In the past ten (10) years, the number of Guardians appointed in the State of New Jersey has increased significantly. According to data compiled by the New Jersey Courts, Guardianship appointments increased from less than 2,000 per year between 2006 and 2008 to 2,600 in the year 2014 and that number continues to rise. As the elderly population grows and as people become more aware of the necessity to have estate plans and other protections in place for their special needs child, it is anticipated that the number of Guardians appointed will continue to rise. To begin our discussion of Guardianship, let’s first define “Guardianship” and then present a few common scenarios which people may encounter with their loved ones that may signal the need for a Guardianship.
B. WHAT IS GUARDIANSHIP?
Guardianship is a legal process appointing a 'competent adult' (Guardian) to be responsible for the care, custody and control for a 'vulnerable or incapacitated person' often referred to as a (ward).
SCENARIO NO. 1:
You notice that your elderly loved one’s memory is beginning to fail. Your loved one has always been very independent and insists on handling everything on her own. Unfortunately, your loved one has forgotten to pay a bill or two. So, when you make your weekly visit, you look over your loved one’s checkbook and help your loved one reconcile her bills. Gradually you become more involved in your loved one’s finances and start to sign her name to checks. You only sign her name to checks with her approval and you never sign checks made out to you or your family. Is this legal?
SCENARIO NO. 2:
Your autistic child is developmentally delayed and just celebrated his 18th birthday. Because your child is developmentally disabled, as his parent, do you have an automatic right to handle his finances, access his medical records and make health decisions on his behalf?
SCENARIO NO. 3:
Your mother was diagnosed with Alzheimer’s dementia last year. At first it wasn’t too bad, but now your Mom confuses the identity of her son, sometimes mistaking him for her husband who passed away two (2) years ago. Mom also frets that she doesn’t have enough money to pay her monthly Homeowners Association dues or to last her in case she gets sick. In fact, she has over $1 million in the bank. You find a Power of Attorney on the internet, print it out and have your mother sign it naming you as her Agent under the Power of Attorney. When signing the Power of Attorney, Mom says that she doesn’t understand all of that legal jargon but as long as it will help protect her money, she’ll sign it. You witness the signature and have one of your friends notarize the document. Is the Power of Attorney valid?
SCENARIO NO. 4:
You believe that your college-aged child is not being forthright with you regarding her health. You contact her doctor to speak with her regarding your daughter. When you call the office, the office staff is “rude” and refuses to discuss your daughter’s health saying that the HIPAA laws do not allow it. You insist that, as her parent and as the person who is paying for the health insurance, you have a right to know about your child’s health. The medical office still refuses you access to your daughter’s medical records and refuses to allow you to speak with the doctor. Do you have a legal right to see your daughter’s medical records?
C. WHAT CAN YOU DO IF YOUR LOVED ONE NEVER EXECUTED A POWER OF ATTORNEY AND NOW DOES NOT HAVE THE MENTAL CAPACITY TO SIGN A POWER OF ATTORNEY?
ANSWER: APPLY FOR A GUARDIANSHIP
If your loved one does not have the mental capacity to sign a Power of Attorney, then you should consider making an application to the Superior Court of New Jersey, Chancery Division, Probate Part to be appointed Guardian of your loved one. While the thought of getting a court involved in your family’s affairs can be overwhelming and daunting, Pamela M. Snyder, Esq. and the attorneys at the Bathgate, Wegener & Wolf, P.C. are available to discuss a Guardianship action and provide their assistance during the application process.
If there is no doubt that your loved one’s mental capacity is significantly diminished, or if your loved one does not perform well on the mini mental status exam, then before applying to be Guardian of your loved one, you should have your loved one examined by a physician familiar with mental competency exams and a licensed psychiatrist or psychologist. (New Jersey Court Rule 4:86-2(b)). The physician and psychiatrist or psychologist must each author a report. That report must contain the medical professional’s expert opinion regarding whether your loved one is mentally incompetent, whether he or she can govern and handle his or her financial affairs and whether he or she can make decisions regarding her health, medical treatment and issues regarding well-being. When choosing a physician, psychiatrist or psychologist, it is important to select one familiar with the requirements for Guardianship application. There will likely be a fee for the examination and report that will not be covered by Medicaid, Medicare or private health insurance. These fees can be as high as $1,200.00 or more for each medical professional.
