Archive

Archive for September, 2010

Online Libel Suit Can Proceed Despite Lack of Proof of Damages

September 28, 2010 Leave a comment

Online Libel Suit Can Proceed Despite Lack of Proof of Damages, Court Says

New Jersey Law Journal

September 27, 2010

Deviating from a trend towards requiring proof of actual harm from defamation, a state appeals court ruled Monday that mandating such damages in a suit over online accusations of child sexual abuse would create a “license to defame.”

The decision, in W.J.A. v. D.A., A-0762-09, is the second published Appellate Division opinion this year to address the issue of presumed damages over online smears.

On April 22, another appeals panel, in Too Much Media v. Hale, 413 N.J. Super. 135 (App. Div.), allowed a claim against a blogger to go forward despite the absence of pecuniary damages, though saying the plaintiff company would have to show harm to reputation.

The W.J.A. court said that until the Supreme Court decides the issue definitively, the right “to recover damages in an action premised upon libel without proof of actual harm remains the law in this jurisdiction.”

The ruling allows plaintiff W.J.A. to go ahead with a lawsuit against his nephew, D.A., who wrote on a website that W.J.A. molested him as a child.

W.J.A. and D.A. have been litigating for more than a decade over D.A.’s accusations. In 1998, D.A. sued W.J.A, claiming W.J.A. sexually assaulted him when he was a minor. W.J.A. counterclaimed for defamation based on statements D.A. allegedly made to the Ventnor police.

D.A.’s claim was thrown out as time-barred but W.J.A. won a $50,000 jury verdict on the defamation claim and was awarded an additional $41,323 as a frivolous litigation sanction.

After D.A. failed to get the debt discharged in bankruptcy, he went back to Superior Court to try to lift the judgment with a motion under Rule 4:50-1.

That motion was pending when W.J.A. sued D.A. over a website D.A. created that discussed the litigation and allegedly stated W.J.A. molested D.A. “many, many times” when he was a minor, and also another child.

D.A. shut down the site after W.J.A. sent him a cease-and-desist letter, but W.J.A. sued him for defamation on March 26, 2007, in Atlantic County.

On Aug. 28, 2009, Superior Court Judge Steven Perskie granted summary judgment dismissing the complaint with prejudice, ruling that D.A.’s web postings about W.J.A. were defamatory per se, but because they were akin to libel rather than slander, W.J.A. had to prove actual injury to his reputation, which he admittedly had not done.

Perskie found the postings defamatory as a matter of law and defamatory per se because they accused W.J.A. of a criminal offense and serious sexual misconduct. But he held there was no proof of damages beyond “individual subjective moral reactions which are absolutely understandable and rational and realistic” but are “by themselves insufficient as a matter of law.”

On appeal, Judge Paulette Sapp Peterson, joined by Francine Axelrad and Clarkson Fisher Jr., held defamatory Internet postings are libel, which is written and requires proof of harm, rather then slander per se, which is spoken and as to which damages are presumed.

The opinion mentioned Rocci v. Ecole Secondaire Macdonald-Cartier , 165 N.J. 149 (2000), where the Court declined to decide as a general rule whether damages should be presumed in defamation cases, and said it was leaving the question “for future resolution.”

The panel did not resolve the issue but said because D.A.’s words were undisputedly defamatory and there should be a remedy where there was a wrong, a jury should get to decide if W.J.A. was harmed.

W.J.A.’s lawyer, Egg Harbor Township solo Stanley Bergman Jr., says his client will seek damages for emotional distress as well as punitive damages because of the repeat nature of the offense.

D.A.’s lawyer, Egg Harbor Township solo Timothy Hinlicky, did not return a call.

Bruce Rosen, the lawyer for amici NBC, The New York Times, North Jersey Media Group and the New Jersey Press Association in Too Much Media , says the W.J.A. panel left the presumed damages question open and seemed to be challenging the parties to bring it up to the Supreme Court, which he says “has been moving away from the idea of presumed damages” and has hinted that they should not even exist for slander.

“Maybe this is the right time,” says Rosen, of McCusker Anselmi, Rosen & Carvelli in Florham Park.

