Publications

CBD, it's everywhere but is it legal?

Sifting Through the Smoke: New Jersey Employers Now Face Job Protections for Employees using Medical Marijuana.

Don't Ask: N.J. Law Soon to Ban Job History Inquiries

New Jersey: Time to Review Those Arbitration Clauses Again?

An Arbitration Agreement Must Identify the Forum and Rules

Termination Provisions May Defeat Arbitration

NJ Court Voids Arbitration Clause Without a Designated Provider

Now, they need to identify the arbitration provider (such as the American Arbitration Association) or means for selecting the arbitrator and the rules under which the arbitration should be conducted.

In Flanzman v. Jenny Craig, Inc., __ N.J. Super. __, 2018 N.J. Super. LEXIS 142 (N.J. Super. Ct. App. Div. Oct. 17, 2018), an 82-year-old, long-time employee in Paramus sued her employer in Bergen County Superior Court for wrongful termination under the New Jersey Law Against Discrimination. The employer moved to dismiss the litigation, based on a contract the employee signed in 2011 requiring arbitration in California. Importantly, the clause explained that arbitration was “in lieu of a jury or other civil trial,” as would be required by the New Jersey Supreme Court three years later in Atalese v. United States Legal Services Group, L.P., 219 N.J. 430 (2014), and explicitly covered statutory claims of discrimination. The standardized clause called for arbitration in California no doubt because that is the location of the employer's headquarters and Human Resources Department. According to the trial court, the defendants offered to conduct the arbitration at a “place closer to New Jersey.”

Among other arguments, the plaintiff opposed arbitration because the clause did not designate the provider forum or procedures for conducting the arbitration. The trial court noted that the absence of a designated provider forum or rules did not render the agreement unenforceable, but “in the interest of fairness” the plaintiff could herself select the AAA or other forum. California law and location would govern, though. The plaintiff appealed, and the Appellate Division reversed. ;

Until now, courts have not required parties to designate the arbitration provider or arbitrator in a pre-dispute arbitration clause, and to my knowledge the absence of such a designation has not been a basis for refusing to enforce an otherwise valid agreement. The lack of such a case is hardly surprising, since section 5 of the FAA explicitly provides a remedy: “if no method [for selecting the arbitrator] be provided therein” the court will appoint someone. New Jersey’s version of the Revised Uniform Arbitration Act, N.J.S.A. 2A: 23B-11(a), similarly contemplates the lack of a designation and grants the court that authority. In the Third Circuit, unless a particular forum—no longer available—was integral to the parties' agreement to arbitrate, section 5 has been relied on to find that the court may make a substitute designation.

Neither the trial court, nor the Appellate Division, or even the parties' briefs, referred to these controlling statutes. Instead, the appeals panel held that the choice of a provider was an important part of the character of an arbitration; because of the differences between the rules for each, the parties had not reached an understanding of the nature of the alternative to a jury trial they ostensibly had chosen. In the language of contract formation, there was no mutual assent or a meeting of the minds. ;

Because this opinion is precedential, binds lower courts and is couched in broad general terms not limited to the employment case or context at issue, it may well be used in the context of commercial contracts. Contract clauses, bills of sale or standard terms and conditions should be checked to be sure they do not raise an issue.

New York State and New York City Enact Sexual Harassment Requirements

Accommodating Marijuana Use Under New Jersey Law

New Jersey Enacts Paid Sick Leave

Casualty Loss Deduction Under IRC § 165 Compared to Casualty Loss Deduction Claimed Under IRC § 162

NJ Dept. of Ed Publishes Long-Awaited Guidance Handbook on Dyslexia

Important Legal Change for Title IX Sexual Harassment Investigations On University Campuses

Giant Eagle and Economic Performance Under Sec. 461(h)

Key Lessons for Businesses in 3 Arbitration Cases

The U.S. Court of Appeals for the Third Circuit and the New Jersey Supreme Court have recently provided guidance in three cases on drafting and enforcing arbitration clauses. Although the rulings were in the context of consumer transactions, the lessons should be taken into account more broadly to include negotiated contracts and commercial terms and conditions between merchants.

Noble v. Samsung Electronics America, Inc.: Package Inserts

Companies often provide product warranties that attempt to limit exposure to product liability and other claims. The warranty may be included in the terms and conditions made part of the purchase-offer confirmation or invoice, or the warranty may be included with the product. The vendor may prefer to have any disputes regarding warranty claims resolved in arbitration rather than in court, but the question arises where to propose the arbitration agreement and how the contract should be presented.

Although they may be related, warranties and arbitration clauses are not governed by the same legal doctrines. Warranties are governed by provisions of the Uniform Commercial Code, including Article 2-313. Arbitration clauses can only be enforced if they meet standard contract-law principles of fair notice and mutual assent.

In Noble v. Samsung Electronics America, Inc., No. 16-1903, 2017 WL 838269 (3d Cir. Mar. 3, 2017) (not for publication), the Third Circuit affirmed the decision from the District of New Jersey refusing to compel arbitration of a consumer claim where the arbitration clause in a warranty booklet packed with the product was not clearly marked as such.

The U.S. Supreme Court long ago held that arbitration clauses will be enforced despite not meeting state-law requirements that such clauses be printed in bold, all caps or a certain size type, or not highlighted by a special notice on the front page of a contract. However, as noted by the Third Circuit and other courts, such a clause cannot go to the other extreme and be hidden, whether by intent or not.

The arbitration clause in Samsung’s case began on page 102 of a 143-page, 1-inch-by-2.5-inch “Health and Safety and Warranty Guide” inside the box for the Samsung Smartwatch bought by the plaintiff. The cover did not mention arbitration, nor did the table of contents or (even) the index at the end of the booklet. The page on which the clause began did not include a highlighted heading for “arbitration.” Nor, as the Third Circuit found, was there any other indicator that the booklet included a bilateral contract (such as an arbitration agreement), rather than a product warranty. The District Court concluded that the clause was hidden. The ability of a consumer to opt out of the arbitration program was meaningless without fair notice.

The lesson for consumers and merchants is not hard to understand: Arbitration agreements can be a reasonable choice for resolving disputes, but they are contracts and they will be enforced only if the normal criteria for contract formation have been met. That is not to say that a consumer can avoid arbitration if he or she fails to read a form contract, whether in a shrink-wrap format or online. Especially if there is an opt-out clause, though, it makes sense to read the product terms and conditions and exercise the right of opt out when available, if that is the consumer’s choice.

James v. Global Tel*Link Corp.: Insufficient Assent Sequence

And in a precedential opinion, James v. Global Tel*Link Corp., No. 16-1555, 2017 WL 1160893 (3d Cir. Mar 29, 2017), the court affirmed the denial of arbitration to a company that markets phone services for inmates.

