Category Archives: commercial litigation

A Copyright Lawsuit that Never Gives Up: the Litigation Over the film “Raging Bull”

The film, Raging Bull, was released in 1980. It won the Academy Award for Robert DeNiro as Best Actor. The film was the subject of a copyright lawsuit that was filed by the estate of the person who wrote a 1963 screenplay upon which she alleged it was based. In 2009 the United States Court of Appeals for the Ninth Circuit dismissed the case as out of time. The reason was that, although the 3 year statute of limitations was not a problem since the infringement was ongoing, the doctrine of laches applied.

In that case, Petrella v. Metro-Goldwyn-Mayer, Inc., 695 F. 3d 946 – Court of Appeals, 9th Circuit 2012, the court discussed the concept of laches, a doctrine of law that states a party cannot sit on its rights, but must vigorously assert them in a timely manner. In the event that the other side is prejudiced by the fact that the rights were not asserted earlier, a court can sometimes dismiss a claim because it would be inequitable to allow it to continue. This would be so even in the absence of a violation of the statute of limitations.

However, last week that case was overturned by the United States Supreme Court.  The court held that , “[t]o the extent that an infringement suit seeks relief solely for conduct occurring within the limitations period . . . courts are not at liberty to jettison Congress’ judgment on the timeliness of suit.” This is an important decision because it strengthens the protection of the right of a plaintiff to bring a copyright claim many years after the initial infringement, so long as the statute of limitations is not violated. It is important to note that the court did state that there might be certain situations in which it would be simply inequitable to allow the case to proceed, not withstanding that the statute of limitations would otherwise allow it. However, such circumstances would have to be extraordinary.

© 2014 Nissenbaum Law Group, LLC

May a “Floating Forum Selection Clause” be Enforced by a New Jersey Court?

May a New Jersey Court enforce a floating forum selection clause in which someone from another jurisdiction is required to appear in New Jersey? The issue was recently dealt with Professional Solutions Financial Services v. Cregar et al.  Superior Court of New Jersey, Appellate Division, Docket No. A-2239-11T3 (February 28, 2013).
In that case, the Court first defined the term, “floating forum selection clause” as one in which the signatory to a contract agrees that jurisdiction to enforce that contract will be in a different location according the prevailing circumstances at the time it is enforced. In Cregar, the clause stated:

You [Cregar] agree this Lease is to be performed in Dade County, Florida and this Lease will be governed by the laws of the State of Florida. You consent to personal jurisdiction and venue in the State or Federal Court located in Miami, Dade County, Florida . . . . You specifically agree to waive any right to transfer venue and that agreement is knowing and voluntarily and is an essential term to Lessor’s willingness to enter into this Lease. If this Lease is assigned by Lessor, You consent to personal jurisdiction and venue in the State or Federal Court located where the Assignee’s Corporate Headquarters is located. This is known as a floating forum selection clause and You agree that this is done knowingly and voluntarily and is an essential term to Assignee’s willingness to take an assignment of this Lease. You specifically agree to waive any right to transfer venue and that agreement is knowing and voluntary and is an essential term to Assignee’s willingness to take an assignment of this Lease.

Emphasis added.
After the lease was executed, Cregar stopped making payments. Cregar was sued in Iowa and did not enter an appearance.  As a result, a default judgment was entered against him. 
Cregar lost his motion for relief from the judgment and appealed stating that he was denied due process and that it was an error to use the floating forum selection clause to apply Iowa law instead of New Jersey law.  The Appellate Division rejected his arguments.
The Appellate Division ruled that a sister state’s judgment is enforceable absent a due process violation.  In this case, Cregar was given adequate notice of the lawsuit and he entered into an agreement which required him to litigate any disputes where the assignee’s headquarters was located.
Although the Court acknowledged that New Jersey law might not authorize a floating forum selection clause, that was irrelevant. Since Iowa law did, the judgment would be enforced in New Jersey. 
 
Comments/Questions: gdn@gdnlaw.com
© 2014 Nissenbaum Law Group, LLC

How do You Determine Where to Sue a Foreign Company?

