Category Archives: Current Affairs

What Happens When A Pay-On-Death Account Holder Mistakenly Appoints the Wrong Person as its Beneficiary?

In Stephenson v. Spiegle, Jack M. Murray (“Murray”) executed a Will prepared by an attorney, William E. Spiegle, III (“Attorney”).  See Stephenson v. Spiegle, 429 NJ Super 378 (App. Div. 2013) at 380. The Will left his estate to his family. It stated that any assets he had – whether owned by him directly or through a trust that he might create for the benefit of his family – should pass to his family.

The Pay-On-Death Account

About two months later, Murray went to a bank and opened a pay-on-death account (“Account”). Id. A pay-on-death account is one that directs who will receive its balance when the account-holder dies, the beneficiary. Initially, Murray wanted his family trust to be the beneficiary of the Account. That would have meant that the balance would go to the trust and in turn (as stated in the Will), to his family members. Id.  Unfortunately, a bank representative dissuaded Murray from including this instruction because he did not have the trust documents with him at that time. Id.  Accordingly, Murray took the interim step of naming his Attorney as the beneficiary, with the intent that Murray would change it to the trust at a later time. Id.

Unfortunately, Murray did not do so before he passed away less than a year later. Murray left approximately one-third of his estate, $143,151.26 (“Balance”), in the Account. Id.  This meant that  the Attorney – rather than Murray’s family – was technically entitled to receive the Balance.

The executor (“Executor”) of Murray’s estate (the person in charge of distributing Murray’s estate assets) discovered the Account. Id.  He contacted the Attorney who understandably took the position that the Attorney was the Account’s sole beneficiary.

I have no idea why this [Account] was established. It was established approximately six weeks after [Murray] executed his will in my office, which leads me to believe the intent of this [Account] was clearly to take it outside the estate itself. I have no idea what motivated this action. I was completely unaware that this had occurred. I had not seen nor talked with [Murray] since the day he left my office December 16, 2006. I can only surmise that something happened on his way to Florida or after he got to Florida for him to take this action…

…I have looked at this situation from various points of view seeking to fathom the intent of this [Account]. I come back to the only conclusion that I can draw, which is—for whatever reason—[Murray] wanted me to have [the Balance].

Id. at 381.

The Executor disagreed. He initiated a lawsuit in the Chancery Division of the Superior Court of New Jersey (“Chancery Court”) to preclude the Attorney from receiving the Balance and to ensure that it was utilized for the benefit of Murray’s family. Id.  The Executor argued that Murray made a mistake when he named Attorney as the beneficiary of the Account Id.

The Court’s Ruling

The Chancery Court agreed,findingthat it was “virtually inconceivable” that Murray intended to benefit Attorney rather than his family. Id. at 383.  In support of that position, the Chancery Court specifically pointed to the fact that Murray made a Will that left his entire estate to his family members less than two months prior. This showed his intent to care for his family. Id. at 382-383.

Accordingly, the Chancery Court held that notions of fairness required it to grant rescission of the Account. Id. at Id. at 381. Rescission is a legal remedy rendering a contract (in this case the one governing the Account) null and void. In this case, rescission of the Account allowed the Balance to go directly to Murray’s estate and hence, his family.

The Attorney appealed the Chancery Court’s decision to the Appellate Division of the New Jersey Superior Court (“Appellate Court”) claiming that the grant of rescission of the Account was improper. Id.  The Appellate Court disagreed. Id. at 387.

The Appellate Court explained that it was proper for the Chancery Court to grant rescission of the Account because it was clear that Murray created the Account to pass to his family members and mistakenly thought that designating his attorney as the “pay-on-death” beneficiary would accomplish that. Id. at 384-385.  In other words, regardless of the mistaken idea that designating the attorney would effectively mean the money would go to his family, the obvious intent was that Murray wanted his family to receive the Account balance.  Id.

Accordingly, the Appellate Court upheld the Chancery Court’s rescission of the Account. Id. at 387. Therefore, despite the fact that Attorney was technically named as the beneficiary of the Account, the Balance was given to Murray’s family members instead of Attorney. Id.

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© 2013 Nissenbaum Law Group, LLC

 

Does Property Located Outside of the United States Count Toward a Surviving Spouse’s Elective Share Under the NJ Statute 3B:8-1?

In In re Estate of Pakdee B. Peck, a deceased spouse (“Decedent”) had signed two wills: one in New Jersey (“NJ Will”) and one in Thailand (“Thailand Will”). The NJ Will stated that it was Decedent’s “[e]xpress wish and desire that [Decedent’s] husband, Robert M. Peck [“Husband”] receive only his elective share of [Decedent’s] estate as defined in N.J.S.A. 3B:8-1.” In re Estate of Pakdee B. Peck, 429 N.J. Super. 409 (Ch. Div. 2012) at 411. The question was whether that elective share would include property outside the United States.

