Ansell Grimm

Final Defeat of Non-Competes: Delayed or Derailed?

Ansell Grimm October 22, 2024

Of all the many aspects of the employer-employee relationship, few implicate the core interests of both parties and raise as much skepticism and disdain among judges, legislators, and employees as non-competition agreements. Because non-competes restrict the ability of workers to earn a living in their chosen field or profession after their employment ends, they have for many years been the subject of a sustained, if piecemeal, assault in courtrooms and state legislatures where attempts have been made to limit their scope and enforceability or ban them altogether.

2024 was set to be the culmination of this multi-front war on non-competes after the Federal Trade Commission (FTC) adopted a Final Rule in April (the original rule was first proposed in January 2023) that would have effectively rendered the overwhelming majority of existing and future non-competition agreements void and unenforceable. This nationwide ban was to go into effect on September 4, 2024. Unsurprisingly, however, litigation challenging the rule ensued mere hours after it was issued. As discussed below, those efforts have, at least for now, put the ban in legal limbo, leaving millions of employers and employees unsure of what lies ahead for non-competes and equally unclear as to what, if anything, they should do now to protect their interests.

What the FTC’s Final Rule Said

The Final Rule declared that, subject to three specified exceptions, all current and contemplated non-competition agreements and clauses constituted an “unfair method of competition” under the Federal Trade Commission Act and thus were prohibited as a violation of federal law. As defined in the rule, a “non-compete clause” is any “term or condition of employment” that “prohibits a worker from, penalizes a worker for, or functions to prevent a worker from” seeking or accepting work in the United States with another business, or owning their own business in the United States, after their current job ends.

The Final Rule prohibited any person from:

Entering into or attempting to enter into a non-compete clause.
Enforcing or trying to enforce a non-compete clause.
Representing that a worker is subject to a non-compete clause.

In addition, the rule also requires employers to notify non-excepted employees that existing non-competes would not be enforced.

There were three main exceptions to the Final Rule’s ban on non-competes:

“Senior Executives” – The ban did not apply to existing non-competes involving “senior executives” (a worker who earns more than $151,164 per year and is in a “policy-making position”). However, the rule prohibited employers from entering into or enforcing new non-competes with any senior executive after the Final Rule’s effective date.
Seller of a Business – The rule did not ban non-compete provisions signed by a business owner as part of the sale of their ownership interest in the business or the sale of all or substantially all of the entity’s operating assets.
Working Outside the U.S. – The Final Rule only applied to workers who work in or own a business in the United States. Non-compete provisions that would prevent a worker from seeking or accepting employment or owning a business solely outside the United States are not covered.

Notably, the Final Rule did not prohibit non-compete agreements between franchisors and franchisees, although it banned non-competes between employees of a franchisee or franchisor.

Impact on NDA’s

Although the rule does not specifically prohibit non-disclosure agreements (NDAs)’, the FTC has said that an NDA which bars a worker from disclosing, in any future job, any information that is ‘usable in’ or ‘relates’ to the industry in which they work could fall within the prohibition.

Litigation, Injunctions, and Appeals Following the Adoption of the Final Rule

As noted, legal challenges to the ban were filed almost immediately after the Final Rule was adopted. In one case, Trump-appointed U.S. District Judge Ada Brown of the U.S. District Court for the Northern District of Texas issued a nationwide injunction on August 20, 2024, just days before the rule’s effective date, that banned enforcement and implementation of the ban.

Brown’s nationwide injunction followed a narrower ruling in the same action this summer that specifically barred the FTC from implementing and enforcing the Final Rule as to the specific plaintiffs in that case. In both instances, Brown ruled that the FTC did not have the power to issue such a sweeping ban.

“The Court concludes that the FTC lacks statutory authority to promulgate the Non-Compete Rule, and that the Rule is arbitrary and capricious. Thus, the FTC’s promulgation of the Rule is an unlawful agency action,” Brown wrote. “(The rule) is hereby SET ASIDE and shall not be enforced or otherwise take effect on September 4, 2024, or thereafter.” On October 18, 2024, the FTC filed a notice of appeal to challenge the August 2024 ruling.

Inconsistent Rulings

A federal district court judge for the Middle District of Florida also issued a similar preliminary injunction on August 14, 2024, finding that the FTC’s ban exceeded the commission’s authority. However, a judge for the U.S. District Court for the Eastern District of Pennsylvania reached the opposite conclusion in July, holding that the FTC acted “within its authority under the [FTC] Act in designating all non-compete clauses as ‘unfair methods of competition.'”

