Analysis

Top New Jersey Cases Of 2020: A Midyear Report

By Jeannie O'Sullivan
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Law360 (July 2, 2020, 3:46 PM EDT) -- New Jersey attorneys made possible a host of significant achievements in the first half of 2020 as the state maintained its place as the second-hardest-hit by COVID-19 and shuttered courtrooms forced most proceedings to be held via telephone or Zoom. 

In a case that captured national headlines for six years, the U.S. Supreme Court threw out the infamous "Bridgegate" conviction against two former appointees of ex-Gov. Chris Christie after finding that dirty politics aren't criminal. In state court, terminal cancer patients who sued Johnson & Johnson scored a $186 million punitive damages win, while a Gov. Phil Murphy administration staffer settled with the former co-worker she had accused of raping her.

The novel coronavirus itself took center stage in high-profile litigation brought by a defiant South Jersey gym owner, the state's own action seeking to block a popular shore town from allowing indoor dining despite a ban and the unprecedented pause Modell's Sporting Goods secured in its Chapter 11 case.

In a moment that coincided with the nationwide spotlight on racial justice, Murphy announced a New Jersey Supreme Court nomination who would be the bench's first female black justice, a move that earned praise from advocates who have sought to make the state's highest court more diverse.

Here are the highlights of New Jersey's legal landscape for the first half of 2020.

White Collar

In the 2014 federal case that made Christie a household name, if not a defendant, prosecutors convinced a jury that three of his appointees orchestrated a politically motivated traffic jam on the George Washington Bridge in September 2013. The jam, disguised as a study, aimed to avenge a local mayor's refusal to support Christie's reelection campaign by limiting his town's access to the key bridge linking the Garden State to New York's bustling metropolitan center.

Christie wasn't charged, but former Port Authority of New York and New Jersey executive David Wildstein pled guilty and cooperated with the government, while another onetime Port Authority executive, William E. Baroni, and former Christie aide Bridget Anne Kelly, took their case to trial and found themselves sentenced to prison.

After the Third Circuit vacated just one civil rights conviction, Baroni and Kelly fared much better at the U.S. Supreme Court. On May 7, the justices unanimously ruled that such alleged conduct may be an abuse of power, but it's not a federal crime.

The white collar defense bar hailed the decision as a critical check on the power of the federal government. Scarinci Hollenbeck LLC's Donald Scarinci, who wasn't involved in the case but watched it closely, was not at all surprised by the high court's opinion.

"Had the high court let the convictions stand, prosecutors would have had an overbroad interpretation of law that would have allowed them complete discretion to prosecute any elected official they chose. The result would have been a chilling effect on those who are willing to serve our country as our representatives," Scarinci told Law360 in an email.

The case is Bridget Anne Kelly v. U.S., case number 18-1059, in the Supreme Court of the United States.

Product Liability

Johnson & Johnson took a wallop last year when a state court jury awarded four mesothelioma patients a $37.3 million compensatory damages verdict over their claims that asbestos in talcum powder caused their terminal illnesses, but the troubles didn't end there for the personal care giant.

A separate jury in February awarded the patients an additional $750 million in punitive damages after hearing testimony that J&J knew its talc was contaminated with asbestos since the 1970s but didn't inform the U.S. Food and Drug Administration. Jurors were also told that the company advocated for testing methods that weren't sensitive enough to detect asbestos.

Despite J&J's argument's over what the company called the "improper and unduly prejudicial" questioning of CEO Alex Gorsky, Superior Court Judge Anna Viscomi, who reduced the award to $186 million, declined to set the verdict aside on June 29 after deciding that Johnson & Johnson's "direct lies" to consumers and regulators warranted the blistering sum.

The punitive damages verdict was the largest in New Jersey's history, according to Christopher Placitella of Placitella Cohen & Roth PC, one of the firms representing the patients. 

"Of course we were pleased with the outcome of this yearlong trial and post-trial battle, but we are especially heartened by the positive implications for the public health," Placitella told Law360.

The cases are Barden et al. v. Brenntag North America et al., case number L-1809-17; Etheridge et al. v. Brenntag North America et al., case number L-0932-17; McNeill-George v. Brenntag North America et al., case number L-7049-16; and Ronning et al. v. Brenntag North America et al., case number L-6040-17, in the Superior Court of the State of New Jersey, County of Middlesex.

Sexual Assault Justice

Katie Brennan's now-settled January 2019 lawsuit accusing Albert Alvarez of raping her in her apartment when the two were staffers of Murphy's gubernatorial campaign came as the #MeToo movement highlighted institutional sexual harassment and drew outcry over how the state handled her claims before they made it to court.

Alvarez — a former Hoagland Longo Moran Dunst & Doukas LLP attorney who was cleared of any criminal wrongdoing and claims the encounter was consensual — went on to become a New Jersey Schools Development Authority executive before he stepped down in October 2018. Brennan said the state ultimately decided not to bring formal proceedings against Alvarez because the two technically weren't public employees at the time.

