what is a restrictive covenant?

Your Right to Work

The United States is experiencing a work shortage with a record number of job openings in the market. However, despite the pandemic, most employees still prefer candidates with several years of experience and a willingness and availability to work in-person, during the evenings, and to work on the weekends.

In such a tight market, where qualified employees are in short supply, employers are relying more and more on restrictive covenants to prevent their employees from resigning their positions or from competing with their employer in the event they seek employment with a competitor.

What Is A Restrictive Covenant?

Restrictive covenants attempt to limit an employee’s ability to compete with his or her employer or to solicit business from their employer. Sometimes, restrictive covenants even limit an employee’s ability to work in the same field or in the same geographical region in the event they resign their position with their employer.

However, restrictive covenants are not absolute. In New Jersey, restrictive covenants are generally disfavored as restraints on trade and are narrowly construed by the Courts. While restrictive covenants are generally enforceable, your right to work and provide for yourself trumps an unreasonable restriction on your ability to work.   Thus, to be enforceable, a restrictive covenant must protect a legitimate business interest of the employer, cannot be unduly burdensome to the employee, and must be in the public interest. Solari Industries, Inc. v. Malady, 264 A.2d 53 (N.J. 1970).

When Are Restrictive Covenants Illegal?

For example, a restrictive covenant will likely be deemed unenforceable where it is too broad in geographical or durational scope. In circumstances where a restrictive covenant is too broad, New Jersey Courts have the ability to invalidate the restrictive covenant or to “blue pencil” the restrictive covenant. In other words, the Courts have the ability to tailor an unreasonable restriction so that it is reasonable and not unduly burdensome on the employee.

In today’s job market, employers are relying more on restrictive covenants and are more likely to enforce them through legal action than ever before. If you are being asked to sign a restrictive covenant as a condition of new employment or are already subject to a restrictive covenant and you are seeking employment with a competitor that would potentially violate those restrictions, you should proceed with caution. Daniel J. Carbone, Esq. has the knowledge and experience to advise you of your options so that you can successfully exercise your right to work without fear of legal consequence.

For guidance on your specific legal issue, contact Daniel J. Carbone at 732-363-0666 Ext. 211, or send him an email at dcarbone@bathweg.com.

NJ Legal Mediation

On December 1, 2021 the Honorable Thomas E. O’Brien, P.J.Cv., (retired), mediated a case that arose out of a fight between two patrons in an Atlantic City bar.  At approximately 12:30 a.m., two (2) males about 30 years of age got into an argument and physical altercation.  The two were not friends but were both Atlantic City residents who were remotely acquainted. The bar had three (3) security people on duty that night.  A security guard then escorted one patron (defendant) out of the bar through the front door and instructed the other patron (plaintiff) to remain inside the bar until the other walked home.  Defendant was walking home and was on the sidewalk at the rear outside patio bar. At that point, the plaintiff ignored the instruction and left the main bar, entered the patio bar, ranting and raving and approached the rear fence adjoining the sidewalk and punched the defendant in the head.  The plaintiff then stepped back approximately seven (7) feet from the fence and launched a second attack, which was thwarted when the Defendant punched plaintiff in the face with such force that the plaintiff fell straight back and hit his head on the patio floor.  Plaintiff was unconscious for approximately 5 minutes.  Security called the police and EMT’s but before they arrived the plaintiff fled the scene.

The entire event was videoed by a patron, which confirmed, as did multiple witnesses, that the plaintiff was the aggressor.  The defendant was initially charged with aggravated assault, but the charges were subsequently dismissed.

The plaintiff then brought suit against the defendant patron  for intentional tort and the bar for negligence in that the plaintiff patron was not provided with a safe business space or adequate security.

The liability aspect of this case was extremely challenging for the plaintiff because in this intentional tort case comparative negligence of the defendant, bar and plaintiff would have to be assessed by the jury.  The plaintiff could have easily been held over 50% comparatively negligent.  The defendant patron never answered in this case and was not insured and is probably insolvent.  By this settlement, the defendant patron was dismissed from the case.

