# Opposition Brief — Ziemke v. Almog

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 817

## Text

No. 97-1910

In The
Supreme Court of the United States
te

October Term, 1997

MARILYN ZIEMKE, CELIA SHAR and ISRAEL TRAVEL
ADVISORY SERVICE, INC.,

Petitioners,
VS.

SHALOM ALMOG, IRIT ALMOG and BEN AMI GELLER,

Respondents.

On Petition for Writ of Certiorari to the
Superior Court of New Jersey, Appellate Division

BRIEF IN OPPOSITION FOR RESPONDENTS
SHALOM ALMOG AND IRIT ALMOG

DAVID FEINSILVER
Counsel of Record

THE FEINSILVER LAW GROUP, P.C.
Attorneys for Respondents
Shalom Almog and Irit Almog

215 Millburn Avenue
ag P.O. Box 312
On the Demag: Millburn, New Jersey 07041

-4
DAVID FEINSILVER aia tei ls

JAIME R. PLACEK
DANIEL V. SOLLECITO

ervices, inc

147580 (800) 274-332" + (800) 359-6859 UA ellate
A DIVISION OF COUNSEL PRESS S

QUESTIONS PRESENTED FOR REVIEW

Respondents Shalom and Irit Almog respectfully submit

that, when the hyperbole is stripped from the Petition, the real
issues presented are:

I.

II.

Il.

IV.

Whether there is not a First Amendment concern, where
the defamation arises in the context of private commercial
speech that was uttered maliciously for the sole purpose
of injuring potential trade rivals, and where no media
coverage, public official or public figure is involved?

Whether the Petition should be denied where the
Petitioners failed to raise before the New Jersey Appellate
Division the issue of whether the punitive damages verdict
violated the free speech clause of the First Amendment?

Should this Court entertain a Petition predicated upon an
assertion that a punitive damage award was excessive in
light of their alleged financial condition, where the
Petitioners did not challenge the quantum of the punitive
damage award before the New Jersey Appellate Division
and steadfastly refused below to furnish the jury and the
Court with the necessary financial records and information
to determine the issue?

Did the New Jersey Appellate Division properly determine
that the New Jersey law applied to this private defamation
suit where New Jersey’s interest in deterring egregious
and tortious conduct of its citizens is not outweighed by
any substantial Israeli interests?

Did the New Jersey Appellate Division correctly determine
that the jury charge and jury interrogatories, which
permitted individual allocations of liability but did not

VI.

ul

require them, were not plainly erroneous, where Petitioners
presented themselves as one “unit”, jointly conspired to
defame respondents, presented one unified defense
through one law firm, furnished the jury with no
information to enable it to make an allocation, and failed
to object thereto?

Did the New Jersey Appellate Division properly determine
that the jury was not advisory, where the lawyers
proceeded tactically on the understanding that this was a
jury trial, as did the court; the jurors had no idea during
their deliberations (or at any other time) that their status
was anything but that of the ultimate finders of the facts,
and nothing said by the trial judge tainted the way that
the lawyers tried the case to the jury, or the way that the
jury deliberated?

ull

TABLE OF CONTENTS

Page
Questions Presented for Review ................... 1
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Reasons for Denying the Writ .............0.25%-: 9

I. Where Defamation Arises In The Context Of

Private Commercial Speech, Uttered Maliciously

For The Sole Purpose Of Injuring Potential Trade

Rivals, And Where No Media Coverage, Public

Official Or Public Figure Is Involved, No Possible

First Amendment Concerns Are Implicated, Nor

Does The Imposition Of Punitive Damages Under

State Law In Such A Case Raise Any Unique Due
Process Or Other Constitutional Concerns. ... 9

A. The First Amendment In The Ordinary Non-
Media, Non-Public Interest Case. ....... 9

B. The Constitutionality Of Punitive Damages
As Imposed By State Law In Non-Media,
Non-Public Interest Defamation Cases, And
I rn eee ceo hei tse vee Oe he oe 14

Il.

III.

iv

Contents

C. The New Jersey Courts In This Matter
Consistently Applied New Jersey’s Own
Choice Of Law Rules In Concluding That
New Jersey Law Should Be Applied On The
Question Of Punitive Damages. That Choice
Of Law In No Way Violates Petitioners’ First
Amendment Or Due Process Rights.

Petitioners Had A Full Jury Trial Below Which
Resulted In A Verdict, And Although The Trial
Judge Elected Not To Enter Judgment On That
Verdict, The Appellate Division Reversed Him
And, After Review, Reinstated The Verdict And
Directed That Judgment Be Entered On It.
Petitioners Suffered No Denial Of Due Process
In This Procedure, Nor On The Basis Of Any Of
The Other Matters Raised In The Petition. ....

Based On The Unique Facts Presented Herein, It
Was Not Violative Of Due Process For The Trial
Court Not To Require Individualized
Determinations From The Jury As To The Liability
And Damages Attributable To Each Defendant.

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To The Extent That Concepts Of Substantive Due
Process Under The Fourteenth Amendment Can
Have Any Possible Application To A Civil Tort
Judgment In State Court, No Known Due Process
Rights Of Defendants Were Violated In The
PRUSEOEIE TONG 3b 6k koko hi ee ees

Page

17

20

22

24

Contents

A. Degree of Reprehensibility .............
a rr In eee ye ary erase arly
C. Comparative Legislative Sanctions ......
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TABLE OF CITATIONS
Cases Cited:
Abebe-Jira v. Negewo, 72 F.3d 844 (11th. Cir. 1996) .
Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986)...

