Corporate

Ansell Grimm & Aaron Round Up: June 2021

Ansell Grimm June 3, 2021

AGA Secures Dismissal Of Nationwide Class Action

Ansell Grimm & Aaron attorneys Joshua S. Bauchner and Anthony J. D’Artiglio obtained dismissal of a putative, nationwide class action for lack of subject matter jurisdiction in New Jersey federal district court. The case, Cindy Adam v. Frank V. Barone, et al., Civ. A. No.: 3:20-cv-10321-MAS-LHG, concerned claims alleging that Defendants violated various California and Federal consumer protection statutes through their online sale of natural beauty products, including seeking to certify a nationwide class alleging violations of over 40 different States’ consumer protection statutes. Following Ansell Grimm & Aaron successfully securing a transfer of the case from the Northern District of California to the District of New Jersey, Defendants filed a Motion to Dismiss arguing, among other things, that a pre-litigation offer of a full refund for the purchased products made in the ordinary course of business mooted plaintiff’s claims and divested the Court of subject matter jurisdiction.

The Court rejected plaintiff’s argument that the U.S. Supreme Court’s decision in Campbell-Ewald Co. v. Gomez, did not moot the claims because, in that case, the Supreme Court held that an unaccepted offer of judgment or an unaccepted settlement offer could not defeat subject matter jurisdiction. Ansell Grimm & Aaron explained that Campbell-Ewald does not apply because a pre-litigation, ordinary course offer of a refund is not a “settlement offer” – a bright-line distinction between pre-litigation refunds and post-litigation settlements. The Court agreed explaining that it was declining “to extend Campbell-Ewald as Plaintiff suggests, where a refund was offered in the ordinary course of business by a representative of the company during a phone call with a customer.” As a result, the offer of a refund mooted Plaintiff’s claims such that there was no “case or controversy” permitting Article III subject matter jurisdiction for the Court. By securing dismissal at the pleading stage, Ansell Grimm & Aaron saved its clients substantial time and expense which otherwise would have been wasted defending a meritless, nationwide class action.

Ansell, Grimm & Aaron attorneys regularly engage in class action defense arising from frivolous claims and seek to obtain a similarly quick and cost-effective result for our clients. Of course, some matters do have merit, in which case our attorneys work to narrow the claims or class towards minimizing damages and obtaining a favorable settlement.

For additional information on Ansell Grimm & Aaron’s class action practice, please contact Joshua S. Bauchner, Esq . ([email protected]) or Anthony D’Artiglio, Esq. ([email protected]) at (973) 247-9000.

AGA Attorney Testifies Before State Cannabis Regulatory Commission

Ansell Grimm & Aaron attorney Zachary L. Windham testified before the Cannabis Regulatory Commission on June 1, 2021. His testimony concerned whether limitations should be imposed on the potency of concentrates and edibles that will be sold in New Jersey marijuana dispensaries. Zachary explained: “The path of least resistance from a consumer standpoint would be to purchase all of their cannabis products from the unregulated supplier, who could provide them with a wider variety of product types.” Accordingly, Zachary recommended against restrictions favoring effective labeling and consumer education. Media coverage concerning his testimony is available here.

Our dedicated Cannabis Law Practice Group stands ready to assist applicants with ensuring they are prepared when the Request for Applications is issued for adult use cannabis, as well as for additional medical licenses. Please contact Joshua S. Bauchner, Esq. (j[email protected]) or Zachary L. Windham, Esq. ([email protected]) at (973) 247-9000 to get started today.

George A. McGowan III Joins AGA As Corporate Attorney

George A. McGowan, III, joined as counsel with the firm. His practice is concentrated in areas of corporate and commercial law (both public and private companies), technology, and transactional matters including Mergers and Acquisitions, Trusts and Estates, Financing and Real Estate. His client roster includes a major data center, a streaming media company, several international manufacturing companies, professional practices, and closely held businesses. Mr. McGowan brings our clients both his private practice expertise with Fortune 500 Company knowledge and experience.