However, the damages aspect was a “slam dunk” in that the plaintiff suffered a very traumatic brain injury.  Plaintiff had a craniotomy and a catherization to remove an arterial embolism.  Plaintiff suffered typical TBI permanent injuries and aggravation of pre-existing conditions.

The case was settled at Mediation for $150,000.00. with the plaintiff being responsible to pay back a $15,000 medical lien. The bar had a $250,000.00 assault and battery, self-reducing, policy rider that necessitated a speedy resolution. Counsel quickly and wisely sought mediation in hopes of resolving the case before all was potentially lost to both litigants.  Legal and expert fees were kept to a minimum.

Judge O’Brien suggests to all litigants in considering mediation that they reflect on the realities surrounding their cases since often “half of a loaf is better than none.”  Please feel free to contact him if you want to discuss the propriety of electing mediation early in a case.  The Courts are reopening so now is the time to schedule mediations.

Contact Judge O’Brien at 732-363-0666 Ext 223, or send him an email at tobrien@bathweg.com.

NJ Commercial Debt Forgiveness

Mr. Malc represented a client who received two commercial loans totaling $930,000.00.  The loans were insured by the Small Business Administration (“SBA”).  When the client’s up-and-coming business fell victim to extraordinary challenges, the business shuttered, and the loans could not be repaid.  Mr. Malc’s client did all it could to mitigate damages to the Bank, including selling assets to repay a portion of the debt. Despite those efforts, the Bank filed a foreclosure complaint to foreclose the mortgages that secured the two loans, and also filed a separate complaint to collect the unpaid balance of the loans.

Mr. Malc challenged both lawsuits in court and was able to hold them in abeyance while settlement discussions ensued.  Mr. Malc spent approximately two years negotiating with the lending bank, the SBA, and the United States Treasury.  With accrued interest, the bank was seeking to collect nearly $1.2 million dollars from Mr. Malc’s client.

In the end, using multiple litigation and settlement strategies, Mr. Malc was able to get the bank and the SBA to forgive the debt, release the personal guarantors, and discharge the mortgages.  With the mortgages discharged, Mr. Malc’s client was able to sell his home for a sizable profit and get out from under crippling debt.

If you are facing foreclosure or a collection lawsuit, whether it is related to residential, commercial or SBA-backed debt, Ryan S. Malc, Esq. has the knowledge and experience to guide you through that process and to assist you in achieving the best possible results.

Contact Ryan Malc at 732-363-0666 Ext 254, or send him an email at rmalc@bathweg.com.

Recent Mediation Case

COVID-19 has slowed down the adjudication of cases and the active Mediation of the more substantial ones. Now that the court system is in the process of moving cases again, it is more important than ever that you move your case to Mediation immediately and that we all get back to pre-COVID mediation levels.

On November 12, 2021, Judge O’Brien, a retired Presiding Civil Judge from Ocean County settled an Ocean County Dram Shop case for $325,000.00. Plaintiff was driving the second car in a three car accident. Plaintiff’s vehicle was rear-ended and pushed into the vehicle ahead of his. The Defendant drunken driver had a $15,000.00 policy that was offered immediately. He also had one prior DUI. Defendant’s BAC was .22 at the time of the crash which occurred one mile from the bar where the Defendant had been drinking. Plaintiff’s claim was that the Defendant was “visibly intoxicated” at the time he was served at the Defendant’s bar. The 30-year old Plaintiff with no pre-existing conditions suffered herniated discs at C2-3, 4-5, 5-6, 6-7 and T2-3 as well as herniated discs at L3-4, 4-5 and L5,S-1. His treatment consisted of epidurals, trigger points, branch blocks and radio frequency ablation. He also had arthroscopic surgery on his left knee. His treating doctors projected possible anterior cervical fusion/discectomy and a knee replacement. Plaintiff was self-employed and has no lost wages.

Judge O’Brien will conduct mediations either live or by Zoom

How Is COVID-19 Impacting The Legal System?