Almog v. ITAS, 298 N.J. Super. 145 (App. Div. 1997)

at

28

25

eae

7a wk RRR ek eek Are hy Dy 07, 18, FR, 22, 25

Bereda v. Pickering Creek Industrial Park, Inc., 865 F.2d
OP 4G CW TE ak os Ch ae a ee eee erie ees

Colley v. Harvey Cedars Marina et al. 422 F. Supp. 953
(D.N.J. 1976, footnote omitted) ................
Corporate Training Unlimited, Inc. v. National
Broadcasting Co., Inc., 981 F. Supp. 112 (E.D. N.Y.
RED eu RRA ane ba aed ee LOS CE Reha

Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S.
Fee ER a 5 hid kb a aa ee ee 9,

vi

Contents
Page

Filartiga v. Pena-lrala, 577 F. Supp. 860 (E.D. N.Y.)
PT ee Pe re ee re pr Te Te ee ar 25

Food Lion, Inc. v. Capital Cities/ABC, Inc., et al., 984 F.
mui. SES CEE. TNS ROPES ein cies wwii vcs 11

Gantes v. Kason Corp., 145 N.J. 478 (1996) ........ 18, 19
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ...9, 10, 12

Honda Motor Co. Ltd. v. Oberg, __ U.S.__, 114 S. Ct.
BR CEE. cok we'd an ke Ro omar 16

J.S. and M.S. v. R.T.H. and R.G.H., 301 N.J. 150, 693
R26 TEST CE. AO. TP ED on ve da en ees ewuaes 25

New York Times v. Sullivan, 376 U.S. 254 (1964) .... 9, 10

Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. |
CQRPER ew heivice iia seaeuerereeeetem mcs 14, 15, 16

Philadelphia Newspapers, Inc. v. Hepps et al., 475 U.S.
767, 89 L. Ed. 783, 106 S. Ct. 1558 (1986) ...... 10

Refuse & Env. Systems v. Industrial Serv. of Am., 932
Pie Se CA Ga TOD 6 xa sa skein ee 23, 24

Rosenbloom v. Metromedia, 403 U.S. 29 (1971) ..... 13, 14

Thompson v. Parks, 963 F.2d 885 (6th Cir. 1992) .... 21

Vil

Contents _
Page
TXO Productions Corp. v. Alliance Resourses Corp., 509
Shits Doky CS ees Wels TEE COORD Sak Cees awe Ves 15, 16

Waters v. Churchill, 511 U.S. 661, 128 L. Ed. 686, 114
ie Sas RS CE 0 oe oe ee hee boa Crs 10

Wilson v. Savino, 10 N.J. 11, 89 A.2d 399 (1952) ... 24
Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995) 25
Statutes Cited:

N.J. Stat. Ann 2A:15-5.9 et seg. (West 1998) ........ 27
Picks. GO FO REM EMED, nu eke ena eck weenah 27

United States Constitution Cited:

Pa Pe ig sis re eb he CS hb ba eda Rh ou i, 9, 10

FOUPUSOIT AMIONGINIORE 0 ooo okies ib ekewseadacuce 24 es
Rule Cited:

Peide HE Ae EIOAS eivs 0k avs cl eae awe 5

Other Authorities Cited:

New Jersey Practice, Vol. 24 § 742, 2nd edition ..... 27

Restatement (second) Chapter 25 ........0..0.2000> 21

i

l

STATEMENT OF THE CASE!

The factual recitations set forth in the Petitioners’ Statement
of the Case bears very little resemblance to the truth, or to the
record herein. Due to space limitations, Respondents refer this Court
to the factual recitation set forth at pages 149 through 155 of the
February 25, 1997 opinion? rendered by the Superior Court of
New Jersey, Appellate Division (the Honorable Sylvia B. Pressler,
P.J.A.D. writing for a unanimous Court), which recitation was
predicated upon that Court’s careful review of the entire record
below.

BACKGROUND

As a result of a 1993 Jury verdict arising out of a5 1/2 week
trial in a lawsuit filed on October 8, 1989, Shalom Almog, Irit
Almog and Ben Ami Geller (hereinafter, the “respondents’’) hold a
judgment in defamation against Celia Shar, her adult daughter,
Marilyn Ziemke, and their wholly owned Corporation, Israel Travel
Advisory Service, Inc., (“ITAS”). The jury awarded the Almogs
compensatory damages of $1,524,000 and $4,500,000 in punitive
damages for a total of $6,024,000; and awarded Geller $40,000 in
compensatory damages and $1,000,000 in punitive damages.
Pursuant to special interrogatories, the jury expressly found that
the defamatory statements were made by the Petitioners with actual
knowledge that the statements were false.

1. Citations to the record below will be in the following form: “Pet.#”
refers to defendants’ petition for a writ of certiorari to this Court; “Da#’ refers to
a page in defendants’ Appendix to their brief filed in the Superior Court of New
Jersey, Appellate Division; “Pa#” refers to a page in the Almog Respondents’
Appendix to their brief filed in the Superior Court of New Jersey, Appellate
Division; “Raa#” refers to a page in the Almog Respondents’ Appendix to their
Brief filed with the Supreme Court of New Jersey; “Tr.#” refers to the trial
transcript.