Jeffrey Pollock, of Fox Rothschild in Princeton, the lawyer for defendant blogger Shellee Hale in Too Much Media , sees the W.J.A. ruling as inconsistent with appellate precedent moving away from presumed harm and says it renders everything “potentially actionable.”

Joel Kreizman, of Evans Osborne & Kreizman in Ocean, counsel for Too Much Media, says it makes no sense to presume damages for slander but not for libel, especially on the Internet, which is capable of reaching a bigger audience.

On Sept. 10, the Court granted an appeal in Too Much Media but solely on the issue of whether the defendant is a journalist entitled to the protection of the law allowing reporters to shield their sources and to the heightened “absence of malice” standard.

Online Libel Suit Can Proceed Despite Lack of Proof of Damages, Court Says

New Jersey Law Journal

September 27, 2010

Deviating from a trend towards requiring proof of actual harm from defamation, a state appeals court ruled Monday that mandating such damages in a suit over online accusations of child sexual abuse would create a “license to defame.”

The decision, in W.J.A. v. D.A., A-0762-09, is the second published Appellate Division opinion this year to address the issue of presumed damages over online smears.

On April 22, another appeals panel, in Too Much Media v. Hale, 413 N.J. Super. 135 (App. Div.), allowed a claim against a blogger to go forward despite the absence of pecuniary damages, though saying the plaintiff company would have to show harm to reputation.

The W.J.A. court said that until the Supreme Court decides the issue definitively, the right “to recover damages in an action premised upon libel without proof of actual harm remains the law in this jurisdiction.”

The ruling allows plaintiff W.J.A. to go ahead with a lawsuit against his nephew, D.A., who wrote on a website that W.J.A. molested him as a child.

W.J.A. and D.A. have been litigating for more than a decade over D.A.’s accusations. In 1998, D.A. sued W.J.A, claiming W.J.A. sexually assaulted him when he was a minor. W.J.A. counterclaimed for defamation based on statements D.A. allegedly made to the Ventnor police.

D.A.’s claim was thrown out as time-barred but W.J.A. won a $50,000 jury verdict on the defamation claim and was awarded an additional $41,323 as a frivolous litigation sanction.

After D.A. failed to get the debt discharged in bankruptcy, he went back to Superior Court to try to lift the judgment with a motion under Rule 4:50-1.

That motion was pending when W.J.A. sued D.A. over a website D.A. created that discussed the litigation and allegedly stated W.J.A. molested D.A. “many, many times” when he was a minor, and also another child.

D.A. shut down the site after W.J.A. sent him a cease-and-desist letter, but W.J.A. sued him for defamation on March 26, 2007, in Atlantic County.

On Aug. 28, 2009, Superior Court Judge Steven Perskie granted summary judgment dismissing the complaint with prejudice, ruling that D.A.’s web postings about W.J.A. were defamatory per se, but because they were akin to libel rather than slander, W.J.A. had to prove actual injury to his reputation, which he admittedly had not done.

Perskie found the postings defamatory as a matter of law and defamatory per se because they accused W.J.A. of a criminal offense and serious sexual misconduct. But he held there was no proof of damages beyond “individual subjective moral reactions which are absolutely understandable and rational and realistic” but are “by themselves insufficient as a matter of law.”

On appeal, Judge Paulette Sapp Peterson, joined by Francine Axelrad and Clarkson Fisher Jr., held defamatory Internet postings are libel, which is written and requires proof of harm, rather then slander per se, which is spoken and as to which damages are presumed.

The opinion mentioned Rocci v. Ecole Secondaire Macdonald-Cartier , 165 N.J. 149 (2000), where the Court declined to decide as a general rule whether damages should be presumed in defamation cases, and said it was leaving the question “for future resolution.”

The panel did not resolve the issue but said because D.A.’s words were undisputedly defamatory and there should be a remedy where there was a wrong, a jury should get to decide if W.J.A. was harmed.

W.J.A.’s lawyer, Egg Harbor Township solo Stanley Bergman Jr., says his client will seek damages for emotional distress as well as punitive damages because of the repeat nature of the offense.