The effects of COVID-19 on our way of life are felt everywhere.  No matter what you do for a living, your work has undoubtedly been affected by Covid.  The legal field is no different.  If you are involved in a lawsuit, you know full well that Covid has made a slow process significantly slower—especially if your matter is bogged down in the court system, where access to the courtroom is extremely limited.

Since COVID reared its ugly head, I have been advising my clients to consider alternate methods of resolving their legal disputes.  Clients who have taken that advice are happy they did.  Those alternate methods include mediation and arbitration.  While courts are dealing with unprecedented backlogs of cases, lawsuits are lingering, legal fees are rising, and disputes that in normal times would have already been scheduled for trial, are left unresolved. For those reasons, litigants who are willing to explore mediation or arbitration are resolving their disputes much faster and more cost effectively than those who are less flexible.

What Is the Difference Between Mediation & Arbitration?

Mediation is a process where the mutual consent of the parties is necessary to resolve a dispute.  Essentially, mediation is similar to a settlement conference where a hired mediator acts as an intermediary to assist the parties in reaching a resolution.  While the process itself is voluntary, any agreement reached at a mediation will be binding on all parties.  It is the most cost-effective method of resolving a dispute.

Arbitration is much different than mediation.  Parties can voluntarily submit their matter to arbitration, or, depending on the nature of the parties’ relationship, they can be contractually obligated to resolve their dispute through arbitration.  Arbitration is similar to a trial but is held outside of the courthouse and is presided by an arbitrator, who is typically hired by the parties.  At the arbitration hearing, the parties present testimony and documentary evidence, just as they would in a trial.  At the conclusion of the hearing, the arbitrator issues a decision, which is binding on the parties and, except for very rare circumstances, is not subject to reversal by appeal.

Whichever alternative dispute resolution process works for you, our firm has been resolving disputes between parties outside of court for decades. Ocean and Monmouth County residents looking to expedite the legal process and have their issues resolved in a cost-efficient manner can contact Ryan S. Malc, Esq. of Bathgate Wegener & Wolf.

Firm Partner Brian W. McAlindin to Appear on Fox News Live

Brian W. McAlindin, Esq. is scheduled to appear on Fox News Channel’s “The Story with Martha MacCallum” where he joins a panel of “Dads” regarding Judge Brett Kavanaugh’s US Supreme Court nomination hearings. Mr. McAlindin will weigh in on how parents feel about possible sexual assault allegations against or by their children.

The show airs live on Fox News on Wednesday October 3rd at 7:00 p.m. EST.

Justice Prevails As Ryan S. Malc, Esq. Successfully Defends Marijuana And Paraphernalia Charges On Behalf Of His Client

Ryan S. Malc, Esq. recently defended a man who was charged in Neptune City, NJ with possession of under 50 grams of marijuana and possession of marijuana-related paraphernalia.  Mr. Malc’s client was stopped after allegedly making an illegal left turn.

During the stop, the police officer asked Mr. Malc’s client to exit his vehicle, whereupon a comprehensive search of the vehicle was conducted. During the search, the police officer allegedly found a zip locked bag of marijuana, a grinder, and a roach clip.  Mr. Malc’s client was placed under arrest and his request to see the evidence allegedly found during the search was denied by the police officer.

Based on the facts described above, Mr. Malc filed a motion with the Neptune City Municipal Judge to suppress the evidence allegedly found during the motor vehicle search.  Mr. Malc’s motion was granted.  Once the evidence was suppressed, Mr. Malc filed another motion to dismiss all charges against his client.  That motion was also granted.  On the day the charges were dismissed, Mr. Malc’s client welcomed his first child into the world.  Needless to say, it was a great day for this client—justice prevailed and a beautiful baby girl was born.

If you have been charged with possession of marijuana or any other drug, give Mr. Malc a call for a free consultation.

