News & Noteworthy

Authored - NJ Contract Law Update - Can a Corporate "Division" Sue?
SEPTEMBER 16, 2013 | Windels Marx - Commercial Litigation

A recent New Jersey Appellate Division case addresses a number of issues. Some seem elementary: for example, the fact that a counteroffer (especially in a non-UCC setting) is not binding in the absence of acceptance. Perhaps of greatest interest, however, is the question of whether a division of a corporate entity can sue in its own name. The Appellate Division answered that question in the affirmative, but without setting forth compelling reasoning. A counter-argument remains in light of portions of that Court's rationale, as well as other authority such as Schiavone v. Fortune, 477 U.S. 21 (1986); which eo nomine was not about a corporate 'division',but could have been. Under Schiavone, of course, as well as cases such as Siligato v. State of N.J., 268 N.J.Super. 21, 28-29 (App.Div. 1993), a separate pleadings-analysis about "relation back" could arise.

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Clark 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. His updates on New Jersey contract law are based in recent issues and practical methods for addressing similar situations in your practice or business. They are not intended to serve as legal advice. Clark welcomes your questions and comments.

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