Where Things Stand Now

The FTC has made it clear that it intends to fight the adverse rulings striking down the Final Rule, filing a notice of appeal in the Florida case on September 24, 2024. Given the split decisions at the district court level, as well as the determination of both the FTC and those who oppose the rule, there is a distinct possibility that the fate of the non-compete ban will ultimately be decided by the U.S. Supreme Court. Of course, what the FTC does or does not do in the months ahead will, in no small part, be determined by the presidential election results.

For now, the non-compete status quo remains. This means employers will continue to look to applicable state legislation and jurisprudence to determine how to draft, defend, and enforce these agreements. Currently, over 30 states and many local jurisdictions have laws or ordinances on the books that limit the enforceability of non-competes or ban them entirely. Some of these limits are total, some relate to specific occupations, and some enforce non-compete bans based upon the compensation of the workers involved.

At the moment, New Jersey is not one of those states, as a bill drafted in February 2023 has not moved forward. With regard to New York, Gov. Kathy Hochul vetoed a ban passed by the New York legislature in December 2023, although the sponsor of that legislation stated that he would resubmit it sometime this year. Also, New York City is considering several ordinances that would prohibit many non-competes as to workers in the city.

If you have questions regarding the current non-compete state-of-play or have specific concerns regarding your company’s use of non-competition agreements, please contact Roy Hibberd at Ansell.Law.

Melanie Scroble Wins Blue Water Wave Award for Legal Professional of the Year

Ansell Grimm October 16, 2024

Ansell.Law is thrilled to announce that Shareholder Melanie J. Scroble was named Blue Water Wave’s Legal Professional of the Year. Blue Water Wave is an organization focused on peer-to-peer exclusive networking groups for legal and commercial real estate professionals.

Melanie’s award highlights character, excellence, and superior client relations. Clients described her as “a dealmaker who gets things done,” an “outstanding lawyer,” and “bright, loyal, upstanding, respected, and the very best at what she does.” Clients additionally praise her for having the “attitude of a consummate professional” and providing “innovative solutions to industry problems.”

A leader within the Firm, Melanie serves as the on-site managing shareholder of Ansell.Law’s Woodland Park office. She is a member of the Commercial Real Estate, Corporate, Finance & Banking, and Residential Real Estate departments. Throughout her career, Melanie has amassed an impressive track record and has become a trusted advisor for clients nationwide.

Specializing in complex commercial real estate matters, Melanie has successfully closed numerous real estate transactions, including acquisitions, dispositions, leasing, and financing of various commercial properties nationwide. Her expertise lies primarily in shopping centers, retail pads, multi-family apartment buildings, 1031 exchange transactions, and commercial financing and lending. Whether working with national REITs or first-time investors, Melanie is adept at building lasting relationships with her diverse client base. In addition to her practice, she is actively involved with the International Council of Shopping Centers and has been a roundtable speaker at their annual Law Conference.

As the cannabis industry has grown in New Jersey, Melanie has also developed niche experience navigating the challenges surrounding retail leasing matters. She is a valued member of the Firm’s Controlled Substances and Regulatory Law practice group.

Peter Paras Joins Ansell.Law

Ansell Grimm October 1, 2024

Ansell.Law is pleased to announce that Peter C. Paras has joined the Firm’s Matrimonial and Family Law Department as counsel. He has dedicated his career exclusively to the practice of family law and brings deep knowledge and industry expertise.

“Welcoming an attorney at Peter’s skill level, with his tremendous experience in divorce and family law matters, along with his contributions to the New Jersey legal community, is a critical component of our strategic growth plan,” said President and Managing Shareholder Michael V. Benedetto. “We’re thrilled to have him join the Firm. Peter’s vast talents as a trial attorney and counselor will benefit our clients immediately. We’re also looking forward to him mentoring our younger attorneys and helping build future leaders in family law.”

A highly sought-after attorney, Paras is known for his legal acumen and courtroom skills and is widely respected by his peers. He is active in the New Jersey State Bar Association’s Family Law Section and has served on its Executive Committee for many years. In recognition of his distinguished career, Paras has been inducted into the Matrimonial Lawyers Alliance and is a fellow of the American Academy of Matrimonial Lawyers.