Carteret Ferry Moves Forward

The law firm of Bathgate Wegener & Wolf, P.C. (“BWW”) has represented the Borough of Carteret since 2013.  During that time senior partner William Wolf represented Carteret in relation to the development of its waterfront for various public purposes including a 190 boat marina and a ferry terminal for service from Carteret to New York City.  This ferry service will not just benefit the residents of Carteret but the ferry from Carteret to New York City will expand commuting options to New York City on a regional basis consisting of Middlesex County, Union County, Somerset County, Monmouth County and Ocean County. 

With the New Jersey Turnpike at or over-capacity, the overcrowded NJ Transit Bus Service struggling to accommodate commuters, and the absence of direct rail service to or from Carteret, the ferry will provide a convenient and reliable transportation alternative to New York City. The Carteret Ferry Terminal is likely to accelerate the transformation of an area of environmental degradation into a catalyst for economic development while reducing congestion on the New Jersey Turnpike and roads leading into the Holland and Lincoln Tunnels. The estimated travel time by ferry between Carteret and New York City is fifty (50) minutes.

The ferry service from Carteret to New York City will be a component of a truly intermodal transportation hub.  Carteret will provide municipal jitney service to the ferry terminal.  It is anticipated that the Carteret ferry terminal will become one of the stops on a bus route currently operated by New Jersey Transit.  The Carteret ferry terminal is only several minutes away from Exit 12 on the New Jersey Turnpike; thus, making the ferry a cost-effective final leg for motorists connecting to New York City from locations in Middlesex County, Union County, Somerset County, Monmouth County and Ocean County.

Recently, Carteret announced two major milestones in the plan to provide ferry service between Carteret and New York City. First, Carteret passed a major hurdle in the construction of the Carteret Ferry Terminal. The New Jersey Department of Transportation notified the Borough that the Interagency Review Committee (IRC) including the Federal Highway Administration (FHWA) recommended approval for the Borough to proceed to the Preliminary Engineering phase of the Carteret Ferry Terminal project. This determination brings the Borough one step closer to receiving $2,213,833 in federal construction funds. Second, The Federal Transit Administration awarded $6 million to New Jersey Transit to purchase a 299-seat passenger ferry that it, in turn, will lease to Carteret for $1 per year, bringing the total federal funding for the project to over $10 million.  The ferry boat will be built to Carteret’s specifications. Additional boats will be provided by the operator who will be selected through public bidding.  

If you have any questions regarding the development of the Carteret waterfronts or ferry service between Carteret and New York City, please contact William J. Wolf, Esq. at 732-363-0666 or send an email to wwolf@bathweg.com

Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years.  Mr. Wolf has been certified by the American Institute of Appellate Practice as an appellate specialist.

RECREATIONAL MARIJUANA HAS A BRIGHT FUTURE IN NEW JERSEY

With Governor-elect Phil Murphy poised to take the helm as New Jersey’s next Governor, recreational marijuana supporters are beginning to feel giddy.  A major platform of Mr. Murphy’s campaign for Governor was to put an end to the prohibition against recreational marijuana in the State of New Jersey.  Some say the rationale for doing so is motivated by the estimated $300 million in tax revenue from marijuana sales.  While recognizing the benefit of a new revenue stream from recreational marijuana sales, which may fund education programs and public workers’ pension, Mr. Murphy points to criminal justice reform as his primary reason for legalization.  For supporters, legalizing marijuana is a win-win no matter the primary reason.

State Senate President Stephen Sweeney, D-Gloucester, controls which bills the Senate will debate and vote on.  He has stated that his goal is to pass recreational marijuana legislation within the first 100 days of the Murphy administration.   State Senator Nicholas Scutari, D-Union, the sponsor of the Recreational Marijuana Bill (S3195), which has been undergoing revisions since he introduced it on May 18, 2017, has pronounced it is full steam ahead for the legalization of recreational marijuana.

