A state’s approach to business regulation can have a profound effect on the predictability of its civil justice system. The line between regulation and litigation is often difficult to discern, as the “private attorney general” model of incentivized litigation assumes overlapping responsibility for regulatory enforcement.
There are significant questions that arise when private actors are effectively regulating business one jury at a time. Does the private enforcement model target the most egregious cases? Is it consistent with the legislative or administrative regulatory regime? Or do private litigation remedies and class aggregation of statutory penalties actually distort the underlying regime? The New Jersey Civil Justice Institute is hosting a half day Legal Reform Conference on September 18 where lawmakers, business owners, and the legal community can come together to consider these important questions.
The event, which is being held at the Hotel Woodbridge at Metropark from 8AM to 1:30 PM, will feature a networking breakfast, two panel discussions with lawmakers and attorneys who are working on the specific legal challenges New Jersey is facing, and a keynote luncheon featuring Professor Richard Epstein.
This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 3 hours of total CLE credit.
Regulating Business: Do the Ends Justify the Means?
The courts are well equipped to compensate individual parties for actual loss, but it is less clear that they are best-suited to the regulation of general business practices. Given that other options such as administrative agency enforcement exist, why does the legislature so frequently choose litigation as an enforcement mechanism?
What is the experience of dealing with these various models, especially in terms of effectiveness, predictability and efficiency? How is state-enforcement defined and prioritized, and how do resource constraints shape the enforcement effort?
There are some of the questions panelists Steve C. Lee, the Acting Director of the New Jersey Division of Consumer Affairs, Assemblyman Michael Patrick Carroll (R-Morris) and Senator Peter Barnes (D-Middlesex) will tackle. NJCJI's Chief Counsel, Alida Kass, will moderate this panel.
Responding to the Regulatory Class Action
The “private attorney general” theory of class actions takes a hybrid view of plaintiffs’ counsel: an entrepreneurial private bar that substitutes for public enforcement officials. Increasingly, the tool of choice for such “private attorney general” claims have been lawsuits based on statutes that authorize minimum statutory damages for violations of the law instead of actual damages. Many observers believe that the purpose of statutory damages provisions was to incentivize individuals (and their counsel) to bring their own actions. But today’s regulatory class action creates a new twist: At their most extreme, such lawsuits are based on the power of aggregated statutory damages with no underlying harm.
Is the scale of statutory damages multiplied thousands or millions of times over proportionate to the underlying alleged violation? Should parties who allege no injury apart from being exposed to a bare statutory violation even have standing to bring a claim in federal court? And will business defendants—especially in New Jersey—have an effective response to such class actions by invoking arbitration agreements that require disaggregating statutory damages claims?
Jim Cecchi, a partner at Carella Byrne; Archis Parasharami, a partner at Mayer Brown; and Gavin Rooney, a partner at Lowenstein Sandler, will answer all these questions and more. Shalom Stone, of Brown, Moskowitz & Kallen, will moderate this panel.
Rethinking Preemption from the Ground Up
Prof. Richard Epstein will deliver the keynote address during the luncheon. Considered one of the most influential thinkers in legal academia, Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects, and he literally wrote the textbook on torts.
Epstein will discuss his groundbreaking work on preemption. His remarks will be particularly relevant to New Jersey, where we see a number of levels of government competing to regulate business practices.
Click here to download an event flyer to share with your friends and colleagues.
This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 3 hours of total CLE credit.