Ansell.Law Welcomes Catherine Brennan

Ansell Grimm September 27, 2024

Ansell.Law is pleased to announce that Catherine M. Brennan has joined the Firm as a partner in the Community Association Department. She brings extensive experience representing homeowners associations, condominiums, and cooperative communities, enhancing the capabilities of the thriving practice.

With a strong background in litigation and advisory roles, Brennan will supervise and carry out the Department’s litigations, including lawsuits filed by clients, and defend those clients and their board members against lawsuits filed by others. Throughout her career, she has deftly navigated this legal area’s complexities, guiding clients on governance, dispute resolution, community transition, construction defects, and regulatory compliance matters.

“Cathy’s depth of knowledge across all facets of community association law is spectacular,” said Partner and Community Association Department Chair David J. Byrne. “A gifted litigator and counselor, we’re thrilled to have Cathy on our team.”

Before joining the Firm, Brennan amassed three decades of commercial litigation experience through her work at prominent national and regional law firms. She is based in Ansell.Law’s Princeton office.

In Victory Obtained by Ansell.Law’s Community Assoc. Attorneys, Court Rules Non-Disabled Husband of a Disabled Condo Owner Has No Separate Law Against Discrimination Claim

Ansell Grimm September 26, 2024

Every community association board in New Jersey needs at least a basic working understanding of the state’s Law Against Discrimination (LAD). LAD is most relevant to community associations in concern of residents who claim to be disabled. In this regard, LAD may require community associations to make “reasonable accommodations” in that community’s rules when that accommodation is necessary to afford the resident equal use and enjoyment of his dwelling.

However, as illustrated by a significant victory recently obtained by Ansell.Law’s David Byrne and Nicole Miller, the protections and rights that LAD provides to disabled individuals are not transferable. Specifically, in Player’s Place II Condominium Association, Inc. v. Pozniewski, et al., the Superior Court held that a disabled resident’s non-disabled spouse does not have a LAD claim because he may have been negatively impacted by the alleged discrimination against the disabled individual.

Ansell.Law represented the condo association with respect to its handling of or its dog-related rule in connection with a disabled resident. The resident sought an entitlement with respect to her dog, that the resident characterized as an emotional support animal (ESA).

After Ansell was successful at trial, the litigation ended up before the New Jersey Supreme Court. In its opinion, the Supreme Court discussed the issue of ESAs in New Jersey condominiums generally:

“A resident of a condominium complex is entitled under state and federal law to request an accommodation to a pet policy in order to keep an emotional support animal. The individual must first demonstrate they have a disability under the LAD. In addition, they must show that the requested accommodation may be necessary to afford them an ‘equal opportunity to use and enjoy a dwelling.’ The housing provider then has the burden to prove the requested accommodation is unreasonable.”

Even though he is not disabled, the disabled resident’s spouse also sought money in relation to LAD. However, the spouse’s LAD claim was not based on anything related to him. It rested entirely on his wife’s LAD claim. The spouse suffered no actual, personal harm concerning anything contemplated by LAD.

Following the Supreme Court decision and on behalf of the association, Byrne and Miller filed a motion for summary judgment as to the spouse’s LAD claim. The Superior Court granted that motion. The court agreed with the association that the LAD is not applicable to him. Additionally, the court concurred that just because a spouse, sibling, or parent may be “sorely distressed” by discrimination suffered by their family member, that distress does not make the spouse the functional equivalent of an aggrieved person who can bring a claim under LAD.

If you have any questions about this decision or how LAD applies to your New Jersey community association, please contact Nicole Miller or David Byrne at Ansell.Law.

Ansell.Law’s Seth Rosenstein Secures Summary Judgment in Pivotal Americans with Disabilities Act (ADA) Litigation

Ansell Grimm September 25, 2024

As noted in a recent article published by Ansell.Law Partner Seth M. Rosenstein, nuisance Americans with Disabilities Act (ADA) cases have cost American businesses millions of dollars, and settlement is often the path of least resistance. 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.

In one particularly egregious ADA case, the plaintiff claimed that he traveled from Lower Manhattan to Midtown for the purpose of having a document notarized — and that he was unable to access the defendant’s building as a result of a single, small step from the sidewalk. The plaintiff conveniently ignored numerous issues with his case, particularly those stemming from a dearth of facts and crucial information from his cookie-cutter complaint. This is hardly surprising as plaintiffs in ADA cases often profit from the sheer number of cases filed, and the complaints filed in these actions tend to be identical to one another.