Now that Governor Christie is on his way out of Trenton and will no longer pose as an impassable obstacle to recreational marijuana legislation, it is expected that hearings on the pending bill will be scheduled in short order.  Mr. Scutari has stated that he would like to try to develop language that would promote marijuana entrepreneurship among minority communities, who Mr. Murphy aptly recognized have been disproportionately affected by marijuana-related arrests and convictions.  As initially introduced, (S3195) will do the following:

  • Legalize individual possession for those over the age of 21 of up to one ounce of marijuana; 16 ounces of products infused with the drug in solid form; 72 ounces in liquid form and seven grams of marijuana concentrate.
  • Create a Division of Marijuana Enforcement within the state Department of Law and Public Safety and direct that agency to set up regulations and licensure programs for growers and distributors within a year of the bill’s passage.
  • Decriminalize possession of up to 50 grams immediately, limiting fines to $100 until the regulated industry gets up and running and creates a system for marijuana offenders to expunge their criminal records.
  • Set up an escalating sales tax on marijuana starting at seven percent in the first year, 10 percent in the second and jumping five percent each year thereafter to a final tax rate of 25 percent.
  • Prohibit growing marijuana at home and ban its use in public.
Mr. Murphy will assume the Governorship on January 16, 2018.  According to Senator Sweeney, the goal is to legalize recreational marijuana within the first 100 days, which would be by April 26, 2018.  We don’t know whether that goal will be accomplished, but what we do know is that we now have a Governor who will be ready, willing and eager to sign the bill into law when it arrives at his desk.

If you have a question about your rights as a medical marijuana user or questions about legal issues that may arise if recreational marijuana is legalized in New Jersey, please feel free to contact Ryan S. Malc, Esq. at 732-363-0666 or at rmalc@bathweg.com.

Inverse Condemnation Claim Lost by Lot Merger

​On June 23, 2017, the United States Supreme Court decided the case of Murr v. State of Wisconsin. This lawsuit involved a claim for inverse condemnation. The plaintiffs contended that certain land use regulations had reduced the value of their property.

Plaintiffs are the owners of two contiguous lots. The regulations prohibited owners of adjacent lots from selling their lots as separate building sites unless each lot contained at least one acre of developable land. Because the plaintiffs’ two lots did not each contain one acre of developable land, the plaintiffs effectively had to merge their two lots into a single lot in order to build a house. Plaintiffs, therefore, claimed the land use regulations caused them to incur an economic injury by reducing their land holdings to a single buildable lot.

For an inverse condemnation claim based on the application of a land use regulation to be viable a land owner must prove they have been deprived of all economically beneficial or productive use of their land. Alternatively, a property owner must prove the regulation interfered with their investment-backed expectations for their property. It is difficult to prove either one of those elements of adverse economic impact.

In Murr, the Supreme Court concluded that the plaintiffs had not proved their case. The basis of that decision was the Court’s conclusion that the plaintiffs’ two contiguous lots should be evaluated as a single parcel of property. Once those lots were merged, it was impossible for the property owners to establish they lost all economically beneficial or productive use of their land because they still owned a buildable and valuable lot. Plaintiffs were incapable of proving their reasonable economic expectations had been thwarted because, despite the land use regulation, they could develop their property as a home site.

Murr is likely to have an impact on regulatory based inverse condemnation claims in New Jersey. It is not uncommon for property owners to hold contiguous lots in a single name. Issues arise when government approvals are sought for one or more of those lots. This situation frequently occurs when adjacent lots are sold to a purchaser who wants to develop and resell the lots for more than one house.

If you have any questions regarding the impact of Murr v. State of Wisconsin on eminent domain, condemnation, inverse condemnation or land use and zoning regulations, please call William J. Wolf, Esq. at 732-363-0666 or send an email to wwolf@bathweg.com

Mr. Wolf has represented clients in condemnation and inverse condemnation cases.
Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years.  Mr. Wolf has been certified by the American Institute of Appellate Practice as an appellate specialist.

Photo by Abdul Zreika on Unsplash

Beware Of The Other Current That Causes Drowning

As was tragically evident from the recent death of a young girl in a lagoon in Toms River, New Jersey, water and electricity make a deadly combination. That child died when she was electrocuted while swimming in a lagoon.

According to published reports, that swimmer came in contact with a portion of a metal boat lift. It is believed that electric current used that metal object as a pathway into the water.