Comparing alternative means of presenting arbitration terms, and methods of indicating assent, the circuit said the sequence used by the defendant was insufficient under ordinary principles of New Jersey contract law. Users were informed that the terms of use (which contained an arbitration clause) were available on the company's website, but users were not required to indicate assent or, even, acknowledge having visited the site and read the terms. Critically, the automated phone service did not inform users that continued use would act as a consent to the terms.

Roach v. BM Motoring: Designation of the AAA or Its Rules

The New Jersey Supreme Court in Roach v. BM Motoring, LLC, 2017 WL 931430 (N.J. Mar. 9, 2017), provides guidance on drafting arbitration clauses of a different sort. The holding of the case is that a party to a contract with an arbitration clause can lose the right to require arbitration by refusing to pay the filing fees the arbitration provider requires to accept the case. The court found that the failure was a material breach of the contract, which released the other party from the contract.

Our lesson is different: a clause designating the rules under which the arbitration is to be conducted must carefully distinguish between designating the rules and designating the forum. In the Roach case, the dealer from which plaintiff purchased a used car stated in its contract documents that any disputes had to be resolved in arbitration following the rules of the American Arbitration Association by a retired judge or experienced attorney.

When the buyer filed for arbitration with the AAA, the car dealer took the position that the arbitration was to be conducted by a retired judge or experienced attorney — what is called an ad hoc arbitration. According to the car dealer, the reference to the AAA was meant solely to incorporate its rules, not its administration, which the car dealer considered too expensive. The problem with the car dealer’s position is that the AAA rules provide that designating the AAA rules also designates the AAA to administer the case. The Supreme Court therefore decided that the plaintiff’s choice was proper and that, under the contract and the applicable AAA consumer rules, the seller had to advance the fees.

Parties can differentiate in their arbitration clause between a provider and its rules, but the drafter must be aware of what the rules provide and craft language that clearly differentiates between the forum in which the arbitration is to take place and the rules to be applied.

Robert E. Bartkus, of counsel at MARC in Florham Park, NJ, has more than 40 years of experience in business and international arbitration and litigation. He is the author or editor of numerous legal treatises and is co-author of the New Jersey Arbitration Handbook, to be published by Law Journal Press in April. The firm’s ADR practice handles complex business, shareholder/partner, contractual, employment, insurance and franchise disputes as well as civil fraud and legal malpractice matters.

MARC Welcomes Two Partners, One Of Counsel

McCusker, Anselmi, Rosen & Carvelli has brought aboard three attorneys with expertise in corporate, employment and white-collar litigation as well as tax, trusts and estates, business structuring and other practice areas.

Thomas J. Spies, Asaad K. Siddiqi and John H. Skarbnik joined the firm on Aug. 22, 2016.

"Tom and Asaad deepen and broaden our robust litigation practice, while John’s extensive corporate, tax and trusts and estates work brings a new dimension to the firm’s practice areas,” said Bruce S. Rosen, MARC’s managing partner. “It’s really a perfect match.

The additions boost MARC’s attorney count to 29.

Spies, a partner, handles corporate, shareholder, distributorship/antitrust and commercial litigation as well as management and labor relations matters. His corporate and complex commercial litigation practice ranges from partnership disputes to fraud cases. He also handles employment litigation, and he represents clients in commercial bribery and other criminal business matters. Spies graduated from Seton Hall University School of Law in 1974 and Boston University in 1971.

Siddiqi, a partner, focuses on commercial litigation, federal and state investigations and compliance, insurance/indemnification, white-collar criminal defense, employment/labor, corporate and shareholder disputes, and professional licensing/attorney ethics. He also guides business clients on issues such as corporate governance, best practices, dispute resolution and international transactions. Siddiqi graduated from St. John’s School of Law in 2001 and Rutgers University in 1998.

Skarbnik, of counsel, concentrates on tax, trust and estate planning, estate administration, business transactions, formation of businesses, and representation of taxpayers before the IRS and State of New Jersey in tax controversies. Since 1988, he has been a professor at Fairleigh Dickinson University in its master’s of science in taxation program. Skarbnik earned an LL.M. in Taxation from New York University School of Law in 1984, a J.D. from Rutgers University School of Law in 1979, and a B.A. from Rutgers University in 1976.

John McCusker, Patricia Prezioso Gain Sanctions, Dismissal for Novartis in Disability Case

Novartis Pharmaceutical Corp. won sanctions on Aug. 15, 2016 against an ex-employee and dismissal of her federal and state disability claims.

U.S. District Judge Susan D. Wigenton in Newark also awarded Novartis summary judgment on five of its eight affirmative claims against the plaintiff, as well as sanctions against her husband/business partner for failure to comply with ordered discovery and for false testimony.

The court said the suit is "predicated on a willful, determined effort by this Plaintiff to deceive Defendant and this Court. Plaintiff misstated her employment history, outside consulting, sources of income, business interests and even her name when it suited her purpose."

MARC partners John B. McCusker and Patricia Prezioso, of counsel Suzanne M. Murphy, and associates Patrice LeTourneau and Bianca M. Olivadoti represented Novartis.

The plaintiff claimed she was discriminated and retaliated against on the basis of neck and back issues when she was not permitted to work from home more than two days a week. She sued under the Americans with Disabilities Act and the New Jersey Law Against Discrimination.

MARC’s attorneys found that the plaintiff jointly owned a specialty pharmaceutical company while at Novartis and misrepresented herself during the employment application process.

Novartis asserted counterclaims for, among other things, fraud, breach of contract, breach of duty of loyalty, and conflict of interest

Finding that the plaintiff's conduct increased Novartis' legal expenses, the court awarded sanctions to prevent her from "continuing to litigate frivolous claims and provid[e] an object lesson to future litigants."

As to Novartis' affirmative claims, the court found the plaintiff liable based on fraud for misrepresentations on her employment application. The court further found she breached contractual obligations by accepting and failing to disclose outside employment and violated her duty of loyalty when she impermissibly competed with Novartis by soliciting and accepting consulting positions elsewhere.

Read the ruling, Afoluso Adesanya v. Novartis Pharmaceuticals Corporation.

Patricia Prezioso Wins Dismissal of Last Count Against Ex-Chief

Upbraiding the prosecution for behavior that "shocks the conscience," a New Jersey judge has dismissed the remaining count of official misconduct against former Hackensack Police Chief Ken Zisa.

Bergen County Superior Court Presiding Judge Susan Steele found on Aug. 23, 2016 that "the state vaulted the threshold of prosecutorial misconduct to goad defendant to seek a mistrial not once, but repeatedly, five times."