2. Almog v. ITAS, 298 N.J. Super. 145 (App. Div. 1997).

2
Contrary to petitioners’ assertion that an accounting firm
substantiated their claims made against Respondent Almog for
alleged misappropriation of monies, petitioners never provided
any evidence to support such a claim.

Respondents Shalom and Irit Almog did not file suit in the
New Jersey Court to preempt a potential suit by the petitioners in
Israel. On November 23, 1989, the petitioners filed a retaliatory
sham lawsuit in Israel against Mr. Almog seeking $550,000 in
damages for fraud, embezzlement, misrepresentation and negligence,
which was enjoined.’ These Respondents dismissed their claims
against Respondent Geller, as the same were not proven at trial.

Petitioners Shar and Ziemke, New Jersey residents working
through Petitioner ITAS, are in the business of organizing tours to
Israel for American travelers. During the period in controversy,
the business was highly successful, ITAS, controlled 30% of the
Untied States’ Bar-Bat Mitzvah market.* ITAS subcontracts all the
Israeli arrangements-hotels, meals, sightseeing, entertainment,
transportation, and the like-to a licensed Israeli land tour operator.
The groups are then conducted by a licensed Israeli tour guide
acting as an independent contractor under arrangement with the
land tour operator. Geller, who worked as a guide, frequently
guided ITAS groups.

Sometime in 1984 Geller solicited Almog, then a colonel in
the Israeli Defense Forces, to enter the travel business upon his

3. Petitioners brought the same claim against Mr. Almog by way of
counterclaim. However, Petitioners solely offered proofs with respect to one
$39,000 transaction and limited their counterclaim thereto at the conclusion of
the case (Raa60[21 }-62[16]). Both the jury and the trial court found in favor of
Mr. Almog on Petitioners’ counterclaim. The sham alleged Israeli accounting
report which was the basis for said suit was never produced or made part of the
record herein. The Appellate Division ordered the Petitioners to delete all
references thereto (Pal 83).

4. At trial it was established that ITAS’ tax returns bore no relation to
reality.

3

retirement from the army and introduced him to Shar and Ziemke.
In August 1985, when Almog retired from the army, he worked
for the land tour operators assigned exclusively to the ITAS account.
A close working relationship developed between Almog and Shar
and Ziemke, who were extremely pleased with his performance.

In October 1988, the land tour operator and Geller advised
the Petitioners that they believed that Almog charged ITAS for
some services not actually rendered the touring groups and by not
remitting certain rebates; i.e. relatively minor matters involving
the cost of box lunches, the use of hostesses, the quality of buses
engaged, and a small hotel prepayment discount. However, Almog’s
disposition of these matters was perfectly proper and in accord
with industry standards and practices.

In any event, the Petitioners created their own allegations of
wrong doing, which took on a life of their own, and increased in
magnitude with the passage of time, accusing him of embezzling
sums up to $500,000; calling him an embezzler, thief, schizophrenic
and adulterer, etc., (all without any basis in fact). As a result, Almog
was unable to find employment either in the tourist industry or in
any other industry in Israel because of the savage campaign of
slander and libel that Shar and Ziemke maliciously undertook
against him, both in the United States and in Israel. It was not until
1990 that Almog was finally able to find work at a greatly reduced
salary as a plant manager in the Dominican Republic. They
published these stories to anyone who would listen, including
Almog’s former commanding officer, who advised him to leave
Israel as his reputation and prospects were finished there. The
Almogs suffered substantial physical and emotional harm as a result
of Petitioners’ actions.

Geller continued in Petitioners’ good graces until the summer
of 1990, when Geller was hospitalized after suffering a stroke.
When he was released from the hospital, he entered into an
agreement with a land tour operator when he was not required to
work exclusively on ITAS tours and his per-tourist fee was increased

4

to $15. When the land tour operator’s principal advised Shar and
Ziemke of this agreement, they became enraged, vowed to “punish”
Geller, called him a thief and refused to permit him to guide the
tour scheduled for October. The land tour operator thereupon
severed its relationship with ITAS and entered into a relationship
with an American competitor of ITAS and Geller continued to
work both for the land tour operator and other companies. The _
Petitioners mounted a retaliatory defamatory campaign against
Geller, accusing him of having seduced the daughter of a major
Israeli restaurant owner and causing Geller and his wife to be subject
to criminal investigation by the Israeli tax authorities, and to suffer
impairment of reputation, and emotional distress.

The Honorable Douglas Hague, J.S.C., who presided over
the trial found:

I find that the conduct of the defendants ... was
outrageous ... I think it was vicious: I think it was
unnecessary ... I think that they defamed,
outrageously, these two plaintiffs . . . I find it to be a
fact that the defendants also — unnecessarily impugned
his private life with no reason and no necessity to do it
— it had nothing to do with their business — by
indicating that he had affairs with other women ...
insofar as the Colonel is concerned . . . somehow along
the line they became disoriented. Somehow along the
line their zeal became misguiding — misguided and I
think that their actions thereafter were unwarranted,
violent and vicious, and they conducted some ...
indiscriminate broadsides against Colonel Almog .. .
I think that the damage to his reputation ... was
stupendous — was terrible. And the word that I’m
searching for, I think, is odious.