He is a graduate of Manhattan College with a Bachelor’s of Science in two majors, Finance and Marketing. He graduated from Seton Hall University School of Law with a J.D. He clerked for the Honorable Patrick McGann, in the Chancery-General Equity Court in Monmouth County. He is admitted to practice in the State of New Jersey and its Federal Courts.

Nicholas J. Falcone Joins AGA As Counsel In The Land Use Department

Nicholas J. Falcone is counsel to the firm with the concentration of his practice relating to zoning and land use, and the representation of clients in all phases of governmental approvals for site plans, subdivisions and variances before municipal planning and zoning boards, as well as appeals therefrom. Before joining the firm Mr. Falcone represented planning boards and school districts in Monmouth County, as well as business statewide. Earlier, Mr. Falcone worked at the national law firms Fox Rothschild and the labor and employment boutique Grotta, Glassman and Hoffman, where his practice focused on labor and employment law, representing employers in state and federal courts in all aspects of civil litigation, administrative hearings, and provided HR counseling.

After law school graduation, Mr. Falcone was law clerk to the Honorable Martin L. Greenberg, Superior Court, Chancery Division: General Equity and Probate, and to Honorable Seymour Margulies and Honorable Fred J. Theemling, Jr., Superior Court, Civil Division, Hudson County, New Jersey. While in law school, Mr. Falcone worked as a law clerk at the firm of former U.S. District Court Judge Herbert J. Stern.

Mr. Falcone has had life long association with the arts. Prior to becoming an attorney, Mr. Falcone worked in the Broadway theater, including for the legendary director/producer Harold Prince, film and opera communities. Mr. Falcone served on Board of Directors of the Garden State Film Festival, 2009-2019, including as Chairman of the Board and Chairman and of the Programming Committee for the last six of those years.

Client Alert: What to Expect from the CARES Act – The Paycheck Protection Program

Ansell Grimm April 1, 2020

While we are facing a global crisis in connection with the Coronavirus, or COVID-19 pandemic, life as we know it has been significantly disrupted. Small businesses are struggling to stay afloat, especially those that have been made to work remotely, close their doors entirely, or substantially limit their business operations by order of state and local governments.

There may be help on the horizon, however. Congress has passed the $2 trillion dollar Coronavirus Aid, Relief, and Economic Security (CARES) Act in an attempt to minimize the inevitable impact that COVID-19 has and will have on small businesses.

While the Act is very in-depth, there is one section that may be particularly useful to small business owners. The Paycheck Protection Program (“PPP”) has set aside $349 billion for loans that will allow small businesses, which were in operation on February 15, 2020, to retain their employees by covering the cost of payroll amongst other permitted costs.

What costs are permitted under the PPP?
Subject to certain exclusions, costs permitted under the PPP include employee payroll; commissions and cash tips; vacation, parental, family, medical or sick leave; health care premiums; interest on mortgage or other debt obligations; rent under lease agreements; and utilities.

When should I apply?
Loans are only available at this time until June 30, 2020, so prompt application is advisable.

Who do I apply to for a PPP loan?
Loans will be made by lenders who currently provide SBA 7(a) loans, as well as new lenders (both public and private) that the SBA is working quickly to qualify. Forgiveness will also be applied for through the lender.

Who is eligible for a PPP loan?
In order to qualify for a PPP loan, the business (including standard businesses, non-profits, veterans organizations and tribal businesses) has to have fewer than 500 employees, or, according to the SBA, the “applicable size standard in number of employees for the North American Industry Classification System (NAICS) industry as provided by SBA, if higher.” Also, any business that employs 500 or less people per location and has an NAICS code beginning with 72 is eligible. Independent contractors and certain self-employed individuals may qualify for PPP loans, as well.

What are the terms of a PPP loan?
Under the PPP, the maximum loan amount is 250% of the average monthly payroll costs, not to exceed $10,000,000. The goal is to provide businesses with eight weeks’ worth of permissible expenses. For those amounts not otherwise forgiven, the loan term can be up to ten years with an interest rate no higher than 4%. Principal, interest and loan fees will all be deferred for a minimum of six months and a maximum of twelve months. No collateral or personal guaranties may be required in connection with a PPP loan.

