Webinar - Navigating the Default Judgment & Beyond

Michael T. Hensley, Esq. Bressler, Amery & Ross, PC (Florham Park)

Willard C. Shih, Esq. Member, Supreme Court Civil Practice Committee Wilentz Goldman & Spitzer, PA (Woodbridge)

Lauren Fenton-Valdivia, Esq. Bressler, Amery & Ross, PC (Florham Park)

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 E-MAIL: [email protected] NAVIGATING THE DEFAULT JUDGMENT AND BEYOND NAVIGATING THE DEFAULT JUDGMENT AND BEYOND

It’s not Watergate Spygate, or Bridgegate. Instead, it’s Tunnelgate. TUNNELGATE

Jersey Flowers, a wholesaler of flowers in New Jersey, supplies its merchandise to many bodegas in the fictional State of Old York. Its open-air trucks run every morning from 5 am to 7 am through the Roosevelt Tunnel.

Six months ago, the operators of the Roosevelt tunnel closed down all inbound lanes in the tunnel for a week between the hours of 5 am and noon. It was later discovered that they did so because they wished to appease the leaders of Old York, who were becoming increasingly upset that its businesses were being supplied by foreign companies, and to curry favor with Old York businesses like York Flowers. TUNNELGATE

Jersey Flowers filed suit against the operators of the Roosevelt Tunnel, Old York, the Governor of Old York, York Flowers, and the owner of York Flowers.

All answered the complaint except York Flowers.

You received notice from the court that claims Against York Flowers will be dismissed for non-prosecution if no action is taken soon.

What happens next? SECURING THE DEFAULT JUDGMENT When Is A Default Judgment Available?

If a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or court order, or if the answer has been stricken with prejudice, the clerk shall enter a default on the docket as to such party.... N.J. Court Rule 4:43-1

• Failure to plead or otherwise defend, e.g., failure to answer.

• Failure to provide discovery, e.g., answer stricken with prejudice When is a Default Judgment Not Available?

 “Otherwise defend as provided by these rules or court order.” N.J. Court Rule 4:43-1  Not “any” court order.  “A nexus between the violation of rules and orders and an underlying failure to comply with the responsibilities of a litigant is central to the entry of a default based upon the failure to comply with an order.”  “Thus, the rule's reference to a failure to ‘defend as provided by these rules or court order’ is fairly read to authorize default only when the rule or order in question concerns the party's obligation to defend.” New Jersey Div. of Youth and Family Svcs. v. M.G., 427 N.J. 154 (App. Div. 2012) How to Obtain a Default Judgment?

Two-step process:

 Entry of Default

 Default Judgment How to Obtain Entry of Default?

[T]he moving party shall make a formal written request of the clerk for the entry of the default, supported by the attorney's affidavit. The affidavit shall recite the service of the process and copy of complaint on the defendant or defendants (if more than one, naming them), the date of service as appears from the return of the process, and that the time within which the defendant or defendants may answer or otherwise move as to the complaint, counterclaim, cross-claim, or third-party complaint has expired and has not been extended. Rule 4:43-1 When to Obtain Entry of Default?

The request and affidavit for entry of default shall be filed together within 6 months of the actual default, and the default shall not be entered thereafter except on notice of motion filed and served in accordance with R. 1:6 on the party in default.

Rule 4:43-1 Serving Entry of Default

If defendant was originally served with process either personally or by certified or ordinary mail, the attorney obtaining the entry of the default shall send a copy thereof to the defaulting defendant by ordinary mail addressed to the same address at which defendant was served with process. Rule 4:43-1 Serving Entry of Default

Impact of a failure to serve: “a matter of fairness.”

[N]either the rules nor any applicable case law impose a penalty for failure to provide such notice. Here, it appears that little if any prejudice…. Nonetheless, we are satisfied that failure to provide the notice required by the last sentence in R. 4:43-1 raises an issue that requires examination by the trial court of whether sufficient excusable neglect was established to permit relief from the judgment under R. 4:50-1(a).