(Tr. 8/13/93 112:15-115:7)

5

The Hon. Sylvia Pressler, PJ.A.D., writing for a unanimous
panel of the Appellate Division, stated:

In summary, we are satisfied from our review of this
record that the jury had an ample evidential basis
from which to conclude that defendants Shar and
Ziemke and their company took concerted, malicious
and purposeful action over a significant period of
time to destroy both Almog and Geller as respected
members of their community, that they did so with
total disregard of the truth or of the personal
consequences to them and their families, and that in
large measure they succeeded. (Emphasis added).

The Appellate Division of the Superior Court of New Jersey
further found that the “evidence of defendants’ intentional,
malicious and egregious wrongdoing was overwhelming” Almog
v. Itas, 298 N.J. Super 145 at 153, 160 (App. Div. 1997).

The compensatory damages phase of the trial commenced on
July 12, 1993, with closing arguments on August 13, 1993. On
August 16, 1993, the jury answered special interrogatories
consented as to form by defendants’ counsel (Da 461 et seq.). The
jury determined that punitive damages should be awarded. Due to
the trial court’s vacation schedule, the trial court, with the consent
of the parties and jury, suspended the trial until September 20,
1993, at which time the trial reconvened for the second (punitive
damage) phase (conducted on September 20 and 21, 1993).

On August 16, 1993, following the jury’s initial verdict, the
trial court, inter alia, ordered the petitioners to furnish respondents’
counsel with all of the petitioners’ 1991 and 1992 personal and
corporate tax returns (Raa 74[4-7]). On August 17, 1993,
respondents served upon defense trial counsel notices to produce
in lieu of a subpoena pursuant to N.J. Rule of Court 1:9-2. When
documents were not timely received, respondents moved to compel
production thereof.

ee

6

On September 16, 1993, the trial court ordered the petitioners
to produce 1991, 1992 and 1993 profit and loss statements for
petitioner ITAS; ordered that the personal 1991 and 1992 tax returns
of petitioners Shar and Ziemke be produced; and cautioned
petitioners’ trial counsel that the petitioners’ non-production of
financial information might result in a large verdict.’ (See, generally,
Raa 75(9]}-110[4]). Petitioners’ trial counsel represented to the court
on September 16, 1993, inter alia, that petitioners’ accountant
(Leonard Harris, C.P.A., who was noticed by the respondents to
appear at trial) would appear for trial® (Raa 107[15-17]).

In contrast to Petitioners’ description of the trial, Judge Hague
took considerable time and care in explaining to the jury the reason
for the few brief interruptions during the 5 1/2 week trial, which
did not affect the outcome herein.

Contrary to the false assertion that Judge Hague stated on
August 13, 1993 (while charging the jury) that he had in fact only
listened with“... half an ear. . .”, what Judge Hague actually said
was:

As I told you before, you have eight minds and 16
eyes and you see much more than I could ever hope
to see in this case . . . and I think that because of my
over three decades of experience as a trial attorney, /
can listen with half an ear, but I can’t do it as well as
you can...

Raa 66[19]-67[7]. Clearly, Judge Hague was merely stressing to
the jury the importance of their role, and expressing his confidence
in them to reach a proper verdict. Judge Hague never left the

5. See resume of petitioners’ failures to produce court ordered documents
and information. (Pal 78).

6. However, contrary to petitioners’ representation, petitioners did not
produce their accountant, claiming that he was on vacation and would not be
returning until after trial. Raa 131{13]-133{10}.

ee ee

a

courtroom during proceedings, nor was he interrupted by another
matter, as all counsel out of respect for the Court, immediately
stopped and refused to continue until the interruption was over. At
no time did the trial proceed without the Judge, or without the
Judge’s attention.’

Contrary to the petitioners’ assertions, this was not an advisory
jury as the jury had already begun deliberations in the jury room
when the trial judge announced to trial counsel (emphasizing to
counsel that this was to remain in the courtroom) that he would
decide the case as an Israeli Judge — as the petitioners had requested.

With regard to petitioners’ complaint that they were treated as
one by the trial court, petitioners were, and are, truly inseparable.
Based on the unique facts presented at the trial below, individual
determinations of guilt were not required (and would have served
no purpose).* Petitioners Shar and Ziemke (Shar’s only child),
who continue to reside in the same home and who are the sole
principals of ITAS: (a) wrote every libelous letter jointly; (b) jointly
participated in every meeting where they slandered Mr. Almog; (c)
jointly conducted all aspects of their business; (d) conducted every
slanderous phone conversation jointly’; and (e) are truly
inseparable. (Raa 37[13-25]). In fact, the testimony (which was
largely uncontradicted, and found to be credible and overwhelming
by the jury, trial judge and Appellate Division), was that both
petitioner Shar and petitioner Ziemke, in each instance, actively

7. Petitioners’ present counsel was not petitioners’ trial counsel, while
respondents’ present counsel was also trial counsel in this matter.

8. Furthermore, petitioners offer no authority (governing at the time of
trial) for their proposition that when an award is made jointly and severally against
defendants, the individual financial circumstances of each defendant must be
taken into account.

9. Petitioner Shar testified that the petitioners participated jointly in writing
letters and making telephone calls. Raa 56{3}-57[17].