D.A.’s lawyer, Egg Harbor Township solo Timothy Hinlicky, did not return a call.

Bruce Rosen, the lawyer for amici NBC, The New York Times, North Jersey Media Group and the New Jersey Press Association in Too Much Media , says the W.J.A. panel left the presumed damages question open and seemed to be challenging the parties to bring it up to the Supreme Court, which he says “has been moving away from the idea of presumed damages” and has hinted that they should not even exist for slander.

“Maybe this is the right time,” says Rosen, of McCusker Anselmi, Rosen & Carvelli in Florham Park.

Jeffrey Pollock, of Fox Rothschild in Princeton, the lawyer for defendant blogger Shellee Hale in Too Much Media , sees the W.J.A. ruling as inconsistent with appellate precedent moving away from presumed harm and says it renders everything “potentially actionable.”

Joel Kreizman, of Evans Osborne & Kreizman in Ocean, counsel for Too Much Media, says it makes no sense to presume damages for slander but not for libel, especially on the Internet, which is capable of reaching a bigger audience.

On Sept. 10, the Court granted an appeal in Too Much Media but solely on the issue of whether the defendant is a journalist entitled to the protection of the law allowing reporters to shield their sources and to the heightened “absence of malice” standard.

Advertisements
Categories: Law, Litigation

Unexpected Problems in a Business Sale

September 21, 2010 Leave a comment

Unexpected Problems in a Business Sale

Unexpected Problems in a Business Sale

// <![CDATA[
/*

Jun 25, 2010

When you’re in the middle of a business sale, you want every step to go smoothly. But it’s not unheard of for something to cause problems part way through the process—and these aren’t always issues you can prepare for. But that doesn’t mean that you should let such issues derail the sale of your business.

Be Ready for New Problems

Every business sale is different and, depending on the personalities involved, each can have its own quirks and concerns. Andrew Cagnetta, the CEO of Transworld Business Brokers, has war stories ranging from difficult sales to outright impossible sales.

“We had a seller who was an older gentleman. His wife also worked in their company as controller. The husband was my broker’s main contact in the deal and was our source of deal information. The seller, however, did not wear the pants in the family. So often we would get no response or a negative response for items or information needed in due diligence. My broker came to me several times with a deadlock or refusal to supply information (one time a copy of an insurance policy). In deal-making, sometimes you have to reach deeper into the organization. In this case we had to several times.

“My broker would call me (I am the CEO of our intermediary firm), I would call my friend who was the son-in-law of the owners. The son-in-law would call his wife and explain the importance of supplying us information or making a certain decision. His wife would call her mother, and speak to her and plead as a daughter. She would relent and tell her husband it was OK to proceed. The seller would then call my agent to say he changed HIS mind. This process and deadlock breaking would eventually repeat itself many, many times. Every once in a while my buddy would refuse the request and table it for a day or two as he was overdrawn of his ‘savings account‘ with his wife.”

When the deal is worth your while, sometimes you have to get creative to resolve the unique issues you face during a particular sale. That can mean finding an intermediary whom the buyer trusts to discuss terms or it can mean working through a longer chain of connections.

Of course, problems are rarely limited to personality quirks. There can be financial concerns, logistical issues, and other factors dependent on your individual business or industry. If you’re serious about selling, though, there’s usually a way to manage those issues and come to an equitable agreement with a buyer. Approaching such situations with honesty and an assumption of good intentions on everyone’s parts is usually the key to finding a middle ground on any problem that arises.

Take Steps to Minimize Problems

What may seem like an unexpected issue is a little less unexpected to a business broker like Matt Paradis, who has been through the processing of selling a small business many times. Most of the problems Paradis sees come down to the seller’s bookkeeping methods: how accurate the books are and whether personal expenses are handled through the business. Making sure that all your business records are in good shape before a sale can make for smoother sailing.