2. Verified Complaint to Have Your Loved One Declared Mentally Incompetent and to Have a Guardian
Within thirty (30) days of the medical and competency exam, you must make the application to the Court to be appointed Guardian of your loved one. (New Jersey Court Rule 4:86-2(b)). The application must be in the form of an Order to Show Cause and a Verified Complaint. The current filing fee for the Order to Show Cause and Verified Complaint is $200.00. This fee is usually paid to the Surrogate of the County in which the alleged incompetent person resides, not the Superior Court of New Jersey. If the alleged mentally incompetent person cannot be examined before you submit your application to the Court, the Guardianship applicant may request permission from the Court to force an examination of the alleged mentally incompetent and/or grant an extension of time to submit the report.
When preparing an application to be appointed Guardian of your loved one, the application can seek (a) plenary or Guardianship, (i.e., full or complete uardianship of your loved one), (b) Guardianship of the person only or (c) Guardianship of property only. Subject to restrictions imposed by the court, a plenary guardianship would allow the person appointed as Guardian full access to your loved ones health records and finances, and would allow the Guardian to make financial decisions, health care decisions and other decisions regarding for the well-being of the loved one. This could include authority to do both Medicaid and/or estate planning for the incompetent person. Guardianship of the person limits the Guardian’s authority to those decisions regarding the Guardian’s health and well-being. Guardianship of the property limits the Guardian’s power to handling your loved one’s finances, income and assets.
If you are unsure which type of Guardianship is appropriate in your loved one’s particular situation, you should consult with an attorney experienced in the areas of Guardianship, estate planning, special needs law and/or elder care law.
3. Factors the Court Will Consider.
When reviewing the Guardianship application, the judge will consider the following factors when making his or her decisions (a) whether to declare your loved one mentally incompetent such that your loved one cannot govern his or her financial affairs and cannot make health decisions on your behalf, and (b) who to name as Guardian or your loved one. Therefore, these items must be included in your submission to the Court:
If you or a loved one needs assistance managing financial affairs or you need to make medical decisions and access to health care records on behalf of your loved one, both a Power of Attorney and a Guardianship can accomplish that goal. A Power of Attorney can only be signed and be effective if the person granting the authority is eighteen (18) years of age or older, and has the mental capacity to enter into a contract. If you or your loved one lacks the necessary mental competency, then it will be necessary to submit an application to the Court to have a Guardian appointed to handle your or your loved one’s financial affairs and matters pertaining to your or your loved one’s health care and well being. In Part 2 of this three (3) Part series, we will look at what happens after the initial application for a Guardianship is submitted to the Court.
If you wish to have a Power of Attorney or other estate planning documents drafted, or if you are concerned about your loved one’s ability to manage his or her financial affairs, medical treatment, health care decisions and overall well-being, or if you just received a copy of a guardianship application made by someone for your loved one, contact Pamela M. Snyder, Esq. or one of our other attorneys at the law firm of Bathgate, Wegener & Wolf, P.C. to discuss your and your loved one’s legal options.
Pamela M. Snyder, a partner with the law firm of Bathgate, Wegener & Wolf, P.C. located in Ocean County, New Jersey, focuses a portion of her practice on estate planning, guardianships, Powers of Attorney, Wills, Special Needs Trusts and probate litigation in Ocean and Monmouth Counties. Contact Pamela at 732.363.066 or email@example.com.
CLICK TO READ Part 2 of this 3 part series, where we will discuss what will happen at the court hearing.
The 2015 Annual Report of the Monmouth Conservation Foundation lists 64 sites it has helped to preserve as open space. William J. Wolf, a partner with the law firm of Bathgate Wegener & Wolf, P.C. represented the owners of 5 of those sites:
The preservation of open space is a critical public necessity particularly in a densely populated state such as New Jersey where land for open space and recreation is a precious commodity. Because of the current regulatory climate it might not be feasible to develop land that, in the past, would have been converted to homes and various types of commercial activities. Preserving land for recreation and open space constitutes an enterprise that melds those seemingly disparate objectives. Open space preservation and conservation permits the public to benefit by preserving land while simultaneously allowing property owners to monetize their land, and, sometimes, to enjoy a variety of tax benefits and advantages.
Assisting a client who wishes to participate in a land preservation or open space project entails unique skills and experience. Such a project requires a lawyer to have a background in environmental law, regulatory permitting, land development, land valuation and taxation. The land preservation attorneys of BWW have the multi-faceted background and the experience to assist clients who want to participate in a land preservation or open space project.
