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New Jersey CRC Proposes New Regulations for Edibles and Ingestibles

Ansell Grimm November 2, 2023

On September 25, 2023, New Jersey’s Cannabis Regulatory Commission (CRC) released proposed regulations for the manufacturing and marketing of edible and ingestible cannabis products in the state. The proposed rules would allow Class 2 cannabis manufacturers to develop and offer an expanded range of products. The proposed regulations also seek to protect New Jersey consumers by extending federal, state, and local food-related health and safety standards to cannabis products.

The proposal represents an exciting expansion of New Jersey’s cannabis market. Soon, the New Jersey market will see the wide offerings of products found in the flagship states of cannabis legalization, like California and Colorado. The proposed regulations discuss edibles and ingestibles already commonly found in New Jersey dispensaries – such as pills and gummies – but provide several new categories, namely, syrups, single-serving beverages, oral suspensions, and shelf-stable foods. For shelf-stable foods, the proposal gives the example of “chocolates, …baked goods, butters, jams, and jellies.” Given the broad language used, New Jerseyans can expect much more, from cannabis-infused peanut butter to lozenges to ketchup.

THC Limits and Prohibition of Other Substances

However, these new categories are not without limitations. Each package cannot contain more than 100 mg in total of active THC, with each serving containing no more than 10 mg of active THC. Further, the regulation limits single-serving beverages to only 5 mg of active THC.

In addition to limits on the amount of THC an ingestible product may contain, the proposed regulations also establish strict prohibitions as to what these products cannot contain. Specifically, a finished product cannot contain alcohol, tobacco, nicotine, or a controlled dangerous substance. Manufacturers would also be prohibited from distributing products that require cooking or baking by the consumer or require sterile storage conditions.

New Health, Safety, and Packaging Standards

The proposal also features new health and safety standards aimed at protecting consumers. Manufacturers must obtain various certifications from the Department of Health and ensure that equipment complies with applicable health regulations. The proposed regulations further require manufacturers to educate their employees on preventing foodborne illnesses and ensuring safe food handling, including major food allergens. The proposed regulations also incorporate federal law by requiring compliance with the FDA’s “Generally Recognized as Safe” standard for ingredients.

If finalized in their current form, the regulations would make the packaging of cannabis products look much like the back of a box of macaroni and cheese. The packaging must include an ingredient list, providing every ingredient in descending order of predominance by weight or volume. Manufacturers must also apply a nutritional label to the packaging and list any major allergens found in the cannabis products. If the product needs refrigeration, the packaging must indicate “refrigerate after opening” and any timelines for consuming opened products. The proposed regulations continue to prohibit the marketing of cannabis products by using realistic or fictional humans, animals, or fruit. However, fruit and vegetable flavors are permitted, and manufacturers may package products with a cannabis leaf.

The CRC invites public comment at this link until December 15, 2023. If you have questions about the proposed regulations or would like assistance submitting a comment, please contact Anthony Sango at Ansell.Law.

Ansell.Law Welcomes New Attorney to Woodland Park

Ansell Grimm October 26, 2023

Ansell.Law is pleased to announce that Richard L’Altrelli has joined the firm’s Woodland Park office. His practice encompasses complex corporate, finance & banking, and commercial real estate matters.

With a background in law and finance, Richard handles sales, acquisitions, leases, and financings involving different real estate types. Following several years as general counsel for an international private equity firm in New York, he founded a firm and focused his practice on complex commercial real estate and corporate matters.

A seasoned attorney, Richard’s clients appreciate his thoughtful counsel as he guides them through the transaction. Additionally, he counsels privately held companies on corporate governance, operating agreements, shareholder agreements, and employment agreements.

Licensed in both New York and New Jersey, Richard earned his law degree from Brooklyn Law School and his undergraduate degree, cum laude, from Seton Hall University.

Law360 Covers Closely Watched Verizon Cell Tower Litigation in Monmouth County

Ansell Grimm October 25, 2023

In a hotly contested and closely watched litigation matter, Verizon Wireless applied to place cell towers along a New Jersey boardwalk in Monmouth County. Verizon sued the county and its board when their request was denied, claiming the denial was not supported by substantial evidence. Proposed Intervenors now seek to join the case, asking the courts to dismiss Verizon’s claims against the county. A recent Law360 article covered the case.