What makes a PPP Loan eligible for forgiveness?
PPP Loans are eligible for forgiveness if all employees are retained (or rehired by June 30, 2020). Loan forgiveness will be reduced by the amount that payroll decreases for employees with salaries less than $100,000 per year, if that decrease exceeds 25%. The lender must render and notify the business applicant of a decision within 60 days of the forgiveness application submission.

For more information on the Paycheck Protection Program and to determine your company’s eligibility, please contact us at Ansell Grimm & Aaron, PC at [email protected].

_____________

The information provided in this alert was up-to-date at the time of publication, is provided for general purposes only and does not constitute legal advice, and the transmission and receipt of this information does not create or constitute an attorney-client relationship.

Joshua Bauchner interviewed in Newsday about the Sears’ bankruptcy causing local store closings.

Ansell Grimm November 14, 2019

Joshua Bauchner discusses Sears’ bankruptcy causing local store closings in Newsday

Don’t forget! Disclose those HOA documents as part of your home sale

Ansell Grimm January 9, 2019

Community Association Practice Partner Richard B. Linderman discusses what material facts are in HOA documents that buyers need to know in an interview with HomeLight Reporter Christine Bartsch.

Read More

Attorney Michael Ansell Speaks About Legal Challenges for Small Businesses at &CO Co-Working Space September 27th

Ansell Grimm September 24, 2018

Running a small business requires more than a good idea and a workspace, says Attorney Michael Ansell…

Read More

Lawsuit Protocol: Call Attorneys, But Take Time for Business

Ansell Grimm August 31, 2018

In an Associated Press interview that appeared in US News & World Report Partner Joshua S. Bauchner discusses the challenges facing small businesses juggling the demands of a lawsuit while managing their day-to-day operations.

Read More

AGA offering new service for companies seeking government contracts

Ansell Grimm February 28, 2017

ANSELL GRIMM & AARON, P.C. is excited to announce a professional alliance with REMTC, Inc. to provide a new service in the field of security compliance for government contracting work.

REMTC, Inc. has over 20 years of experience and a tremendous success rate in providing consulting services to government contractors large and small to ensure compliance with all applicable eligibility regulations for government contracts and to secure and maintain security clearances. With new regulations coming into effect, even companies with existing contracts and security clearances will need to ensure compliance with the new regulatory framework. Ansell Grimm & Aaron, PC attorneys can assist clients in navigating this complex process to achieve the necessary compliance and security clearances to obtain lucrative government contract work.

For more information or assistance regarding our services, please contact Michael H. Ansell, Esq. in the firm’s Woodland Park office at (973) 247-9000 or by email at [email protected]. Additional information concerning REMTC may be found at www.remtcs.com.

AGA Obtains Dismissal of Class Action Suit Relying on
U.S. Supreme Court’s Recent Spokeo Decision

Ansell Grimm August 2, 2016

ANSELL GRIMM & AARON, PC recently secured the dismissal, with prejudice, of a federal class action complaint alleging violations of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 et seq. (“TCPA”), in accord with recent United States Supreme Court precedent embodied in the seminal case of Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). This marked a significant victory for our client in one of the first cases in the nation to apply Spokeo to dismiss a putative class action for lack of standing.

Specifically, Plaintiff in Susinno v. Work Out World, No. 3:15-civ-05881(PGS)(TJB), alleged that our client made a single, unanswered, auto-dialed call which went to voicemail. Plaintiff further alleged that the call violated the TCPA because it was made without her express, written consent. In granting our motion to dismiss, the Court primarily relied on the Supreme Court’s Spokeo decision.

In Spokeo, the plaintiff alleged violations of the Fair Credit Reporting Act whereby defendant Spokeo allegedly disseminated mistaken personal information about him. The Court found that while there may have been procedural violations of the statute, it was unclear whether the plaintiff suffered an “injury in fact” — requiring both “particularized” harm specific to him and a “concrete” injury that actually exists. Specifically, the Court found that while the lower court considered the particularized requirement, it failed to consider concreteness. At its core, the ruling considered whether bare, procedural violations of a statute alone “entail a degree of risk sufficient to meet the concreteness requirement” establishing an actual injury.