8

participated in the defamatory statements. '° Therefore, the trial court
properly denied the petitioners’ untimely request to split them into
three individual defendants for the purpose of determining
liability.’ As noted by the trial court, the entire case was presented
by one law firm on behalf of all three defendants, they operated as
one unit, and the petitioners presented no evidence to the jury to
enable it to make an allocation, and that he did not believe that
under the circumstances that there should be separate punitive
damage awards. Nevertheless, the court did draft special
interrogatories for the jury to decide whether there should be
individual assessments or a joint award (Raa 69[13-17]; Raa 112;
Raa 166[20]-168[14]). The jurors found that the defendants had
indeed acted jointly,’* and awarded punitive damages against the
petitioners jointly."

Finally, contrary to petitioners’ assertion, the United States
Bankruptcy Court for the District of New Jersey in not “awaiting
the response of this court before acting further”.'* ITAS has not
filed for bankruptcy, and continues as a profitable business.

10. See, e.g., the testimony of Tommy Haendler, Pamela Cohen, Benny
Sivan and Ben Ami Geller (Raa 19[{7]-20[4], Raa 20[9]-21[20]; Raa 10[5}-15[6};
Raa 24{1]-34(6)).

11. Judge Hague did instruct the jury that they could either find the
petitoners individually liable or jointly and severally liable (Raa 172{10]-173{3)).

12. A review of the transcript reflects that both respondents’ and petitioners’
trial counsel, as well as the Court, worked from petitioners’ proposed
interrogatories until a final joint submission was reached. Raa 173.

13. As noted by the Appellate Division, the petitioners have recourse
available through claims for contribution or indemnification. Almog, at 161.

14. The respondents are preparing a motion to dismiss the bankruptcy
petition, as a bad faith filing, in what is essentially a one creditor case, filed after
exhaustion of state court remedies.

9

REASONS FOR DENYING THE WRIT

I. WHERE DEFAMATION ARISES IN THE CONTEXT OF
PRIVATE COMMERCIAL SPEECH, UTTERED
MALICIOUSLY FOR THE SOLE PURPOSE OF INJURING
POTENTIAL TRADE RIVALS, AND WHERE NO MEDIA
COVERAGE, PUBLIC OFFICIAL OR PUBLIC FIGURE
IS INVOLVED, NO POSSIBLE FIRST AMENDMENT
CONCERNS ARE IMPLICATED, NOR DOES THE
IMPOSITION OF PUNITIVE DAMAGES UNDER STATE
LAW IN SUCH A CASE RAISE ANY UNIQUE DUE
PROCESS OR OTHER CONSTITUTIONAL CONCERNS.

A. The First Amendment In The Ordinary Non-Media,
Non-Public Interest Case.

Petitioners cite, without much focus, cases such as New York
Times v. Sullivan, 376 U.S. 254 (1964) and Gertz v. Robert Welch,
Inc., 418 U.S. 323 (1974), and invoke sweeping generalizations
as to free speech and public policy, none of which are applicable.
New York Times, supra, Gertz, supra, and similar cases, involve
newspapers or other public media, or public officials, or matters of
public concern, or both. In Dun & Bradstreet, Inc. v. Greenmoss
Builders, 472 U.S. 749 (1985) the Court’s holding made clear
that absent such public concerns, there were no First Amendment
limitations on the ordinary common law concepts of libel and
Slander, including the awarding of punitive damages when
appropriate:

We conclude that permitting recovery of presumed
and punitive damages in defamation cases absent a
showing of “actual malice” does not violate the First
Amendment when the defamatory statements do not
involve matters of public concern. Accordingly, we
affirm the judgment of the Vermont Supreme Court.

Id. 472 U.S. at 763.

10

Although the main opinion by Powell, J. in Dun & Bradstreet,
is correctly referred to as a plurality opinion, the two Justices who
concurred in the result, would have restricted the application of
the First Amendment in non-media cases even more severely than
the plurality opinion. Burger, C.J., 472 U.S. at 749-64, and White,
J., 472 U.S. at 765-74. Both of the concurring opinions argue,
inter alia, for the total reversal of the Gertz requirement for proof
of actual malice, and its prohibition against punitive damages, in
media and “public figure” cases. (e.g. Justice White: “First, I am
unreconciled to the Gertz holding and believe it should be
overruled. Second, as Justice Powell [plurality opinion] indicates,
‘... the defamatory publication in this case does not deal with a
matter of public importance.’ Consequently, I concur in the Court’s
judgment.” Jd. 472 U.S. at 774).

rica ameedioe

Thus a clear, solid, five justice majority of this Court was
strongly opposed to extending First Amendment based restrictions
to ordinary non-media, non-public figure, non-public official
defamation cases. That ruling has neither been overruled, nor
questioned, by any subsequent majority opinion of this Court.
e.g.: Philadelphia Newspapers, Inc. v. Hepps et al., 475 U.S. 767,
89 L. Ed. 783, 106 S. Ct. 1558 (1986), “In sharp contrast to New
York Times, Dun & Bradstreet involved not only a private-figure
plaintiff, but also speech of purely private concern.” 472 U.S., at
751-752, 105 S. Ct., at 2941. A plurality of the Court in Dun &
Bradstreet was convinced that, in a case with such a configuration
of speech, “... the showing of actual malice needed to recover
punitive damages under either New York Times or Gertz was
unnecessary .. .” 475 U.S. at 774, 106 S. Ct. at 1562-63; Waters
v. Churchill, 511 U.S. 661, 128 L. Ed. 686, 114 S. Ct. 1878
(1994), “Likewise, the possibility that defamation liability would
chill even true speech has not led us to require an actual malice
standard in all libel cases.” 661 U.S. at 670, 114 S. Ct. at 1885,
citing to Dun & Bradstreet.