Ansell.Law partner Anthony J. D’Artiglio and associate Layne A. Feldman, attorneys in the Firm’s Litigation Department, represent the intervenors in the case.

Anthony’s practice encompasses complex litigation, bankruptcy, controlled substances and regulatory law, and labor and employment. Layne handles a diverse range of complex commercial and civil litigation matters.

Click here to read the Law360 article (subscription required).

Default Judgments: What Happens When You Fail to Respond to a Lawsuit

Ansell Grimm October 24, 2023

By Seth M. Rosenstein

One of the brightest minds of our time once said, “Half the battle is just showing up.” While “showing up” and responding promptly to a lawsuit filed against you doesn’t necessarily give you an edge in winning the case, failing to respond gives you close to a 100% chance of losing and having a default judgment entered against you.

Whether in state court, federal court or arbitration forums, a defendant in a civil action who does not file a response to the complaint against them within the time set forth by law effectively forfeits their right to defend the action. The court will accept the allegations in the complaint as true, enter a default judgment against the wayward defendant, and allow the plaintiff to take all steps needed to collect on their judgment.

That is why you should never ignore a complaint served upon you or your business and contact legal counsel as soon as possible. We cannot wish a lawsuit away, and nothing is accomplished by putting a complaint in your junk drawer like some people crumble up parking tickets and shove them in their glove compartment. When that first wage garnishment hits, a lien is put on your home, or your assets are seized, it will likely be too late for a do-over.

Here is what you need to know about default judgments and their consequences.

What Is a Default Judgment?

To understand a default judgment, you need to understand the basics of how lawsuits work. They start with a plaintiff filing a complaint with the court that describes their claims against the defendant and the relief or amount of damages they want a judge to award. The complaint is then served on the defendant.

Once a defendant is properly served, the clock starts ticking on their time to respond. In New Jersey, that time is 35 days. It is either 20 or 30 days in New York, depending on how the complaint was served. In federal cases, defendants have 21 days to respond. Typically, that response will either be an answer to the complaint, a motion to dismiss the complaint, or a request for more time to respond. As long as the defendant “shows up” with a timely response and continues to participate in the case, the matter will proceed, and the defendant will be able to fight the allegations if they so choose.

When a defendant doesn’t respond promptly, the plaintiff can ask the court to enter a default judgment against the defendant. Unless the defendant has a legal basis for vacating that judgment, and seeks to vacate that judgment with the time set by court rules, the judgment will effectively close the door on any efforts to dispute the truth or accuracy of the complaint’s allegations.

How Does a Plaintiff Obtain a Default Judgment?

The procedures for requesting and requirements for obtaining a default judgment are slightly different in New York and New Jersey (and in federal court). In some New York cases, a plaintiff can receive a judgment for all the damages they requested in the complaint without proving they actually incurred those damages. In other cases, the plaintiff must present evidence regarding their damages before a judge will enter a final judgment in the requested amount.

In New Jersey, the first step after a defendant fails to respond to a complaint is to ask the court for an entry of default. The plaintiff must then provide the defendant with notice of the entry and again when they subsequently file a motion for judgment by default. In this motion, the plaintiff must show the defendant was properly served notice of the proceedings, the defendant failed to answer, and the defendant is not an active member of the military. If they do so, the court may enter a final judgment by default, which definitively establishes the defendant’s liability.

In some cases, the court will hold a “proof” hearing at which the plaintiff will present evidence supporting the amount of damages they seek. The defendant must be given notice of this hearing as well. If the defendant shows up, they can dispute the damages amount. At the end of the hearing, the judge may enter a final judgment for a set amount, and the plaintiff is free to begin efforts to collect on the judgment.

What Can a Defendant Do After Entry of a Default Judgment?

As much as courts – and the law – do not favor defendants who ignore properly served complaints, they also loathe default judgments. They prefer resolving lawsuits on the merits of the claims and defenses, as opposed to disposition on procedural bases.