The Ansell.Law team aggressively defended this action, and after reviewing the extensive and meticulously detailed moving papers drafted by Rosenstein, the Honorable Lorna G. Schofield of the United States District Court for the Southern District of New York questioned the “tester” plaintiff’s intent to return to the subject property and found that he had “not shown a sufficiently concrete intent to return under the heightened standard” of the Second Circuit’s standard set in Calcano v. Swarovski North America. Put another way, the court rejected the plaintiff’s laughable assertion that he (i) traveled to Midtown Manhattan to notarize a document, (ii) frequently needs documents notarized or has a specific document requiring notarization in the future, and (iii) intended to return to Midtown Manhattan for notarization services in the future. The property owner could have rolled over and negotiated a settlement of questionable claims, but instead, it elected to fight – and ADA plaintiffs will think twice before bringing an action against the owner in the future.

If you or your business have been named as defendants in an ADA case, please contact Ansell.Law Partner Seth M. Rosenstein to discuss the path forward.

Recently Filed Federal Lawsuit Seeks To Exempt Community Associations From the Corporate Transparency Act’s Mandatory Reporting Requirements

Ansell Grimm September 13, 2024

By Nicole D. Miller

As we discussed here, starting January 1, 2025, most existing homeowner and condominium associations (Community Associations) in New Jersey, and across the country, will be considered “reporting companies” that must comply with the extensive, detailed, and complex reporting requirements of the federal Corporate Transparency Act (CTA). Unless an association falls within one of the act’s 23 enumerated exemptions (and most don’t), the governing board members (Board) must provide “Beneficial Ownership Information” (BOI) to the Financial Crimes Enforcement Network (FinCEN) division of the U.S. Treasury Department by designated deadlines. Failure to comply with the CTA can result in substantial fines and penalties, including incarceration.

For boards composed primarily of volunteer homeowners, and associations with already stretched resources, sharing and reporting sensitive personal information to the federal government while parsing the language of a confusing and ambiguous statute presents significant burdens and challenges. This is why, on September 11, 2024, the country’s largest community association advocacy organization filed a federal lawsuit challenging the constitutionality of the CTA, seeking to exempt associations and boards from its reporting requirements, and seeking a preliminary injunction against its enforcement as to Community Associations and Boards. The motion hearing for the preliminary injunction is currently scheduled for October 11, 2024.

The lawsuit filed by the Community Associations Institute (CAI) against the United States Department of the Treasury in the U.S. District Court for the Eastern District of Virginia asserts that the CTA imposes excessive administrative and financial burdens on the more than 75.5 million Americans living in 365,000 community associations across the U.S.

In a press release, the CAI’s chief executive officer, Thomas M. Skiba, said, “Requiring community associations to comply with the Corporate Transparency Act not only diverts resources away from community governance and service but also poses a chilling effect on volunteerism. We are asking the court to recognize the constitutional violations, overreach of federal powers, and equal protection violations related to the Corporate Transparency Act and community associations.” However, CAI has stated that if the lawsuit is successful in exempting Community Associations from the CTA, “it is very possible the exemption will only apply to community associations that are members of CAI” given the decision in National Small Business United v. Yellen, which was discussed here.

Until and unless the court issues an injunction against enforcement of the CTA regarding community associations, boards must take steps to comply with the law’s reporting requirements by the following deadlines:

Associations formed during calendar year 2024 must submit their BOI report within 90 days after the date of the entity’s formation (i.e., the filing date of its Articles or Certificate).
Associations formed before January 1, 2024, must submit their BOI report on or before January 1, 2025 (one year after the effective date of the CTA).
Associations formed on or after January 1, 2025, must submit their BOI report within 30 days after its date of formation (i.e., the filing date of its Articles or Certificate).

If you have any questions about the CTA and its impact on Community Associations, please contact Nicole Miller at Ansell Grimm & Aaron.

Freedom From Clutter v. Freedom of Expression: What NJ Community Association Boards Can and Can’t Do About Political Signs This Election Season

Ansell Grimm September 12, 2024

By Nicole D. Miller

Labor Day 2024 has come and gone, which means that after a summer of dramatic developments, the final sprint to Election Day is here. It also means citizens in New Jersey and across the country will be more engaged in the political process and want to ensure their voices are heard. In addition to the ballots they cast, voters often like to declare their political preferences, and support their preferred candidates, by posting signs in their yards, windows, balconies, or other highly visible areas. Doing so is the essence of free speech as protected by the First Amendment to the U.S. Constitution and New Jersey’s Constitution. As the U.S. Supreme Court has said, political signs on one’s property are “a venerable means of communication that is both unique and important.”

