played a team of teachers and school personnel. The game was an annual fundraising event, and participation was voluntary. There was at least one referee officiating the game, and five teachers who did not play in the game also attended to help supervise.

During the game, while going up for a rebound, plaintiff came into contact with a teacher, landed awkwardly, and was injured. Plaintiff testified that she and the teacher were close to the basket vying for the rebound. The teacher was between her and the basket with his back to her. When the shot was taken, the teacher jumped up and backwards (towards plaintiff), while plaintiff jumped up and forward (towards the rim, and the teacher). Their upper bodies collided. Plaintiff fell and injured her knee.

Plaintiff sued the teacher involved in the incident, the school, and the town board of education. After discovery, the trial court granted defendants’ summary judgment motion and dismissed plaintiff’s lawsuit. Plaintiff appealed.

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“BorgataBabes” Lawsuit Revived As Trial Court Is Chided For Ignoring Appellate Division

Some of the best parts of the movie “My Cousin Vinny” are the interactions between Vinny, played by Joe Pesci, and Judge Haller, played by the late Fred Gwynne. In one scene, Judge Haller admonishes Vinny for failing to dress appropriately for court. When Vinny comes to court the next day wearing exactly the same thing he had on the day before, the following exchange occurs:

Judge Haller: Mr. Gambini, didn’t I tell you that the next time you appear in my court that you dress appropriately?

Vinny: You were serious about that?

Judge Haller was serious, and Vinny spent a night in jail as a result. I was reminded of this scene when I read Schiavo v. Marina District Development Company, LLC d/b/a Borgata Casino Hotel & Spa, where the Appellate Division had to remind the trial court that it was serious about a prior decision.

Schiavo has been pending for more than a decade. Plaintiffs worked as “costumed beverage servers” in the defendant’s “BorgataBabes” program. (Disclaimer: This is the actual name of the program, not my name for it.) They claimed that “defendant’s adoption and application of personal appearance standards (PAS) subjected them to illegal gender stereotyping, sexual harassment, disparate treatment, disparate impact, and . . . resulted in adverse employment actions.”

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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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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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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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