For many years the land preservation attorneys of BWW have assisted clients in dealing with numerous governmental entities and private organizations to preserve thousands of acres of land as open space. Those preservation projects have included the State of New Jersey, The Port Authority of New York and New Jersey, Monmouth County, Ocean County, New York-New Jersey Baykeeper, Monmouth Conservation Foundation and The Trust for Public Land. Through the efforts of the land preservation attorneys of BWW thousands of acres of land have been preserved as open space or are undergoing consideration for preservation.
Some land preservation, conservation and open space projects involved acquisition by public entities or private foundations. Other matters included easements or revised zoning to permit clustered development balanced by preserved acreage and farmland preservation. As a result of these endeavors, BWW land preservation attorneys have generated millions of dollars for our clients while simultaneously preserving thousands of acres of land as open space.
The land preservation attorneys at BWW have also had involvement with evaluating the potential of linking land preservation, open space and farming with group homes for autistic residents. This unique concept melds the desire to preserve farmland with the dignity associated with independent living.
BWW land preservation attorneys have been representing clients in land preservation, conservation and open space matters throughout the State of New Jersey including clients with land in Monmouth County, Ocean County and elsewhere.
Additional information regarding Mr. Wolf’s representation of clients in land preservation transactions and information regarding the background of the Bathgate Wegener & Wolf land preservation attorneys who have represented clients throughout New Jersey including Ocean County, Monmouth County and Sussex County is available here.
Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years and he was selected to be listed in the Best Attorneys of America. Mr. Wolf has been certified, by the American Institute of Appellate Practice, as an appellate specialist.
There is no emotional equivalent to the loss of your parents. But when you couple the sting of that loss with the realization that you’ve been disinherited from their estate, your sadness can quickly turn to anger, resentment and a sense of betrayal.
A recent decision from the New Jersey Appellate Division in a case titled In the Matter of the Estate of Kenneth E. Jameson, Deceased, addressed the issue of child disinheritance. Friction between the now deceased parents, Kenneth and Yvonne, and their daughter, Stacy, began in 1982 when the parents discovered Stacy had become friends with Marc, a Jewish man whom she met in college. The friction intensified when that friendship progressed to a committed relationship. Upon learning of the relationship, the parents allegedly forbade Stacy from talking, socializing and having any contact with Marc because he was Jewish.
When Stacy refused to end her relationship with Marc, her parents cut off all financial support they had been giving and advised her that she was no longer welcome in their home. Thereafter, the parents visited Stacy from time to time, but their conversations during those visits inevitably always turned sour. According to court documents, during one visit, Kenneth backhanded Stacy hard enough to give her a black eye. On another visit, Kenneth threatened to physically harm Marc.
In 1987, Kenneth and Yvonne executed separate Last Wills and Testaments. Article 4 of Kenneth’s Will contained a provision that stated the following:
Stacy and Marc married in 1990. In response to an invitation to the wedding, Kenneth allegedly told Marc that “they would not attend the wedding because they would never endorse their daughter marrying a Jew.” Stacy and Marc now have three children. Kenneth refused to meet them.
Kenneth died in 2014. His Will was admitted to probate and Stacy was provided a copy of it. Stacy and Marc filed a Complaint against Kenneth’s estate claiming in part that the statements contained in Article 4 of the Will were “totally inaccurate and completely fabricated.” The Complaint alleged, among other things, that Kenneth’s Will was invalid because it was the product of undue influence, that it was invalid because of religious discrimination, and that the Will was libelous as to Stacy. In response to the Complaint, Kenneth’s estate filed a motion to dismiss for failure to state a claim pursuant to R. 4:6-2(e). The trial court heard argument on the motion and entered an order dismissing the Complaint. Stacy and Marc appealed.
The Appellate Division affirmed the trial court’s dismissal of the Complaint. Regarding the allegation of undue influence, the Court reiterated that persuasion or suggestions or the possession of influence and the opportunity to exert it, will not suffice to establish undue influence. The influence must be such that it destroys the testator’s free agency and causes him to dispose of his property not by his own desires, but instead by the will of another, which the testator is unable to overcome. The factual record did not support such a finding.
