* On September 1, 2005, the Hon. Maurice J. Gallipoli, A.J.S.C., appointed John Lago to the Hudson County Advisory Committee on Minority Concerns. The Committee advises Judge Gallipoli on the needs of the minority community in Hudson County and makes recommendations for carrying out its initiatives. Current issues include access to the courts, participation in the legal system, and reducing the number of incarcerated minority children. John's selection is attributable to his expertise handling a host of immigration related issues, including family-based petitions, visas, and naturalizations.

* On October 13, 2005, Ralph Lamparello appeared on the Court TV program Trial Heat, providing legal commentary in the matter of Florida v. Dame. Defendant Dame was on trial for manslaughter in the death of his wife of 28 years. The allegation was that he pushed his wife off a hotel balcony as they were celebrating their 28th wedding anniversary. Ralph regularly appears as a guest analyst on Court TV.

* Diana Balasis recently joined the New Jersey Institute for Continuing Legal Education (ICLE) as Seminar Consultant. In that capacity, she will develop programs in various areas of law, including attorney ethics, legal technology, and E-Commerce, as well as those geared toward newly admitted attorneys and paralegals.

* At the invitation of its organizers, Robert Kaye led a breakfast roundtable discussion at the October 2005 International Council of Shopping Centers (ICSC) U.S. Law Conference in Scottsdale, Arizona. The conference is attended annually by approximately 1,500 attorneys engaged in all facets of the shopping center industry. Bob maintains a nationwide transactional practice of which his landlord and tenant shopping center clients are a part.

* On September 14, 2005, Julien Neals performed in "A Celebration of Lawyers in the Arts, An Evening of Legal Vaudeville," sponsored by the New Jersey Law Journal and held at the New Jersey Performing Arts Center in Newark, New Jersey. The program showcased the non-legal talents of lawyers from across New Jersey. Julien sang lead vocals and played bass with his group, "Nick Pablo Thang," the evening's closing act.

NEW ASSOCIATES

We welcome new associates Antonietta Vitale and Jose Vilarino to our firm. Antoinetta rejoins the firm, having recently completed her clerkship with the Honorable Thomas P. Olivieri, P.J.S.C. Before graduating from Seton Hall University School of Law in 2004, Antoinetta was a law clerk with the firm. She is assigned to the insurance coverage and defense litigation department.

A former teacher at St. Peter's Prep in Jersey City, New Jersey, Jose is a 2003 graduate of Rutgers University School of Law. Following graduation, Jose served as Law Clerk to the Honorable Ramona A. Santiago in Essex County. At CL&L, he also practices in the insurance coverage and defense department.

CASE NOTES

* On October 20, 2005, the New Jersey Supreme Court granted a Petition for Certification on behalf of the County of Hudson in Potente v. County of Hudson, a case involving a claim of wrongful discharge based on disability under the New Jersey Law Against Discrimination. The trial court granted a directed verdict as to liability in the plaintiff's favor, and the jury awarded $250,000. The trial court also awarded prejudgment interest and attorney's fees to the plaintiff. In a reported opinion, the Appellate Division affirmed the trial court's determinations. John L. Shahdanian II prepared the Petition for Certification.

* On September 26, 2005, the Superior Court of New Jersey, Appellate Division, affirmed a judgment of $2,499,224 in the matter of Castellani v Kadar, a medical malpractice case (the medical negligence was the failure to timely diagnose and treat diverticulitis which resulted in a permanent colostomy) tried during May 2003 in Monmouth County by Joel Leyner, who also presented the successful appellate argument. The plaintiff's brief was authored by Steven Menaker.

* Walter Schneider successfully defended a NJM insured during a three-day, personal injury jury trial in the Superior Court of New Jersey, Law Division, Hudson County. The parties stipulated as to the defendant's liability and disputed the permanency of the plaintiff's injuries only. The plaintiff provided certified interrogatory answers denying the existence of prior accidents, injuries, and legal actions. Certain pre-trial discovery Walter specifically requested, however, disclosed that the plaintiff had injured the same body parts, although differently, in an earlier accident which resulted in medical treatment and a worker's compensation claim. During cross-examination, Walter undermined the plaintiff's veracity, as well as that of his medical expert's report which excluded any references to the prior incident, with records about the event revealed in discovery. The jury unanimously concluded that the plaintiff failed to demonstrate he suffered a permanent injury and, thus, awarded no damages.

* On September 27, 2005, the Merit System Board (the "MSB") ruled in Hugh Bell v. County of Hudson that a terminated public employee who does not seek substitute employment or otherwise mitigate his damages is not entitled to money damages. Following his dismissal in 1999, Mr. Bell appealed the work action to the Office of Administrative Law, but did not succeed at trial. The MSB reduced the termination to a six-month suspension, however, thereby subjecting the defendant to a potentially substantial back-pay and benefits award. John Shahdanian II and Michael Oppici convinced the MSB otherwise, given that Mr. Bell permitted his damages to go unabated.

* On August 17, 2005, Donna Sova achieved a dismissal with prejudice on behalf of the North Hudson Regional Fire & Rescue ("NHRFR") following trial before the Hon. Bradley W. Henson, Sr., in the Workers Compensation Court in Toms River, New Jersey. The plaintiff, a firefighter with NHRFR, alleged occupational hearing loss due to exposure to sirens, engines, and bells. At the close of the cross-examination of the plaintiff, the Court ruled in NHRFR's favor, finding that the plaintiff failed to sustain his burden of proof.

