by: Peter J. Gallagher (@pjsgallagher)
Anyone who has watched Law & Order or any other police procedural probably knows the Miranda warnings by heart, including the part about the perpetrators having the right to an attorney and the right to have an attorney appointed to represent them if they cannot afford one. But, did you ever stop to consider whether an indigent corporation that is charged with a crime has the right to have counsel appointed to represent it? Probably not, right? (For me, it is hard to imagine Detective Lennie Briscoe (played by the great Jerry Orbach) slapping the cuffs on Enron and wise-cracking about their misuse of special purpose entities and mark-to-market accounting.) However, this question was recently addressed by the Appellate Division in an interesting opinion that offered a primer on both the history of the right to counsel under New Jersey Law and the public defender program before answering the question.
In State v. Western World, Inc., the defendant, Western World, Inc., was a corporation that operated “Wild West City,” which is, as the name suggests, a western heritage theme park. Western World was indicted in connection with a shooting that occurred during the reenactment of a gunfight. The indictment originally named Western World along with its president, one of its employees, and the entity that owned the land on which the theme park operated. In exchange for the dismissal of the indictment as to these other defendants, Western World agreed to plead guilty as an accomplice to one count of the indictment (third-degree unlawful possession of a handgun). As part of the plea agreement, Western World waived its right to appeal, except as to the “limited question of whether a carry permit was required by the actors under the facts of [the] case.” Western World was subsequently sentenced to one year of probation and required to pay a $7,500 fine. Western World was represented by private counsel throughout this process.
Approximately one month after Western World entered its guilty plea, its counsel wrote to the regional office of the Office of the Public Defender (“OPD”), indicating that Western World wanted to appeal the issue reserved for appeal as part of its plea agreement and also appeal the fine imposed upon it at sentencing. Counsel indicated that he would not be representing Western World because he had not been paid. He further indicated that the judge that accepted Western World’s plea indicated that it would be entitled to a public defender if it could not afford one, but that Western World had been “turned away by the Public Defender’s Office.”
Continue reading “Indigent Corporations Are People Too! New Jersey Court Holds That Indigent Corporations Are Entitled To Appointed Counsel, Just Not Public Defenders” →
by: Peter J. Gallagher (@pjsgallagher)
In an interesting decision issued today, Judge Katz (Essex County) denied a motion to dismiss filed by the ratings agency Standard & Poor's ("S&P") in an enforcement action brought against S&P by the New Jersey Attorney General. In Hoffman v. McGraw-Hill Financial, Inc., the Attorney General alleged that S&P violated the Consumer Fraud Act ("CFA") by misrepresenting to New Jersey consumers that S&P's analysis and rating of structured finance securities was independent and objective. The opinion contains decisions on both procedural personal jurisdiction issues and substantive CFA issues that all litigators should find interesting.
[Lawsuits against ratings agencies are nothing new. Several years ago, I wrote an article about these lawsuits and, at the time, the relative success the rating agencies had defending against them. (If you did not save your copy of the article, click here for another copy.) Historically, the rating agencies argued that their ratings were proetced under the First Amendment, but at least one court rejected this argument in the context of a motion to dismiss in a lawsuit that eventually settled.]
Continue reading “Enforcement Action Against Rating Agency Allowed To Proceed” →
by: Katharine A. Muscalino
Revitalizing the downtowns of New Jersey’s poorest cities has always been an uphill battle, with cities struggling to find developers and businesses willing to invest in their most blighted areas. Urban facelifts and retail opportunities are in danger of becoming even more scarce, as New Jersey considers eliminating or diluting its urban enterprise zone legislation.
Under the current urban enterprise zone law, blighted cities can attract developers and businesses with special tax incentives and grants, and get a return on some of the urban enterprise zone revenues. Specifically, developers within the urban enterprise zone qualify for tax exemptions and abatements, and redevelopment bonding and grants. Businesses are permitted to charge half of standard sales taxes, attracting both new retailers and new customers to the downtowns. The result is a major overhaul for Main Street and an influx of new commerce.
Cities may be losing this tool for redevelopment as New Jersey state government considers reforms to the current legislation. Following a study that recommended terminating the 28-year old program, Governor Christie’s budget calls for the state to retain more than $90 million of the urban enterprise zone revenues. Anticipating that this retainage could undercut the urban enterprise zone program irretrievably, the New Jersey Assembly’s Commerce and Economic Development Committee is considering modifications to the urban enterprise zone statute as an alternative to the proposed budget provisions. The Assembly’s plan would maintain incentives for developers and businesses, but curb the benefits to municipalities significantly, phasing out the use of urban enterprise zone funds for police and fire services, capping municipal collection of urban enterprise zone revenues to one third of all funds through 2022, and imposing a moratorium on future urban enterprise zone funding to cities following 2022.