Regarding the allegation of religious discrimination, the Court concluded that New Jersey’s Law Against Discrimination does not apply to testamentary dispositions, and that even if the disinheritance was based on an unreasonable discriminatory prejudice, that is still not a ground to invalidate the Will. The Court, likewise, was not persuaded by Stacy’s argument that Article 4 of the Will was libelous. Libel occurs when a person makes a defamatory statement that is false and injurious to the reputation of another or exposes another person to hatred, contempt or ridicule. A cause of action for libel arises upon the “publication” of the defamatory statement. Stacy argued that admitting the Will to probate was akin to publication. The Appellate Division disagreed. In the end, Kenneth’s Will was held to be valid and its provisions were enforced.
Bathgate Wegener & Wolf, P.C. has extensive experience in both defending the validity of testamentary documents on behalf of an Estate and challenging them on behalf of disinherited family members or unfairly treated beneficiaries. Please contact Ryan S. Malc, Esq. at 732-363-0666 if you have a question regarding the validity of a Will, Trust or other testamentary document.
Click Here to read Ryan Malc's article "Legislative Update - New Expungement Law"
Are you seeking to move out of New Jersey with the children, but your ex-spouse will not allow the move? Or, are you seeking to prohibit your ex-spouse from moving out of New Jersey with the children? In New Jersey, if the non-custodial parent does not consent to the move, the custodial parent must obtain a Court Order allowing the move.
The current prevailing case on this matter when the parties do not have a shared parenting arrangement is Baures v. Lewis, 167 N.J. 91 (2001). The custodial parent seeking to move must first make a prima facie showing that the move is in good faith and will not be detrimental to the child. After the moving party has produced sufficient evidence to make this prima facie showing, the non-custodial parent contesting the move has the burden of showing that the move is not in good faith or is detrimental to the child.
The Supreme Court listed the following factors relevant to the analysis of whether the move is in good faith and will not be inimical to the child:
The reasons given for the move;
This standard does not apply to true shared residential parenting arrangements. When the parties have a shared parenting arrangement, the standard that applies, which will be posted in a future blog on this website, is changed circumstances and best interest of the child.
Victoria Veni, Esq., (formerly Victoria Emanuele) has successfully represented parents defending against removal applications and in obtaining removal of the children. For a free consultation, please contact her at firstname.lastname@example.org or 732-363-0666.
By Adam S. Picinich | email@example.com
This June, following a three week trial, a jury determined that Johnson & Johnson’s (“J&J”) talcum powder products caused a Missouri woman’s ovarian cancer and awarded her $55 million. J&J is appealing the verdict. In February 2016, another Missouri jury reached a verdict against J&J and awarded $72 million to the family of a woman who died of ovarian cancer.
Closer to home, hundreds of women who used baby powder products containing talcum powder for feminine hygiene and have been diagnosed with ovarian cancer have filed lawsuits in New Jersey. The plaintiffs in these cases allege fraud, negligence, conspiracy and failure to warn about the cancer risks of talc against J&J, Imerys Talc America (the company that mines the talc and distributes talc to J&J) and Personal Care Products Council (the trade association responsible for representing the interests of the talc industry).
In November 2015, the New Jersey Supreme Court centralized these talc based personal injury claims in Atlantic County so that all cases can be managed by one judge. These cases center on the connection between perineal use of talcum powder and ovarian cancer in women.
See http://www.judiciary.state.nj.us/mass-tort/talc-powder/index.html) Talc is the primary ingredient in Johnson's Baby Powder and is one of the main ingredients of Shower to Shower powder. These products have been marketed to women for many years as “safe” products for use on all body parts to maintain “soft” and “fresh” skin.
In 1971, a study conducted by Dr. W.J. Henderson found talc particles in ovarian tumors, indicating a possible link between talcum powder and ovarian cancer. In 1982 Dr. Daniel Cramer conducted the first epidemiological study which demonstrated that women who regularly used talcum powder on their genital areas had a 92% increased risk of ovarian cancer. Since then, more than 20 additional studies have examined the causal link between talcum powder and ovarian cancer. All of these studies have shown an increased risk of ovarian cancer among women who use talc in the perineal region.
Even after all of these studies, J&J has not placed warnings on its Baby Powder and Shower to Shower products. Despite J&J’s knowledge of the years of scientific evidence demonstrating an increased risk of ovarian cancer associated with perineal use of talc, J&J refuses to take any preventative action. Imerys placed a warning on the wholesale talc supplied to J&J beginning in 2006, but continued to sell the talc to J&J when it knew the intended use was for a product which could be very dangerous when used repeatedly for “personal hygiene”.