Dynasty Bldg. Corp. v. Ackerman, 376 N.J. Super. 280 (App. Div. 2005)

Converting Entry Of Default Into A Default Judgment

 Apply to the clerk of the court

 Conduct a proof hearing

Application To Clerk Of The Court

If the plaintiff's claim... is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit setting forth a particular statement of the items of the claim, their amounts and dates, a calculation in figures of the amount of interest, the payments or credits, if any, and the net amount due, shall sign and enter judgment for the net amount and costs against such defendant...

Rule 4:43-2(a) Application To Clerk Of The Court

 Preferred approach  Speed and efficiency  Cost  No opportunity to defend: If the application for entry of default judgment is made after the expiration of six months following the entry of default, notice thereof shall be given to the defendant by ordinary mail, and proof of service thereof shall accompany the application. Rule 4:43-2(a)

Application To Clerk Of The Court

 Client affidavit – not attorney affidavit

 Form provided by the judiciary: http://www.judiciary.state.nj.us/prose/10914.pdf

 Submit form of judgment (not required)

Proof Hearings

 [T]he party entitled to a judgment by default shall apply to the court therefor by notice of motion pursuant to R. 1:6, served on all parties to the action, including the defaulting defendant or the representative who appeared for the defaulting defendant.  If, to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any allegation by evidence or to make an investigation of any other matter, the court, on its own motion or at the request of a party on notice to the defaulting defendant or defendant's representative, may conduct such proof hearings with or without a jury or take such proceedings as it deems appropriate.  Proof of service of the notice of motion and notice of any proof hearing is required. Rule 4:43-2(b)

Proof Hearings

Issues to Consider:

 When? Consider multi-party cases.  Who attends?  Burden of proof.  Judge or jury? Proof Hearings

Burden of Proof – Damages?

 Since the plaintiff did not present adequate proofs at the default hearing, the matter was rescheduled and the plaintiff was directed to serve the defendant with a notice of the new hearing date.

Clementi v. Clementi, N.J.Super. (Ch. Div. 2014) Proof Hearings

Burden of Proof – Liability?  Rule 4:43-2(b) grants a trial court the discretion to require proof of the quantum of damages as well as entitlement to relief, prior to entry of default judgment. EnviroFinance Group, LLC v. Environmental Barrier Co., LLC, 440 N.J. Super. 325 (App. Div. 2015)  “[T]he trial court has the discretionary power to require proof of liability.” Kolczycki v. City of East Orange, 317 N.J. Super. 505 (App. Div. 1999) Proof Hearings

 “Where the trial court, undertakes to exercise such discretion, the court should ordinarily apply the prima facie standard to plaintiff's proofs, thus not weighing evidence or finding facts but only determining bare sufficiency.”

Kolczycki v. City of East Orange, 317 N.J. Super. 505 (App. Div. 1999) DEFAULT JUDGMENT IN CIVIL VERSUS SPECIAL CIVIL Obtaining a Default Judgment in Civil versus Special Civil

Civil Division Special Civil Part

 To obtain a default pursuant  To obtain a default pursuant to R. 4:43-1, the proponent to R. 6:6-2, the proponent is must submit: not required to submit 1) A Request for Default; and anything (the Court enters default automatically after 2) Affidavit (with Proof of Service) the 35 day timeframe to respond to the Complaint has expired. Obtaining a Default Judgment in Civil versus Special Civil

Civil Division Special Civil Part

 Default Judgment:  Default Judgment:  Entered by the Clerk: Only in  Entered by the Clerk either cases where it is for a “sum where it is a judgment for money certain” where it is for a “sum certain” or  Affidavit of Proof Must be Filed judgment for possession  Where not for a “sum certain,” (landlord/tenant matters). the proponent must make  Where not for a “sum certain” or application to the Court. possession, the proponent must  Proof Hearing Required. make application to the Court.  Proof can be made via affidavit.