In the end, though, Paradis offers one key piece of advice for reducing the problems you may see during the sales process. “Don’t misrepresent—be honest, open and clear with the buyer during the initial meetings and discussions with the buyer. If a seller tells the buyer that the company runs itself, for example, and then the buyer starts digging during due diligence and finds out that the seller is the whole sales team and all the sales are tied to personal relationships, the sale will likely fall through. The seller should have been honest up front about the personal relationships and should have offered solutions as to how they would work together to transition those relationships with minimal effect to the business.”

Honesty is the best option, especially when you’re concerned that a problem may derail a sale. If you need to get things back on track, sitting down with a prospective buyer and discussing the matter can be the most direct route.

Prepare to Walk Away

Sometimes, your only option is to walk away from a potential sale if things become too problematic. Just as a buyer has to be prepared to walk away from a purchase if he sees too many issues, forcing a sale to work can translate to problems for the seller.

Paradis points out that walking away is the best option if there’s a problem with the buyer’s financing. “Typically, sellers in today’s markets are expected to ‘hold paper’, which means they finance some portion of the sale themselves by receiving future payments plus interest from the buyer. If the buyer has serious credit history issues, the seller’s risk of not getting the complete package price increases greatly.”

Another issue is if a buyer tries to make major changes to the sales agreement after the due diligence period begins. Paradis explains the potential problem: “Understand, there is frequently some renegotiation based on discoveries during due diligence, but there will be situations where the buyer will start to over-exploit the issue and try to test the seller to see how desperate they are now that they have a buyer at the table. Small concessions and adjustments to the price and terms are acceptable, but I advise my clients to walk away when the buyer starts asking for wholesale changes to the agreement.”

At the end of the day, it can come down to how you feel about the deal. If it seems like there are major problems that could easily translate into a situation in which the sale will cause you more trouble than the benefits it brings you are worth, walking away is often the best option.

Wise Bread is a leading personal finance community dedicated to helping people get the most out of their money. Get daily money tips by following Wise Bread on Facebook or Twitter.

Tags: thursday bram, sales, communication, transworld business brokers, matt paradis, broker, management, wise bread, andrew cagnetta

Attorney Tracks Foreclosure Frauds and Files Class Action

September 13, 2010 Leave a comment

Attorney Tracks Foreclosure Frauds and Files Class Action

September 6, 2010. By Brenda Craig

New York, NY: If attorney Susan Chana Lask is right, she has hit on class action suit that will go down in history as one of the critical features of the foreclosure crisis that has ruined the lives of millions of Americans. “It is disgusting,” says Lask, a smart and feisty New York City lawyer. “I am really starting to hate banks. They are messing with our lives.”

Attorney Tracks Foreclosure Frauds and Files Class ActionLask started poking around after the distraught daughter of an 80-year-old woman came to her with some questions. A New York attorney called Steven Baum had a filed foreclosure complaint on behalf of HSBC and was preparing to takeover the Brooklyn brownstone owned by her mother, Concepcion Campbell. “I looked over the paperwork and I saw she never should have been foreclosed on,” says Lask.

The problem was, HSBC didn’t own the $190,000 loan. It belonged to something called MERS Corporation or Mortgage Electronic Revival System Corporation.

“So I sued Steven Baum, the attorney who did the foreclosure on the home, for legal malpractice and fraud,” says Lask who describes Baum’s practice as a “foreclosure mill” for the banks.

Lask started looking a little further and began to see what she describes as a “RICO fraud and a racket.” She has since filed a class action on behalf of thousands who lost homes in illegal foreclosures. If Lask is correct, and there are lots of reasons to believe she is, this is a mess and a half.

To get the full picture, Lask says, you have step back to the wild and crazy days when banks were high on the smell of money and were signing up risky mortgage customers.

Knowing that the bubble could burst at anytime, the banks stacked the loans under the name of MERS Corp. “So you would go and take a loan with Chase Bank but on the mortgage is would say MERS Corp.,” says Lask. “It splits the title. The title is bad right there. But they didn’t care, and the title companies didn’t care because they are all part of it too. Everybody gets paid. They just wanted a closing. They were like vultures.”

