What Federal Jurisdiction Should Apply in the Lawsuit Concerning Dish Network’s Commercial-Skipping Television Broadcasting Capability
Dish Network is in a dispute with almost all of the major television networks over Dish Network’s offering to consumers that allows them to skip commercials in television shows. The lawsuit is in its earliest stages. The issue being decided now is what...
What Constitutes Constructive Eviction For A Commercial Tenant?
When has a landlord materially deprived its commercial tenant of an expected and intended use of a premises, as required for constructive eviction? The Supreme Court of New York, Appellate Division for the First Department recently addressed this question. ...
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...
What Is The Statute Of Limitations For Undisclosed Defects In A Real Estate Sale?
The common law doctrine of nullum tempus occurrit regi roughly translates to “no time run against the king.” In the past, that doctrine was enforced when courts determined whether government agencies were barred by the same statutes of limitations as private citizens...
Why Are Temporary Restraining Orders a Common Mechanism to Stop the Sale of Gray Market Goods?
Gray market goods are those that are exchanged in a market that is unauthorized or unintended by the original manufacturer of the goods. Many of these goods contain either a copyright or trademark that is registered and owned by the original manufacturer. However, the...
Is an Insurer’s Refusal to Consent to a Declaratory Judgment Sufficient for a Court to Find a Gross Disregard for an Insured’s Interests?
May an insurer reject a demand that would make its contribution to a settlement contingent upon the outcome of a suit to establish the limits of liability under the policy? In Greenridge v. Allstate, the United States District Court for the Southern District of New...
Does the New Jersey Declaratory Judgments Act Grant Rights to a Party Affected by a Municipal Ordinance?
May an individual whose rights have been affected by a municipal ordinance seek a declaratory judgment? The Supreme Court of New Jersey has construed the Declaratory Judgments Act in a way that allows such individuals to seek declaratory action. Bell v. Stafford Tp.,...
May Debt Collectors Contact People by Phone Who Are Not in Debt?
The Telephone Consumer Protection Act (“TCPA”) governs the conduct of telemarketing services and other companies that use telephone solicitation during the course of their business. A number of lawsuits have raised the question of whether debt collectors should be...
When May the Landlord of a Strip Mall Be Covered Under the Mall’s Tenants’ Insurance Policy?
If a person slips in the icy parking lot of a strip mall, may the landlord be indemnified by one of the tenants’ insurance policies? In a recent decision, the Appellate Division of the Superior Court of New Jersey attempted to clarify that question. Cambria v. Two JFK...
What Is Sufficient Evidence to Prove the Existence of a Partnership or LLC?
In order for a court to determine that a defendant is in civil contempt, it must first determine that the defendant actually exists. In a recent decision, the United States District Court for the Southern District of New York considered what evidence would be...
How Far Does the Jurisdiction of the New York Franchise Act Reach?
Courts have traditionally interpreted a wide-ranging jurisdiction for the New York Franchise Sales Act (“NYSFA”). New York-based franchisors that offer and sell franchises anywhere in the world from their New York offices are required to comply with the statute’s...
Can a Tenant Recover Attorney’s Fees From a Landlord if the Lease Does Not Provide for That Right?
Landlords are generally the parties that prepare the lease agreements into which their tenants enter. This unequal bargaining power typically allows landlords to insert language that requires tenants to pay the landlord’s attorney’s fees for any legal claims that...
Does the New York Prompt Pay Law Allow for a Private Right of Action?
In January 2010, the New York legislature enacted Insurance Law § 3224(a) (“Prompt Pay Law”) to ensure that insurance companies paid their claims in a timely fashion. However, it was not clear whether the statute granted a party a private right of action. In a recent...
When is a Former Employer Guilty of Improper Solicitation?
What constitutes improper solicitation of a customer of a former employer? That was the question before the New York Court of Appeals in a 2011 case. Bessemer Trust Co., N.A. v. Branin, 2011 NY Slip Op 3307 (2011). The plaintiff,...
Do the 2257 Record-keeping Requirements Violate the First Amendment?
The requirements of 18 U.S.C. §2257 (“2257”) impose certain record-keeping obligations on the producers of sexually explicit material. The constitutionality of the statute has been challenged in recent years, but courts have usually indicated that 2257 is...
When Does An Athlete Assume the Risk of Injury?
Better equipment, more health-conscious athletes and upgrades in technology have led many to believe that sports are safer today than in the past. But to what degree do athletes assume the risk of injury when they engage in sporting events? That was the question...
What Are the Benefits of Drafting An Indemnification Clause In A Construction Contract?
May contractors limit their responsibility for paying another party’s legal fees in situations where that other party’s fault precipitates the cause of action? Recent court decisions suggest that, if the contractor has a narrow indemnification clause in his contract,...
What Types of “Housing-Related Disputes” Are Subject to Mandatory Alternate Dispute Resolution?
Under New Jersey’s Condominium Act, housing-related disputes are required to be settled via arbitration or a similar method of alternative dispute resolution (“ADR”). In a recent decision, the Appellate Division of the Superior Court of New Jersey clarified the types...