* In a per curiam decision, a three judge panel of the Superior Court of New Jersey, Appellate Division, affirmed the trial court's grant of summary judgment in the matter of Edward Scannavino v. Township of North Bergen, et als. In Scannavino, the plaintiff alleged that the Township of North Bergen, Mayor Nicholas J. Sacco and several North Bergen police officers violated his constitutional rights when he was removed from Town Hall for disrupting a public meeting of the Township of North Bergen Council. In its decision, the Appellate Davison held that the North Bergen Police were merely attempting to maintain order at the meeting and, thus, no cause of action could be sustained against the defendants. The matter was briefed and argued by John Shahdanian II with the assistance of Michael Oppici.

* On August 19, 2005, following an eight-day trial in the Superior Court of New Jersey, Chancery Division, Bergen County, Joel Leyner obtained a $530,000 judgment on behalf of a client against a former boyfriend, who, after she ended their relationship, anonymously mailed Christmas cards containing sexually explicit photographs of her to her family, friends, neighbors, and business clients. Responding to Joel's closing argument; the Court determined that the severe emotional distress suffered by the plaintiff required "an appropriately severe monetary punishment" of the defendant. Peter MacIsaac aided Joel during the trial.

* Tom Morrone achieved a directed verdict at trial in the Superior Court of New Jersey, Hudson County, in favor of a defendant dog owner who was sued after his dog allegedly attacked the plaintiff. At the conclusion of the plaintiff's case, Tom moved for dismissal, arguing that the plaintiff had failed to demonstrate, as a matter of law, that the defendant's dog had a history of dangerous propensities, a prerequisite to a finding of negligence. The Court agreed, and the Hon. Hector Velazquez, J.S.C., dismissed the case with prejudice.

FLSA OVERTIME UPDATE

Unless an employee falls within an exempt category of workers, the federal Fair Labor Standards Act (FLSA) requires the employer to pay the employee overtime at a rate of one and one-half times the regular rate of pay, for hours worked in excess of 40 hours per week. To be exempt is to be ineligible for overtime. The exemption commonly called the "white collar" exemption is for professional employees.

Federal regulations in place since August 2004 have simplified the test for determining which employees come within the white collar exemption. An employee is a professional if each of the following elements is present:

(1) The employee has the primary duty of performing work requiring advanced knowledge, that is, work that is mainly intellectual in nature and which includes the consistent exercise of discretion and judgment;

(2) The employee has advanced knowledge in a field of science or learning; and

(3) The employee has advanced knowledge that is customarily acquired by a prolonged course of specialized intellectual instruction.

Recent Cases

In one recent case, a company refused to pay overtime to some of its employees who were licensed pharmacists. Much to the dismay of the employees, the company's reliance on the white collar exemption held up in federal court. All of the parties agreed that the second and third parts of the exemption test were met by the pharmacists, leaving a dispute only over whether the pharmacists' work required the consistent exercise of discretion and judgment. The court found that this element also was present.

The pharmacists, with little supervision, routinely made discretionary decisions about dispensing prescribed drugs to patients, and sometimes the process required consultation with the physicians who prescribed the drugs. The only factor suggesting a lack of discretion was the fact that the employees, as a rule, were expected to follow standard operating procedures from their employer. But this argument by the pharmacists was undermined by the fact that they regularly were asked to consult with the employer about the standard procedures and to review them for any suggested improvements. The pharmacists also had the employer's blessing to stray from the procedures if, in their judgment, it was necessary for a patient's health.

Assuming an employee is eligible for overtime pay, questions can arise as to what comprises an employee's regular rate of pay for purposes of calculating the overtime obligation. It is not always as simple as using an employee's base hourly rate or salary. For example, in another recent case, a federal court ruled that the regular pay of municipal firefighters included payments made to them under a city's sick leave buy-back program. A firefighter who had built up a certain amount of sick leave had the right to "sell" it back to the city for a lump-sum payment. Whenever this happened, the employer effectively was paying the firefighters a bonus for good attendance and for work they had already done. It was as much a part of the firefighters' regular compensation as their base hourly wage, so it had to be taken into account in calculating overtime wages.

JUNK FAX PROTECTION ACT

There may be some finality to the formerly unsettled picture on federal regulation of junk fax transmissions. Since the first federal legislation on the subject, in 1991, there has been an "established business relationship" exception allowing the sending of commercial advertising by fax under certain conditions. In 2003, the Federal Communications Commission issued a regulation that would have effectively removed the exception, requiring express written permission from the recipient for sending any commercial ads by fax. Opposition from business groups prompted the FCC to put off enforcement of that rule three times.

Before the restrictive FCC regulation ever became effective, new legislation has reinstated the established business relationship exemption. It is still illegal to send unsolicited fax advertisements to anyone who has requested that they not be sent. However, unsolicited faxes can be sent if the sender has an established business relationship with the recipient and the fax itself has a conspicuous notice on its first page informing the recipient that it can request not to be sent more such faxes. To combat the sale of fax lists to mass marketers, the law requires businesses to obtain fax numbers either directly from the recipient or from a published source, such as a directory, an advertisement, or a website.