Brennan, now the chief of staff of the New Jersey Housing and Mortgage Finance Agency, saw her claims being litigated in the courts as well as examined by a legislative committee that ultimately recommended sweeping reforms to the state's hiring practices. On May 15, Brennan and the state jointly announced they'd reached a $1 million settlement, a deal that calls for $600,000 to go to The Waterfront Project, a nonprofit service for sex assault survivors.

One notable victory in the litigation was the Murphy campaign's agreement to lift a nondisclosure clause that had bound campaign staffers to silence with respect to the campaign's policies and their personal experiences while working for it.

"The full significance of the resolution of Katie Brennan's lawsuit ... remains to be seen as advocates, notably Katie Brennan, continue to work on critical reforms on behalf of survivors in New Jersey," Brennan's attorney, Katy McClure of Smith Eibeler LLC, told Law360.

The case is Brennan v. Alvarez et al., case number L-34-19, in the Superior Court of New Jersey, County of Mercer.

COVID-19

After gaining national attention for opening despite Murphy's mandate that nonessential businesses must close during the pandemic, Atilis Gym in Bellmawr muscled its way to federal court in May with a constitutional challenge to the governor's orders. The gym withdrew its complaint on June 23 after U.S. District Judge Robert Kugler ruled that the claims belonged in state court, where the gym was facing summonses for defying the shutdown orders.

The city of Asbury Park was likewise averse to the mandates, and announced its intention to allow indoor dining in restaurants when only outdoor service had gotten the green light. That got the municipality slapped with a state court order on June 12 to keep dine-in service off the menu.

For Seton Hall Law professor Jennifer Oliva, who is teaching a course called pandemic law & policy, the new challenges call to mind a 115-year-old guidance from the U.S. Supreme Court about the balance between freedom and executive power. The 1905 case of Jacobson v. Massachusetts held that, absent some restraint by the government, an "organized society could not exist with safety to its members."

"In other words, the courts will carefully balance the measures the governor of New Jersey has taken in light of the reality of the current public health threat against the alleged harms to the gym and restaurant proprietors challenging his executive orders," Oliva told Law360.

"The governor, of course, has to be careful that his orders are not arbitrarily disfavoring particular industries in favor of others or fail to comport with the known science or simply go on too long without careful assessment," Oliva added.

The gym case is Atilis Gym Bellmawr LLC v. Philip D. Murphy et al., case number 1:20-cv-06347, in the U.S. District Court for the District of New Jersey. The Asbury Park case is Philip D. Murphy, in his official capacity as the governor of the state of New Jersey, v. John Moor, et al., case number C-56-20, in the Superior Court of New Jersey, Chancery Division in Mercer County.

Bankruptcy

It was just days after Modell's Sporting Goods Inc. sought Chapter 11 support for its $100 million debt load that Murphy shuttered all nonessential retail operations, effectively torpedoing the retailer's ability to hold liquidation sales.

Seeking to fund post-petition costs like rent, a team from Cole Schotz PC convinced a judge to stay the case for 30 days, a feat that saw the firm fending off challenges by landlords who opposed the requested relief. Modell's went on to receive two more extensions of the stay when the pandemic mandates showed no signs of being lifted.

The suspension, which has since been lifted along with Murphy's shutdown orders, marked a first-of-its-kind stay and allowed the court to adopt a flexible approach to post-petition rent requirements, according to Cole Schotz member Felice R. Yudkin. The legal developments served as a beacon for other insolvent companies struggling to navigate the global health crisis.

"The Modell's decision provided a template for other retailers who are unable to operate their business in the wake of the pandemic," Yudkin told Law360.

The case is In re: Modell's Sporting Goods Inc., case number 2:20-bk-14179, in the U.S. Bankruptcy Court for the District of New Jersey.

A New Face on the Supreme Court

The daughter of Haitian immigrants and a self-described unlikely judicial nominee, Fabiana Pierre-Louis of Montgomery McCracken Walker & Rhoads LLP was announced on June 5 as Murphy's pick to replace Justice Walter Timpone when he retires later this year. The move came as police brutality protests were just beginning to grip the nation following the death of George Floyd.

The former assistant New Jersey federal prosecutor started her career clerking for one of only two black justices to ever grace the Garden State bench, one of whom wasn't renominated 10 years ago. Following the nomination, dozens of accolades poured in from advocacy groups, law school deans and politicians.

State Senator Teresa Ruiz, D-Essex, summed the moment up as "the most beautiful American story that we need now more than ever."

In a statement after the nomination, Ruiz said, "I think what's more critically important for us here in the state of New Jersey is that we — as senators and elected officials and the administration — whenever we get the opportunity to make sure that any board, or any policy decision-making table or an office, it should be reflective of who we are in the state, and that's what her nomination indicates today."

--Additional reporting by Bill Wichert. Editing by Rebecca Flanagan and Jack Karp.

For a reprint of this article, please contact reprints@law360.com.

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