That is why the court rules provide a way for a defendant to ask a court for relief from a default judgment. But that relief is far from automatic. There are specific and limited bases for having a default judgment vacated, most of which involve flaws with the judgment itself. But short of a problem with the judgment (other than the substance of the claims), a defendant in New Jersey can get relief from a judgment if they show their failure to respond was due to “mistake, inadvertence, surprise, or excusable neglect” and that they have a meritorious defense to the allegations in the complaint. Similarly, in New York, a defendant must show they had a “reasonable excuse” for their failure to appear and also show they have a meritorious defense.

What qualifies as “excusable neglect’ and a “reasonable excuse” is largely up to the judge’s discretion, but simply forgetting or ignoring a complaint will unlikely be sufficient to support an application to vacate a default judgment. Rather than digging yourself into a hole that may be impossible to escape, the best course of action after being served with a complaint is to take the matter seriously and meet with experienced counsel who can preserve your right to mount a defense.

If you have questions about a pending default judgment against you or your business, please contact Seth Rosenstein at Ansell.Law.

Anthony J. D’Artiglio Elevated to Litigation Team Leader

Ansell Grimm October 18, 2023

Ansell.Law is pleased to announce that partner Anthony J. D’Artiglio has been elevated to Litigation Team Leader for North New Jersey. This new role complements his mentoring and leadership abilities within the Firm. D’Artiglio will manage the Firm’s North New Jersey litigation presence. Additionally, he will work closely with Firmwide Litigation Department Chair Lawrence H. Shapiro to shape the department’s future.

Based in the Firm’s Woodland Park office, D’Artiglio’s practice encompasses litigation, bankruptcy, controlled substances and regulatory law, and labor and employment. A seasoned attorney, he litigates a broad range of commercial matters, including commercial lease disputes, class actions, Consumer Fraud Act claims, corporate and shareholder disputes, employment disputes, and secured property actions. He also routinely represents creditors in bankruptcy matters.

D’Artiglio is licensed in New York and New Jersey. Best Lawyers in America has recognized him as a “One to Watch” since 2021.

Ansell.Law Continues Criminal Defense Practice Growth With New Attorney

Ansell Grimm October 5, 2023

Ansell.Law is pleased to announce that Courtney R. Sauer has joined the firm. As an associate based in our Ocean office, Courtney devotes her practice to criminal defense. She will defend clients in various criminal matters, including motor vehicle violations, disorderly persons offenses, and felonies. Courtney joins the busy criminal defense practice following Hillary Hudson Bryce’s recent addition to the team.

Licensed in New Jersey, Courtney is also a certified civil mediator with the Special Division-Small Claims Part. She earned her Juris Doctor from Rutgers University and her Bachelor of Science, cum laude, from Virginia Tech.

Protecting Small Businesses and Property Owners From Serial Plaintiffs and Self-Appointed “Testers” Who File Nuisance Suits Under the Americans With Disabilities Act

Ansell Grimm October 3, 2023

By Seth M. Rosenstein

Twenty-five years after its passage, the Americans With Disabilities Act (ADA) has quite literally reshaped the landscape for disabled individuals, allowing them to participate more fully in society and avail themselves of the same facilities, services, and opportunities as everyone else. However, the ADA’s impact on the lives of millions of Americans has been matched by its impact on countless public-facing business and property owners who have had to modify their physical and online presence, practices, and properties to comply with the act’s accessibility requirements.

Title III of the ADA prohibits discrimination against people with disabilities by businesses open to the public. The ADA requires that businesses open to the public provide full and equal enjoyment of their goods, services, facilities, and websites and has provided detailed requirements for how companies must do so. However, satisfying those requirements can be tricky, even for the most well-intentioned and diligent businesses. If a person with disabilities wants to enter a store, visit a website, or obtain services but cannot do so because the business has not complied with the ADA, that person can file a lawsuit for such shortcomings, leading to costly and disruptive litigation that can cause both financial and reputational harm.

Self-Appointed “Testers” File Thousands of Shakedown ADA Suits Each Year

But the risk of ADA-related litigation doesn’t just come from individuals who were actually prejudiced or denied access or services. For all its benefits, the ADA has also become a tool for serial plaintiffs and legal counsel, many of whom have never attempted and never intended to patronize a business, to file questionable, if not frivolous, lawsuits designed solely to shake down the business for a quick payout.