Dun & Bradstreet continues to be cited for the lack of
heightened First Amendment concerns in private, non-media

:
3
ia

11

defamation cases in some of the most recently reported Federal
District Court cases: E.g. Food Lion, Inc. v. Capital Cities/ABC,
Inc., et al., 984 F. Supp. 923, 932 (M.D. N.C. 1997):

[ijn light of the reduced constitutional value of
speech involving no matters of public concern, we
hold that state interest adequately supports awards
of presumed and punitive damages—even absent a
showing of “actual malice.”

(quoting Dun & Bradstreet), Corporate Training Unlimited,
Inc. v. National Broadcasting Co., Inc., 981 F. Supp. 112,
118, n.2 (E.D. N.Y. 1997): “In cases not involving matters of
public concern and therefore not implicating heightened First
Amendment protections for defendants, a plaintiff need not
prove ‘actual malice’.” (citing Dun & Bradstreet).

The petitioners here, and at the New Jersey Supreme Court,
have never claimed, nor could they claim, that this was a media or
public figure or public official case. In footnote 8 on page 13 of
their petition, however, they make the bizarre claim that this is not
a commercial speech case. All parties to this case were involved in
the United States to Israel bar/bat Mitzvah tour business; all did
business with each other, and all are competitors in some aspects
of this business. The only conceivable reason the defamations were
uttered was to injure potential (or actual) commercial rivals. There
is considerable evidence that the defamations, and the dispute that
lead up to them, arose totally in the context of the business dealings
among all the parties to this action.

Petitioners, on page 9 of their brief state:

This Court has held that in a defamation case,
compensation for damage to reputation is the only
legitimate governmental interest. Gretz v. Welch, Inc.,
418 U.S. 322, 349 (1974).

12

This statement so completely ignores the media versus private
speech issue, as to be totally disingenuous, if not deliberately
misleading. The Court in Gertz clearly stated at the outset:

The principal issue in this case is whether a
newspaper or broadcaster that publishes defamatory
falsehoods about an individual who is neither a
public official or a public figure may claim a
constitutional privilege against liability for the injury
inflicted by those statements.

Gretz v. Welch, Inc., 418 U.S. 322, 332 (1974) (emphasis added).
In its holding the Court again clearly indicated that it was dealing
only with the media issue:

We hold that, so long as they do not impose liability
without fault, the States may define for themselves
the appropriate standard of liability for a publisher
or broadcaster of defamatory falsehoods injurious
to a private individual. This approach provides a
more equitable boundary between the competing
concerns involved here. It recognizes the strength
of the legitimate state interest in compensating
individuals for wrongful injury to reputation, yet
Shields the press and broadcast media from the
rigors of strict liability for defamation.

Id. 418 U.S. at 347-48 (emphasis added).

The petitioners next cite Aetna Life Ins. Co. v. Lavoie, 475
U.S. 813, 818 (1986) for the proposition that “[t]his Court has
recognized that constitutional challenges to punitive damages raise
‘important issues’ ”. Petition, p. 10. The Aetna case involved a
State statute penalizing the bad faith refusals of insurers to pay
health claims. However, the Court in Aetna declined to pass on the
propriety of punitive damages and the penalty imposed below
under a new Alabama statute, as it had decided to vacate and remand

13

the judgment of the Alabama Supreme Court on procedural
grounds’. A full quotation of the language referred to by petitioners
(which appears at 475 U.S. 828-29 not at 475 U.S. 818)
demonstrates that: (a) the language quoted is on its face clearly
dicta; and (b) even as dicta, the Court did not intend to comment
on the general Constitutional propriety of punitive damages in all
cases, let alone punitive damages in defamation cases, but merely
upon the unique issues raised by Alabama’s new cause of action:

Appellant also argues that the retrospective
imposition of punitive damages under a new cause
of action violates its rights under the Contracts
Clause of Article I, s10; that a $3.5 million punitive
damages award is impermissible under the Excessive
Fines Clause of the Eighth Amendment; and that
lack of sufficient standards governing punitive
damages awards in Alabama violates the Due Process
Clause of the Fourteenth Amendment ... These
arguments raise important issues which, in an
appropriate setting, must be resolved; however, our
disposition of the recusal-for-bias issue makes it
unnecessary to reach them.

Id. 475 U.S. at 828-29.

Petitioners next refer to comments by two dissenters in
Rosenbloom v. Metromedia, 403 U.S. 29 (1971) in which,
according to petitioners, “... two justices expressed disapproval
with the status of punitive damages in defamation law.” Not only
was Rosenbloom obviously a media case, but both dissenting
justices, Marshall and Stewart, J.J., expressly based their comments
on free press concerns:

And fear of the extensive awards that may be given
under the doctrine [punitive damages] must

15. Finding that one of the Alabama Court’s justices should have recused
himself.

14

necessarily produce the impingement on freedom of
the press recognized in New York Times.