Obtaining a Default Judgment in Civil versus Special Civil

Civil Division Special Civil Part

 Proponent must seek default  If the proponent makes judgment within 6 months application for default or the court must dismiss judgment 6 months or the action. longer since entry of  After 4 months  court must default, it must be made send written notice to proponent. via motion.  Application post 6 month  notice to defendant by regular mail. Obtaining a Default Judgment in Civil versus Special Civil

 In both Civil and Special Part,

 Default Judgment can be obtained where the Court has stricken the defendant’s Answer (constitutes “default”).  Proponent is required to file an Affidavit regarding the defendant’s military service (protection for active duty military.  Failure to file the Affidavit renders the judgment voidable (rather than void), and then only a defendant who is on active duty or absent from duty for a lawful reason. (Comment 2.4 to Rule 4:43-2).

COLLECTING ON A DEFAULT JUDGMENT

Methods of Collecting on a Judgment

 Writ of Execution (Rule 4:59-1 (Civil) and Rule 6:7-1 (Special Civil Part))  Required format is Appendix XII-D and XII-E.  Must be directed to the sheriff and must be returnable within 24 months after the date of issuance.  Judgment-creditor must serve a copy of the fully endorsed writ, personally or by ordinary mail, on judgment-debtor after levy made by sheriff no less than 10 days prior to the turnover of the property to the creditor (except for Special Civil Part)  Order of Property: execution first made out of personal property (before proceeding to real property) of the party primary liable.

Methods of Collecting on a Judgment

 Wage Execution  Judgment creditor can seek issuance of an execution against  Wages  Debts  Earnings  Salary  Income from Trust Funds  Profits of Judgment Debtor

Methods of Collecting on a Judgment

 Wage Execution  Must be on Notice to the Debtor  Required format is Appendix XII-D and XII-E.  Must be directed to the sheriff and must be returnable within 24 months after the date of issuance.  Judgment-credit must serve a copy of the fully endorsed writ, personally or by ordinary mail, on judgment-debtor after levy made by sheriff no less than 10 days prior to the turnover of the property to the creditor (except for Special Civil Part)

Methods of Collecting on a Judgment

 Wage Execution  Notice Must State  That the application will be made for an order directing a wage execution to be served on the judgment debtor’s named employer;  The limitations on the amount of judgment debtor’s salary which may be levied upon;  That the judgment debtor may notify the court and plaintiff of its opposition to the execution and why such an order should not be entered;  That if judgment debtor notifies the clerk, the application will be set down for a hearing  That judgment debtor may object to the wage execution or apply for a reduction at any time after the order is entered and a hearing will be held within 7 days after such request is filed.

Methods of Collecting on a Judgment

 Supplementary Proceedings (Post-Judgment Discovery pursuant to 4:59-1 (f), including)  Order for Discovery (R. 6:7-2)  Court, upon good cause shown, can make an order requiring any person who may possess information concerning property to appear for a deposition.

Methods of Collecting on a Judgment

 Supplementary Proceedings (Post-Judgment Discovery pursuant to R. 4:59-1(f), including)  Information Subpoenas  Judgment Debtor  can be served without leave of court, in the format of Appendix XI-L (no more than once in 6 month period without leave of court).  Person/Entity Other than Debtor  Upon Bank (without leave of court) and/or Employers or account-debtors (upon ex parte application).  Judgment debtor must have failed to answer its information subpoena for a period of 21 days and Court must find both that the subpoena is reasonably necessary for obtain recovery and third party has relevant information.