Where is the appropriate place to sue a foreign company?  The United States Supreme Court just established a new and more strict rule regarding the answer to that question.  
In Daimler AG v. Bauman, 11-965, 2014 WL 113486 (U.S. Jan. 14, 2014), [READ CASE HERE] twenty-two Argentinian residents sued Daimler, an Argentinian Company, alleging that Daimler’s subsidiary assisted with state security services in killings, torture and other abuses.  Although the allegations arose from conduct that occurred in Argentina, the lawsuit was brought in California.  The plaintiffs (the above-referenced twenty-two residents who filed the lawsuit) brought suit in California. They argued that the applicable jurisdictional principles permitted suit to be filed in California because Daimler had an American subsidiary that did business in California.  The Supreme Court disagreed. In its holding, it created a more restrictive standard than the mere fact that there was a subsidiary in a particular state. It required that there be more than just such “slim contacts.”  Id.
The Daimler case is just one example of the trend in the law to make it more difficult to assert jurisdiction over a foreign entity. 
 
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© 2014 Nissenbaum Law Group, LLC

Should Intentional Infliction of Emotional Distress Cases be Treated Differently Depending on Whether or Not They Take Place at Work?

Should a claim of intention infliction of emotional distress be treated differently if it occurs in the workplace as opposed to a non-employment situation? This question was answered in Ingraham v. Ortho-McnNeill, 422 NJ. Super. 12 (App. Div. 2011)
Plaintiff Cecelia Mavica Ingraham was employed by defendant Ortho-McNeil Pharmaceutical between 1994 and 2006. The plaintiff had one child, Tatiana, who was diagnosed with acute lymphocytic leukemia in 2003. At the time, Tatiana was a junior in high school and a member of several honors societies; a student at the New Jersey School of Ballet; and was planning on attending Cornell University to study biology.  Unfortunately in 2005, Tatiana contracted an infection and passed away.
In remembrance of her daughter, plaintiff kept pictures of her as well as her ballet shoes in her work space.  Although sympathetic, many of her co-workers felt uncomfortable with the frequency of conversations plaintiff initiated involving the death of her daughter.  A year and a half later, a supervisor confronted plaintiff and asked her to stop.
Plaintiff quit and sued, alleging that she suffered emotional distress along with heart palpitations from the abuse.  She filed a three-count complaint alleging a violation of
  1. New Jersey Law Against Discrimination N.J.S.A. 10:5-1 to -49 (“LAD”)
  2. Intentional infliction of emotional distress and
  3. Constructive discharge
The court reasoned that in order for a plaintiff to prove intentional infliction of emotional distress, he or she must prove that
  1. defendant acted intentionally or recklessly;
  2. defendant’s conduct was extreme and outrageous;
  3. defendant’s conduct was the proximate cause of plaintiff’s emotional distress; and
  4. the emotional distress suffered by plaintiff was so severe that no reasonable [person] could be expected to endure it.
Id. at 366-67.
Defendants argued that the plaintiff could not prove the first or second elements as a matter of law. The court agreed, stating:

The law provides no different standard of proof that applies in the workplace from other places where emotional distress might result. The employer-employee relationship is no more special and conductive to emotional distress than, for example, a doctor-patent relationship, or the relationship of a husband and wife in a hostile divorce.

Id. at 1196.
The court also stated that “[i]t is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress.”
Id. at 23-24.
The court concluded that the evidence provided by the plaintiff was not sufficient to support a cause of action for intentional infliction of emotional distress. Moreover, it held that intentional infliction of emotional distress cases that arise in the workplace are analyzed the same way as they would in non-employment settings. The conduct must be exceptionally egregious. In this case, it was not.

May Courts Unilaterally Modify the Terms of an Oral Settlement Agreement to Which the Parties Agreed on the Record?

In Highland Capital Corp., v. Donna P. Denier M.D., P.C. et al., No. A-4832-10T4 (N.J. Super.  App. Div. 2013), Donna Denier, M.D. (“Defendant”) entered into a lease with Digirad Corporation (“Lease”) for a piece of equipment named “Cardius 1”. Id. at 2.  Highland Capital Corp., (“Plaintiff”) was the party that financed the Lease. Id.
 