Id. 403 U.S. at 83; 91 S. Ct. at 1839;

The only constitutional caveat should be that
absolute or strict liability, like uncontrolled damages /
and private fines, cannot be used.... Clearly, is
inconsistent with concepts of freedom of the press.

Id. 403 U.S. at 87; 91 S. Ct. at 1841 (footnotes omitted,
emphasis added).

In a private suit involving no public issues, no public figure,
press or other media, there simply is no free speech justification
for a private defendant to falsely utter statements intending to
damage another’s commercial reputation, anymore than there would
be a free speech interest in shouting “fire” in a crowded theater.

B. The Constitutionality Of Punitive Damages As Imposed |
By State Law In Non-Media, Non-Public Interest '
Defamation Cases, And Generally.

In Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1 lj
(1991), this Court again asserted its acceptance of the common 1
law concept of punitive damages. The Court in Pacific Mutual :
Life, facing a due process challenge to a punitive damage award of
$840,000 (added to a compensatory verdict of $200,000), held:

In view of this consistent history [of punitive damage
awards in the common law], we cannot say that the
common-law method for assessing punitive damages
is so inherently unfair as to deny due process and
be per se unconstitutional.

Although Petitioners quote from the concurring opinion of
Justice Scalia, they omitted that Justice’s concluding comments
on punitive damages at the final two paragraphs of that opinion:

3
:
x
en

15

... But punitive damages assessed under common-
law procedures are far from a fossil, or even an
endangered species. They are (regrettably to many)
vigorously alive. To effect their elimination may well
be wise, but is not the role of the Due Process Clause.
Its function is negative, not affirmative, and it carries
no mandate for particular measures of reform.

We have expended much ink upon the due-process
implications of punitive damages, and the fact specific
nature of the Court’s opinion guarantees that we and
other courts will expend much more. Since jury-
assessed punitive damages are a part of our living
tradition that dates back prior to_1868, / would end
the suspense and categorically affirm their validity.

Id. 499 U.S. at 38.

The Court again reaffirmed its confidence in the concept of
punitive damages in TXO Productions Corp. v. Alliance Resourses
Corp., 509 U.S. 433, 113 S. Ct. 2711 (1993), where it affirmed a
judgment in which a compensatory damage award of $19,000
was accompanied by a punitive damage award of $10 million,
noting, inter alia:

Thus, both State Supreme Courts and this Court have
eschewed an approach that concentrates entirely on
the relationship between actual and punitive
damages. It is appropriate to consider the magnitude
of the potential harm that the defendant’s conduct
would have caused to its intended victim if the
wrongful plan had succeeded, as well as the possible
harm to other victims that might have resulted if
similar future behavior were not deterred.

16

We agree with TXO that the emphasis on the
wealth of the wrongdoer increases the risk that the
award may have been influenced by prejudice
against large corporations. ... We note, however,
that in Haslip we referred to the “financial position”
of the defendant as one factor that could be taken
into account in assessing punitive damages... .

Id. at 113 S. Ct. 2711, 2721 and 2723.

Honda Motor Co. Ltd. v. Oberg, __ U.S.__, 114 S. Ct. 2331
(1994) essentially dealt with the narrow procedural issue of a state
constitutional amendment purporting to cut-off judicial review of
punitive damage awards in jury verdicts, which provision the Court
struck as violative of due process. The Court expressly cited and
quoted from Haslip, supra, and TXO, supra, reaffirming its general
position that common law punitive damage verdicts are not
violative of due process.

In this matter, the New Jersey Superior Court, Appellate
Division, specifically reviewed the punitive damage awards herein,
both as to reasonableness and due process:

There is one last matter we address. Defendants
have not challenged the quantum of punitive
damages allowed by the jury. Nonetheless, and
because of the [New Jersey] Supreme Court's
expressed concern with runaway punitive damage
verdicts in Herman v. Sunshine Chemical
Specialties, Inc., 133 N.J., 329, 338, 627 A.2d 101
(1993), we have carefully examined the awards were
commensurate with the evidence of defendants’
wealth and represent, considering the egregious
nature of the torts, an acceptable ratio between
compensatory and punitive damages. Most
significantly, however, following the jury’s return
of the punitive damages verdict, the trial judge, in

17

an abundance of caution, afforded defendants an
opportunity to demonstrate by way of discrete
financial records any alleged excessiveness.
Defendants failed in the end to take advantage of
that opportunity. We are satisfied that they thereby
waived their right to complain of the quantum."

Almog v. Israeli Travel Service, Inc., 298 N.J. Super 145, 161,
704 A.2d 158, 161. It should be noted that the Appellate
Division first made its own independent assessment as to the
reasonableness of the awards in light of all the circumstances,
and only then turned to the procedural question of petitioners’
bad faith refusal to produce financial records to challenge the
reasonableness of the awards.

C. The New Jersey Courts In This Matter Consistently
Applied New Jersey’s Own Choice Of Law Rules In
Concluding That New Jersey Law Should Be Applied On
The Question Of Punitive Damages. That Choice Of Law
In No Way Violates Petitioners’ First Amendment Or Due
Process Rights.