Steele harshly criticized the case’s lead assistant prosecutor, noting he ignored the rules of evidence.

She termed as "inconceivable” the "notion that the prosecutor, in good faith, believed the inflammatory and prejudicial statements he completely derailed the trial with in his opening statement were admissible."

In 2015, the Appellate Division directed an acquittal for insurance fraud, affirmed dismissal of three official misconduct counts, reversed the remaining official misconduct charge, and left room for Zisa’s attorney to make further motions.

MARC partner Patricia Prezioso did just that, and Zisa’s motion to dismiss the remaining charge was granted on double jeopardy and fairness grounds.

Suzanne M. Murphy, of counsel at MARC, and Louis C. Formisano, an associate, assisted Prezioso. Read the news release, the Aug. 23, 2016 Superior Court ruling and the July 31, 2015 Appellate Division ruling in State of New Jersey v. Charles Kenneth Zisa.

MARC Celebrates its 20th Anniversary

Patricia Prezioso Chosen for the Law Journal's Top Women in the Law

The New Jersey Law Journal has selected MARC partner Patricia Prezioso for its Top Women in the Law for 2016.

The editorial staff said its goal was to “attempt to shine a light on the outstanding work being done by female attorneys across New Jersey who have had notable achievements in recent years, or who have otherwise made an extraordinary impact on the legal profession.

"These outstanding attorneys are all making strides to push the profession forward for women," the Law Journal continued in its announcement on Sept. 14, 2016.

The 25 women on the list are in the private, public and public interest sectors.

MARC congratulates all of the phenomenal women receiving recognition, and we are especially proud of Patti.

It is hard to believe that Patti has been in private practice for nine years as a partner at MARC. Her recent successes, as detailed above, speak loudly for themselves and highlight her tireless persistence on behalf of her individual and corporate clients, in both the civil and criminal arenas.

Patti concentrates on employment defense litigation, corporate criminal defense/white-collar criminal defense and environmental litigation. She provides comprehensive assistance to corporations on issues such as in-house and general investigations, employment advice, environmental claims, criminal allegations, subpoena assistance and contract disputes. She brings extensive interviewing, strategizing and evidence-gathering experience to her internal investigations and litigation matters.

Patti's prior government experience and science background also assist her in providing support to clients in regulated industries, such as energy and pharmaceuticals.

Patti started her career as a prosecutor at the Manhattan District Attorney’s Office, where she was a designated homicide, sex crimes and domestic violence assistant, prosecuting hundreds of cases from inception through trial.

Next, Patti was sworn in as an Assistant Attorney General in the New Jersey Division of Criminal Justice. At the AG’s Office, she was Chief of Law Enforcement Services, and eventually Deputy Director and Executive Assistant Attorney General. During her tenure, she not only investigated and tried one of New Jersey’s most infamous murder cases, State v. McGuire (a wholly circumstantial case involving a nurse who killed her husband and disposed of his body in suitcases in the Chesapeake Bay), but she also testified before the NJ Legislature in support of the DNA Databank bill. That legislation, which became law, expanded NJ’s convicted offender DNA database and provided law enforcement with a significant tool in solving crime. Patti also developed and implemented NJ’s protocols for testing convicted offenders, and led the coordinated collection effort involving the state’s sheriff’s offices, probation offices and correction facilities.

Patti transitioned quickly to private practice and represents a wide variety of clients, including Fortune 500 companies, small businesses and individuals. Her experience speaks to her ability to negotiate, coordinate and succeed.

Bruce Rosen Tells NJTV Document-Access Denial Raises Concerns

A recent NJ appeals court ruling undermines the Open Public Records Act, MARC partner Bruce S. Rosen said in an interview with NJTV.

On Aug. 31, 2016, the Appellate Division said the government can deny access to public records by neither confirming nor denying they exist.

The case, North Jersey Media Group v. Bergen County Prosecutor’s Office, involved a request for documents about a priest a reporter thought was under investigation but had not been charged.

Rosen said in the Aug. 31 interview that the ruling cuts off access to important information and creates an exemption in the law.

He also said it was a fallacy to conclude that the reputation of an individual who had not been charged would be damaged by release of the documents.

A reporter for North Jersey Media Group filed the request for documents and recordings with Bergen County Prosecutor’s Office.

The court held that if privacy is a big issue, it will say that privacy can be balanced in the individual's favor.

"It’s an unnecessary narrowing of OPRA, which provides for a presumption of access," Rosen said.

"Someone needs to correct this. I hope it’s the state Supreme Court, but it might have to be the Legislature," he said.

Watch the interview and read the ruling.

MARC Continues Its Commitment to NJ LEEP, Inc.

As the 2016-2017 school year gets underway, MARC is resuming its pro bono work with NJ LEEP, Inc., the New Jersey Law and Education Empowerment Project.

The nonprofit, based at Seton Hall University School of Law, offers law-related and college-access programming to Newark middle and high school students and guidance to NJ LEEP alumni who are in college.

This past summer, MARC brought in four NJ LEEP sophomores, up from two during the summer of 2015, for a week of exposure to the law through an internship program.

Attorneys at the firm delivered presentations, ranging from employment to First Amendment law, to give the students an overview of practice areas. The attorneys also ran mock trial sessions for the students, took them to watch trials and meet judges, and instructed them in topics such as direct and cross examination.

And this academic year, MARC partner Michael R. Futterman — pictured on left, with his mentee — and MARC of counsel Kathleen A. Hirce are once again working with the organization's students in various programs. Michael was recently appointed to NJ LEEP’s Advisory Board, where he joins MARC partner John B. McCusker, as well as other attorneys, state officials and corporate executives, in helping NJ LEEP grow.

Mentors meet a few times a month with their mentees, beginning in their sophomore year and continuing through their senior year.

A large bulk of the time is devoted to helping the students prepare and write briefs for four constitutional debates during the school year. Mentors also give tips on public speaking, guide students in understanding complicated legal issues, talk with them about career goals and college, assist them with school work and help them prepare for standardized tests.

MARC is already looking forward to its summer 2017 program with NJ LEEP.

NJ Supreme Court Further Tightens Rules for Arbitration Agreements

On June 14, 2016, the New Jersey Supreme Court found, in Morton v. Sanford Brown Institute, A-31-14, the arbitration clause in an enrollment agreement unenforceable because it did not include language required by Atalese v. U.S. Legal Services Group, 219 N.J. 430 (2014), indicating a clear waiver of the plaintiff’s right to resolve her claims in court before a jury.

Moreover, the Court held that the clause language was not sufficient to delegate to an arbitrator the arbitrability decision.