Applying the Spokeo Court’s reasoning, The Honorable Peter G. Sheridan held that the purpose of the TCPA was to prevent repeated, annoying, and harassing calls to consumers. The Court concluded that a single, unanswered voicemail did not satisfy this standard. The Court further held that in the absence of any annoyance or related harm to Plaintiff resulting from the single call, she did not suffer a “concrete” injury sufficient to satisfy the elements of an “injury in fact” foreclosing her standing to assert the claims. As a result, dismissal was warranted.

Plaintiffs class action attorneys file TCPA complaints because the statute provides for damages of $500 per call ($1,500 for willful violations) plus attorneys’ fees and costs. Since the TCPA was amended, effective October 16, 2013, making it more onerous for businesses, class action litigation based on the statute increased more than 1000% nationwide.

ANSELL GRIMM & AARON, PC is aware that many of our clients rely on various forms of communication to connect with consumers toward generating business. Services providing auto-dialed, “robo-calls” can contact thousands of consumers in a single day. However, the risks of dong so are manifold as it is critical that business carefully adhere to the provisions of the TCPA to avoid exposure to significant statutory liability. Oftentimes, this simply may be achieved by including particular contractual language.

If you have questions about the case, or the TCPA in general, please contact Joshua S. Bauchner, Esq. at (973) 247-9000 or [email protected].

AG&A attorneys challenging opposition
to QuickChek and WaWa projects

Ansell Grimm July 5, 2016

Ansell Grimm & Aaron, PC attorneys have filed a federal antitrust complaint asserting claims arising from the attempted monopolization of the gas station convenience store market in the Borough of Eatontown, New Jersey. The action was filed in the United States District Court for the District of New Jersey captioned Fidelity Eatontown, LLC and QuickChek Corporation v. Excellency Enterprise, LLC, Kennedy Auto Service, Inc., and Gas Of Eatontown, Inc., Docket No. 3:16-cv-03899-FLW-LHG.

Specifically, the Complaint alleges that Defendants engaged in sham litigations and frivolous and pre-textual appeals of planning board, governing body, and State agency actions to prevent the development of competing gas station convenience stores thereby preserving their monopoly position. The Complaint further alleges that as a result of the series of sham petitions and legal actions filed by Defendants, Plaintiffs have been forced to pay thousands of dollars toward application fees, expert fees, and attorney fees to pursue land use approvals and have suffered lost profits and other costs associated with the delay in construction resulting from the Defendants’ willful and abusive tactics.

The action is predicated on a recent decision from the United States Court of Appeals for the Third Circuit, Hanover 3201 Realty, LLC. v. Village Supermarkets, Inc., 806 F.3d 162 (3d Cir. 2015), which upheld a developer’s antitrust claims arising out of the sham litigations and other anticompetitive acts undertaken by an objector — akin to those actions allegedly taken by Defendants here — to unlawfully block development.

We know that many of our developer clients face similar, frivolous opposition when seeking land use approvals for their projects — compelling them to incur significant expense and suffer interminable delay. While ANSELL GRIMM & AARON, PC attorneys strive to amicably resolve objector concerns, we also remain ready to challenge sham objectors in defense of our clients’ rights, as here.

* * *

For more than 85 years, ANSELL GRIMM & AARON, PC has been dedicated to providing excellent legal representation. In providing zealous advocacy and skilled legal advice to our diverse clientele, our attorneys all practice with a common philosophy… commitment to excellence and commitment to people. For additional information concerning this release, please contact Joshua S. Bauchner, Esq. or Michael H. Ansell, Esq. at (973) 247-9000.

AGA Partner Josh Bauchner quoted by Law360 on Copycat suit against Fitness Center Client

Ansell Grimm September 16, 2015

Ansell Grimm & Aaron PC partner Josh Bauchner, a member of the Litigation and Bankruptcy departments of AGA, was recently quoted by Law360. Bauchner represents Fitness center chain Club Metro USA LLC in a proposed class action which Bauchner termed a copycat suit which has been brought against other gyms in New Jersey and is without merit. The story is available here. (registration is required to read the full article)

Corporate

Recent Posts