The past year delivered blockbuster legal headlines, particularly in criminal prosecutions stemming from the Bridgegate scandal and the corruption case against U.S. Sen. Robert Menendez, D-New Jersey. While those cases will continue to make news, here’s a look at some other matters we’ll be watching in the new year.
‘Natural’ Food Products
A long-dormant suit over use of the term “natural” for breakfast cereal could finally see some action in 2017.
A class action seeking damages from General Mills for labeling its Kix cereals as “made with natural corn” is stayed until April 10, 2017, while the U.S. Food and Drug Administration considers rules for when food manufacturers can call their products natural. But the latest stay in the case represents the third time it was put on hold, and the judge in the Kix case has indicated he would not allow it to remain on pause indefinitely.
The suit contends that General Mills misled consumers by labeling Kix as “made with all natural corn” from 2009 to 2013 because the cereal is made with bioengineered corn. The case, representing four separate suits filed in 2012, was first stayed in November 2013 when U.S. District Judge Brian McNulty of the District of New Jersey referred it to the FDA for an administrative determination as to whether foods containing bioengineered corn can be labeled all-natural. The agency declined to make such a determination, and the case was reopened in January 2014.
The FDA issued a request for comments on whether it should define the word “natural” in November 2015, and the comment period closed in May 2016. In light of that, McNulty issued a 120-day stay in June and for another 180 days in October. General Mills has favored both stays and the plaintiffs have opposed them.
Meanwhile, the agency has given no indication of when—or if—it would promulgate regulations.
‘Melrose Place’ Crash
Watch for activity on both the civil and criminal fronts this year stemming from a deadly 2010 drunken-driving crash involving former “Melrose Place” actress Amy Locane.
Locane faces re-sentencing on Jan. 13 after an appeals court, ruling in favor of the state, said the judge who imposed a three-year sentence failed to justify such a short term of incarceration. And a civil suit filed in 2010 on behalf of the crash victims, which has seen little progress due to the pending criminal case, appears ready to move into the dispositive pleading stage once the resentencing is complete.
According to authorities, Locane left a local theater group’s cast party on the day of the deadly crash after having multiple drinks and a blood-alcohol content of 0.27 percent, three times more than the legal limit of 0.08. On a narrow road in Montgomery Township she struck a car that was pulling into a driveway, killing Helene Seeman and causing serious injuries to Seeman’s husband, Fred Seeman.
Locane’s vehicular homicide conviction carries a minimum term of imprisonment of five years, but Superior Court Judge Robert Reed reduced the sentence to three years. He cited the impact Locane’s incarceration would have on her two young daughters, one of whom suffers from Crohn’s disease. The state appealed the sentence as too light, and an appellate panel said in August 2016 that Reed failed to provide a compelling reason for the reduced sentence. The appeals court criticized Reed’s focus on the medical condition of Locane’s child as a justification for the more lenient sentence as well as a mitigating factor.
In addition to Locane, the civil suit names as defendants her husband, Mark Bovenizer, and Carlos and Rachel Sagebien, who hosted a party attended by Locane on the day of the crash. The suit says the Sagebiens served drinks to Locane when she was visibly intoxicated and that Bovenizer consented to her decision to drive herself home after the party.
Falsified Lab Results
In Bergen County Superior Court, the new year will mean sorting through at least 323 adjudicated criminal cases that have been reopened in light of the alleged misconduct of a state police lab technician.
That’s out of some 7,800 closed cases that were called into question in light of a discovery in December 2015 that Kamalkant Shah falsified results of samples of suspected marijuana at the State Police laboratory in Little Falls. The 323 cases represent the number filed as of Dec. 22, with additional filings expected, according to a report by Superior Court Judge Edward Jerejian.
The reopened cases are centralized for case management under Jerejian, who was assigned by the Supreme Court in June 2016 to hear petitions for relief related to tests of drug samples by Shah in the 10 years he worked at the lab. Most of those cases are pending re-testing of narcotics samples at the State Police lab or are still under review by the Attorney General’s Office. The state has indicated that 250 of the samples were recently re-tested, and Jerejian is awaiting the state’s position as to those results. Of those re-tested, all have re-tested positive for the drug initially identified, according to Jerejian’s report.
The state has provided its position for 12 of the cases in which re-testing is complete, according to Jerejian’s report. Of those, five applications were withdrawn after the sample re-tested positive, and three cases are pending orders for dismissal because the sample was no longer available for re-testing. Four others are being contested further on various grounds, and hearings have been scheduled in those cases. In one of the contested cases, the Office of the Public Defender has filed an application requesting the court to conduct a hearing pursuant to Frye v. United States, to determine whether due process compels chemically testing marijuana for the presence of THC through the use of a gas chromatography analytical device. The Office of the Public Defender says that method would be more specific, repeatable and subject to verification than the current testing procedures, according to the Jerejian report.
The state has consented to having Jerejian hear the motion as a centralized issue because the outcome potentially impacts all marijuana cases, both pending and adjudicated, the report states. A preliminary hearing on the Frye application is set for Jan. 25.
In addition, a hearing is set for Feb. 15 to discuss whether the court should dismiss cases where the drug samples have been destroyed and where there are no other viable charges.
The 323 cases come from 13 counties, but most come from three—138 from Morris County, 110 from Essex County and 63 from Passaic County.
Kenneth Vercammen, a municipal court practitioner in Edison, would like to see expanded use of the gas chromatography testing method for evaluating suspected drug samples. He said it’s faster, more reliable and less subject to tampering than the current testing method used in the state police lab.
“If they wanted to look good, to have public confidence, they would have the best test available,” Vercammen said.
With the convictions of Bridget Anne Kelly and William Baroni Jr. in November 2016 for their roles in a series of politically-motivated access lane closures on the George Washington Bridge, a class action on behalf of parties delayed by the resulting traffic jams is poised to move to center stage.
Kelly has defaulted, but the other defendants have answered the complaint in the class action, Galicki v. State of New Jersey, and the judge in the case is expected to hold an initial conference shortly in the case, which was filed in January 2014. After the initial conference, the court is likely to address class aspects, but the trial is still “very far out,” said Michael Epstein, the Rochelle Park lawyer representing the putative class.
“We’re anxious to get moving. We believe the criminal convictions demonstrate the civil liability in our case,” Epstein said.
Besides Kelly and Baroni, the defendants in the case are David Wildstein, the state of New Jersey, Gov. Chris Christie’s re-election campaign and the Port Authority of New York and New Jersey. Two previous defendants, former Christie campaign manager William Stepien and the governor’s former press secretary, Michael Drewniak, were voluntarily dismissed from the case.
Epstein said his office is working with experts on transportation economics in order to present a model for damages in the case.