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.)

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.

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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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How Are “The Jerk” And Arbitration Agreements Alike? (It’s a Stretch, But Hear Me Out)

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

In one of the more famous scenes from the movie, “The Jerk,” Steve Martin‘s character works at a gas station when a deranged sniper starts shooting at him. The sniper misses and the bullets hit cans of oil stacked up next to Martin’s character instead. Clueless to the fact that the man is shooting at him and not the cans, Martin’s character warns everyone: “He hates cans! Stay away from the cans!” If you read enough opinions from New Jersey courts, you might say the same thing about New Jersey and arbitration agreements. It seems like every day there is another decision striking down an arbitration provision. (Like the quote from the movie, this is, of course, not true — i.e., the shooter did not really hate cans and New Jersey courts don’t really hate arbitration agreements — but you get the point.) 

The trial court’s decision in O’Keefe v. Edmund Optics, Inc. is one of the latest examples. (I realize this is a trial court decision, and thus not binding on anyone other than the parties to the case, but it is nonetheless instructive.)  In that case, plaintiff signed an employment agreement with defendant. The agreement had a two-year term and contained an arbitration provision that required the parties to arbitrate “all disputes” between them. 

Five years after signing the employment agreement, plaintiff was terminated. She sued alleging wrongful termination. Defendant moved to dismiss in light of the arbitration provision.  Plaintiff argued that the arbitration provision was never renewed and did not survive the end of the agreement’s term because, unlike other provisions in the agreement, it did not contain survivability provisions “extending the enforceability beyond the term of the contract itself.” 

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Bank Employee Gets To Keep Surprise Gift Left To Him In Former Customer’s Will

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

Imagine being a bank employee and learning that, unbeknownst to you, a customer you helped left you $11,000 in his will, only to then learn that you may not be allowed to accept it because of a bank policy prohibiting you from accepting gifts in excess of $100. That is the scenario defendant faced in I/M/O the Estate of Anthony Paruta. Although probably not a common occurrence, the decision is nonetheless interesting and a reminder that New Jersey courts will generally enforce the terms of a will as written, absent any evidence of undue influence, incapacity, etc.

In Paruta, decedent had no immediate family members. When he died, he made bequests to a cousin, four charities, several individuals, and two Valley National Bank employees. The bank’s Code of Conduct and Ethics prohibited employees from accepting gifts in excess of $100. The bequests to the employees were for approximately $11,000 each. One of the employees “denounced the bequest as unethical, comporting with a letter opinion from Valley, because she was still an employee” of the bank. But defendant was no longer an employee of the bank, having left a few months before the will was probated, so she “chose not to renounce the bequest, claiming [the bank’s] Code no longer applied to her.”

The executor of the estate sued, seeking to “dishonor the bequest” to defendant. The trial court originally ruled in the executor’s favor, holding that “as a matter of public policy, the federal regulations have cast a very wide net and prohibit bank employees from accepting gifts from their customers.” The trial court saw defendant as “falling into the same category” as the other bank employee who renounced her bequest. The trial court noted the “mischief that would be created if a bank employee could simply resign her employment upon learning that there [was] a bequest,” holding that this would “circumvent the entire statutory and regulatory scheme.”

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Where Are We Arbitrating Again? Parties Must Identify Forum And Process For Arbitration Provision To Be Enforceable

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

arbitration (PD)New Jersey courts frequently invalidate arbitration provisions that do not clearly and unambiguously explain that plaintiffs are waiving the right to seek relief in court and have their claims decided by a jury (see here, here, and here for examples). In Flanzman v. Jenny Craig, Inc., the Appellate Division invalidated one for an even more basic reason — the provision did not identify any arbitration forum or any process for conducting the arbitration.

In Flanzman, plaintiff worked for defendant. After she was terminated, she sued, alleging age discrimination. Defendant moved to compel arbitration under an agreement with plaintiff that provided:

Any and all claims or controversies arising out of or relating to [plaintiff’s] employment, the termination thereof, or otherwise arising between [plaintiff] and [defendant] shall, in lieu of a jury or other civil trial, be settled by final and binding arbitration. This agreement to arbitrate includes all claims whether arising in tort or contract and whether arising under statute or common law including, but not limited to, any claim of breach of contract, discrimination or harassment of any kind . . . [Plaintiff] will pay the then-current Superior Court of California filing fee towards the costs of the arbitration (i.e., filing fees, administration fees, and arbitrator fees).

Plaintiff did not agree to this when she began her employment with defendant. Instead, defendant presented it to her 20 years after she was hired, and plaintiff signed it to keep her job.

The flaw in the provision is that, even if it adequately advised plaintiff that she was giving up her right to a jury trial, it says “nothing about what forum generally replaced that right.” The trial court recognized this shortcoming, but instead of declaring the provision unenforceable, simply allowed plaintiff to choose the forum. Plaintiff appealed, arguing that the arbitration agreement lacked mutual assent and was therefore invalid.

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