If you or someone close to you has developed ovarian cancer and you believe it may be due to personal use of Johnson & Johnson Baby Powder or Shower to Shower talcum powders, you may be entitled to significant compensation. Please contact our Personal Injury/Products Liability department at 732.363.0666, which is managed by senior partner, Edward B. Kasselman, Esq., for a free consultation.
The purpose for your mortgage can determine whether it can still be enforced years after its due date. Foreclosure laws in NJ treat residential mortgages and non-residential mortgages differently. A residential mortgage can become unenforceable if the lender does not move to foreclose within six years of the maturity date of the mortgage. To render a commercial mortgage unenforceable there must be more than twenty years of non-payment and inaction by the lender.
The Fair Foreclosure Act was enacted in 1995 to protect residential mortgage debtors. N.J.S.A. 2A:50-53 et seq. In 2009, the New Jersey Legislature amended the Fair Foreclosure Act to provide clarity and address problems caused by residential mortgages which have been paid or which are otherwise unenforceable. See Statement to Senate Number 250, NJ Assembly Financial institutions and Insurance Committee October 6, 2008. Such unenforceable mortgages “cloud the title” for a property, casting doubt on the title as a result of the encumbrance. This cloud can reduce the value and marketability of the property because any prospective buyer will perceive that they are buying property for which good title may not be conveyed.
The 2009 amendment to the Fair Foreclosure Act sought, in part, to codify an earlier New Jersey Appellate Division holding in Security National Partners v. Mahler, 336 N.J. Super. 101, 104(App. Div. 2000), that a 20 year limitations period limits a mortgagee’s (i.e., mortgage lender) right to commence a foreclosure action, running from the date of the debtor’s default. Prior to the enactment of this amendment, New Jersey did not have a statute of limitations addressing mortgage foreclosure actions, and courts applied a 20 year limitations period based on the common law adverse possession period. Anim Investment v. Shaloub, F-30508-15, (N.J. Super. Ch. Div. June 30, 2016) (Slip Op. at *4). However the 2009 amendment only addressed residential mortgages.
The statute provides:
“An action to foreclose a residential mortgage shall not be commenced following the earliest of:
Therefore under this statute, for residential mortgages “there are three triggering events which commence the running of the statute of limitations period, after which a mortgage foreclosure action cannot be brought.” First is the maturity date for the mortgage. Second is the date of recording of the mortgage. And third is the date that the debtor defaulted. Each of those triggering events has a different applicable term for its statute of limitations to run. The statute commands that the “earliest” date for expiration of a statute of limitations be applied.
In a recent unpublished Chancery Division case, Judge Edward A. Jerejian (Bergen County) found that a residential mortgage with a maturity date of October 1, 1995 became unenforceable six years later on October 1, 2001. Anim, supra, slip op. at *9. 1 The court found that the statute required the use of the earliest applicable statute of limitations date under N.J.S.A. 2A:50-56.1. In addition, a 2011 unpublished Appellate Division case found that the statute of limitations elapsed in 2000 on a mortgage with a maturity date in 1994 because the six year statute of limitation under N.J.S.A. 2A:50-56.1(a) was applicable. Garruto v. Cannici, 2011 N.J. Super. Unpub. LEXIS 1436, 2011 WL 2409912 at *1 (App. Div. June 6, 2011).
The first question to ask when determining if a long unenforced mortgage is enforceable is whether at issue is a residential mortgage. If yes, the mortgage is subject to the Fair Foreclosure Act. The Fair Foreclosure Act (as well as its 2009 statute of limitations amendment) only applies to “residential mortgages”. See N.J.S.A. 2A:50-62. “Residential mortgage” is defined as:
Therefore, two fundamental conditions must be met to have a residential mortgage: The mortgaged premises consists of not more than four dwelling units; and “the requisite occupation or intention to occupy exists by the debtor (or the debtor’s immediate family member) at the time the loan is originated.” 30 New Jersey Practice, Law of Mortgages, §24.9 at 254(Myron C. Weinstein)(2nd Ed. 2000).