According to the Electric Drowning Prevention Association, contact with an electric current on a metal object that protrudes into water can cause muscle paralysis that can lead to death by drowning. The presence of electricity in the water can also lead to the injury or death of people who attempt to rescue the drowning swimmer.

Frequently, the source of the electricity is related to a power source on a dock or a boat moored in a marina. There is, however, an alternative source that can be easily overlooked. That potential source is known as stray current.

Stray current refers to the flow of electrical current into the water, ground or metal objects. That flow of current can be caused by an imbalance in an electrical system or flaws in wiring or electrical components.

The source of stray current can be located far from an object, a swimming pool, or a body of water that appears to be the site at which a person experienced a shock. As a result, stray current as the potential source of an accident or a fatality can be easily overlooked. Thus, when an injury is caused by electrical shock, it is sometimes necessary to expand the scope of the investigation to other areas on or off the location at which the accident occurred.

William J. Wolf, Esq. has represented clients in cases involving stray current and electromagnetic fields. In each instance, Mr. Wolf was able to obtain favorable jury verdicts for his clients.

If you have any questions regarding the impact of stray current, electromagnetic fields, electrocution or other personal injuries, please call William J. Wolf, Esq. at 732-363-0666 or send an email to wwolf@bathweg.com.

Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years.  Mr. Wolf has been certified by the American Institute of Appellate Practice as an appellate specialist.

LEGALIZATION OF RECREATIONAL MARIJUANA IN NEW JERSEY

The statewide debate over the legalization or decriminalization of recreational marijuana continues to advance at a rapid pace.  According to recent polls conducted by New Jersey Advanced Media, upwards of 90% of its readers believe marijuana should be legalized.  Despite an overwhelming majority of people in New Jersey who support the legalization of marijuana, and the recent proposal of a bill by State Senator Nicholas Scutari that would do just that, Governor Christie continues to rebuke the idea as “beyond stupidity.”

As Governor Christie’s final term in office draws to an unpopular end, his opinion and disparaging comments directed at marijuana supporters have become less and less meaningful. Time will soon tell how the next administration deals with this pressing issue, but it appears that change is imminent.  Democratic candidates Ambassador Phillip Murphy, Assemblyman John Wisniewski and Jim Johnson support legalization of marijuana while Senator Ray Lesniak supports decriminalization.  Republican candidates Lieutenant Governor Kim Guadagno and Assemblyman Jack Ciattarelli support decriminalization.

In the meantime, however, on May 15, 2017, Senator Scutari introduced a bill that would make recreational marijuana legal in New Jersey.  Senator Scutari’s proposed measure would do the following:

  • Legalize individual possession for those over the age of 21 of up to one ounce of marijuana; 16 ounces of products infused with the drug in solid form; 72 ounces in liquid form and seven grams of marijuana concentrate.​
  •  Create a Division of Marijuana Enforcement within the state Department of Law and Public Safety and direct that agency to set up regulations and licensure programs for growers and distributors within a year of the bill’s passage.
  •  Decriminalize possession of up to 50 grams immediately, limiting fines to $100 until the regulated industry gets up and running and creates a system for marijuana offenders to expunge their criminal records.
  • Set up an escalating sales tax on marijuana starting at seven percent in the first year, 10 percent in the second and jumping five percent each year thereafter to a final tax rate of 25 percent.
  • ​Prohibit growing marijuana at home and ban its use in public.
The process of passing a bill is time consuming and includes legislative hearings and votes in the Senate and Assembly.  If a bill legalizing marijuana is passed, Governor Christie has vowed to veto it. Nevertheless, by the time our next governor is sworn in, Senator Scutari’s bill may be waiting for his or her signature.  Until then, we can all expect that the debate over the legalization of recreational marijuana will continue, energizing supporters and objectors alike.

​If you have a question about your rights as a medical marijuana user or questions about legal issues that may arise if recreational marijuana is legalized or decriminalized in New Jersey, please feel free to contact Ryan S. Malc, Esq. at 732-363-0666 or at Rmalc@bathweg.com.