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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Practice Tip: Don’t recycle briefs (at least not the same brief in the same case)

By: Peter J. Gallagher (LinkedIn)

It has become a staple of teen/tween movies: Younger sibling has the same teacher as older sibling. Younger sibling hands in the same paper that older sibling used for that teacher a few years prior. Younger sibling gets caught, parents are called, awkward meeting with principal follows, younger sibling is punished, hilarity ensues. Minus the hilarity ensuing, we now have the legal version of this trope.

In Conboy v. SBA, the U.S. Court of Appeals for the Third Circuit criticized appellant’s counsel for “fil[ing] a brief that was essentially a copy of the one he filed in the District Court.” To be clear, the Third Circuit was not suggesting that Appellant made the same arguments on appeal as he made in the District Court, rather it held that that Appellant essentially cut-and-past the exact same brief. Concluding that the “substance of [the] appeal [was] as frivolous as its form,” the Third Circuit denied the appeal and affirmed the District Court’s decision.

Conboy was a debt collection case. Appellant took out an SBA loan. When he defaulted, the SBA assigned the note to a debt collector. Appellant sued the debt collector and others, asserting violations of the Fair Debt Collection Practices Act and other state and federal statutes. At the close of discovery, Appellees moved for summary judgment and sanctions. The district court granted summary judgment but denied the motion for sanctions. Appellants appealed.

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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.”

The “D” in DWI may not mean what you think it means.

by: Peter J. Gallagher (LinkedIn)

The Appellate Division recently invoked the great Inigo Montoya in a decision on New Jersey’s law against “operating a vehicle while under the influence.” (For those who don’t know Inigo Montoya from The Princess Bride or are unfamiliar with his famous observation – “You keep using that word. I do not think it means what you think it means” – shame on you, but also click here.) In State v. Thompson, defendant argued that he could not be convicted for operating a vehicle while under the influence because he was only sleeping in his car when police found him, not driving the car. The court rejected this interpretation of the key word, “operating,” and published its decision because defendants continue to make this same argument even though the Supreme Court and Appellate Division have consistently rejected it.

In Thompson, police were called to a 7-11 after a man was observed sleeping in his car in the parking lot. The engine was running. When the officers approached, they noticed a half-eaten sandwich and several prescription bottles on the front seat. They also smelled “a strong odor of alcoholic beverage.” Defendant said he had been sleeping for 30-40 minutes and admitted having had a “couple of drinks.” After he failed several field sobriety tests and was taken to the police station, he acknowledged that he was under the care of a physician and had been prescribed Methadone, Hydrocodone, Xanax, and Cymbalta. He also confirmed that he had two drinks in a three-hour period.

Based on all of this, the Appellate Division was convinced that a reasonable juror could conclude that defendant was intoxicated when he was sleeping behind the wheel of his parked car. The only question was whether sleeping in a parked car with the engine running qualifies as “operating” a vehicle while under the influence. As the Appellate Division observed: “Although a violation of N.J.S.A. 39:4-50(a) is commonly referred to as a DWI violation (‘driving while intoxicated’), the statute actually makes no mention of ‘driving’ as a fact that must be proven in order to convict an individual for this offense.”

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