Methods of Collecting on a Judgment

 Property Subject to Levy? (N.J.S.A. 2A:17-1 et seq.)  Bank Deposits   Real Property  (but must seek to execute out of personal property first, and does not apply for Special Civil Part judgments)  Partnership or Joint Venture Property   Retirement Accounts & Pensions   PIP Benefits   Worker’s Compensation   Welfare Benefits 

Methods of Collecting on a Judgment

 Property Subject to Levy? (N.J.S.A. 2A:17-1 et seq.)  Stock  (even in a closely held corporation where shareholder’s agreement prohibits alienation)  Trademark   Widow/Widower Elective Share   Public Property (i.e. property of a government entity)   Reverse Mortgage Payment   Right to Receive Rent (capable of assignment) 

Methods of Collecting on a Judgment

 Executing on Real Property  Judgment Creditor is required to first execute out of personal property.  If personal property is insufficient or unable to be located, then the judgment credit can make a motion to the Court.  The motion must be  On notice to the debtor;  Submitted as a standalone motion;  Supported by a certification specifying in details the attempts to locate and execute on personal property (“supplementary proceedings” as discussed in Advanced Post-Judgment Remedies);  Accompanied with a note that states that if the motion is not successfully defended, the judgment debtor’s real property will be subject to sale;  Accompanied with a listing of Legal Services Office and Law Referral Offices.

Methods of Collecting on a Judgment

 Executing on Real Property  “The debtor’s denial alone will ordinarily satisfy the creditor’s obligations to proceed first against personality.” Comment 1.2.3 to R. 4:59-1.  The credit must make reasonable efforts to locate personal property first pursuant to N.J.S.A 2A:17-1.  Borromeo v. DiFlorio, 409 N.J. Super. 124 (App. Div. 2009)  Judgment creditor’s efforts to levy on personal property were reasonable where it conducted a judgment search and issued interrogatories to which debtor answered he had “no bank accounts, physical assets, accounts receivable or automobiles.”  Pojanowski v. Loscalzo, 127 N.J. 240, 242 (1992)  Judgment creditor’s efforts to levy on personal property were reasonable where debtor evasively answered at deposition regarding personal property.

Advanced Post-Judgment Remedies

 Rule 4:59-1(f): Supplementary Proceedings:

“The court may make any appropriate order in aid of execution.”

Advanced Post-Judgment Remedies

 Arrest Warrant for Failure to Comply with Information Subpoena or Discovery Order  If a judgment debtor fails to comply with an information subpoena, failed to appear on the return date of a motion to enforce, and the Court has entered an order to enforce litigant’s rights, the Court may issue an arrest warrant pursuant to R. 4:59-1(f) and R. 6:7-2 if the debtor has failed to comply within 10 days of the date of entry of the order.  Made upon judgment creditor’s certification.  Can only be executed between the hours of 7:30 AM and 3:00 PM on a day when court is in session.  Must be executed at the address where the motion and order to enforce litigant’s rights were served.  Debtor must be brought before Superior Court judge and released upon compliance. Advanced Post-Judgment Remedies

 Arrest Warrant for Failure to Comply with Information Subpoena or Discovery Order  New Century Fin. Services v. Nason, 367 N.J. Super. 17 (App. Div. 2004)  “The deprivation of liberty will be minimal in duration and limited in scope. The debtor will not be placed in a holding cell or jail. He or she will not be ‘processed’ as are traditional arrestees by fingerprinting, photographing and the like. Upon answering the questions, the person may leave. Although this is an arrest, and indeed a temporary deprivation of liberty, it is designed to be a minimally intrusive means of compelling compliance with court orders.”

Advanced Post-Judgment Remedies

 Order Forbidding Transfer or Other Disposition of Money or Property (N.J.S.A. 2A:17-65)

 Judgment creditor can make application, upon “proof by oath” that judgment debtor has property and or that a person owes debtor property, for an order prohibiting the transfer or other disposition of money until further order of the Court.

Advanced Post-Judgment Remedies

 Executing against a Corporation: Putting the Burden on the Corporation’s Officers (N.J.S.A. 2A:17-74)  Judgment creditor must only serve a writ of execution on one corporate officer.  The corporate officer may then request information from all officers and agents and anyone who does not comply via neglect or refusal is liable to creditor for the entire amount of the execution.

