NJ Appellate Law Blog – NJ Appellate Lawyer Bruce D. Greenberg blogs about Appeals and Appellate Law Practice

A Webinar on Which I Spoke Today

Today, I was one of two panelists on a webinar entitled "Class Action Settlement Objectors: Minimizing and Defending Challenges by Professional Objectors, Government Officials and Public Interest Groups." My topic...

Third Circuit, En Banc, Affirms Settlement of Diamond Antitrust Class Action

Sullivan v. DB Investments, Inc., 667 F.3d 273 (3d Cir. 2011). By a 7-2 vote, the Third Circuit, sitting en banc, disagreed with a panel decision (613 F.3d 134 (3d Cir. 2010)), vacated...

Weiss v. Regal Ban on "Picking Off" Named Plaintiff in Class Action Extends to FLSA Opt-In Cases

Symczyk v. Genesis Healthcare Corp., 656 F.3d 189 (3d Cir. 2011). In Weiss v. Regal Collections, 385 F.3d 337 (3d Cir. 2004), the Third Circuit held that a defendant in a class action could...

Insurer Need Not Pay for Alleged "Diminution in Value" of Automobile After Accident and Full Repair, Where Insurance Policy Expressly Excluded Such Coverage

Kieffer v. High Point Ins. Co., 422 N.J. Super. 38 (App. Div. 2011). This matter involves three consolidated cases. In each, one or more insureds sued their auto insurer after their cars had been...

The Third Circuit Adopts Concepcion and Finds Muhammad Superseded By It

Litman v. Cellco Partnership, 655 F.3d 225 (3d Cir. 2011). In AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), a 5-4 majority of the Supreme Court of the United States rejected...

A New Decision on the Collateral Order Doctrine

In re Mushroom Direct Purchaser Antitrust Litig., 655 F.3d 158 (3d Cir. 2011). Under Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), certain rulings that are not final may be...

Independent of AT&T v. Concepcion, Arbitration Clauses in Consumer Contract Are Ineffective If They Conflict With Each Other

NAACP of Camden County East v. Foulke Management Corp., 421 N.J. Super. 404 (App. Div. 2011). This consumer class action was the occasion for another typically scholarly opinion by Judge Sabatino. Geraldine...

In New Jersey, A Class Action is Not Appropriate for Telephone Consumer Protection Act (Unwanted Faxes) Claims

Local Baking Products, Inc. v. Kosher Bagel Munch, Inc., 421 N.J. Super. 268 (App. Div. 2011). The Telephone Consumer Protection Act, 47 U.S.C. §227 ("TCPA"), prohibits the sending of unsolicited...

Wal-Mart v. Dukes- Predictably, Another Anti-Class Action Decision by the U.S. Supreme Court

Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011). The decision in this closely-watched employment discrimination putative class action, near the end of the current term of the Supreme Court of the...

Dubious Legislation

On June 20, Assemblymen Gary Chiusano (R-24th Dist.) and John Wisniewski (D-19th Dist.) introduced Assembly Bill 4135. That legislation would make appealable to the Appellate Division as of right, instead of on an...

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"Hot Fun in the Summertime": Appellate Division Summer Parts

In an Order available here, Chief Justice Rabner announced the lineup for the Appellate Division's summer Parts. As has been customary, the "summer" runs not between the meteorological start and end dates for summer, nor from Memorial Day to Labor Day, but from June 16 through September 7....

The Supreme Court Confirms That Municipalities Can be Subjected to Sanctions for Frivolous Litigation

Borough of Englewood Cliffs v. Trautner, ___ N.J. ___ (2025). This appeal presented the question of whether municipalities can be liable to pay sanctions for frivolous litigation, under the Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1 ("the FLS"). In a 5-0 opinion written by Justice Fasciale (Chief Justice Rabner and Justice Hoffman did not participate), the Court affirmed, as modified, the decision of the Appellate Division that upheld the Law Division's imposition of FLS sanctions against the Borough....

The "Castle Doctrine"

State v. Bragg, ___ N.J. ___ (2025). A jury found defendant guilty of twelve charged counts, including attempted murder, kidnapping, aggravated assault, terroristic threats, possession of a weapon for an unlawful purpose, endangering, and two lesser-included offenses of harassment. Some of those charges involved the use of deadly force. Persons may not use deadly force if the can retreat with complete safety. But under the "castle doctrine," an exception to the general rule, a person "is not obliged to retreat from his dwelling, unless he was the initial aggressor." N.J.S.A. 2C:3-4(b)(2)(b)(i). That doctrine derives from the common law....

No Arbitrariness in Rejection of Public Construction Bid That Failed to Include a Properly Signed, Required Consent of Surety

In the Matter of Protest Filed by El Sol Contracting and Construction Corp., Contract T100.638, ___ N.J. ___ (2025). This public bidding case resulted in a 5-2 split at the Supreme Court, the first non-unanimous ruling of the current Term. Justice Hoffman wrote the majority opinion, while Justice Fasciale authored the dissent for himself and Justice Pierre-Louis....