This dispute arose when Defendant stopped making the agreed upon payments to Plaintiff. Id.  As a result of Defendant’s failure, Plaintiff sued her for breach of contract in the Law Division of the New Jersey Supreme Court (“Lower Court”). Id. Instead of proceeding with litigation, the parties entered into a settlement agreement. Id. at 3. Following discussions among each party’s counsel and the Law Division Judge, the parties orally placed the terms of their settlement on the record (“Settlement”). Id. Some of the main points of the Settlement were as follows:

1.      Defendant is to make monthly payments to Plaintiff in the amount of $2,778.00 plus tax for 36 months; and
2.      If Defendant made all monthly payments, at the end of the 36 months Plaintiff will transfer ownership of Cardius 1 to Defendant.

Id.
 
However, the parties were unable to agree on how best to put the terms of the Settlement in writing. Id. at 5.Unable to come to an agreement, the parties participated in a telephone conference with the Lower Court. Id. at 6. Based upon this conference, Plaintiff submitted a proposed written agreement to the Lower Court for signature. Id.  The Defendant objected, stating that it did not accept the terms of Plaintiff’s proposed written agreement. The Defendant argued that it encompassed different terms than those placed on the record (“Proposed Agreement”). Id. Nonetheless, the Lower Court signed Plaintiff’s Proposed Agreement. This meant that the Plaintiff’s terms of the agreement, which were not agreed to by Defendant, were now enforceable against Defendant. Id.
 
Defendant appealed to the Appellate Division of the Supreme Court of New Jersey (“Appellate Court”). Id. at 7.  In its appeal, the Defendant argued that the Lower Court did not have the authority to sign the agreement because she never consented to it and it “materially changed the terms of the settlement placed on the record.” Id.
 
In its analysis the Appellate Court explained that as a matter of public policy, New Jersey courts favor the enforcement of settlement agreements. Id. at 8.  This policy acknowledges the notion that the parties to a dispute are in the best position to determine how to resolve a contested matter in a way that is least disadvantageous to everyone. Id. Thus, courts strain to give effect to the terms of a settlement agreement wherever possible. Id.  Importantly, the Appellate Court noted that a settlement agreement does not have to be in writing to be enforceable “…the fact that an agreement is oral, rather than written, ‘is of no consequence.’” Id.
 
However, the Appellate Court explained that settlement agreements are contractual in nature. Id. at 9. Thus, no settlement agreement exists unless the parties agree to the essential terms of the agreement and manifest an intention to be bound by those terms. Id.  Appellate Courts do not have the power to modify and/or add to the terms of the settlement agreement. “It is not the court’s function to make a contract for the parties or to supply terms that have not been agreed upon.” Id. at 10.
The Appellate Court explained that the terms of the Proposed Agreement was not an accurate representation of the Settlement the parties agreed to on the record. Id. at 12. For instance, under the Proposed Agreement, the Plaintiff was permitted to retain title to Cardius 1 and all proceeds of sale even if Defendant made all payments to Plaintiff in accordance with the Settlement. Id.  To the contrary, the Settlement indicated that the Defendant would retain ownership of Cardius 1, provided she made all payments to Plaintiff in accordance to its terms. The Appellate Court stated that the Lower Court unilaterally modified the terms of the Settlement. Id. The Lower Court’s improper modification of the Settlement clearly benefited the Plaintiff and harmed the Defendant.  Id.
 
Accordingly, the Appellate Court reversed the Lower Court’s approval of the Proposed Agreement. Id. at 13. In that regard, the Appellate Court directed the Lower Court to either form an agreement to which both parties agreed or, if the parties are unable to come to an agreement, simply to dismiss the case and enforce the terms of the original oral Settlement.   Id.

Does the Omission of Drink Prices on a NJ Restaurant’s Menu Violate the NJ Truth in Consumer Contract Warranty And Notice Act?

Does a restaurant menu constitute a notice or sign pursuant to New Jersey’s Truth in Consumer Contract Warranty and Notice Act (“Act”)? If so, would the omission of prices from a menu violate the Act? In Watkins v. DineEquity Inc., 11-7182 (D.N.J. August 28, 2012),  the District Court of New Jersey recently answered the former question in the positive, and the latter question in the negative.

In that case, a class action was brought against DineEquity Inc., Applebees Neighborhood Grill and Bar and International House of Pancakes, LLC (collectively “Defendants”). Defendants offered certain drinks on their menu without listing the prices.   Candice Watkins (“Plaintiff”) alleged in her
complaint that Defendants’ practice of omitting drink prices from their menu violated the Act. Id. at 2.

