Clark E. Alpert

Clark E. Alpert represents public and private clients, often in complex matters. His clients have included:

• individual and corporate members of the health-care community;
• international, national, regional, and local businesses;
• bank regulatory agencies, banks, and other lenders; and
• borrowers, developers, and commercial real estate owners.

He has represented bank boards and zoning boards, as well as boards of directors of health care entities. He has represented lawyers and doctors in business matters and negotiations, as well as in disciplinary and litigation matters involving charges of misconduct or ethics violations.

Mr. Alpert has experience in corporate and regulatory matters and complex litigation in New Jersey and New York. His practice comprises commercial litigation, business torts, banking and financial matters, creditors' rights, trade regulation and antitrust, intellectual property, governmental matters, Uniform Commercial Code, and construction disputes. Mr. Alpert often represents the same clients in transactional matters and litigation.

Prior to joining Windels Marx, Mr. Alpert was the founding partner of Alpert Butler & Weiss, P.C. in 1992. Prior to founding that firm, Mr. Alpert was a partner with Greenberg Margolis, a prominent fifty-attorney New Jersey law firm, and headed its twenty-five-lawyer commercial litigation department.

Litigation

Mr. Alpert has appeared in some of New Jersey's most prominent litigation matters and has also been involved in a number of precedent-setting cases of national significance. He also received wide recognition for utilizing the civil writ of capias ad satisfaciendum (body execution) in several publicized cases including a precedential decision. Mr. Alpert has:

• Succeeded in resolving shareholder litigation at an early stage, in order to help preserve the merger between two New Jersey banks, by engaging in proactive settlement negotiations simultaneous with preparation of a vigorous response to a preliminary injunction motion sought against the banks. Analysis of the case featured cutting-edge issues relating to removal from state to federal Court under CAFA and SLUSA.
• In a highly complex oppressed-minority shareholder litigation involving a very large, privately-held New Jersey corporation, successfully negotiated a settlement in which the complaining shareholders were bought out of the company, despite their initial claims of entitlement to take over the company and eject the majority shareholder. One turning point was the ability to obtain an order (in Arbitration that the plaintiffs' computers had to be examined by an independent computer forensic expert, which produced crucial evidence. The case involved a variety of litigation, arbitration, mediation, and out-of-state proceedings; as well as the use of business and accounting experts, and dealings with an independent director appointed by the court.
• Represented a New Jersey county in litigation to compel statewide funding of the state court system.
• Obtained a precedential New Jersey Supreme Court ruling in one of the leading attorney liability cases in New Jersey.
• Obtained attachments, temporary restraining orders, and replevin and capias writs in a wide variety of cases.
• Successfully represented casinos in some of New Jersey's leading service-mark infringement cases, including protection of a casino's valuable but unregistered trade name.
• Obtained a $29 million judgment on behalf of a casino, then also represented a federal agency in the same matter.
• Represented the then-world heavyweight boxing title-holder in a litigated dispute among the nation's top contenders and promoters as to the succeeding championship bouts.
• Authored a trade association amicus brief supporting the prevailing party, which established principles concerning lenders' default charges.
• Authored the amicus brief that helped establish the law nationwide as to securitizing warehouse lines of credit for mortgagees.
• Achieved success in a prominent partnership dispute involving a well-known New York City business.
• Handled creditor's-rights suits involving multi-state use of writs of attachment and related-party liability issues.
• Successfully represented lenders and borrowers in multimillion-dollar matters through attachment writs, summary proceedings, summary judgment, and injunction procedures.
• Obtained favorable rulings in RICO litigation between professionals.
• Represented an overseas gaming corporation in forfeiture litigation.
• Represented a New Jersey trade association in multi-year, complex litigation affecting all real estate and mortgage brokers in New Jersey.
• Represented a New Jersey municipality in litigation against the State and Federal governments relating to group homes.
• Appeared in state and federal antitrust litigation.
• Assisted medical professionals in business transactions and disputes as well as regulatory matters.
• Defended legal and medical professionals before disciplinary bodies.

