Sean Kelly of Marks, O’Neill’s New Jersey office, was successful in obtaining a voluntary dismissal in a class action venued in New Jersey Federal District Court. Marks O’Neill represented a national retail furniture chain. Plaintiff filed a putative class action challenging our client’s pricing practices contending that they violated the New Jersey Consumer Fraud Act and associated advertising regulations. In support of a motion to dismiss, our team submitted various arguments attacking the sufficiency of Plaintiff’s individual claims and also seeking to strike the class claims. In response, Plaintiff voluntarily dismissed the case.

On November 21, 2017, Eileen Ford, Esquire of Marks O’Neill’s Delaware office obtained a favorable ruling from the US District Court, Delaware in a matter applying the Sutton Rule to grant a 12b6 motion to dismiss.

State Farm v. Lambert, 2017 U.S. Dist. LEXIS 192323 (D. Del. 11/21/17) involves a claim filed by the landlord’s insurer, as subrogee of the landlord.. State Farm sought damages in excess of $100,000 from the tenant (Lambert), claiming that the tenant is responsible for the damages to the rental unit, except normal wear and tear, due to a negligently caused fire. On behalf of the defendant, MOODK argued that Delaware’s adoption of the Sutton Rule prevents the insurer of the landlord from suing the tenant. In essence, the Sutton Rule holds that “residential tenants are considered co-insured under the landlord’s fire – insurance policy unless the lease “clearly expresses intent to the contrary.” Lexington Ins. Co. v. Raboin, 712 A.2d 1011 (Del. Super. Ct. 1998). The public policy behind the rule is that, since a landlord likely factors the cost of the insurance premium into the rent, the law considers the tenant as a co-insured and an insurance company is precluded from suing its own insured. Plaintiff argued that the lease expressly carved out an exception for damages, above normal wear and tear, and that since the tenant had obtained renter’s insurance it proved she was aware of her liability for “fire” damage to the rental unit. While the District Court found that the lease did contain a provision concerning “normal wear and tear it failed to contain clearly stated express language that the tenant agreed to assume liability for “negligently caused fire damage.”

Since the beginning of the Cristo Rey Philadelphia High School in 2012, Marks, O’Neill, O’Brien, Doherty & Kelly, P.C. has proudly served as a Job Partner for each school year, employing four Cristo Rey high school students per academic year.  For the 2017-2018 school year, the Firm welcomed four Cristo Rey students: two returning students, a junior and a senior, as well as a sophomore and a freshman.  A unique component of the Cristo Rey program is the job partnership, as each student is paired with a Job Partner, and as a result, the student ends up paying a significant portion of his or her tuition through the work they do for the their Job Partner while gaining real-world job experience.  At MOODK our students each report for work one day per week, and an alternating second day once a month.  The Cristo Rey students learn aspects of the Firm’s practice by working in various departments within the Firm under the guidance and supervision of staff and attorneys.  Over the past five years we have had the honor of celebrating with several of our students who graduated from Cristo Rey and moved on to college.  The School is best described by Cristo Rey’s President:

Cristo Rey Philadelphia is a new model of private high school that opened in 2012 because of a unique partnership of local educators, businesses and universities.  Cristo Rey Philadelphia is a top quality, independent, Catholic high school for students of all faiths.  We serve women and men in grades 9-12 who could not otherwise afford a private education.  The Cristo Rey curriculum combines rigorous academics with professional work experience in businesses where the students are mentored by college educated adults.

Every Cristo Rey Philadelphia student works five days per month in a real job, for real wages.  They work at leading Philadelphia area businesses like Comcast, Independence Blue Cross, FMC, The Philadelphia Zoo, hospitals, accounting firms, law firms, and many others.  The job accelerates the students’ development and the wages they earn fund a substantial portion of the cost of their education. In June of 2016, the first class of Crist Rey students in Philadelphia graduated and 100% of them were accepted to a 4-year college!

There are 32 Cristo Rey Network High Schools operating across the United States this year.  Marks, O’Neill, O’Brien, Doherty & Kelly, P.C. is committed to the continued support of this unique and innovative high school.

Until now it has been an open question as to whether health club membership agreements in New Jersey are subject to the fee restrictions of RISA.  On October 17th, the New Jersey Supreme Court answered that question with a significant victory for health clubs and others facing similar TCCWNA class actions.

In Mellet v Aquasid, Sean X. Kelly of Marks O’Neill’s Cherry Hill office represented the defendant health clubs. Plaintiff’s class action complaint included various theories, including an allegation that RISA’s fee restrictions governed health club membership agreements, rendering them illegal on their face. On the basis of these alleged violations, plaintiff’s asserted claims under TCCWNA and the CFA and sought  millions in statutory damages and fees on behalf of a class of over 18,000 members.

Plaintiffs moved for certification. On behalf of our clients, we opposed certification, but also cross moved for summary judgment directly attacking the underlying merits.  The trial court not only denied certification, but dismissed the individual claims as well with prejudice. On appeal, the appellate division affirmed the decision of the trial court in an unpublished decision.  In specifically holding that RISA simply does not govern health club memberships, the court observed:

“Defendant argues plaintiffs were paying not to eventually own but rather to utilize the gym’s facilities and equipment, and, thus, the RISA claim was properly dismissed. We agree.”

The Court held that, in the absence of an underlying statutory violation, plaintiff’s TCCWNA claim could not survive.

On October 16th 2017, the New Jersey Supreme Court denied certification. In addition, the Court approved the appellate decision for publication, rendering it precedential. The decision is expected to provide guidance to trial courts in other similar health clubs cases pending in New Jersey.

The case illustrates the importance of a strategic and aggressive approach to defending class certification motions. Given the requirement that courts undertake a “rigorous analysis” of the underlying legal theories, strategies such as directly attacking the underlying legal merits can provide a path to victory.