Plaintiff filed her complaint in the Superior Court of New Jersey, Law Division (“State Court”). Subsequently, Defendants removed the action from the State Court to the United States District Court for the District of New Jersey (“Federal Court”) based on diversity jurisdiction. Plaintiff argued that “offering such beverages for sale without indicating the prices violates New Jersey Law, in the [Act], and is contrary to clearly established New Jersey law requiring point-of-purchase notice of an item’s
selling price.” Id.  at 2.  Defendants filed a Rule 12(b)(6) motion to dismiss the lawsuit for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); Id.

The Court explained that in order for the case to survive Defendants’ motion to dismiss, Plaintiff needed to establish on its face that Defendant violated the Act. Plaintiff was required to show that the
following four (4) elements were met:

(1) the plaintiff was a consumer within the statute’s definition;

(2) the defendant was a seller, lessor, creditor, lender or bailee;

(3) the defendant (a) offered or entered into a written consumer contract or (b) gave or displayed any written consumer warranty, notice, or sign; and

(4) the offer or written contract, warranty, notice or sign included a provision that violated any clearly established legal right of a consumer or responsibility of a seller

Id. at 6.

Element One

The Court addressed element one minimally. It merely stated that the Act defined “consumer” as “any individual who buys, leases, borrows, or bails any money, property or service which is primarily for personal, family or household purposes.”  N.J. Stat. Ann. § 56:12-15. The Court presumed element one was satisfied and did not proceed further with its analysis. Id. at 6 n.3.

It is possible that it based its determination on the fact that Plaintiff was an individual who purchased drinks for personal consumption rather than resale.

Element Two

The Court did not address element two. However, presumably Plaintiff was able to satisfy it because Defendants were considered “sellers” of food and drink items to the public.

Element Three

The Court held that element three was satisfied. It explained that a menu “fits within the definition of a notice or sign, or both, as presented in the [Act’s] context of a consumer transaction because a restaurant menu is a written document that announces menu items and identifies the specific food and
beverage products offered for sale by the restaurant.” Id. at 15.

Further, the Court considered Black’s Law Dictionary’s definition of “offer” which was, “The act or instance of presenting something for acceptance.” Black’s Law Dictionary 1189 (9th ed. 2009);  Id.
at 10. On this basis, it held that “a restaurant menu may be considered an offer, a notice, and a sign for [Act] purposes.” Id. at 15.

Element Four

Element four was not satisfied. It held the Act applied solely to illegal terms and provisions that are included, in writing, in the statutorily significant documents (i.e. an offer, notice, or a sign). Omitted
language was not sufficient to invoke the Act’s protections. Id. at 19. The Court reasoned that the
phrase in element four, “which includes any provision”, refered to inclusions not omissions. Id. at 16.

The Court highlighted a very interesting distinction between something that is omitted and something that is included. It explained that when something is omitted, that can include a very large range of possible items. However, when something is included, the range of possible items is much more narrow. Therefore, since the statute was limited solely to items that were included on the menu, it would have been an unfair expansion of the intent of the statute to include items that were omitted, as well. The Legislature was “concerned with contracts, warranties, notices and signs that include illegal
provisions intended to ‘deceive[] a consumer into thinking that they are enforceable . . . .’” (in other words, items that were included).  Id. at 14.

Accordingly, the Court found that merely omitting drink prices from a restaurant menu without more did not state a claim under the Act. Id. at 23.  The Court did not find that omissions posed the “same risk of misleading a consumer into failing to enforce her legal rights as an affirmative misrepresentation . . . .” Id. at 22. Thus, it granted Defendants’ Rule 12(b)(6) motion to dismiss the lawsuit. It held that Plaintiff, under these circumstances, failed to make a claim upon which relief could be granted. Fed. R. Civ. P. 12(b)(6). Id. at 23.

Comments/Questions: gdn@gdnlaw.com

© 2013 Nissenbaum Law Group, LLC

May a Plaintiff Amend His Claim After Identifying the Incorrect Defendant?