The Definition of the Term “Elective Share”

What does the term elective share (“Elective Share”) mean when it is used in relation to  a spouse’s estate? That question is answered in New Jersey Statute 3B:8-1, which states:

If a married person or person in a domestic partnership dies domiciled in this State, on or after May 28, 1980, the surviving spouse or domestic partner has a right of election to take an elective share of one-third of the augmented estateunder the limitations and conditions hereinafter stated, provided that at the time of death the decedent and the surviving spouse or domestic partner had not been living separate and apart in different habitations or had not ceased to cohabit as man and wife, either as the result of judgment of divorce from bed and board or under circumstances which would have given rise to a cause of action for divorce or nullity of marriage to a decedent prior to his death under the laws of this State.

Id.; emphasis added.

In other words, the Elective Share prevents a surviving spouse from being completely disinherited; at the very least, he or she will have the right to one-third (1/3) of the decedent’s augmented estate. It should be noted that the decedent’s property that falls outside of the augmented estate is not included in the one-third (1/3) calculation of the surviving spouse’s share.

What is an Augmented Estate?

A decedent’s augmented estate generally includes the property that she left in her will plus certain other property of the decedent such as certain gifts and joint bank accounts.  Specifically, “augmented estate” is defined in N.J.S.A. 3B:8-3, which states:

The “augmented estate” means the estate reduced by funeral and administration expenses, and enforceable claims, to which is added the value of property transferred by the decedent at any time during marriage, or during a domestic partnership, to or for the benefit of any person other than the surviving spouse or domestic partner, to the extent that the decedent did not receive adequate and full consideration in money or money’s worth for the transfer, if the transfer is of any of the following types:

  1. Any transfer made after May 28, 1980, under which thedecedent retained at the time of his death the possession or enjoyment of, or right to income from, the property;

Id.; emphasis added.

Is property outside the U.S. counted as part of the Elective Share?

In In re Estate of Pakdee B. Peck, the Husband filed a lawsuit asking for his elective share of Decedent’s augmented estate. Id. at 412. He claimed that the real property, bank accounts and investments owned by the Decedent in Thailand (“Thailand Property”) should all have been counted as part of the Decedent’s augmented estate.  Id. In other words, he claimed that his elective share included not only 1/3 of the property owned by Decedent in New Jersey but also 1/3 of the Thailand Property. Id.

The attorney for the deceased wife’s estate argued that Decedent’s augmented estate did not include the Thailand Property. Therefore, the Husband had no right to it.

The Estate’s legal position was that this was the deceased wife’s probable intent. Id.  It based this on the following:

  • The NJ Will did not refer to any previous wills or property located outside of the United States. Id.at 411.
  • Decedent advised the attorney that drew up her will that “she had prepared and signed a previous will in Thailand relating to property owned [by  her] in Thailand and [that she] did not wish to make a specific reference to preserving the terms of that will the [NJ Will] for the reasons discussed.” Id. at 411-412.
  • At the same time the deceased wife signed her NJ Will, she also signed a separate document witnessed by two people and acknowledged by a notary public, in which she ratified the provisions of the Thailand Will disposing of all of her property in Thailand. Id.at 412.
  • The Decedent expressed her intention to the attorney that drafted the NJ Will that the NJ Will dispose only of the property that she owned within the United States. Id.

Despite all this evidence that Decedent did not want her husband to receive 1/3 Elective Share of the Thailand Property, the Court held, in favor of Husband. This meant that the Thailand Property was to be included in Decedent’s augmented estate. Id.at 415. The Court stated the basis of its holding as follows:

  • There was no evidence establishing that at the time of Decedent’s death she did not retain possession or enjoyment of the real and personal property in Thailand. Id.at 414.
  • It is of no significance that the property was located in a foreign country because—pursuant to N.J.S.A. 3B:8-2— the augmented estate “includes real property to the same extent as it would be included if it were located in New Jersey.” Id.; See also N.J.S.A. 3B:8-2.
  • It did not matter whether the Decedent wanted her surviving spouse to have a one-third 1/3 right to her Thailand property because the Elective Share statute was enacted with the purpose of prohibiting the disinheritance of a surviving spouse who needs continuous support. Id.at 415 Therefore, the elective share was not created to carry out the decedent’s probable intent but rather to ignore it in order to protect the surviving spouse. Id.