The Sanford Brown arbitration clause stated that "any disputes" regarding (among other things) the gateway issues of arbitrability, jurisdiction and contract formation were to be "resolved pursuant to this paragraph (the 'Arbitration Agreement')."

The Court found that this was not as clear as the language that the U.S. Supreme Court found sufficient in Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63 (2010). There, the Court said, "The Arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement."

Furthermore, in what the state Supreme Court held was the "key" issue before it, the defendant had not requested the trial court with sufficient clarity to find that the relief sought was for the arbitrator to decide these issues in the first instance. Although the arguments included references to the delegation issue, the order presented did not ask for that relief - only that the case be dismissed and the claims sent to arbitration, which thus seemed to ask the Court to decide the arbitrability issues.

Parties and counsel are therefore cautioned to review arbitration agreements to include the necessary language and to clearly request the proper relief when moving to dismiss a case in favor of arbitration.

Robert E. Bartkus, of counsel at McCusker, Anselmi, Rosen & Carvelli in Florham Park, NJ, concentrates on multiparty business and international arbitration and litigation.

Reminder: Your Diligence Is Due

When I purchased my first house, I hired a random home inspector whose name my finger landed on in the Yellow Pages. He poked around for about fifteen minutes, and two weeks later I received his report, obviously canned with probably only the name and address changed. Three months later, there was a stream of water running down the basement wall. The chimney, I later learned, had no flashing, which left the entire roof rotten from years of unmitigated water damage. A more thorough inspection would have revealed the issue, and I could have worked out a solution with the seller or simply walked away. Instead, I learned an expensive lesson. When I purchased my next house, you can be sure that the home inspector earned every penny he was paid.

Hidden environmental contamination can be exponentially more costly. Whether you are purchasing, leasing or even selling a piece of property, understanding its environmental condition is a crucial step to be taken early in the process. In other words, you need to do your homework. Environmental due diligence is the process through which you assess real estate for any potential risk of contamination. Typically, this involves an investigation of the current and historic uses of the subject property to identify any red flags. This is known as a Phase 1 Environmental Site Assessment (“Phase I ESA”). Then, if the Phase 1 reveals potential contamination at the property, testing of soils and groundwater should be performed to ascertain the existence and extent of any such contamination. This is known as a “Phase 2 ESA” and establishes the “baseline” environmental condition.

This seems costly, you may think to yourself, but is it really necessary? Absolutely. Here’s why:

(1) Liability protection, liability protection, liability protection. Perhaps the biggest benefit of performing environmental due diligence is that it can protect you from liability for contamination discovered at the property after you purchase it. Federal and state environmental laws are no joke. They can impose liability on a property owner simply by virtue of ownership, without regard to whether you caused the contamination or whether you had any inkling that contamination may exist at the property. In other words, if you purchase a property and later discover it’s contaminated, you may very well be responsible for paying for any remediation simply because you own the property, which can cost thousands and even millions of dollars. By performing your due diligence, however, you may be able to avail yourself of “innocent” or “faultless” landowner and bona fide purchaser defenses, which could clear you of liability under the law. Moreover, if you ever did cause contamination at the property, you would be able to measure it against the pre-determined “baseline” environmental condition from the ESA to limit your responsibility. As the seller, this information is helpful too to limit your responsibility to only the baseline condition if there ever is found to be subsequent contamination.

(2) It is a useful negotiation tool. If your due diligence uncovers contamination, you can use it to obtain a reduction purchase, to obtain contractual indemnification, to obligate the seller or lessor to address the contamination, or even just to simply walk away from the deal. If you have plans to redevelop the property, this information will guide your decision as to whether the property suits your intended purpose. At the same time, if no contamination is discovered, you can have a comfort level that you are making a worthy investment.

(3) It establishes a basis for you to apply to voluntary clean-up programs, which provide benefits to “innocent” purchasers that voluntarily clean-up a contaminated property. These benefits include releases from liability and tax credits. Similarly, the information can be used to submit for reimbursement of costs expended remediating the property from state “spill” funds.

(4) It is information that any bank providing financing for a property will likely require. Banks want to be sure that the collateral is truly worth the value of the purchase price. Presumably, so do you.

Environmental due diligence must be taken seriously. Hire a good team of professionals to make sure you are protected. The cost is a drop in the bucket compared with the potential cost of remediating a contaminated property.

Alicyn B. Craig, a partner with MARC in Florham Park, NJ, has significant experience in all areas of environmental law, from regulatory advice to complex litigation, focusing on soil/groundwater contamination and agency cost-recovery actions. She also handles employment and commercial litigation matters.

Toxic Substances Control Act Overhauled After 40 Years

On June 22, 2016, President Obama signed into law amendments to the Toxic Substances Control Act (TSCA), named the "Frank R. Lautenberg Chemical Safety for the 21st Century Act," to honor the late New Jersey senator who spearheaded reform efforts. These amendments represent a sweeping overhaul of the TSCA and constitute its first major update since it was enacted in 1976.

The purpose of the TSCA is to provide regulatory guidelines to companies that manufacture or sell chemicals or products containing chemicals to reduce risks that these chemicals pose to our environment and human health. TSCA also directs how the regulations are to be enforced and which government entities are tasked with enforcing them, namely the United States Environmental Protection Agency (EPA).

These amendments are very important to the chemical industry, as well as to the environment and the public. They represent a fundamental shift in the approach to regulating chemicals in commerce by vastly expanding the EPA’s authority over chemical substances, giving the EPA new authority to review and regulate new and existing chemicals. The intent of the reforms is to provide more effective federal oversight of chemicals, which should give Americans greater confidence that chemicals in commerce are being used safely.

Some of the most critical changes in the law are as follows:

• Mandating that the EPA update its inventory of existing chemicals;
• Replacing TSCA’s prior cost-benefit balancing standard with a new health-based safety standard. The new risk assessment includes identifying vulnerable populations, such as children, pregnant women, the elderly, and chemical workers, and ensuring that they are protected by requiring that the EPA take into consideration only the impact on health and the environment when evaluating potential risks and determining whether to allow a chemical to be sold or manufactured;
• Requiring the EPA to review the risks posed by chemicals already in commerce, in contrast to the prior TSCA’s grandfathering-in of chemicals already in use. In the new review process, (1) companies must identify all chemicals they are currently making or processing, and (2) the EPA will establish the priority (high or low) of active chemicals. High-priority chemicals are those the EPA determines may present an unreasonable risk. Any chemical deemed an unreasonable risk must either be banned or phased out, or restrictions on the chemical imposed. For all new chemicals, the EPA must make a specific safety finding that it is not likely to present an unreasonable risk, as a condition for market entry;
• Chemical companies must now contribute to the cost of enforcing the regulations through the requirement that the EPA collect fees for chemicals to defray a portion of the costs of implementing the program, which will go into a “TSCA Implementation Fund;”
• Changing how the EPA handles manufacturers’ confidential business information (CBI). The EPA must review and approve or deny all past CBI claims that allowed chemical companies to mask the identities of active chemicals on the TSCA Inventory on the grounds that they were CBI. CBI claims will also now expire after 10 years unless re-substantiated. Also, health and safety data are not eligible for CBI protection. CBI must also be shared with state governments, health and environmental professionals and first responders, subject to nondisclosure agreements; and
• Establishing federal and state preemption standards. For example, states will not be able to impose new restrictions on the use of a chemical substance that the EPA has determined does not present an unreasonable risk nor require notifications of a significant new use of a chemical when the EPA has already required such notification.