In a world filled with partnerships, subsidiaries, and joint ownerships, identifying a defendant is not as easy as it sounds. However, if a plaintiff fails to name the correct defendant, he may risk dismissal. The question becomes what does a plaintiff need to do to ensure that his  claim is not dismissed? Is it
reasonable to rely on a party’s representation that they are the defendant?  What will be the result if a
party deceives another into believing they are defendant, when they are not?
In Dashi Slatina & Vjollca Slatina  v. D. Construction Corp. and Armored Inc., A-0851-10T2 (N. J. Super. Ct., App. Div. August 3, 2012), the plaintiff, Dashi Slatina, suffered serious injuries at work. He was erecting a masonry wall when it toppled on him. He filed suit against Newport Associate Development Company (“Newport”) under the belief that Newport was the owner and/or general contractor. However, the trial court dismissed the complaint with prejudice against the plaintiff because Newport was not the actual owner and/or general contractor.
Thereafter, the plaintiff filed a motion to amend the complaint in order to include the actual owner and general contractor. The basis for the motion was that plaintiff had been misled into believing that it had named the correct defendant. For example,
  • Newport initially admitted it owned the property where the plaintiff was injured.
  •  Newport’s interrogatory answers and it’s counsel’s certification did not expressly deny ownership, nor did it identify the actual owner and or general contractor (which Newport was actually linked to by common ownership).
  • The insurance policies that named the actual owner also included Newport as a named insured after the accident occurred.
The trial court denied plaintiff’s motion. In its holding, the court explained “that absent a pre-existing complaint, a plaintiff has nothing to amend”. Therefore, the very idea of amending a complaint that
had just been dismissed was illogical.  In its holding, the trial court mentioned that the only way to restore (and essentially amend) the complaint would be upon reconsideration, or if judgment were vacated after an appeal.
On appeal, the Superior Court considered whether the trial court abused its discretion when it denied the motion for leave to amend. In reversing the trial court’s decision and holding for the plaintiff, the Superior Court explained that although the trial court applied the correct standard for determining reconsideration, it did not construe the standard as liberally as the circumstances warranted. Rule 4:50-1 states,
On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party’s legal representative from a final judgment or order for the following reasons:
(a) mistake, inadvertence, surprise, or excusable neglect;
(b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49;
(c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void;
 (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or
 (f) any other reason justifying relief from the operation of the judgment or order.
The Superior Court held that although the circumstances of this case do not fall into subsection (a) through (e) of Rule 4:50 -1, the trial court had the authority to grant plaintiff’s leave to amend under
the catchall, subsection (f). That subsection allowed the trial court to consider whether it was “in the interest of justice” to restore the complaint for the purpose of enabling the plaintiff to add additional parties. Thus the Court explained that under subsection (f), the trial court had sufficient discretion to grant relief to address exceptional circumstances.
The Court found exceptional circumstances to be present in that case because the great injustice it would create if it held otherwise. The Court explained that Newport initially admitted to owning the
property and throughout its interrogatories never expressly stated that they did not. In fact, Newport was not only named as an insured on the post-accident insurance policy, but they also turned out to be a related entity to the “true owners.”
The Court also recognized that the policy was one promoting decisions on the merits. To hold otherwise would result in the“true owners” being able to avoid responding to the merits of the lawsuit. This would be due to the delayed disclosure by Newport, a related entity. The Court also took into consideration the fact that Newport would suffer no prejudice because the complaint would be restored solely for the purpose of allowing the new amendment and would not subject Newport to potential liability. Finally, the Court noted that plaintiff acted promptly to restore the complaint after judgment was entered. All of these factors favored allowing plaintiff to restore it to the active docket.
The lesson of this case is that a party should always thoroughly investigate whether or not it is bringing suit against the correct party. Nevertheless, in the event that the wrong party is named, under
the right circumstances, there may be a remedy.

Comments/Questions: gdn@gdnlaw.com

© 2013 Nissenbaum Law Group, LLC

May The Landlord of a NY Loft Evict a Tenant Who Has Not Paid Rent Even When The Landlord Has Not Obtained a Residential Certificate of Occupancy?

Will a landlord who has not obtained a residential certificate of occupancy in accordance with New York Multiple Dwelling Law § 302 be successful in an action in ejection against a tenant for unpaid rent? In Chazon, L.L.C. v. Maugenest, 2012 NY Slip Op 04373 (N.Y. June 7, 2012), the New York Court of Appeals answered this question in the negative.

In that case, Plaintiff, the owner of a loft building in Brooklyn, brought an action in ejection seeking to evict its tenant (“Defendant”) for unpaid rent.  Defendant had not paid rent since 2003.