But for New Jersey community associations, election season presents unique and tricky challenges that pit the covenants and rules that all owners agreed to abide by with their right to political expression. When owners display signs and other items that, on their face, appear to violate the rules and limitations outlined in the covenants, conditions, and restrictions (CC&Rs) that govern their community, it can add fuel to an already combustible political environment, leading to conflicts and lawsuits between boards and owners.

New Jersey’s Free Speech Protections Are Broader Than the First Amendment’s

No specific statutes govern or delineate the power of New Jersey community associations to ban or limit the size, number, and placement of political signs. Additionally, the First Amendment only limits the ability of government actors to restrict free speech. Since community associations are not government entities, the First Amendment doesn’t govern the actions or policies of community associations as to political signs.

However, New Jersey’s constitution is unique in that its free speech protections go further than the First Amendment and do not just apply to the government. As New Jersey’s Supreme Court noted in its decision in Mazdabrook Commons Homeowners’ Ass’n v. Khan addressing the conflict between CCRs and the constitutional right to free expression, ” an individual’s affirmative right to speak freely is protected not only from abridgment by government, but also from unreasonably restrictive and oppressive conduct by private entities in certain situations.”

In that same case, the Court declared that a community association’s total ban on signs of any kind, other than “For Sale” signs but including political signs, “violates the free speech clause of the State Constitution.”

Reasonable Time, Place, and Manner Restrictions on Political Signs Are Permitted

Short of a total ban, courts in New Jersey have generally upheld the authority of community associations to enforce reasonable restrictions on political signs, provided these restrictions are: (i) clearly outlined in the governing documents; (ii) content-neutral; and (iii) applied uniformly. For instance, New Jersey courts have recognized that community associations have a legitimate interest in maintaining the aesthetic appearance of the community, which can justify certain restrictions on the display of political signs. However, these restrictions must be reasonable and not so broad as to effectively prohibit all forms of political expression.

One solution some New Jersey community associations have embraced is implementing rules that allow for the display of political signs but impose certain limitations. For example, an association might allow residents to display one political sign per candidate or issue, with restrictions on the size and placement of signs. This approach seeks to balance the homeowner’s desire for political expression with the association’s interest in maintaining an attractive, cohesive community environment.

If your community association board is facing an issue involving an owner’s display of political signs or has questions about its power to restrict such signage, please contact Nicole Miller at Ansell.Law.

Game Changing National Association of Realtors Antitrust Settlement – What Real Estate Professionals Need To Know

Ansell Grimm September 5, 2024

By Seth M. Rosenstein

August 17, 2024 was a date of unprecedented and monumental change in America’s real estate industry. On that date, many practices that were standard operating procedure for decades among real estate professionals were forever discarded and replaced as part of a landmark settlement that resolved a high-profile antitrust lawsuit.

For real estate agents and brokers of record, understanding and complying with the National Association of Realtors’ (NAR) new mandatory national Multiple Listing Services (MLS) policies as to disclosure, commission, incentive, documentation, and training is non-negotiable. Failure to follow the new protocols can have dire consequences and put licenses and livelihoods at risk.

The NAR posted extensive information and FAQs on its website that dive deep into the nuances and details of what is now required of agents and brokers of record. The three most significant changes, however, relate to compensation structures and transparency about broker compensation. Here is the NAR’s description of its new policies in this regard:

Offers of Compensation Prohibited on Multiple Listing Services

Multiple Listing Service participants, subscribers, and sellers are prohibited from making any offers of compensation on an MLS to buyer brokers or other buyer representatives. Additionally, an MLS must eliminate all broker compensation fields and compensation information, and it may not create, facilitate, or support any non-MLS mechanism for participants, subscribers, or sellers to make offers of compensation to buyer brokers or other buyer representatives.