Courts in New York State are starting to figure this out. Ultimately, it could mean that the ownership of thousands and thousands of homes across the US are in doubt. “The judges are denying these foreclosures left and right – the documents are bad,” says Lask. “The documents they are filing are just basic fraud.”

Susan Chana Lask is a high-profile New York City litigator and appellate attorney. She has handled hundreds of complex divorce, legal malpractice, civil rights and class action cases. She is admitted to and practices in the United States Supreme Court, the New York Court of Appeals and Federal District and Circuit Court of Appeals. She is an author and frequent media commentator.

Fired Jacksonville waitresses file federal lawsuit against Cracker Barrel

September 13, 2010 Leave a comment

Fired Jacksonville waitresses file federal lawsuit against Cracker Barrel

Fired Jacksonville waitresses file federal lawsuit against Cracker Barrel Fired Jacksonville waitresses file federal lawsuit against Cracker Barrel Source URL: http://jacksonville.com/news/crime/2010-09-10/story/fired-jacksonville-waitresses-file-federal-lawsuit-against-cracker  By Jim Schoettler  Two former Jacksonville waitresses have filed a civil rights lawsuit against Cracker Barrel saying the national restaurant chain fired them in retaliation for reporting discrimination against black customers by two co-workers.  The lawsuit was filed Thursday in Jacksonville on behalf of Karen Hutcheson, 60, and Heather Ellis, 35. The women already have a discrimination case pending against Cracker Barrel that was filed with the Equal Employment Opportunity Commission last month. The lawsuit does not ask for any specific damages.  Hutcheson and Ellis were fired Aug. 8, four months after Hutcheson sent the Tennessee-based company an unsigned letter saying a hostess and waiter, who were girlfriend and boyfriend, conspired to ensure that the waiter got better tips by seating only white patrons in his section. Hutcheson told The Florida Times-Union last week that she sent the letter.  Hutcheson and Ellis also said the waiter was getting more customers than them or co-workers. The women said the company launched an investigation, then fired them on allegations that they discriminated against black customers. The two women have denied those claims.  A Cracker Barrel spokeswoman said the company took appropriate action based on the investigation. The co-workers named by the fired waitresses are still employed by Cracker Barrel, though the hostess is apparently now waiting tables.  As with the Equal Employment Opportunity complaint, the lawsuit says the company had no grounds to fire the women and did so to retaliate against them for being whistleblowers.  Eric Jones, the Jacksonville attorney representing the women, said he intends to clear his clients’ names.   “They did a witchhunt investigation that was self-servi

Hello world!

September 6, 2010 1 comment

Welcome to WordPress.com. This is your first post. Edit or delete it and start blogging!

Categories: Uncategorized

Two Federal Class-Action Suits Accuse N.J. Collection Firms of Overreaching

September 6, 2010 1 comment

Two Federal Class-Action Suits Accuse N.J. Collection Firms of Overreaching

In Mary Pat Gallagher’s recent New Jersey Law Journal article on September 2, 2010, she cites the two recently filed putative class-action suits accusing New Jersey collection firms of systematic abuses in trying to squeeze money from debtors.

Pressler & Pressler in Parsippany, the state’s preeminent collection powerhouse, has been sued over its alleged practice of going after joint bank accounts that contain non-debtor money.

The other suit accuses Lenox Socey Formidoni Brown Giordano Cooley & Casey in Trenton of regularly overstating the interest component of debts.

Robert and Diana Kieffer of Atlantic County, who share two joint bank accounts at Ocean First Bank, filed suit Aug. 3 in federal court, alleging that the Pressler firm — in an effort to collect credit card debt incurred by Diana before marriage — had the Ocean County sheriff levy on one of the joint accounts in August 2009, without checking first to see if she was the sole owner. The firm was acting on behalf of frequent client New Century Financial, which had acquired the debt and is a defendant in the case, Kieffer v. Pressler & Pressler , 10-cv-3938.

The Kieffers’ lawyer, Wesley Hanna, of Friedman Doherty in West Berlin, says he persuaded Superior Court Judge Craig Wellerson in Ocean County that everything in the account actually belonged to Robert and none to Diana, so Wellerson lifted the levy on Oct. 23, 2009, and Pressler never got any of the money in the account.