In short, the new amendments to the TSCA pose many new restrictions on the sale and manufacture of chemicals, and impose many new compliance obligations with key implementation deadlines commencing as early as 180 days following the June 22 enactment, with more coming due in 2017. Companies and their counsel must be prepared to anticipate and meet the new challenges.

Laura A. Siclari, an associate with MARC in Florham Park, NJ, counsels and represents clients in matters from regulatory and compliance issues to remediation claims and litigation, with an emphasis on soil/groundwater contamination. She also concentrates on employment discrimination, special education/disability law and general litigation matters.

New York's Reaction to Municipal Water Contamination Cases: Provide an Alternate Statute of Limitations for Those Harmed

A troubling news topic of late is the rise in reported instances of contamination in municipal water supplies across the country. While the national media has focused much of its attention on the crisis in Flint, Michigan, local communities have also been significantly affected by similar cases of contamination to municipal water supplies. Recently, the community of Hoosick Falls, New York, learned that its municipal water supply had elevated levels of perfluorooctanoic acid (PFOA), a chemical once used to make Teflon. The source of PFOA was identified as being derived from a facility that was formerly operated by Saint-Gobain Performance Plastics and Honeywell International, where PFOA had been used for decades. In light of this finding, the New York State Department of Environmental Conservation (NYSDEC) designated the facility a Superfund site in January 2016, which allows the agency to investigate the contamination source and pursue responsible parties.

In reaction to the events in Hoosick Falls, proposed legislation was introduced in the New York State Legislature. The legislation aims to ensure that residents made sick by the contamination have a viable cause of action despite potentially being barred by the current statute of limitations. The current three-year statute of limitations for exposure to toxic substances begins to run when an injury is discovered or reasonably should have been discovered, whichever is sooner. Further, the present statute of limitations permits a party to commence an action within one year of the discovery of the cause of the injury so long as it is brought within five years of the injury being discovered, or reasonably should have been discovered. For those injured by PFOA contamination in Hoosick Falls decades ago, their claims are barred by the current statute of limitations.

In its most recent form, Bill S6824A gives a plaintiff the ability to commence an action within three years of an area being designated a Superfund site. While a plaintiff may have previously been barred by the current statute of limitations, this provision provides an outlet for those injured by contamination from an area later designated a state or federal Superfund site. For residents of Hoosick Falls made sick by contamination caused by PFOA, this proposed legislation will give them three years to file a lawsuit against responsible parties. In light of the legislative aim of applying this bill to the facility in Hoosick Falls that has previously been designated a Superfund site, it is expected to have retroactive application. Accordingly, other areas designated a Superfund site in the last three years will also be impacted by this bill.

As of June 2016, Bill S6824A has passed both the House and the Senate and has been sent to Governor Cuomo for review.

Louis C. Formisano, an associate with MARC in Florham Park, NJ, advises clients on a broad spectrum of environmental matters, such as contaminated property cleanups, liability and cost allocation. He also handles employment and commercial litigation matters.

Employment Law Alert, June 2016

Is 'Proportionality' the Most Important Change in the 2015 Rule Amendments?

Compensatory Distribution of Partnership Interests

Conservative Approach, Common Sense Should Guide Use of Evidence From Online Sites

April 2013 Newsletter

Evolving Law on Attorney Fees Under the CFA

Are Bloggers, Citizen Journalists, and Other New Media Covered by Shield Laws?

Environmental Guidelines: Worker Exposure to Vapor Intrusion

The application of environmental guidelines in the workplace is an issue that presents a challenge for in-house counsel who represent clients in industry. One such circumstance pertains to worker exposure on environmental clean-up sites where the indoor air contains contaminants that seeped up from land and ground water under buildings -- termed vapor intrusion.

Applicable Regulations - Federal Preemption

The Occupational Safety and Health Act ( OSH Act) authorizes the Secretary of Labor to set mandatory occupational safety and health standards applicable to all businesses affecting interstate commerce. See 29 U.S.C. 651(b)(3). The relevant sections of the OSH Act for the preemption analysis include §§ 4(b)(4), 18(a) and 18(b). See 29 U.S.C. 653(b)(4), 667(a) and 667(b). In Gade v. National Solid Wastes Mgmt. Association, 505 U.S. 88, 107-08, 112 S.Ct. 2374, 2388 (1992), the Supreme Court held, unless a state has obtained Occupational Safety and Health Administration (OSHA) approval for its own occupational safety and health plan, any attempt to enforce standards where a federal regulation exists is preempted. As in-house counsel to a client with industrial concerns, you must research whether the state in which your facility is located has an OSHA-approved occupational safety and health plan.

USEPA v. OSHA

If your client has industrial clean-up sites in states that do not have an OSHA- approved plan, federal regulation applies to determine whether the indoor air quality meets legal requirements for worker exposure. Although in the past, the United States Environmental Protection Agency (USEPA) deferred to OSHA for exposure levels applicable in the workplace, that position may soon change. Within the USEPA's November 2002 Draft Subsurface Vapor Intrusion Guidance document, it recognized OSHA's authority to regulate worker exposure. Specifically, § I.D.(a) states:

There may be occupational settings where persons present are employees and hazardous constituents may be intruding into the air space from the vapor intrusion pathway. . . . OSHA and EPA have agreed that OSHA generally will take the lead role in addressing occupational exposures.

That position echoes a 1990 Memoranda of Understanding between USEPA and OSHA wherein the agencies agreed to "establish and improve the working relationship" between them and recognized OSHA's responsibility for enforcing the OSH Act which provides "authority to promulgate mandatory safety and health standards for private sector workplaces." See MOU, dated 11/23/90 and 2/13/91.

Most recently, however, the USEPA requested that OSHA confirm that it will indeed spearhead the regulation of worker exposure to vapor intrusion. It has been reported that OSHA has concluded that, under §5(a)(1) of the OSH Act, the General Duty Clause, its authority to regulate contamination is limited to that which "originates" in the workplace and not that which originates in contaminated land and/or groundwater beneath the workplace. See InsideEPA.com, "OSHA's Legal Findings Could Help EPA Target Workplace Vapors," dated Sept. 30, 2004 .