If a mortgage does not qualify as “residential,” there are still judicially created limitations on foreclosing. New Jersey courts have enforced a “twenty year limitation period to foreclose a mortgage” by “borrowing and applying the twenty year limitation period in certain adverse possession statutes.” Security National Partners, 336 N.J.Super. at 106. The Appellate Division in Security National clarified this issue by stating “a twenty year period of non-payment on a mortgage constitutes a running of the statute of limitations” Ibid. In Security National, there is no distinction between residential mortgages and non-residential mortgages and thus the holding is applicable to all mortgages. A later statute modified this judicially created limitation on foreclosing residential mortgages, but the twenty year limitation period adopted in Security National has not been modified and appears to still be applicable to non-residential mortgages.
Read Daniel Corrigan's article Patent Infringement And The Push And Pull of Patent Litigation
By: Willliam J. Wolf
An appellate court recently clarified the affordable housing obligation of New Jersey municipalities. In Re Declaratory Judgment Actions Filed by Various Municipalities, County of Ocean, Pursuant to The Supreme Court’s Decision in In Re Adoption of N.J.A.C., 221 N.J. 1 (2015), N.J. Super. App. Div. (Fasciale, J.A.D.) addressed whether a municipality was obligated as a “separate and discrete” component of its fair share obligation to calculate its fair share of affordable housing between 1999 and 2015 (the “gap period”). The Court held that a municipality did not have to make a separate calculation of its obligation during the gap period. The Court ruled a municipality was not required, by the Fair Housing Act of 1985 (“PHA”), to retroactively make that calculation. Instead, the Court concluded, the fair share obligation during the gap period should be included in a municipalities’ current obligation to provide affordable housing. The Court reasoned that any change in the methodology used to calculate the fair share housing obligations of municipalities during the gap period should be left for consideration by the Governor and the Legislature.
William Wolf, a partner in Bathgate, Wegener & Wolf, P.C. has significant experience dealing with land use and planning issues. Mr. Wolf currently serves as special litigation counsel for several municipalities. Mr. Wolf has represented numerous developers and property owners.
Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years and he was selected to be listed in the Best Attorneys of America. Mr. Wolf has been certified, by the American Institute of Appellate Practice, as an appellate specialist.
You should be aware that voluntary mediation is the most successful form of Alternative Dispute Resolution. To say that the process produces results is a major understatement. I have been involved exclusively in this area of Dispute Resolution for the past 5 ½ years. I enjoy settling cases and revel in a success rate of 95 percent.
Most often the case settles on mediation day; however, the key to my success is that I, at no time, give up on the process. In the event the case does not settle after the first attempt at mediation, I obtain the attorneys’ cell phone numbers and as I generate settlement ideas during the progression of the case, I communicate them to the attorneys and eventually everyone sees the wisdom of settlement.
In over 18 years on the bench as a Superior Court Judge, I oversaw hundreds of cases. This experience armed me with the knowledge and experience to quickly and thoroughly evaluate the strengths, weaknesses and settlement values of each case I mediate. My judicial experience imparted in me the importance of impartiality and cold evaluation of the dispute, which I apply to each mediation.
Many mediators fail in their attempts to “successfully mediate” because they do not have the tenacity to pursue the process to a satisfactory conclusion. In addition to tenacity, a mediator has to be creative and not afraid to express opinions about the strengths, weaknesses and settlement values of each case. The mediator must also have the capacity to show the parties that he understands their case and more importantly, their circumstances. When a party is confident that the mediator is knowledgeable and sincere, he will determine that it is in his best interests to settle at the mediator’s recommended number. While parties can and do seek unique remedies in court, most of the time the parties seek money damages to compensate them. What that means is that most cases cannot settle without a dollar amount and that is where a knowledgeable mediator comes in. A mediation that does not produce a settlement number is destined to fail.
Another key to a successful mediation is the understanding that there are two sides to every story. Lawyers are advocates for their clients, so they often become so entrenched in their own position that they cannot appreciate the other party’s view. So an impartial activist mediator is needed to bring the parties together. I often say a “good settlement” is one where both sides are “unhappy” and a “great settlement” is one where both sides are “extremely unhappy”.
Voluntary mediation requires that the parties pay the mediator. The payment, however, will be less onerous than the time, money and uncertainty in continuing litigation. Done correctly, mediation is positive and best of all if someone does not like how the mediation is progressing, he or she may just leave the table without any repercussions or explanation.
