The False Hope of Lost Profits Damages

Posted on October 1st, 2013

Joshua S. Bauchner, Esq. recently published an article in the September 27, 2013 issue of the New York Law Journal entitled “The False Hope of Lost Profits.”  Lost profits damages are frequently sought by clients who have suffered a business interruption due to another’s negligence or contractual breach.  However, Courts often are reluctant to award such damages finding they are speculative and “icing” — they do not make the prospective plaintiff whole, but instead permit a surplus recovery in addition to compensatory or consequential damages.  For these reasons, Courts have restricted lost profits damages requiring plaintiffs to demonstrate their loss with “reasonable certainty” and ensuring such losses are not recoverable under other theories or in other ways.

This article is intended to guide the practitioner through the pitfalls of lost profits damages and ensure the focus is on recovery, regardless of how it is characterized.  As an initial matter, cases addressing lost profits distinguish between damages resulting from tortious conduct and those arising from a breach of contract.  Although in both situations a plaintiff has the burden of proving lost profits with reasonable certainty, the underlying causes of action recommend separate treatment.

For full article click here.

Reprinted with permission from the September 27, 2013 edition of the “New York Law Journal.”  © 2013 ALM Media Properties, LLC. All rights reserved.  Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.

What You Don’t Know About Your Car Insurance May Hurt You

Posted on September 20th, 2013

Kristine M. Bergman, Esq., an associate with the Firm, had an article published in the September/October Edition of The Monmouth County Woman‘s magazine titled “What You Don’t Know About Your Car Insurance May Hurt You”.  In this article, Ms. Bergman covers “Verbal and Non-Verbal Threshold”, also known as, Limitation on Lawsuit option.  To read the article in it’s entirety, please click here.

Not Guilty Verdict

Posted on September 10th, 2013

Mitchell Ansell, Chairman of the Criminal Defense Department, recently tried a first degree robbery, second degree aggravated assault and second degree burglary Jury trial in Monmouth County Superior Court before Judge Joseph Oxley.  The case was tried during the week of August the 29th 2013 and our client was facing well over 20 years in State Prison based upon all the charges.  

The Jury came back with a not guilty verdict on all first and second degree charges after the trial, thus sparing the client any exposure to any State Prison whatsoever.

The First Amendment’s Impact on New Jersey’s Anti-Bullying Bill of Rights

Posted on July 30th, 2013

            There are instances where an individual’s First Amendment Right to Free Speech may run into conflict with New Jersey’s Anti-Bullying Bill of Rights (“ABR”).  The ABR makes incidents of harassment, bullying and/or intimidation unlawful in certain settings and requires school districts to prevent and punish such incidents.  The question thus becomes, what speech is an example of harassment, bullying and/or intimidation and is such speech otherwise protected under the First Amendment?  This article addresses how, from both a practical and legal standpoint, the ABR can be administered to prevent running afoul of the First Amendment. 

            This article was written by Luanne Peterpaul, Esq. and Michael H. Ansell, Esq. and was originally published in the June 2013 issue of New Jersey Lawyer Magazine, a publication of the New Jersey State Bar Association, and is reprinted here with permission.  

Getting Out of Debt Is Easier Than You Think: Bankruptcy Basics

Posted on July 12th, 2013

Bridget K. Dorney, Esq. wrote an article titled “Getting Out of Debt Is Easier Than You Think: Bankruptcy Basics”, which appears in the July/August 2013 Edition of The Monmouth County Woman publication.  In this article, Ms. Dorney provides insight  on  how someone might go about filing a bankruptcy claim; the differences in Chapter 11 and Chapter 7  and the benefits received from filing a claim.  To read the article in it’s entirety, click here.

Shapiro Prevails Before New Jersey Supreme Court

Posted on July 10th, 2013

Lawrence H. Shapiro, Esq., a Member of Ansell Grimm & Aaron, P.C., representing the Borough of Harvey Cedars achieved a landmark victory before the New Jersey Supreme Court in the case, Borough of Harvey Cedars v. Karan.  By a 5-0 margin, the State’s highest Court overturned rulings by the Superior Court and Appellate Division in holding that evidence of the positive benefits from beach replenishment and dune construction shore protection projects should be considered by a jury in determining just compensation in partial takings cases.  The decision marks a change in the law of the State which previously required a condemnor to demonstrate special benefits were received by a property owner in order to set off damages alleged to have been inflicted on property remaining after a partial taking; something that was never achieved in any reported decision in New Jersey.  The decision in Karan creates a new standard by which such evidence should be presented to a jury.

The Supreme Court decision has been hailed as saving shore protection projects in the State due to the fact that even after Superstorm Sandy, many oceanfront property owners have refused to provide the easements necessary for the construction of protective dune and beach projects to begin, holding out for large payments for their easements.  The Court’s ruling reversed a jury award to the Karan’s of $375,000 for the impact on their oceanfront view from a dune construction and beach replenishment project, and returns the matter to the trial court for a new trial in which the Borough will be able to present evidence of the benefits of the project, which it was previously prevented from doing.

Mr. Shapiro handled all aspects of the case including the jury trial, appeal, application to the Supreme Court and briefing and arguing the merits before that Court.

Read more at NY Times.com; NJ.com or APP.com.

View Supreme Court Oral Argument video here

 

Fending Off the Appointment of a Receiver

Posted on July 8th, 2013

Joshua S. Bauchner, Esq. recently published an article in the July 1, 2013 edition of the New Jersey Law Journal entitled “Fending off the Appointment of a Receiver.”  In today’s stressful economic climate, commercial property owners often are the victims of their tenant’s problems.  While a national tenant may file for bankruptcy with the expectation of reorganizing under Chapter 11 of the Bankruptcy Code, the landlord is left having to service the mortgage without cash-flow from that tenant or any ability to commence an eviction or related action as a result of the automatic stay.  11 U.S.C. § 362.  Sooner or later (likely sooner) the Landlord’s bank will come calling in the form of a foreclosure action.

While the defaults under the mortgage present their own challenges (the rapid accrual of default interest, late fees, and attorneys’ fees and costs), the likely first step in the foreclosure action will be a Motion to Appoint a Receiver; indeed, this requested relief often is sought contemporaneously with the filing of the foreclosure complaint.  The motion will seek the appointment of a receiver simply to collect rents or, more often these days, to take full managerial and operational control over the property divesting the Landlord of all its rights and interests (though not, title, as of yet).  This article details some defenses the Borrower (née Landlord) can assert to ward off the appointment.  For full article click here

This article was originally published in the July 1, 2013 issue of the New Jersey Law Journal.