Disclosure of Compensation

MLS participants and subscribers must:

Disclose to prospective sellers and buyers that broker compensation is not set by law and is fully negotiable. This must be included in conspicuous language as part of any listing agreement, buyer written agreement, and pre-closing disclosure documents.
Conspicuously disclose in writing to sellers and obtain the seller’s authority for any payments or offer of payment that the listing participant or seller will make to another broker, agent, or other representative (e.g., real estate attorney) acting for buyers. This disclosure must include the amount or rate of any such payment and be made in writing in advance of any payment or agreement to pay.

Written Buyer Agreement Required Before Touring a Home

Agents working with a buyer must enter into a written buyer agreement before touring a home in person or through a live virtual tour. To comply with the terms of the settlement, a buyer agreement must:

Specify and conspicuously disclose the amount or rate of any compensation the MLS Participant will receive from any source or how this amount will be determined.
Set forth an amount of compensation that is objectively ascertainable and not be open-ended.
Include a statement that MLS Participants may not receive compensation from any source that exceeds the agreed-upon rate with the buyer.
Disclose in conspicuous language that broker commissions are not set by law and are fully negotiable.

What Realtors and Brokers of Record Need To Do Now

Failure to follow the new requirements can lead to a host of negative consequences, from hefty fines to NAR sanctions to losing professional licenses. Broadly speaking, industry professionals should take several steps to modify their practices and institute training and education programs to ensure they comply with the new requirements:

Training and Compliance: The settlement mandates that the NAR and its affiliates implement training programs to educate agents and brokers about the new rules and compliance requirements.
Monitoring and Enforcement: The settlement requires regular audits and the establishment of a compliance committee to oversee adherence to the new rules.
Adjustment of Commission Structures: The prohibition against setting minimum commission amounts for buyer’s agents may require brokers of record to reevaluate their commission structures and policies.

If you are a New Jersey real estate professional and have questions about the new requirements brought about by the NAR settlement, please contact Ansell.Law Partner Seth M. Rosenstein. Our team of experienced attorneys often address issues facing the industry and counsel real estate professionals, on an issue-raised basis and as part of ongoing training, compliance and Q&A sessions.

Amendments to New Jersey’s Open Public Records Act May Prejudice Those Involved in Legal Disputes and Undermine the Law’s Purpose

Ansell Grimm September 4, 2024

By David J. Byrne and Nicole D. Miller

Every level of government possesses a treasure trove of information. Each New Jersey municipality and state agency is supposed to keep copious records relating to things like interactions with the public, police reports, permit applications, zoning variance requests as well as internal documents reflecting governmental decision-making. For many, many years, by virtue of New Jersey’s Open Public Records Act (“OPRA”), some of those records have been open to the public.

Recently, New Jersey’s legislature amended OPRA. Unfortunately, those amendments may make it much harder for parties anticipating, or involved in, legal disputes to get access to evidence they need to support their claims or defenses.

How OPRA Relates to Litigation and Legal Disputes

While not obvious at first glance, the recent amendments to OPRA are extremely significant to individuals and businesses involved in litigation, other legal proceedings, or potentially exposed to either.

Legal proceedings often involve “discovery.” “Discovery” is the process of requesting, and exchanging, information and documents relevant to the dispute. Discovery also often involves subpoenas or requests to third parties that may have documents or information that neither litigant possesses.

Sometimes, a local governmental body or state agency is such a third party. There are many types of matters in which governmental records can play a critical role: land use, real estate and/or development-related disputes and construction defect litigation, to name a few.

The Problem With the Recent Amendments to OPRA

Before the recent amendments to OPRA, a party involved in litigation could use OPRA to get such records. Now, such a party may be limited to the use of subpoenas.

For example, the revised OPRA, which goes into effect on September 3, 2024, provides, in part, that:

Parties to a legal proceeding are not entitled to government records via OPRA if the record sought is within the scope of any court order in that proceeding or is within the scope of a pending litigation discovery request.

Public agencies are not required to respond to a request if it “does not identify specific individuals or job title or accounts to be searched, a specific subject matter, and is not confined to a discrete and limited reasonable time period.” This creates a Catch-22 for requestors who likely could only obtain such detailed information from the very records they are seeking.

As noted, these amendments may unnecessarily increase the costs associated with procuring records from the government by forcing the use of subpoenas. These amendments also appear to undermine the public’s “right to know.” After the amendments to OPRA become effective in September, we will have a better sense of their impact on legal proceedings and the public in general.

If you have questions or concerns about OPRA and these recent amendments, please contact Nicole Miller or David Byrne at Ansell.Law.

Ansell Grimm

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