Actually, § 5(a)(1)'s General Duty Clause contains no such limiting language whatsoever. Moreover, OSHA does regulate worker exposure to contaminants that do not necessarily originate in the workplace. For example, according to OSHA's Technical Manual, OSHA addresses worker exposure to indoor air contaminants, including radon which it defines as having its potential source in "ground beneath buildings, building materials, and groundwater." Similarly, OSHA regulates construction worker exposure to lead with no mention regarding the original source. See, eg, 29 CFR 1926.62.

Accordingly, while it has been reported that the USEPA will consider OSHA's recent stance, this author recommends that the USEPA seriously consider OSHA's inconsistency. Additionally, this author strongly urges OSHA and the USEPA to clearly delineate contamination that originates in the workplace as compared to that which presents a hazard at the workplace but does not actually originate therein. At this juncture, nothing in the OSH Act or OSHA regulations suggests a point of distinction.

USEPA Action Under RCRA v. OSHA

Prior to OSHA's recent position yet to be confirmed by the USEPA, case law suggested that workplace exposure at RCRA sites should be subject to OSHA standards. In United States v. Borowski, 977 F.2d 27, 31 (1st Cir. 1992), the court recognized RCRA's provision "specifically requiring the EPA to provide information about employee hazards to the Secretary of Labor and OSHA for OSHA enforcement purposes." See also City of Toledo v. Beazer Materials and Services, Inc ., 1995 WL 770396 at *70 (N.D. Ohio Aug. 29, 1995 ).

EPA Action Under CERCLA v. OSHA

CERCLA does not have a similar provision as RCRA deferring to OSHA regulations and the Draft Vapor Intrusion Guideline document referred to above specifically notes that "at CERCLA sites, the cleanup levels are generally determined either by ARARs [applicable or relevant and appropriate requirements] or risk range considerations; the OSHA standards are not ARARs under the CERCLA statute and regulations. Therefore, there may be instances (under CERCLA and other cleanup programs) where standards other than the OSHA standards are used to determine whether the exposure pathway presents a risk to human health." See Guidance Document, at p. 3 n.1. However, in Covalt v. Carey Canada Inc., 860 F.2d 1434, 1439 (7th Cir. 1988), the Seventh Circuit noted that:

The Superfund Act regulates waste dumps and other leakages "into the environment." The interior of a place of employment is not "the environment" for purposes of CERCLA " at least to the extent employees are the injured persons " and §309(a)(1) therefore does not apply to [the plaintiff's] claim.

Pursuant to the reasoning of the Covalt court, the CERCLA ARARs that do not include OSHA standards should not apply to worker exposure.

Conclusion

As in-house counsel to a client with industrial concerns, you need to be aware of whether the state in which your client has environmental clean-up sites has an OSHA-approved plan regarding worker exposure and, if not, then either OSHA or USEPA standards apply in determining whether the indoor air quality meets permissible levels. While the USEPA has previously deferred to OSHA authority, OSHA's recent limiting position regarding contaminants that "originate" in the workplace suggests that you may need to ensure compliance with USEPA standards. Due to the unconfirmed positions of the agencies involved, you must keep updated with developments in this area.

"Can We Talk?" Speaking Of And To Former Employees

OUTSIDE PERSPECTIVES

In litigation, information is power. The most informed party shapes the message, frames the issues and calls the shots. The most informed party also has a greater bargaining position and, in turn, routinely has greater success and happier clients. The litigant who has greater access to the flow of information enjoys a distinct advantage in both the conference room and the courtroom. To control your adversary's access to information is to control the coin of the realm.

As corporate litigators well know, an organization's former employees are a veritable well-spring of information, good, bad or otherwise. Whether their departure from the organization was amicable or acrimonious, or the individual involved was disinterested or disgruntled, former employees generally have a lesser interest in maintaining loyalty than current employees, who are not willing to risk the enmity of those who sign the paychecks. For that reason, former employees are more prone to "spill their guts" as witnesses -- sometimes even upon the slightest provocation. Whether plaintiff or defendant, a litigant who has access to the hearts and minds of the former employees gets to make first use of, and thus shape, the information they possess.

Questions to Ask

When and under what circumstances may counsel for an adverse party contact your organization's former employees and encourage them to "dish the dirt," and what steps may you take to stop them? When can you and your team reach out to your adversary's former employees for favorable evidence? The rules vary among jurisdictions and turn, in many instances, upon the former employee's participation in what has come to be known as the "litigation control group." The prudent corporate litigant should thus have a considered strategy in place for dealing with former employee communications. Here are the considerations:

Know the Rules

First year law students learn that the Rules of Professional Conduct ("RPC") prohibit a lawyer from engaging in ex parte communications with an adverse party who is represented by counsel. Each jurisdiction has its own particular take on ex parte contact with former employees, modeled upon RPC 1.13 and RPC 4.2. RPC 4.2 generally prohibits a lawyer from engaging in an ex parte communication with a person about the litigation (or "matter" in a non-litigation context) that the lawyer knows, or by the exercise of reasonable diligence should know, to be represented by another lawyer. RPC 1.13 recognizes the distinction between the litigant-organization and its individual "constituents" (in most instances its officers, directors or employees).

As adopted in many jurisdictions, however, RPC 1.13 deems the lawyer who represents the organization also to represent the members of the litigation control group. These jurisdictions do not uniformly agree upon the membership requirements of the litigation control group: some stress "significant involvement" in the determination of the organization's legal position; others stress involvement in the acts which gave rise to the litigation; still others focus on the concept of privilege.

Within these jurisdictions is a smaller subset that extends the prohibitions against ex parte communications between adverse counsel and control group members to include former employees. Some states, such as Florida , Indiana , Washington and Delaware , impose no limitations on attorneys engaging in ex parte communications with former employees of a litigant-employer: they are fair game for the adversary. Other states, such as New York , New Jersey , California , Arizona and Connecticut , prohibit an adversary's ex parte contact with an organization's former employees based on varying interpretations of the control group concept.

Bottom line: Familiarize yourself, perhaps with the aid of local counsel, with the local rules governing ex parte communications with former employees, respect the boundaries – no lawyer wants to run afoul of the ethical rules, even accidentally – and determine whether and to what extent such ex parte communications are prohibited. There is no ethical prohibition against using the RPC's to your strategic advantage, depending on the particular needs of your case.