Accordingly, the Court held that the Thailand Property was to be included as a part of the Decedent’s augmented estate. Therefore, it was included in the calculation of Husband’s 1/3 share of the Decedent’s estate. Id.

Conclusion

The Court’s holding articulated two important principles:

    1. Under certain circumstances, foreign property may be included in a decedent’s augmented estate; and

 

  • A surviving spouse’s right to his elective share may sometimes overshadow the deceased spouse’s probable intent.

 

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© 2013 Nissenbaum Law Group, LLC

If a Person Donates for a Specific Purpose to a Charity, May the Charity Use the Money for a Different Purpose?

If a person donates a “conditional gift”(a gift that can only be used for the stated purpose) to a charity, may the charity ignore that restriction and use it for another purpose? The Court in  Adler v. Save, was confronted with that very issue. In that case, Bernard and Jeanne Adler (the “Adlers”) donated fifty thousand dollars ($50,000.00) (“Donation”) to SAVE (. See Adler v. Save, 432 N.J. Super. 101 (App. Div. 2013) at 111. The Adlers made the Donation to SAVE based upon its representations that the money would be utilized to construct and run a new animal shelter facility (“New Facility”).  Unfortunately, after accepting the Donation, SAVE decided that it no longer wanted to build the New Facility. The question presented to the Court was whether SAVE would be required to return the Donation to the Adlers.

Background

SAVE was a charitable organization with a self-proclaimed mission to provide for the rescue, shelter, veterinary care, and adoption of stray companion animals. SAVE was located in the Borough of Princeton, New Jersey (“Princeton”). Id at 105.

Prior to agreeing to make the Donation, SAVE informed the Adlers of the original plans for the New Facility which encompassed the following:

    • a large facility approximately thirty-five thousand (35,000) square feet;

 

  • separate living areas for cats and dogs;

 

 

  • areas designed for isolation and rehabilitation;

 

 

  • areas for spaying and neutering, including an on-site veterinary clinic with x-ray equipment for treatment and triage of sick and injured animals;

 

 

  • accommodations for larger dogs, designed as “dog living rooms.”

 

The Adlers informed SAVE that the purpose for their agreement to make the Donation was “to have rooms for large dogs and older cats that are not easily adopted and specifically for the naming rights for those rooms at that facility [in Princeton].” Id at 113-114. According to Mrs. Adler, SAVE told her that, in recognition and appreciation for the Donation, it would designate two rooms in the New Facility; one for the care of large dogs and the other for the care of older cats. SAVE also told them that the Adlers would have nameplates outside of each of those rooms. Id.

However, after receiving the Donation, SAVE announced to its donors (including the Adlers) that instead of proceeding with its construction of the New Facility, it had decided to merge with another charitable foundation. As a result, SAVE decided that it would not construct its new shelter at its original location in Princeton. Id at 114.  The newly formed “merged charity” would transfer all of its operations to a location in Montgomery Township, New Jersey. Id.  According to the new plans, SAVE decided to construct a new animal shelter that was significantly smaller than the New Facility and did not include two rooms specifically designated for the long-term care of large dogs and older cats. Id. at 114-120.

The Lawsuit

As a result of SAVE’s new plans, the Adlers demanded the return of the Donation. Id at 116. SAVE refused. Id.  Accordingly, the Adlers filed suit in the Law Division of the Superior Court of New Jersey (“Trial Court”) seeking the return of the Donation. Id at 115. They argued that SAVE violated the material aspect of their gift by deciding, without their knowledge or approval, to use the Donation to construct a facility that did not meet their expressed animal-care conditions and would be located in an area outside of Princeton. Id at 115-116.  Accordingly, the Adlers argued that they were entitled to the return of the Donation because it was a conditional gift and SAVE failed to meet its conditions. Id.

The Trial Court confirmed that this was a conditional gift. That means that the gift was one in which the recipient must comply with certain conditions in order to keep it. Normally, if the recipient fails to do so, it must return the gift to the donor upon the donor’s request.

The Trial Court went on to explain that the Donation made by the Adlers was motivated by their desire to provide better conditions for large dogs and older cats. Id at 121. Thus — since SAVE was no longer building a facility that would serve those goals — the Trial Court ruled in favor of the Adlers, finding that they were entitled to the return of the Donation. Id at 120-121.

