What Do eBay, The “40 Year-Old Virgin,” And The Litigation Privilege Have In Common?

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

Jonah hillNot much, but please keep reading.

In the movie, the 40-Year-Old-Virgin, an almost unrecognizable Jonah Hill has a very small, but funny, part. He plays a customer at the “We Sell Your Stuff On Ebay” store, which is owned by Steve Carell’s character’s love interest, played by Catherine Keener. According to IMDB.com, Hills plays “Ebay Customer,” who is, to say the least, having trouble understanding how the store works. He wants to buy some "wonderful" shoes that he found at the store. Keener's character explains that she does not actually sell any of the items in her store at the store, she sells them on eBay. Hill's character just doesn't get it, eventually telling Keener's character that he just wanted to buy the shoes and take them home, but that she was "making it extremely difficult" for him to do so.

The recent Appellate Division decision, XCalibur Communications v. Karcich, involved a dispute over the sale of the plaintiff’s merchandise on eBay. No word on whether any of those sales involved shoes like the ones Hill’s character was looking to buy, but the decision helps clarify the scope of the litigation privilege, which is broader than many people think. 

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Jarndyce v. Jarndyce — Obsure Reference, Appropriate Reference, Both?

by:  Peter J. Gallagher (@pjsgallagher)

In the first paragraph of an Appellate Division decision handed down earlier this week, In The Matter of the Estate of Harry Sable, the court noted that the tortured procedural history of the case had not yet "achieved the status of the fictional [case of] Jarndyce v. Jarndyce described in Charles Dickens' Bleak House." I have always felt that Charles Dickens was one of those authors that people claim to love because they think they should love him, even though many have never read him, or at least not since they had to read him in High School. I do not claim to love Charles Dickens or claim to have read him so I did not get the Appellate Division's reference and assumed — naturally — that if I didn't get it then it must be an obscure reference.

Apparently, I was wrong.

It turns out that Bleak House is a common reference for courts in New Jersey and elsewhere that is almost always cited for the exact proposition that it was used by the Appellate Division. For the ignorant (like me), Bleak House:

concerns the fate of a large inheritance. The case has dragged on for many generations before the action of the novel, so that, when it is resolved late in the narrative, legal costs have devoured the whole estate. Dickens used it to attack the chancery court system as being near totally worthless, as any "honourable man among its [Chancery's] practitioners" says, "Suffer any wrong that can be done you rather than come here!" Jardyce v. Jardyce was

(Thank you Wikipedia.)

 

Continue reading “Jarndyce v. Jarndyce — Obsure Reference, Appropriate Reference, Both?”

Condemning Authority Not Required To Negotiate With Mortgagee

by:  Peter J. Gallagher

 In a recent opinion, Borough of Merchantville v. Malik & Son, LLC, the New Jersey Appellate Division held that a condemning municipality was not required to negotiate with a party that had obtained a final judgment of foreclosure on the property that the municipality was looking to condemn.  Under New Jersey law, before condemning real property, a condemning authority must, among other things, engage in bona fide pre-litigation negotiations with the party that "owns title of record to the property."  Prior case law had made clear that this limitation meant that a condemning authority was not required to negotiate with a leaseholder or some other party that might have an "interest" in the property, but was instead required to negotiate only with the record title owner. 

In Malik & Son, a lienholder argued that, by virtue of it having obtained final judgment of foreclosure on the property, it stepped into the shoes of the record title holder, and the municipality should have been negotiating with it instead of the record title holder.  Specifically, the lienholder argued that it was not like a leasholder or even a "mere mortgage holder," but was instead the true "stakeholder and only party with a genuine interest in negotiating the sale of the property" because it had possession of the property, the right to sell it, a final judgment of foreclosure, and had scheduled a sheriff's sale by the date of the taking .  Relying on the plain language of the relevant statutes, the trial court rejected this argument, and the Appllate Division affirmed its decision.  The Appellate Division further explained that the municipality did not preclude the record title holder from discussing the negotiations with the lien holder, and that the lienholder — as a "condemnee with a compensable interest," albeit not the record title holder — could participate in subsequent valuation and allocation eminent domain proceedings.