Advanced Post-Judgment Remedies

 Levying on Investment Securities in the U.S.  Judgment Creditor can seek satisfaction through the debtor’s interest in securities pursuant to N.J.S.A. 12A:8-112.  “A creditor whose debtor is the owner of a certificated security, uncertificated security, or security entitlement is entitled to aid from a court of competent jurisdiction, by injunction or otherwise, in reaching the certificated security, uncertificated security, or security entitlement or in satisfying the claim by means allowed at law or in equity in regard to property that cannot readily be reached by other legal process.” N.J.S.A. 12A:8-112(f).

VACATING A DEFAULT JUDGMENT Vacating the Default Judgment

 The trial court's determination under the rule warrants substantial deference, and should not be reversed unless it results in a clear abuse of discretion.

US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449 (2012). Vacating the Default Judgment

 Excusable neglect

 Meritorious defense

Excusable Neglect

 "Excusable neglect" may be found when the default was "attributable to an honest mistake that is compatible with due diligence or reasonable prudence."

US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449 (2012)

 "[M]ere carelessness or lack of proper diligence on the part of an attorney is ordinarily not sufficient to entitle his clients to relief from an adverse judgment"

Baumann v. Marinaro, 95 N.J. 380 (1984)

Burden Of Proof

 With entry of default, relief may be granted on a showing of good cause.  “[C]learly a less stringent standard than that imposed by R. 4:50-1 for setting aside a default judgment.” Pressler & Verniero, Current N.J. Court Rules, comment on R. 4:43-3

 With a default judgment, the party seeking to vacate the judgment must meet the standard of Rule 4:50-1. Grounds To Vacate A Default Judgment

 (a) mistake, inadvertence, surprise, or excusable neglect;  (b) newly discovered evidence which would probably alter the judgment or order and for which by due diligence could not have been discovered in time to move for a new trial under R. 4:49;  (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;  (d) the judgment or order is void;

Grounds to Vacate a Default Judgment

 (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or

 (f) any other reason justifying relief from the operation of the judgment or order.

Rule 4:50-1

The rule is "`designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case.'" Mancini v. EDS, 132 N.J. 330, 334, 625 A.2d 484 (1993) (quoting Baumann v. Marinaro, 95 N.J. 380, 392, 471 A.2d 395 (1984)). Grounds to Vacate a Default Judgment

 4:50-1(d): Make sure service was proper.  Compare: “Even substantial deviations from the prescribed procedures may be insufficient to require vacating a default judgment based upon flawed service if rights of an innocent third party have intervened.”  With: But, even without a violation of due process, a default judgment will be set aside for a substantial deviation from the service of process rules. Sobel v. Long Island Entertainment Products, Inc., 329 N.J. Super. 285 (App. Div. 2000) Grounds to Vacate a Default Judgment

 4:50-1(f): Any other reason.  Because of the importance that we attach to the finality of judgments, relief under Rule 4:50-1(f) is available only when truly exceptional circumstances are present.... The rule is limited to situations in which, were it not applied, a grave injustice would occur. US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449 (2012) Vacating the Default Judgment

 Although there are enumerated grounds for vacating a default judgment in the Rule and such an application requires a showing of excusable neglect and a meritorious defense, the comment is very instructive in telling us that “an application to vacate a default judgment is ‘viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached.” Pressler & Verniero, Current N.J. Court Rules, comment 4.1 on R. 4:50-1.

Vacating the Default Judgment

 Even if a first application to vacate the default judgment is denied, it does not preclude a second timely application under Rule 4:50. Prof’l Stone Applicators v. Carter, 409 N.J. Super. 64, 68-9 (App. Div. 2009).  Equitable principles permitted the trial court discretion to grant a second motion to vacate a default judgment to prevent injustice where movant had failed to supply the required certification as to failure to respond in his first motion, but provided same certification in his subsequent motion.  But note that the reversal in Carter was centered on the fact that the initial application had not been decided “on the merits” and that Defendant had acted reasonably at all times.  Compare Check X. Change, LLC v. Columbia Expresso Travel, Inc., 2015 N.J. Super. Unpub. LEXIS 416 (App. Div. Mar. 2, 2015) (affirming denial of second motion to vacate default judgment where the first motion to vacate had been decided on the merits and the second motion failed to demonstrate that defendant had acted reasonably in failing to respond). Vacating the Default Judgment