SAVE appealed to the Appellate Division of the Superior Court of New Jersey (“Appellate Court”). Id at 121.  The Appellate Court explained that SAVE was under a fiduciary obligation to return the Donation to the Adlers if it could not meet the conditions they imposed upon it. Specifically, when a donor places trust and confidence in a recipient who is in a dominant or superior position, the recipient assumes a fiduciary duty to the donor. Id at 125. In this case, the Adlers placed their trust in SAVE to meet the conditions of their gift. By virtue of SAVE’s control of the funds, it was required to either meet the Adlers’ conditions or obtain their consent to rededicate the funds to another purpose acceptable to them. Otherwise, SAVE had a fiduciary duty to return the Donation to the Adlers.  Id.

Conclusion

In sum, the Appellate Court held in favor of the Adlers based upon the “unquestionable realization” that SAVE accepted the Donation fully aware of the Adlers’ conditions and did not express any reservation to them about SAVE’s ability to meet any of those conditions. Therefore, even though SAVE no longer wanted to build the New Facility, SAVE had to return the Donation to the Adlers since it failed to meet those original conditions.  Id at 124.

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© 2013 Nissenbaum Law Group, LLC

 

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.

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© 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.

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© 2013 Nissenbaum Law Group, LLC

What are the Federal Trade Commission’s 2012 Privacy Report Recommendations in Relation to “Do-Not-Track” Mechanisms?

On March 26, 2012, the Federal Trade Commission (FTC) issued a privacy report (“Report”) respecting Internet usage. It proposed best practices for protecting American consumers and giving them more control over the personal data collected on the Internet.

Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers, An FTC Report (Mar. 26, 2012) available at http://www.ftc.gov/os/2012/03/120326privacyreport.pdf.

Among the many challenges to consumer privacy that the FTC addressed, it mentioned the issue of tracking consumers’ online activity.  In what the FTC sees as one way to remedy this problem, it called for “implementation of a universal, one-stop choice mechanism for online behavioral tracking, often referred to as Do Not Track.” Id. at 52.  The Do Not Track mechanism would provide consumers with the ability to control tracking of their online activities.

To be successful, the industry has to step in to implement this improved choice mechanism and allow consumers the option of opting out of behavioral tracking. The FTC believes that any effective Do Not Track system should include the following five principles:

  • First, a Do Not Track system should be implemented universally to cover all parties that would track consumers.
  • Second, the choice mechanism should be easy to find, easy to understand, and easy to use.
  • Third, any choices offered should be persistent and should not be overridden if, for example, consumers clear their cookies or update their browsers.
  • Fourth, a Do Not Track system should be comprehensive, effective, and enforceable. It should opt consumers out of behavioral tracking through any means and not permit technical loopholes.
  • Finally, an effective Do Not Track system should go beyond simply opting consumers out of receiving targeted advertisements; it should opt them out of collection of behavioral data for all purposes other than those that would be consistent with the context of the interaction (e.g., preventing click-fraud or collecting de-identified data for analytics purposes).

Id. at 53; format not in original.

The Report acknowledged that web browser companies have made efforts to give consumers choice in how they are tracked online.  For example, “the [Digital Advertising Alliance] DAA has developed its own icon-based tool and has committed to honor the browser tools; and the [World Wide Web Consortium] W3C has made substantial progress in creating an international standard for Do Not Track.” Id. at 72.

Although the current self-regulation and browser mechanisms for implementing Do Not Track solutions are improving, the work is not done. In the report’s conclusion, the FTC “commends recent industry efforts to improve consumer control over behavioral tracking” Id. at 53, the FTC looks forward to continuing to work with businesses to “complete implementation of an easy-to use, persistent, and effective Do Not Track system.” Id. at 72.    

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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

 

Is It Appropriate To Appoint a Discovery Master in CEPA and NJLAD Cases?

In Zehl v. City of Elizabeth Bd. Of Educ., No. A-1296-11T3 (N.J. Super. Ct. App. Div. May 31, 2012), the Appellate Division of the Superior Court of New Jersey was presented with the following question: should the court take into account the ability of someone to pay the fees of a discovery master when determining whether a discovery master should be appointed?

In that case, a cafeteria worker sued her employer for violations of the New Jersey law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 et. seq., and the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 et. seq.  The underlying discovery in the case (exchange of information by way of testimony, documents and answers to written questions) was complex and voluminous. The Court decided to appoint an impartial discovery master to manage the discovery process. The Plaintiff and Defendants were required to split the fee for the discovery master.

The Appellate Division held that when the court below appointed a discovery master, it erred because it did not consider “that the appointment of a discovery master in fee-shifting remedial cases, which by their very nature oftentimes involve litigants with limited resources, may impose a cost burden on litigants that creates a de facto bar to their access to the justice system.” Id. at 1. On that basis, the Appellate Division reversed and remanded the case.

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© 2012 Nissenbaum Law Group, LLC