Keep Personnel Records

Encourage your organization to place a premium upon keeping accurate personnel files that enable you to identify potential witnesses in the event of litigation. Keep current on former employees, particularly those who were in the litigation control group, those who enjoyed access to sensitive information and those who fall within the "disgruntled" category. Make it a priority for your organization to conduct exit interviews of all employees – and learn from them. Remember, these witnesses may well be available to both sides in a subsequent litigation. It does not bode well for you if your adversary finds your organization's former employees before you do. Take a lesson from the fact that many large companies maintain "alumni lists" of former employees; encourage your organization to do likewise. Take measures to avoid or minimize the scramble that inevitably ensues when your team is assigned the four-alarm task of identifying a former insider now known as "Confidential Witness 1" in the class action complaint that was recently filed against your organization.

Maintain Confidentiality

Develop a practice within your organization to have employees execute confidentiality agreements that survive the termination of employment. While this practice may not prevent a former employee from testifying at some date in the future about matters within his or her personal knowledge or experience, it will provide a degree of protection over the sensitive information within the former employee's knowledge. Confidentiality agreements, properly tailored, may also have a chilling effect upon a former employee's willingness to seek involvement in subsequent litigation.

Circle the Wagons

As witnesses, former employees present both sides with an opportunity and a challenge. When implicated in litigation, their individual interests often differ from the interests of their former employer, or from the plaintiff seeking their assistance in a case against their former employer. Conflicts of interest are inherent under the circumstances. Plaintiffs suing an organization should do their homework before filing suit: they should, as a matter of course, understand the organizational structure of their adversary and identify its current and former employees who engaged in or know about the conduct at issue in the lawsuit.

It is essential to have at the ready counsel considerate of your cause to represent former employees when the need arises. Similarly, an organization's in-house counsel and outside lawyers should have a roster of sophisticated counsel available to step in when litigation ensues. The side that controls the litigation landscape enjoys greater access to the flow of information and thus increases its chances for a more favorable outcome.

Conclusion

At the end of the day, preparation remains the key to successful and efficient dispute resolution. A litigant must stake out an aggressive winning strategy early in the game. A critical component of that winning strategy should include a measure of control over your organization's former employee network.

The Competing Interests of the Non-Compete: Are Employees Who Refuse to Sign Restrictive Covenants Entitled to Whistleblower Status?

In our modern economy of corporate acquisitions and work place transience, in-house counsel, employees and litigation counsel daily are dealing with the issue of non-compete agreements and their enforceability. While many states have chosen to address the matter on a case-by-case basis, legal observers have been anxious to discern a trend. New Jersey 's highest court, always looked upon as a leader in employment law, has recently handed a victory to employers in this hard fought battle, which may indicate a national trend toward acceptance of reasonably drawn non-compete agreements.

The Issue

In Maw v. Advanced Clinical Communications, Inc ., 179 NJ 439, 846 A.2d 604 (2004 ), the New Jersey Supreme Court held that an employee who was terminated due to her refusal to sign a non-compete agreement did not state a claim under New Jersey 's Conscientious Employee Protection Act (CEPA), commonly known as its "whistleblower" law. The question for employers nationally is whether other states will adopt the New Jersey Supreme Court's reasoning that non-compete clauses are a private matter between an employee and an employer, or follow the rationale of the dissent, which found that based on public policy that these agreements require less deference and closer scrutiny.

The Facts

Plaintiff Karol Maw worked for Advanced Clinical Communications Inc. (ACCI) as a graphic designer from November 1, 1997 until January 2001, when she was promoted to Senior Graphic Designer. Pursuant to a new company policy passed there after, all employees above the level of coordinator were required to sign a non-compete agreement as a condition of continuing their employment with ACCI. Maw was informed that she could consult counsel about the non-compete, and she did so. When Maw went to see Human Resources about the proposed modifications suggested by her attorney, who was also her father, she was told that no changes could be made. Maw opted not to sign the agreement, and she was terminated in March 2001 for violating company policy. Maw filed suit, alleging violations of New Jersey 's CEPA, as well as common law wrongful termination in violation of public policy. New Jersey 's Law Division dismissed the suit, determining that Maw had failed to state a claim upon which relief could be granted. The Appellate Division reversed, holding that it was premature to dismiss her claim before Maw had an opportunity to develop her claims through discovery.

CEPA's "Clear Mandate of Public Policy" Clause at Center of Case

New Jersey 's CEPA prohibits an employer from "taking any retaliatory action against an employee who objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes . . . is incompatible with a clear mandate of public policy concerning public health, safety, or welfare or protection of the environment." N.J.S.A. 34: 19-3c(3). In ruling that termination based upon a refusal to sign a non-compete cannot, as a matter of law, rise to the level of a whistleblower cause of action, the Maw Court wrestled with the proper source of a "clear mandate of public policy" pursuant to CEPA. The court found that the law did not envision a "clear mandate" to be found only in statutes, rules or regulations; instead, the court held, such a "clear mandate" suggests an "analog to a constitutional provision, statute or regulation promulgated pursuant to law, such that . . . there should be a high degree of public certitude in respect of acceptable versus unacceptable policy."

The majority in Maw held that the non-compete agreement in dispute was a private matter between Maw and ACCI that did not rise to the level of a CEPA claim because no public policy issue was involved. The court relied heavily upon New Jersey 's Solari/Whitmeyer test, developed in 1970-71, to determine the enforceability of the non-compete agreement. The Solari/Whitmeyer test (which is used many states, including Iowa , New York , Oklahoma and Tennessee ) balances the employer's need for confidentiality of proprietary information against the hardship on the employee. The court found that under Solari and Whitmeyer , New Jersey reached a turning point, abandoning a void per se rule to find that covenants not to compete could be found completely or partially enforceable after application of a multipart and fact-sensitive inquiry. The court emphasized that the plaintiff could have signed the agreement and waited until the employer brought litigation to enforce the agreement. Had she done so, the court stated, she could have asserted as an affirmative defense that the non-compete agreement was too restrictive and unenforceable.

The Dissent's Analysis

After chronicling over four hundred years of jurisprudence, the dissent in Maw explained the disfavor with which most non-compete agreements were looked upon was based on public policy grounds. The Maw Court highlighted Solari Industries v. Malady , 55 NJ 571, 576 (1970), which held that such agreements are only enforceable if they are drawn to "simply protect the legitimate interests of the employer, impose no undue burden on the employee and [are] not injurious to the public," and reiterated its three part test, which recognizes the public's interest as separate and apart from the private interests of the employer and the employee in numerous cases. Ingersoll-Rand v. Ciavatta , 110 NJ 609, 628 (1988); Karlin v. Weinberg ; 77 NJ 408, 411-12 (1978); Whitmeyer Bros. Inc. v. Doyle , 58 NJ 25, 32 (1971).