 Special Circumstances Warranting Relief (Comment 4.2)  If Plaintiff failed to prove a right to relief, the default judgment may be vacated.  Morales v. Santiago, 217 N.J. Super. 496 (App. Div. 1987)(vacating default judgment where plaintiff had produced inadequate proof at the hearing);  Bank v. Kim, 361 N.J. Super. 331 (App. Div. 2003)(vacating default judgment in foreclosure where it was obtained in violation to a bankruptcy stay);  Arrow Mfg. Co., Inc. v. Levinson, 231 N.J. Super. 527, 534 (App. Div. 1989)(vacating default judgment even where principal shareholder of corporation admitted evading service upon himself and the corporation where “the sanction of piercing the corporate veil and entering a judgment against him individually for the corporate debt was far too severe for that conduct”).

Speaker Contact Information

 Michael T. Hensley, Esq. Bressler, Amery & Ross, PC (Florham Park) [email protected]

Lauren Fenton-Valdivia, Esq. Bressler, Amery & Ross, PC (Florham Park) [email protected]

 Willard C. Shih, Esq. Wilentz Goldman & Spitzer, PA (Woodbridge) [email protected]

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Lauren Fenton-Valdivia Associate

New Jersey New York Phone 973.514.1200 Direct 973.937.6724 Fax 973.514.1660 [email protected]

Overview News & Publications Speaking

Lauren Fenton-Valdivia is an associate in the firm’s Litigation department. Lauren has represented clients in a variety of litigation matters, including those involving complex commercial, professional liability, labor and Practices employment, and environmental disputes. Lauren has experience in large Litigation scale, multi-district class action matters, and routinely practices in the courts of New York and New Jersey. Education Seton Hall University School of Law, J.D., 2011 open in browser PRO version Are you a developer? Try out the HTML to PDF API pdfcrowd.com Prior to joining the firm, Lauren was an associate at McElroy, Deutsch, Mulvaney & Carpenter, Rutgers, The State University of New Jersey, B.A., 2008 LLP in its Commercial Services Group. Lauren also served as Law Clerk to the Honorable Thomas M. Moore, J.S.C. Bar Admissions New Jersey, 2011 Lauren received her B.A., cum laude, in Political Science from Rutgers University, Rutgers New York, 2011 College in 2008, where she was a member of the Honors Thesis Program, Phi Beta Kappa, Court Admissions Phi Sigma Iota and was a Henry Rutgers Scholar and Carr Scholar. Lauren received her J.D. U.S. District Court, District of New Jersey, 2011 from Seton Hall University School of Law in 2011. At Seton Hall, Lauren was a Presidential U.S. District Court, Southern District of New York, Scholar, Dorothy Day Scholar, and a student lawyer in the Civil Litigation Clinic. 2015 U.S. District Court, Eastern District of New York, 2015 Lauren is admitted to practice in the states of New Jersey and New York and the United States District Court for the District of New Jersey and the Southern and Eastern Districts of New York.

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Michael T. Hensley Principal

New Jersey New York Phone 973.514.1200 Direct 212.235.6436 Fax 973.514.1660 [email protected]