Voluntary mediation is perfect for both plaintiffs and defendants because it gives the parties a chance to avoid excessive risk, time and litigation expense. If you are not currently mediating, I highly recommend it to you and after your first experience you will become a convert.
If you would like to discuss any aspect of the mediation process, call Judge O’Brien at (732) 363-0666.
The Honorable Thomas E. O’Brien, formerly a judge of the Superior Court of New Jersey, Ocean County, rejoined Bathgate, Wegener & Wolf, P.C., on February 1, 2011. Click To Learn More...
Patents support an estimated five trillion dollars ($5,000,000,000,000.00) of the US economy and close to forty million jobs. It is, therefore, understandable for Congress to nurture and cultivate this industry. Similarly mindful of the importance of this industry, the United States Supreme Court decides cases that clarify rules and regulations to provide guidance in this vital area.
Recent patent legislation and litigation have resulted in changes in the law that appear haphazard and somewhat conflicting. The professed overall goal of congressional statutory revisions is to maintain the competitive advantage of the United States in the global economy with a “system that will support and reward all innovators with high quality patents.”1 However, Congress actually enhanced the weapons used to destroy issued patents. The Supreme Court decides each case on the facts at hand, but recent cases have uniformly increased the potential damages that can be assessed against an infringer. At the same time, the Court has severely limited the inventions that can be protected by a patent.
While the actions above appear inconsistent, taken together these changes will enhance the U.S.’s flourishing intellectual property industry. While not every patent will survive these changes, those that do will be much more valuable.
In 2012 Congress passed the most significant change to patent law in more than half a century, the America Invents Act (“AIA”). The headline change in the AIA brought America in line with the rest of the world by awarding patents to the “first inventor to file” instead of the “first to invent”. More important for patent litigators, AIA revised and expanded post patent grant challenge procedures.
For patent litigators, the AIA strengthened and streamlined the post patent grant challenge procedure known as the Inter Partes Review (“IPR”). The IPR allows any party to challenge an issued patent alleging that the Patent Office should not have allowed the patent because it is not novel (i.e. invalid). A typical IPR is filed when someone is accused of infringing a patent. The accused infringer defensively files an IPR to challenge the validity of the patent it is accused of infringing. After the accused infringer files its IPR allegation, it is common for the district court patent infringement action to be stayed pending the outcome of the IPR. If the IPR finds that the patent is not novel (i.e. the patent is invalid), the law suit becomes moot and is dismissed because one cannot infringe an invalid patent. If the patent is not invalidated at the IPR, the patent proceeds through traditional patent litigation. In that action, the patent owner receives the benefit of the IPR determination that forbids the accused infringer from raising any invalidity defense that was raised or reasonably could have been raised at the IPR.
Used effectively, the IPR can prevent years of costly patent litigation by cutting straight to one of the three most important issues in a patent litigation; that is, whether the patent is valid.2 The AIA limits the length of an IPR to no more than eighteen months, which is a comparatively short amount of time in the often years long slog of patent litigation. Furthermore, as long as the underlying infringement trial is stayed, no time or money is expended in discovery and motion practice.
Finally assuming a patent is upheld in the IPR, having a decision in hand on the validity of the patent removes uncertainty as to one of the three central fights in typical patent litigation. (1)Validity, 2)infringement, 3)damages). Each side can better assess and value settlement when a third of the variability/uncertainty surrounding the litigation has already been decided.
Supreme Court Opinions
Recent U.S. Supreme Court rulings increase the likelihood of extraordinary damages being assessed for patent infringement. In Octane Fitness v. ICON Health & Fitness, 572 US _ (2014), the Supreme Court broadened the circumstances in which attorney fees could be assessed against a losing party in a patent infringement suit. Because patent litigation can be quite expensive, any easing of proof needed to shift attorney fees to the loser can have a huge effect. Similarly, the Court in Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. ___ (2016) lessened the patent owner’s burdens to receive “enhanced damages” such as treble damages (actual damages multiplied by 3). These two decisions increase the chances of a patent infringement litigation resulting in significantly large damage awards.
The Supreme Court has also severely narrowed the possible inventions that can be patented. In 2010, the Court narrowed the subject that could be patented in Bilski v. Kappos, 561 U.S. 593 (2010). The Court later reinforced this patentable subject matter narrowing in Alice Corp. v. CLS Bank International, 573 U.S. __ (2014), finding abstract ideas are still unpatentable even if implemented using computers. In effect, Alice severely limited the patentability of so-called “software patents”.