Further, the dissent recognized that there was a strong public policy consideration in Ciavatta , when the court emphasized the desire to "protect the consuming public from the ‘naked restraints' on the marketplace posed by employer attempts to extinguish competition from a former employee." Maw , dissent at *8 (citing Ciavatta , 110 NJ at 635).

Ultimately, the dissent found that the "better approach" would be to allow a claim under the whistleblower statute when an employee refuses to sign a noncompete based on what he or she believes to be a violation of public policy. The employer could then proffer the reasonableness of the agreement as a defense to the action.

Number of Cases Likely to Increase Nationwide

The well-reasoned opinions of both the majority and dissent in Maw underscore that the validity of covenants not to compete are not susceptible of easy measure. The majority opinion considers these non-compete agreements a private matter between employers and employees, affording employers legitimate protections when reasonably drawn. The dissent makes a persuasive argument that non-compete agreements can significantly affect the consuming public, which can be threatened by the sort of modern-day monopoly that a powerful employer can create by forcing employees with few resources to sign away their ability to compete.

States nationwide, either under their whistleblower statutes or common law public policy doctrines, will have to decide whether these post-employment restrictions are a private consideration or a public detriment. If the Maw majority and dissent are any indication, it appears that the non-compete agreement will continue to be considered a legitimate employer interest for the foreseeable future, though the scrutiny regarding their reasonableness may heighten as the number of cases increases.

A New Minefield for Defense Counsel: Celebrity Jurors

It's been said that celebrity corrupts. Whether or not it corrupts, it certainly confuses reality Where criminal trials are concerned. Aggressive prosecutors hoping for a trophy "guilty verdict" for their resumé, tabloid TV, websites featuring confidential court document ( www.thesmokinggun.com ) and the recent spate of made-for-TV movies airing well before the cases they depict have gone to trial (e.g., Scott Peterson, Martha Stewart) have combined to lead to a new phenomenon: the celebrity juror. When picking a jury in these cases, counsel has the impossible task of trying to predict the jurors' motives. Which jurors will prefer anonymity once the case is decided and which will want their moment in the sun? Defense attorneys, already dealing with all the usual handicaps, such as limited discovery, must maneuver these waters carefully.

In high-profile prosecutions, public perception inevitably — despite the best efforts of judges and lawyers — filters to the jury pool. How much, and even whether, such perceptions can be changed depends on many factors, including the weight of the evidence (and the willingness of jurors to have an open mind), the cohesiveness of the presentation and the talent of the advocate. Often a defense attorney with a knack for speaking to journalists may be able to convince some reporters that reasonable doubt exists even if the jury ultimately convicts the defendant.

As the Stewart case brought home, these cases are even more difficult to try because defense counsel cannot predict which jurors prefer to do their job and go home and which are thinking about how they will look for their Diane Sawyer interview. The jury in the Stewart trial, as in many recent high-profile celebrity trials, deliberated amid the vortex of these various forces. In the end, the trial seemed to some to be far more about process than issues. The issue in the Stewart trial was whether the defendants violated 18 USC §1001, a statute that essentially prohibits lying to the government. Along the way, coverage of the trial often became a debate on who was winning and why and which spin on the events of the day seemed to be more believable. In many publications and on television, the actual charges took a back seat to guessing what the verdict would be.

Judges often warn jurors they do not have to talk to the media. Yet in recent years jurors have written books, held press conferences, and, as in the Stewart trial, basked in their instant fame by making the rounds of talk shows. There were indications from at least one juror that some on the Stewart jury may have ignored the judge's instructions by taking into account Ms. Stewart's decision not to testify or saying that their actions may have helped "the little guy," their own sort of jury nullification.

The journalists' art of post-verdict interviews, which began as an effort to gain insight and context 25 years or so ago, has become de rigueur for not only print journalists but for the infotainment media covering celebrity cases. The pressure on jurors in these cases is enormous. They can't walk in and out of the courthouses without seeing the satellite trucks and gathered press. Some will put their heads down, do their civic duty, and then move on. For others, the attention they anticipate will be bestowed upon them has the potential to be a corrupting influence. And in the Tyco trial, we are left scratching our heads as to why a juror appeared to be drawing attention to herself by signaling the defense team that she was with them. Is this the product of anticipating attention in a high-profile case? How much will these sorts of things change how juries operate in these types of cases and what if anything can be done about it?

We should avoid the impulse of imposing sharp restrictions on juror access to the media; the First Amendment should stand in the way of those who want to shoot the messenger. Despite the willingness of one or two jurors to run toward the cameras, the accounts of other jurors in the Stewart trial reveal the jurors did a conscientious job and reached a reasonable result. These jurors were critical not that Stewart didn't take the stand, but that the defense put on no affirmative case and offered impeachment, without offering an alternative to the government's version of events.

We all know that unanimity is required for most criminal verdicts. One can't help but feel uncomfortable about seeing the occasional crass, self-important, hyperbolefilled juror and the circus-type post-trial atmosphere. More importantly, at what point do the psyche of jurors – barraged by reality TV that allows regular folks to succumb to the temptation to "have something to say" – start impacting on their deliberations and ability to stick to complicated instructions?

We must be very careful about how this issue is handled. The view through the jury window can be enlightening, teaching us lessons about our culture and how we as lawyers are communicating. We need to protect the jury system and keep the jurors' minds on the evidence rather than what to wear to the post-verdict press conference.

While our first impulse may be sharp restrictions in juror access, the First Amendment will undoubtedly stand in the way of those who attempt it. Truth be told, we ought to know if a juror is ignoring a judge's instructions or violating the spirit or letter of the law; at the same time, we should not sit back and allow our jury system to be carried away by the same institutional pressures that make celebrities out of trial lawyers and legal journalists.

So what is defense counsel supposed to do? Better screening of jurors and better courtroom management would certainly help. Counsel or the court can more closely question jurors as to their interactions with and regard for the media and for their role as jurors. Jurors who seem "too eager" to serve or are too engrossed in celebrity in their lives may be good candidates for exclusion. Judges can be aggressive in keeping the atmosphere inside the courtroom calm and reminding jurors that they have a choice about whether to speak to the media. It is distasteful (and probably unconstitutional) to tell jurors they cannot speak to the media, but they can be advised that if they do choose to speak to the media, they should do so with dignity and as a representative of a cornerstone of the judicial system.

Celebrities have the same right to a jury trial as every other citizen. The differences are that these defendants often are tried in the press as well as the courtroom, and choosing a jury that will be fair, impartial and which has no motive other than performing their civic duty is more difficult. We have an obligation to find ways to preserve the system, respect the First Amendment and make celebrity jurors less of a wildcard in high-profile trials.