Reported Cases:

• Marshall v. Fenstermacher, 388 F.Supp.2d 536 (E.D. Pa. 2005), further proceedings 2007 WL 2892938 (E.D. Pa. 2007)
• Urban Archaeology Ltd. v. Dencorp Investment Inc., 12 A.D. 3d 96, 783 N.Y.S.2d 330 (1st Dept. 2004)
• Samantha Enterprises v. Elizabeth Street, 5 A.D.3d 280, 774 N.Y.S.2d 681 (1st Dept. 2004)
• Resorts Casino Hotel v. Greate Bay t/a Sands Hotel Casino, 1991 WL 352487 (D.N.J. 1991).
• U.S. v. $734,578.82 in U.S. Currency, 286 F.3d 641 (3rd Cir. 2002)
• Packard-Bamberger & Co., Inc. v. Collier, 167 N.J. 427, 771 A.2d 1194 (2001)
• Marshall v. Matthei, 327 N.J. Super. 512, 744 A.2d 209 (App. Div. 2000)
• MetLife Capital Financial Corporation v. Washington Avenue Associates, 159 N.J. 484, 732 A.2d 493 (1999)(amicus brief)
• Township Of West Orange v. Whitman, 8 F.Supp.2d 408 (D.N.J. 1998)
• Ideal Dairy Farms, Inc. v. John Labatt Ltd., 1992 U.S. Dist. LEXIS 20467 (D.N.J. 1992), further proceedings 90 F.3d 737 (3d Cir. 1996)
• Ideal Dairy Farms, Inc. v. Farmland Dairy Farms, Inc., 1991 WL 279430, 1991-2 Trade Cases 69,632 (N.J.Super.Ch. 1991), reversed 282 N.J.Super. 140, 659 A.2d 904, 1995-2 Trade Cases 71,074 (App. Div. 1995), certification denied 141 N.J. 99, 660 A.2d 1197 (1995)
• Mortgage Bankers Association of New Jersey v. New Jersey Real Estate Commission, 200 N.J. Super. 584, 491 A.2d 1317 (App. Div. 1985), remanded 102 N.J. 176, 506 A.2d 733 (1986), affirmed after remand 283 N.J.Super. 233, 661 A.2d 832 (App. Div. 1995)
• In re Bona, 110 B.R. 1012 (Bankr. S.D.N.Y. 1990), affirmed 124 B.R. 11 (S.D.N.Y. 1991)
• In re Kennedy Mortgage Co., 17 B.R. 957 (D.N.J. 1982)

Contract Law/Business and Commercial

Mr. Alpert is the author of Guide to New Jersey Contract Law, published by the New Jersey Institute for Continuing Legal Education, originally published in 2007 and updated in November 2011 with a companion CD that includes sample contracts and useful information.

His article, "The Economic Loss Doctrine in New Jersey -- An Erie State of Uncertainty", was published by New Jersey Lawyer Magazine in December 2012.

Mr. Alpert also writes a regular column on contracts law in New Jersey, including the following titles:

• Arbitration Waiver Will Not Be Lightly Found (May 10, 2013)
• Breach of Contract Claim Can Also Entail Copyright and Joint Venture Issues (May 2, 2013)
• Contracts Involving Ocean Transit of Goods Require Analysis of Federal Law (April 24, 2013)
• Seller Overcomes Missing Documentation to Recover for Goods, Special Orders, Finance Charges, and Attorneys Fees, But Not Collateral Storage Charges (April 12, 2013)
• Interplay Among Issues of Contractual Illegality, Unclean Hands and Unjust Enrichment (March 29, 2013)
• "Floating" Forum Selection Clauses (March 21, 2013)
• Overriding Purpose of a Contract Clause Helps Determine Whether an Ambiguity Exists, and the Meaning of the Ambiguity (March 13, 2013)
• Another Risk of Enforcing a Governmental Contract: Potentially Violating the Bidding Statutes (March 6, 2013)
• The Intersection of Arbitration Law and the Consumer Fraud Act (March 1, 2013)
• More Governmental-Settlement Uncertainties (February 19, 2013)
• Equitable Fraud Sub Silentio (February 12, 2013)
• This Time, an Alleged Oral Modification of a Formal Contract is Defeated by Summary Judgment (February 5, 2013)
• Even An Uncounseled Release May Be Enforceable (January 31, 2013)
• Finding Pacifico (January 28, 2013)
• Arbitration Clause Ostensibly Applicable to Components of Transaction May Not Apply to Master Agreement (January 23, 2013)
• Can Parties Agree to Waive the Right to Appeal From an Arbitration Award? (January 18, 2013)
• Strong Justice Against Diversion of Funds Under "First Material Breach" Doctrine (January 16, 2013)
• A Strong Vote For the Parol Evidence Rule (January 14, 2013)
• Under a Broad Arbitration Clause, Everything Except the Validity of That Clause is Arbitrable (January 11, 2013)
• Consumer Contracts May Not Be Enforceable Where Commercial Contracts Might Otherwise Be (January 9, 2013)
• Court Allows Good Deed to Go Unpunished (January 7, 2013)
• How to Violate an Express Warranty With "Dead Toes" (December 28, 2012)
• Formalities Count When Transferring Stock as Part of a Contract (December 11, 2012)
• Arbitration Waiver: A Primer (December 7, 2012)
• Contract Applicators v. Park Ridge: Sui Generis Contract Issues Involving Government and Construction (November 26, 2012)
• Settlement Agreements Don't Spell Everything Out (November 15, 2012)
• 'Where To Sue' (Redux) (November 6, 2012)
• S Cube v. Sanikommu: Where to Sue on Contract Issues (October 24, 2012)
• Fusaro and Rutigliano: (1) A Contract Can Arise in a Non-Contract Setting; and (2) How Do You Enforce A Mediated Settlement? (October 18, 2012)
• Facial Ambiguity Gives Way to Common Sense (October 9, 2012)
• Radiant v. Cargo Warehouse: What To Do When (1) An Informal Arrangement Becomes Operational, And (2) Agreements Overlap (October 5, 2012)
• Contractual Attorneys Fees: When To Appeal (October 3, 2012)
• Besler v. Coluccio: Forum Selection Clause (October 1, 2012)
• Some Types of Contracts Are Sui Generis (September 24, 2012)
• The Scariest Contract-Substitute Claim? (September 21, 2012)
• Alter Ego Isn't So Easy (September 19, 2012)
• An Opinion With Many Twists And Turns (September 17, 2012)
• Supreme Security v. Aaron Medical: (1) Liquidated Damages, and (2) Lost-Volume Sellers (September 11, 2012)
• Contract-Substitute Claims Forbidden Where Contract Clearly Pleaded (September 5, 2012)
• Finessing Severability (August 30, 2012)
• Contract-Substitute Claims (August 28, 2012)
• The Written Contract Is As Clear As Day--And It Was Reaffirmed In Writing--But It Can't Be Enforced (August 23, 2012)
• How to Avoid an Ambiguity (August 21, 2012)
• Stopping a Breach Before It Occurs; When Is It 'Too Soon'? (August 16, 2012)
• What Can Happen If a Significant Business Relationship Develops Without a Master Agreement (August 14, 2012)
• Ambiguity is in the Eye of the Beholder (August 13, 2012)
• When is a Signed, Written Contract Not a Contract At All? (August 8, 2012)
• In Pari Materia: Whether You Want It Or Not (July 31, 2012)
• Should Quasi-Contractual Relief Be Available When a Statute Precludes Collecting on a Contract? (July 25, 2012)
• Parish v. Parish: The Paradigm of an Ambiguity (July 12, 2012)
• The End of a Guarantee (July 9, 2012)
• Quasi-Contract Claims (June 27, 2012)
• Tolling the Contractual Statute of Limitations Due to Insanity (May 25, 2012)
• Breach of Contract by a Professional May Not be Shielded by the Corporate Veil (May 23, 2012)
• The Contractual Defense of Duress: The "Horse" Cases (May 17, 2012)
• Difficulties in Contracting Away Misrepresentations (May 2, 2012)
• Whitman v. Herbert - Covenant of Good Faith (April 23, 2012)
• Construing Language Against the Drafter: What is the law, and what to do about it? (April 17, 2012)