Taken in isolation, the changes implemented by Congress and the Supreme Court seem contradictory and at cross-purposes: increasing the power of a patent owner by augmenting damages while enhancing power of accused infringer through expanding patent validity defenses.
However, the overall goal of the U.S. patent system is to encourage innovation. Congress simplified the process and shortened the time to determine whether a patent is valid through the IPR. A patent that survives such an IPR challenge will be regarded as stronger and more valuable to the patent owner. Patents that do not survive IPR challenge are worthless. Similarly, by narrowing the subject matter that can be patented the Supreme Court has provided greater clarity and eliminated some uncertainty regarding the viability of patentable inventions. Removing uncertainty as to the validity of a patent can only enhance its worth. Finally, facilitating the award of attorney fees and other enhanced damages for patent infringement increases the value of the patent at verdict and in negotiating a settlement. While not every patent will survive the gauntlet of obstacles put forward by Congress and the Supreme Court, the patents that do survive will be much more valuable to their owner. By rewarding the inventor in this fashion, the U.S. strives towards its goal of encouraging innovation.
1. H.R. Rep. No. 112-98, pt.1, at 40 (2011)
2. The other two important issues in patent litigations are: 1) does the accused product infringe the patent; 2) if so, what are damages. However if patent is invalid, there can be no infringement and no damages.
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It is often stated that the purchase of a house is the average person’s biggest investment decision of his or her life. Because of the importance of the decision, a significant body of law exists that governs your rights and duties as a buyer or seller of real estate. That body of law has changed over the years such that buyers are afforded far more protection than they were previously when they purchased real estate. Indeed, no longer must the buyer beware; the seller now faces potential liability if certain disclosures are not made. Today, buyers and sellers of real estate need to be aware of their rights and obligations when buying or selling.
Caveat emptor, Latin for “let the buyer beware,” is a legal doctrine that generally places the burden on a buyer of property to examine the property before purchase and take responsibility for its condition and any defects that become known after purchase. The doctrine can be traced back to sixteenth century English courts, but became generally accepted during the 1800s, a time during which courts considered the purchase of real property to be “a game of chance.” The courts reasoned that a buyer deserved whatever he got if he relied on his own inspection and did not extract an express warranty from the seller when buying real estate.
Following World War II and the explosive growth in the residential real estate market, legal scholars began to advocate for the recognition of implied warranties in the sale of houses. Implied warranties regarding products had long been recognized in the sale of personal property. Application of caveat emptor to the sale of personal property but not to sale of real property thus offered greater protection to the purchaser of a $5.00 dog leash than it did to the purchaser of a $100,000 house.
Most jurisdictions have abandoned caveat emptor in the sale of real estate noting that the doctrine is a vestige of the past when the buyer and seller were in equal bargaining positions and each could readily protect their interests. Today, however, the seller, broker or builder of real estate and the buyer of real estate are not in equal bargaining positions. The seller, broker and builder of real estate have superior access to information about the real property compared to the buyer’s access. Courts, therefore, have imposed an affirmative duty on sellers of real estate, real estate brokers and builders to disclose certain information including defects about real property to potential buyers. In light of this duty, caveat venditor, that is let the seller beware, seems to have replaced caveat emptor in real estate transactions.
A seller and a buyer of a house should be aware that now caveat venditor governs the transaction. As a seller, you are required to disclose visible defects or hidden defects of which you are aware. For example, if you know that the basement of your house habitually floods, you need to so advise potential buyers. As a buyer, through your broker or attorney, you need to ask questions about the condition of the house and obtain in writing a statement from the seller or broker about the conditions and defects in the house. Even though caveat emptor has been replaced by caveat venditor, a buyer who does not inquire about the condition of a house may have difficulty recovering damages if a defect is discovered after the closing. Comparatively, even without receiving inquiry from a buyer, a seller needs to disclose defects in the house. Taking these steps is the best way to avoid a problem in the future regarding the condition of the house that you either bought or sold.
If you have an issue regarding whether you improperly failed to disclose a defect and a buyer is making a claim against you or whether you were not advised of a defect and you want to make a claim against a seller, builder or broker, you may reach out to Michael M. DiCicco. Mr. DiCicco, a partner at Bathgate, Wegener & Wolf, has successfully represented buyers and sellers of real estate involving disclosure issues in the sale of real estate.
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