Overview Experience News & Publications Speaking Awards & Honors

Michael T. Hensley’s litigation and trial experience is diverse and spans complex commercial, environmental, labor and employment, and professional malpractice matters. Michael is retained by some of the largest companies in Practices the world for their high stakes litigation. Commercial Litigation Environmental Law Michael’s natural ability to present complex facts and concepts in a easily understandable way Labor and Employment is cited by clients as to why he is consistently retained for major exposure litigation. They Professional Liability open in browser PRO version Are you a developer? Try out the HTML to PDF API pdfcrowd.com respect not only his proven and successful record of aggressively trying many cases to Education verdict, but also his creativity in settling matters where appropriate. In addition to his Seton Hall University School of Law, J.D. reputation as a formidable litigator and lead trial attorney, Michael is also a known and University of Delaware, B.A. respected appellate advocate who has successfully argued before multiple state Appellate Divisions and U.S. Courts of Appeal. Bar Admissions New Jersey The New Jersey Supreme Court recently appointed Michael to the New Jersey Board of Bar New York Pennsylvania Examiners’ Committee on Character. Michael is routinely selected as a Super Lawyer “Rising Star” in both New York and New Jersey, and is a very active member of the New York State Court Admissions Bar Association’s Commercial Division Committee. U.S. District Court, District of New Jersey U.S. District Court, Southern District of New York U.S. District Court, Eastern District of New York U.S. District Court, Northern District of New York U.S. District Court, Eastern District of Pennsylvania U.S. District Court, Western District of Texas U.S. Court of Appeals, Third Circuit

Professional Affiliations The Association of the Federal Bar of New Jersey New York State Bar Association - Member, Commercial and Federal Litigation Section - Member, Committee on Commercial Division

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PRACTICE AREAS Willard C. Shih - Commercial & Business Litigation Attorney NJ OUR LAWYERS

ABOUT WILENTZ Willard C. Shih Print Page

OUR OFFICES Contact me Phone: 732.855.6016 Fax: 732.726.6682 Email: [email protected] ARTICLES & PUBLICATIONS Bar Admission: Education: NEWS & ANNOUNCEMENTS New York and the United States District Court J.D., Fordham University School of Law, cum EVENTS & SEMINARS for the Districts of Southern and Eastern New laude, 1996 York, 1997 B.A., Columbia University, 1993 AWARDS & ACHIEVEMENTS New Jersey and the United States District Court for the District of New Jersey, 1998 VIDEO LIBRARY Eastern District of Michigan, 1999 open in browser PRO version Are you a developer? Try out the HTML to PDF API pdfcrowd.com BLOGS

EN ESPAÑOL Biographical Information: Practice Area(s): РУССКИЙ ЯЗЫК Commercial Litigation In the United States, only two or three out of every 100 civil lawsuits result in a RECRUITMENT trial on the merits. If there is a possibility that your case might be one of the very few only resolved by trial, you want to do what you can to stack the odds Lawyer Publications: in your favor. As lead trial counsel, Mr. Shih has an unblemished record Appellate Docket - Fall 2008 when it comes to securing victories for his clients when trial is unavoidable. The favorable verdicts have been achieved both on the plaintiff and defense side and in all forms of litigation—bench and jury trials and arbitration. It’s neither the side of the “v” nor the label of the fact finder that dictates Mr. Shih’s approach, because in every case it’s the client that matters. His ability and resolve to quickly grasp the root of the issues in dispute, and how those issues affect his client’s business, allow him to litigate a variety of claims for clients in a number of industries—the very essence of a commercial litigator.

In the other 98% of cases, Mr. Shih is equally adept at securing pre-trial dismissals, frequently prevailing on motions to dismiss and motions for summary judgment to extricate clients from otherwise damning allegations. Mr. Shih understands that for his clients, litigation is an unwelcome distraction and expense from their businesses and lives, and thus, he always counsels clients on the possibility of settlement or alternate dispute resolution and does what it takes to negotiate an end to the case. Mr. Shih’s top priority is the right and most expeditious resolution to the case.

In his commercial litigation practice, Mr. Shih represents businesses and individuals in cases involving corporate and partnership disputes, unfair competition and consumer claims, trademarks and trade secrets, restrictive covenants, investment claims, and a variety of other complex business matters. He also represents closely held corporations in cases in which the owners have disputes pending in family court and probate court, as well as family members involved in estate disputes.