These nuisance ADA suits have cost American businesses millions of dollars. According to one analysis, ADA lawsuits have increased by 320% since 2013. Many plaintiff’s law firms file hundreds of cookie-cutter ADA lawsuits each year, often utilizing the same serial plaintiffs for each action. One person can visit multiple businesses or websites in a single day solely to identify even the slightest accessibility transgressions in order to generate claims.

Small businesses bear the brunt of this abusive litigation, as serial plaintiffs – often labeling themselves as self-appointed ADA compliance “testers” – specifically target small businesses because they typically have limited means to defend themselves. Given the potential damages, including the payment of exorbitant attorneys’ fees, settlement is not just the path of least resistance; it may be the only path for a small business that wants to avoid a potentially devastating judgment.

So, what can small business owners do to reduce the risk of finding themselves in the crosshairs of a serial ADA plaintiff?

Hire a Certified Accessibility Specialist To Conduct a Compliance Assessment

You can’t fix a problem you don’t know you have. Perhaps the single most important thing you can do to limit exposure from accessibility lawsuits is to conduct a complete accessibility assessment and review of your facilities and online presence. A Certified Accessibility Specialist (CASp) can evaluate your property or internet presence, identify specific accessibility issues, and then supply you with the compliance requirements specific to your facility and website. Similarly, if you are planning new construction or alterations, a CASp can review your building plans and specifications to ensure the resulting construction will be ADA-compliant.

Once you have a complete picture of all accessibility issues with your facility or website, the next step is working to remove barriers and impediments to access. “Barrier removal” is one of the key elements of the ADA, and whether you need to make modifications or alterations to remove any identified barriers depends on whether such changes are “readily achievable,” which is defined “as easily accomplishable and able to be carried out without much difficulty or expense.” This is a very fact-specific analysis that depends on the complexity and costs involved in removing the barrier as well as the size and financial condition of the business. A CASp can assist in identifying barriers and also advise as to whether removal is “readily achievable” under the ADA.

Keep Your Eye on the Supreme Court

In its new term starting this month, the U.S. Supreme Court will decide whether self-appointed “testers” who do not suffer actual harm because of an alleged ADA violation have standing to sue under the act. The Court’s decision in Acheson Hotels, LLC v. Laufer will resolve a split between federal appellate courts on the issue and could have a seismic impact on the viability of ADA nuisance suits against small businesses if it rules that such individuals do not, in fact, have standing to sue. The importance of the case can be seen in the fact that 47 organizations have filed amicus briefs with the Court, advocating both for and against tester standing.

Hire Experienced ADA Defense Counsel

Before reflexively giving in to an ADA plaintiff and settling a claim, small business owners should consult with experienced counsel who can evaluate the complaint and determine the best path forward. As noted, many complaints filed by “testers” are cookie-cutter and may contain boilerplate allegations of deficiencies that do not actually exist. It is often the case that an aggressive defense of the claims – particularly when the claims are frivolous – benefits both the business or property owner defending the action, as well as the greater community by deterring vexatious litigation primarily focused on lining counsel’s pockets.

If you have questions about your ADA obligations and protecting against accessibility lawsuits, please contact Seth Rosenstein at Ansell.Law.

Law, Not Lease, Defines Default

Ansell Grimm September 27, 2023

In a victory for landlords dealing with a tenant in bankruptcy, Ansell.Law attorney Anthony D’Artiglio recently secured a ruling in a reported decision that broadly defined the “defaults” tenants must cure in order to assume a lease. The decision in In re Old Market Group Holdings Corp. clarifies that a “default” as set forth in the Bankruptcy Code is given its ordinary meaning, regardless of any narrower definition of default contained in the lease.

The firm represented 400 Walnut Avenue, LLC (“Walnut”), which owned a product distribution center leased by the debtor, Fairway Group Holdings (“Fairway”), a regional grocery store chain. Fairway filed for Chapter 11 bankruptcy protection and sold most of its assets under the confirmed plan of reorganization. This included assigning its lease of Walnut’s property to another supermarket chain according to Section 365 of the Bankruptcy Code. Section 365 permits a debtor-lessee under an unexpired lease to assume (and subsequently assign) that lease if the debtor believes that assumption is in the estate’s best interest. If there is an existing default under the lease, Section 365(b)(1) requires that the debtor cure any such defaults as a prerequisite to assumption, among other obligations of the debtor.