But for more than two months, the account was frozen, causing automatic payments to bounce and leading Robert to incur penalties by drawing against his retirement savings to pay bills, Hanna says. And during that time, Pressler & Pressler tried to use the frozen account to pressure Diana into agreeing to a payment plan. The situation created discord between Diana and Robert, who “doesn’t even owe the debt and suddenly he doesn’t even have access to his money any more,” Hanna says.

In the federal suit, the Kieffers claim Pressler and New Century have an “established business practice to levy upon joint bank accounts” and “as a matter of regular business practice, do not instruct levying authorities to limit levy attempts only to accounts where a debtor is the sole authorized signatory.”

In consequence, joint accounts are levied, resulting in unnecessary and undue expense, harassment and abuse of the non-debtors and also the debtors themselves due to increased tension, acrimony and hostility between them and the other account owners, they say.

The practices allegedly violate the federal Fair Debt Collection Practices Act’s ban on misrepresentation and deceit and unfair or unconscionable means in attempting to collect a debt. The Act, 15 U.S.C. §1692 et seq., allows for actual damages or statutory damages up to $1,000, plus legal fees. For class actions, it allows recovery of statutory damages, plus additional damages not exceeding $500,000 or one per cent of the debt collector’s net worth.

The Kieffers assert claims on behalf of a class of individuals from whom the Pressler firm and New Century sought to collect a debt by levying on a joint account within the last 12 months. Hanna estimates there are several hundred class members based on the defendants’ extensive collections activity.

Hanna says New Jersey’s Multiple-party Deposit Account Act bolsters his position that joint accounts should be off-limits to debt collectors. N.J.S.A. 17:16I-4 states that a joint account “belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit.” Absent proof of who put in what, equal ownership is presumed.

Hanna says lawyers should not be able to gain leverage to extract payment by disregarding the joint nature of an account or foregoing asset depositions. “The potential to make people’s lives miserable to collect debt means you have to follow very specific rules.”

Pressler & Pressler has not answered the complaint and could not be reached for comment.

Another class-action suit asserting Fair Debt Collection Practices Act, Baratta v. Lenox Socey Formidoni Brown Giordano Cooley & Casey , 10-cv-4324, filed in Middlesex County in July, was removed to federal court on Aug. 23.

Lenox Socey sued Robert Baratta in state court in May 2009 seeking to recover nearly $6,700 for medical services provided to him by Bayshore Community Hospital in Holmdel between February 2006 and May 2008. Baratta alleges the amount included interest calculated from March 2006 on the entire amount of the debt, even portions that were not incurred until 2007 or 2008.

The class allegations are predicated on the assumption that the firm has done the same thing in other cases. The complaint alleges 100 or more.

Baratta’s lawyer, Andrew Wolf of Galex Wolf in North Brunswick says Baratta went to Northeast Legal Services which referred the case to him.”

The answer is not due until Sept. 13 and the firm’s lawyer, Claudia Costa, of Kaufman Dolowich Voluck & Gonzo in Hackensack, declines comment.

Kieffer is assigned to District Judge Stanley Chesler and Magistrate Judge Michael Shipp in Newark, while Baratta is being handled by Chief District Judge Garrett Brown Jr. and Magistrate Judge Douglas Arpert in Trenton

The difficulty with the plea bargain

September 5, 2010 Leave a comment

I have often found my clients to be between a rock and a hard place. Take a current case of The State of NJ v. TC. TC is a hard working health aide who was accused by the daughter of her patient of stealing over $20,000 from her employer. Of course, the local municipal police did not do much of an investigation. They merely handed the whole thing over to the county prosecutor who has, of course, indicted her. My client is stuck between a rock and a hard place. If she asserts her innocence and goes to trial she risks spending up to twenty years in jail. If she takes a plea she may have to pay “restitution” of more than $20,000! What to do? Conducting a trial can costs tens of thousands of dollars not to mention the risk that you can lose.

What would you advise?

Categories: Litigation, Uncategorized