As a shareholder on the firm’s Professional Liability and Responsibility team, Mr. Shih regularly represents national, regional and local law firms in cases involving claims of professional negligence, breach of fiduciary duty, fraud, and civil conspiracy, among others. The attorneys he defends practice in a variety of disciplines, yet Mr. Shih makes it a priority to understand their practice so that he can better mount their defense. To the extent the specialty is especially arcane—as in the case of “total return swaps” or “qualified domestic relations orders” to name a few—there is a strong likelihood Wilentz has attorneys who practice in that area, allowing Mr. Shih to draw from that experience to better defend the claim.

Mr. Shih is committed to serving the legal profession. Appointed by the New Jersey Supreme Court, he has been served on multiple panels and open in browser PRO version Are you a developer? Try out the HTML to PDF API pdfcrowd.com committees including: Civil Practice Committee and the committee on Rules of Evidence. The New Jersey Supreme Court has also charged him with investigating and adjudicating wrongdoing by attorneys, serving as Panel Chair of a Fee Arbitration Committee and as Vice-Chair of a District Ethics Committee. He has also served on the Court’s Complementary Dispute Resolution Committee.

In the community, Mr. Shih is a legal advisor and former Deacon of Legal and Community Affairs for the Rutgers Community Christian Church. He has also served as an elected officer and board member of the Asian Pacific American Lawyer’s Association of New Jersey, and as co-chair of its Professional Development Committee.

Representative Matters:

Jury verdict of over $10 million in favor of a biotech company alleging a theft of trade secrets Verdict in a bench trial in favor of client sued for undue influence Jury verdict for a real estate investor alleging violation of the New Jersey Consumer Fraud Act Jury verdict defending a law firm sued for professional negligence Jury verdict defending a general contractor sued in tort and contract Arbitration decision defending an adult day care center and several of its members in an ownership dispute with a minority member Multiple arbitration decisions defending an automobile dealership sued for violations of the New Jersey Consumer Fraud Act

Awards and Recognitions:

Professional Achievement Award, Asian Pacific American Lawyers Association of New Jersey, 2015 Best Lawyers® in America, since 2013 New Jersey Super Lawyers®, “Super Lawyer,” since 2013, and “Rising Star,” 2006–2012 Best Under 40 by the National Asian Pacific American Bar Association, 2011 Forty-under-40 award by the New Jersey Law Journal, 2011 Forty-under-40 award by NJBIZ, 2006 Professional Lawyer of the Year by the New Jersey Commission on Professionalism in the Law, 2011 and 2015 Outstanding Legal Achievement Award by the New Jersey Chinese American Chamber of Commerce, 2008

Speaking Engagements:

“The Right Expert: How Hard Can It Be?,” American Bar Association, Lawyer’s Professional Liability Committee, Sept. 2015 “In-House Counsel Seminar” covering international litigation, New Jersey Law Journal, 2015 open in browser PRO version Are you a developer? Try out the HTML to PDF API pdfcrowd.com Law Journal, 2015 “A Lawyer’s Worse Nightmare: The High Stakes Claim Against Counsel,” American Bar Association, Lawyer’s Professional Liability Committee, Apr. 2015 “You Claim You Would Have Gotten A Better Result? Prove It,” American Bar Association, Lawyer’s Professional Liability Committee, 2014 Mock Hearing on Summary Judgment Motions, 2014 Expert Witness Examination Skills Workshop, 2014 “Calling For Help: What To Do When You’re The Subject Of An Ethics Complaint And How To Stay Out Of Trouble,” New Jersey State Bar Association, 2013 “How To Get Disbarred,” National Asian Pacific American Bar Association, 2013 “How To Be A Young Lawyer And Excel At The Profession,” Middlesex County Bar Association, 2013 “Professionalism and Technology; The Advantages And Pitfalls,” Middlesex County Bar Association, 2013 Civil Court Rules Update, New Jersey Institute of Continuing Legal Education, 2012 New Jersey Civil Trial Preparation, New Jersey Institute of Continuing Legal Education, 2005–2006

Publications:

“Suing Predecessors, Successors, Co-Counsel,” New Jersey Lawyer Magazine, 15 NJL 1787, Aug. 28, 2006

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