The dispute concerned Fairway’s responsibility, under Section 365(b), to cure defaults under its lease — specifically, its failure to make required repairs — when it assigned that lease. Fairway claimed that it had no obligation to make those repairs as its failure to do so was not a “default” as defined in the lease because Walnut allegedly did not demand that Fairway make those repairs before Fairway filed for Bankruptcy. As such, Fairway asserted that it could not be liable for the cost to make repairs to the property because no “default” — as defined by the Lease — occurred prior to Bankruptcy.

“Any Failure To Perform” = Default

In response, Walnut argued that any notice provision in the lease was irrelevant because a “default” under an assumed lease is given its ordinary meaning pursuant to Section 365, not the terms of the lease, and the outstanding repairs constituted a default as that term is plainly understood — a failure to perform a defined obligation. Accordingly, Fairway should be responsible for the cost of any repairs.

The bankruptcy court rejected Fairway’s position and agreed with the argument put forth by D’Artiglio on behalf of Walnut. The court ruled that: “Both the text and the purposes of [Section 365(b)(1)] compel the conclusion that the statutory term ‘default’ means any failure to perform under the assumed contract or lease, regardless of the definition of default contained in that contract or lease.”

The court went on to note that “Consideration of the purposes of Section 365(b)(1) reinforces the conclusion that the statutory term ‘default’ should be construed to include any failure to perform contractually required obligations.” Citing prior decisions, the court further stated that “The case law is consistent with this plain-meaning reading of the statute. When debtors seek to assume leases or contracts under which they have failed to make required repairs, courts routinely require the debtor to make those repairs — that is, to cure the defaults — as a condition to assumption.”

The interpretation of “default” articulated by the court applies to assumed executory contracts and assumed unexpired leases. The ruling Ansell’s lawyer obtained means that debtors will likely need to cure any failure, shortcoming, or unfulfilled obligation under a lease or contract — whether material or not, whether a “default” as defined in the agreement or not — before they can assume or assign such agreements. This further protects parties, including lessors, whose interests may be adversely affected by an uncured contract breach by a debtor.

If you have any questions about this case or its impact, please contact Anthony D’Artiglio.

Ansell.Law Welcomes Former Chief Assistant Prosecutor Hillary Bryce

Ansell Grimm September 11, 2023

Ansell.Law is thrilled to announce that Hillary Hudson Bryce has joined the firm’s Ocean office. Hillary devotes her practice to criminal defense and joins the firm following a stellar twenty-five-year career serving the people of Ocean County as chief assistant prosecutor. She will dedicate her time and vast courtroom skills to defending clients in various criminal matters, including motor vehicle violations, disorderly persons offenses, and felonies.

Hillary served in the Juvenile, Grand Jury, Trial Team, Domestic Violence, and High-Tech Crime Units at the Ocean County Prosecutor’s Office. Gaining notoriety for her trial abilities, she shared her legal insights in several televised criminal documentaries.

Licensed in New Jersey and Pennsylvania, Hillary is also a certified criminal trial attorney and is actively involved with the Ocean County Bar Association. She earned her Juris Doctor and Bachelor of Arts from Rutgers University.

Jennifer Krimko Quoted in NJ.com Article About the Rezoning of a Historic Golf Course

Ansell Grimm September 7, 2023

The Old Orchard Country Club in Eatontown is moving closer to its transformation into an age-restricted housing development with open space and commercial uses on the highway. A recent ordinance amendment established new zoning regulations for the 94-year-old golf course, allowing up to 145 age-restricted, single-family homes with amenities off of Route 71 (Monmouth Road) and commercial development on Route 36. The firm, through Shareholder Jennifer S. Krimko represents the contract purchaser and future developer of Old Orchard. She addressed the Council at the hearing on the Ordinance and her sharing her statements on the zoning framework and the balance being struck between her client and the community is highlighted in this NJ.com article.

Jennifer is co-chair of Ansell.Law’s Land Use & Zoning Department. Our attorneys assist clients in navigating land development. They offer thorough advice on zoning due diligence and development prospects, managing the process from planning to compliance. From small renovations to large commercial projects, our attorneys are prepared to guide clients through the approval process. Please contact Jennifer for more information.

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