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?

Continue reading “Being A Compulsive Gambler Is No Defense To Breaching Line Of Credit With Casino”

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.

Continue reading “Segregated Swimming Pool Not Allowed, Even When Purportedly Necessary To Prevent Discrimination”

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.

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

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.

Continue reading “Do New Jersey Employers Have To Accommodate Medical Marijuana Use? Maybe.”

Lawsuit Challenging E-ZPass Administrative Fee Revived

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

The Appellate Division’s recent decision in Long v. New Jersey Turnpike Authority dealt with a topic that is likely familiar to many New Jersey residents — the administrative fee assessed when you (allegedly) go through an E-ZPass lane without paying the toll. In the interest of full disclosure, I am very much not neutral on this issue. I recently received three notices from E-ZPass claiming that I went through toll plazas without paying. The tolls I allegedly failed to pay amounted to $20.45, but the administrative fee for each is $50, so my $20.45 in allegedly unpaid tolls may now cost me $220.45. But I digress.

First, some background. New Jersey law allows the Turnpike Authority to establish procedures for addressing “violations of [its] toll collection monitoring systems” (i.e., E-ZPass). Among other things, the Turnpike Authority may send “an advisory and payment request” to alleged toll violators, providing them “with the opportunity to resolve the matter prior to the issuance of a summons and complaint that charges a violation of the toll collection monitoring system regulations.” As part of this “advisory and payment request,” the Authority may require that the alleged violator pay “the proper toll and a reasonable administrative fee established by the authority and based upon the actual cost of processing and collecting the violation.” This administrative fee was originally set at $25 but was later raised to $50.

In Long, petitioners were two “E-ZPass toll violators” who filed a petition with the New Jersey Turnpike Authority challenging the $50 administrative fee. Petitioners challenged both the constitutionality of the regulation establishing the administrative fee (arguing that the Authority violated its rule-making authority, violated due process, etc.), and the amount of the fee itself, arguing that $50 was excessive because it was “unrelated to the actual costs of enforcement.” The Authority denied their petition and petitioners appealed to the Appellate Division.

Continue reading “Lawsuit Challenging E-ZPass Administrative Fee Revived”

Reason Number 2,345,789 To Have A Will

[Full disclosure: I don’t have a will. I know I should. And everyone tells me I should, even my doctor who reminds me, every year, at my annual check up that I need one. Yet I still don’t have one. But this post is not about me.]

In Estate of Travers, the trial court provided yet another reason why everyone should have a will. In that case, decedent passed away unexpectedly (and far too young). He died without a will, without a spouse, and without any children. His parents, who were divorced, agreed on every aspect of the administration of his estate except one — whether decedent should be cremated or buried. Because they could not agree, the court had to resolve the issue.

At the outset, the court noted that both parents had presented “reasonable explanations for their respective positions that [were] very personal to them and emotionally charged.” But, under New Jersey law, it was the “wishes and desires of the decedent, not the parents,” that governed.

Continue reading “Reason Number 2,345,789 To Have A Will”

“I’m strong to the fin-ich. Cause I eats me spin-ach. I’m Popeye the . . . debt collector man?”

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

PopeyeFor lawyers, debt collection can be a trap for the unwary. The Fair Debt Collection Practices Act ("FDCPA") governs debt collection by both attorneys and non-attorneys. It generally prohibits debt collectors from using deceptive, abusive, or unfair practices to collect debts. While that sounds straightforward, it is often difficult to figure out whether you are even a debt collector governed by the FDCPA, much less whether what you are trying to collect is a debt under the FDCPA and whether what you are doing to collect that debt is deceptive. And the consequences for running afoul of the FDCPA — statutory damages and attorney's fees — can be significant.

A recent decision from the U.S. Court of Appeals for the Third Circuit, Tepper v. Amos Financial, LLC, offered a good primer on one of these tricky issues — whether a party that buys debt and seeks to collect that debt for its own account qualifies as a debt collector under the FDCPA — but the more interesting aspect of the opinion is the court's frequent references to Popeye (the sailor man, not the fast food restaurant).

The opinion began: "Many would gladly pay Tuesday for a hamburger today." This, of course, is a reference to Wimpy's famous tag-line in Popeye. The court then described the basic purpose of the FDCPA and introduced the issue in the case as follows:

The Act does not apply . . . to all entities who collect debts; only those whose principal purpose is the collection of any debts, and those who regularly collect debts owed another are subject to its proscriptions. Those entities whose principal place business is to collect the defaulted debts they purchase seek to avoid the Act's reach. We believe such an entity is what it is – a debt collector. [Emphasis added.] If so, the Act applies.

Understandably, the court was not willing to go so far as have the defendant declare "I yam what I yam, and that's all that i yam," but you get the point. Popeye references continued throughout the opinion, so keep reading. 

Continue reading ““I’m strong to the fin-ich. Cause I eats me spin-ach. I’m Popeye the . . . debt collector man?””