Arbitration

In addition to representation of parties in arbitration, Mr. Alpert has been appointed by the Superior Court of New Jersey to serve as special master and arbitrator in the resolution of complex disputes involving commercial real estate, environmental issues, and attorney misconduct claims. He was previously invited to join the panel of one of the nation's leading alternate dispute resolution providers. Because of his broad experience in diverse litigation, chancery matters, alternate dispute resolution, and appeals, he is qualified to act as either a neutral or advocate in mediation, arbitration, and other alternate dispute resolution methods.

Healthcare and Professional Services

Mr. Alpert represents the healthcare and professional services industries, including medical and legal professionals and related parties. Among them:

• He provides counsel to a number of physicians and medical practices in litigation, regulatory and other matters.
• He serves as both a legal expert and a court-appointed agent, and has dealt with law firm, medical practice, and accounting firm 'break-up' issues.
• He provides counsel to large and small medical groups in litigation and arbitration and before administrative boards.
• He advises medical groups with respect to corporate, contract, and labor matters including client counseling, drafting of agreements between physician groups and hospitals, compliance issues, interface with regulators, practicing across state borders, employment and operational matters, employment contract negotiation, management service organizations, Stark Law and Anti-Kickback Law, Medicare and private payer reimbursement, and in-network/out-of-network issues.
• He advises attorneys in matters ranging from business issues to ethics.

A recent success of note includes:

• In Gerges et al, v. Internal Medicine Consultants, et al., succeeded in obtaining emergent permanent relief from the New Jersey Superior Court, Chancery Division, allowing three "hospitalist" doctors to avoid a restrictive covenant being asserted by their former employer. The former employer had gone out of business for all practical purposes; and the question presented, which was novel in New Jersey but addressed elsewhere throughout the country, was whether such an entity with only a technical remaining existence (albeit with potentially relevant ongoing medical activities by its former principals) had a right to enforce the former medical practice's restrictive covenant. Our litigation approach was successful in enabling our three clients to obtain a declaration (and other relief)that they were free of the restrictive covenant, with the litigation lasting only a matter of weeks.

Publications

• He revised the "Malpractice" chapter of the seminal treatise for attorneys, Arthur Horn on Residential Real Estate, most recently in 2007.
• He authored several articles for the New Jersey Law Journal.

Accolades, Presentations, Speaking Engagements & Noteworthy

• In July 2012, The Star-Ledger published in conjunction with Law.com (an ALM publication) and Martindale-Hubbell an annual list of New Jersey's "Top Rated Lawyers," in which Mr. Alpert was featured in three categories: Business and Commercial, Commercial Litigation and General Practice.
• In 2010, Mr. Alpert presented a recorded program entitled "Force Majeure and Impossibility of Performance: Key Issues for Uncertain Times", that is currently available online as a resource for other attorneys who engage in drafting, interpreting and litigating contracts.
• He has been a panelist for seminars conducted by the New Jersey Institute for Continuing Legal Education, including serving recent as panel chair in a seminar entitled "Drafting, Negotiating and Litigating Agreements: Are Your Contracts Bulletproof?"
• Mr. Alpert has presented seminars for other organizations including Lorman Education Services and the Essex County Bar Association. These seminars covered topics including issues of confidentiality, privilege, and protective orders; the law of consumer fraud and deceptive trade practices; legal ethics in New Jersey; post-judgment procedures; prejudgment attachment, commercial litigation; contracts; and banking.
• Mr. Alpert has served as a Master of the Bench of the Justice William J. Brennan, Jr. American Inn of Court.