Until the state legislature enacted the Multiple Dwelling Law Article 7-C (“Loft Law”) in 1982, it was illegal to occupy lofts for residential purposes.  Lofts were formerly used only for commercial purposes and were unsuitable for residential use.  Before the enactment of the Loft Law, residential tenants had no legal right to occupy the space and landlords were not legally justified in collecting rent.  However, pursuant to the Loft Law, landlords were given certain guidelines to follow in order to be in accordance with the law.

Section 284 of the law established a “series of deadlines by which the owners of interim multiple dwellings are required to alter them to conform to safety and fire protection standards, ultimately doing everything necessary to obtain a residential certificate of occupany.” See id. at 2.

In Chazon, the Court of Appeals held that the Plaintiff was not “entitled either to collect rent or to evict the tenant” because Plaintiff had not obtained a residential certificate of occupancy.  Id.  Pursuant to the Loft Law § 301 (1), multiple dwellings cannot be occupied in whole or in part until a residential certificate of occupancy has been obtained.  The Loft Law defined “interim multiple dwelling” as any of these illegally occupied buildings.  See Multiple Dwelling Law § 281.  As such, the Court of Appeals agreed that “no rent shall be recovered by the owner of such premises . . . and no action or special proceeding shall be maintained therefor, or for possession of said premises for nonpayment of such rent” until the certificate has been obtained. Multiple Dwelling Law § 302 (1); see id.

Ultimately, the Court of Appeals left Plaintiff and Defendant in the same predicament they were in before commencement of the suit. It temporarily protected the Defendant from eviction.  It held that, u ntil Plaintiff complied with the residential certificate of occupancy requirement, Defendant would be allowed to continue living rent free.  The Defendant’s complaint was dismissed.

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© 2012 Nissenbaum Law Group, LLC

May a Private Company Close off a Public Space that is an Officially Designated City Landmark Without Explanation?

Many have been wondering when JP Morgan Chase (“Chase”) will take down the fencing closing off Chase Manhattan Plaza, an architectural landmark in Lower Manhattan.  Public space activist have been trying to get the Landmark’s Preservation Commission (“Commission”) to step in, to no avail.  The Commission stated that Chase did not needs its permission to set up the fencing because it was removable and not attached to the plaza, therefore arguably temporary.

To date, plaza owner Chase has not offered a comment and has not dispelled the position that the site was blocked to keep Occupy Wall Street protesters away.  Chase has a permit for waterproofing repair work that includes a “no change in use, egress or occupancy” provision. However, open-space advocates have proclaimed that the fence itself has changed the  “use, egress or occupancy” of the site.  When a lawyer working on behalf of an open-space advocacy group requested information about the building in a Freedom of Information request, that request was denied because the Chase Manhattan Plaza building has been put on a list generated by the New York Police Department, that keeps the building permit plans confidential due to terrorism concerns.

This dispute over the fencing has taken place for months. A supporter of open and accessible public space recently sued the New York City Department of Buildings over its failure to disclose the permit plans.  At a recent hearing in State Supreme Court, there was a suggestion that sensitive information be redacted from the permits to allow the public access to the plans.  What the outcome of the dispute will be is unknown.

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© 2012 Nissenbaum Law Group, LLC

 

Should Parol Evidence be Used When The Terms of an Employment Agreement are Unambiguous?

In Margot W. Teleki v. Talk Marketing Enterprises, No. a-1448-11T2 (N.J. Super. Ct. App. Div. 2012), the court was presented with a common legal issue: whether parol evidence may be used to interpret a contract.  The court determined that it could not because the contract was unambiguous.

Parol evidence is evidence that is extraneous to a contract and is used to interpret its meaning.  The law discourages the use of parol evidence since contracts are meant to be interpreted by their actual wording.  Therefore, unless the contract is ambiguous or there are other exceptional circumstances, parol evidence will not be allowed.  Id. at 16-17.

In this case, since the employment agreement at issue clearly stated that wages would be paid to the Plaintiff, the failure to pay those wages provided personal liability to the principals of the employer  under NJSA 34:11-4.1 and 4.2 (New Jersey Wage Payment Law).  The fact that there was an “understanding”, as demonstrated by parol evidence,  that there would be no personal liability was irrelevant.

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© 2012 Nissenbaum Law Group, LLC