At page 16, the petition concedes that the state court properly
utilized the governmental interest test in determining the choice of
law to be applied, yet fault the state court’s application of the court’s
own public policy of deterrence:

Defendants do not quarrel with New Jersey's use of
the governmental interest test, and do not seek review
by this Court of that state issue. Defendants do,
however, contend that New Jersey's application of
that test, and its explicit declaration that deterring

16. After consenting to the post judgment appointment of an accountant
by the court (to report on the petitioners’ actual financial condition), the petitioners
refused to furnish the financial records requested by the accountant, and chose
to abandon remittitur considerations.

speech is the overriding state interest, collides with
the First Amendment and, therefore, demands the
intervention of this Court.

The Appellate Division logically applied New Jersey’s equally
logical and Constitutionally sound choice of law rules and came
to the conclusion that under New Jersey’s choice of law rules New
Jersey law should be applied on these facts:

First as to choice of law. As we have noted, egregious
misconduct was committed in New Jersey, elsewhere
in the United States, and in Israel by New Jersey
residents. Malicious defamation was published in
and from this State. Key events occurred in New
Jersey, including the two fateful meetings in
Livingston we have already described. Underlying
contracts and agreements were made here. A fuller
remedy is available to the victims under New Jersey
law than in Israel in respect of the scope of damages.
The question is whether these significant contacts
with New Jersey weight the application of the
governmental interest test in favor of New Jersey
law or Israeli law. We have no doubt in light of the
totality of the circumstances that New Jersey's interest
in the controversy as a whole is paramount to Israel’s.

Almog v. Israel Travel Advisory Service, Inc., 298 N.J. Super.
145, 158 (App. Div. 1997). Clearly many facts and
circumstances, contacts and interests, were taken into account
by the Appellate Division in reaching its choice of law decision.

Gantes v. Kason Corp., 145 N.J. 478 (1996) is the case
principally cited by the Appellate Division in coming to its choice
of Law decision. Almog, supra 298 N.J. Super. at 158. In Gantes,
Georgia's ten year statute of repose in products liability cases would
have prevented Georgia plaintiffs from recovering for a recent injury
caused by a machine manufactured in New Jersey more than ten

19

years ago. In allowing the Georgia resident who suffered injuries
in Georgia to sue in New Jersey, the New Jersey Supreme Court in
Gantes held that New Jersey has a legitimate interest in deterring
tortious behavior of its citizens, whereas Georgia’s policy (designed
to cut off old claims against its manufacturers) is in no way
compromised by New Jersey applying its more stringent rule against
its own manufacturers, on behalf of a Georgia plaintiff. The Gantes
Court noted that a state has no real governmental interest in seeing
that its citizens do not recover for tortious conduct, but New Jersey,
however, has a strong interest in deterring “. . .egregiously wrongful
conduct. . .”"’, i.e. intentional tortious behavior, by its citizens.

There is no real conflict between the interests of New Jersey
and those of Israel on this issue. As the New Jersey Federal District
Court, sitting in diversity, and applying these New Jersey choice
of law rules noted:

At the heart of interest analysis is the realization that
often the interest of only one state will be furthered
by application of its law ona particular issue. This
presents a “false” conflict aad a court should apply
the law of the only interested jurisdiction.

Colley v. Harvey Cedars Marina et al. 422 F. Supp. 953, 955
(D.N.J. 1976, footnote omitted). Similarly, the Appellate
Division here observed:

By the same token, we do rot see how Israeli law
can reasonably be regarded as offended by one of
its citizens being fully vindicated in the courts of
another jurisdiction. In sum, New Jersey’s strong
deterrent interest does not aopear to collide in any
appreciable way with the policy of Israeli law.

Almog, supra 298 N.J. Super. at 59.

17. Almog v. ITAS, 298 NJ. Super. 145, 159 (A.D. 1997).

20

Il. PETITIONERS HAD A FULL JURY TRIAL BELOW
WHICH RESULTED IN A VERDICT, AND ALTHOUGH
THE TRIAL JUDGE ELECTED NOT TO ENTER
JUDGMENT ON THAT VERDICT, THE APPELLATE
DIVISION REVERSED HIM AND, AFTER REVIEW,
REINSTATED THE VERDICT AND DIRECTED THAT
JUDGMENT BE ENTERED ON IT. PETITIONERS
SUFFERED NO DENIAL OF DUE PROCESS IN THIS
PROCEDURE, NOR ON THE BASIS OF ANY OF THE
OTHER MATTERS RAISED IN THE PETITION.

The jury in this matter heard all the evidence, was properly
charged, and rendered a verdict which to its knowledge was the
only verdict in this matter. The trial judge, unbeknownst to the
jury, had misgivings as to his choice of law decision during their
deliberations which he expressed only to counsel, and not to the
jury. After the verdict was announced, the trial judge decided not
to enter judgment on the jury verdict which was based on
application of New Jersey law, but rather to enter his own judgment,
based on his application of Israeli law.'* The Appellate Division,
the next highest intermediate appellate court, decided thai the trial
court’s final choice of law decision was erroneous and reinstated
the jury verdict after thoroughly reviewing same. See discussion,
infra, at page 17, et seq. The New Jersey Supreme Court, after
both sides thoroughly briefed and argued an appeal to them,
apparently concluded that petitioners did not have any appealable
issue, and withdrew certification as improvidently granted, and
later denied petitioners’ motion for reconsideration.

Had the trial judge simply entered the jury verdict, and the
Appellate Division affirmed same, the result to the petitioners, in
terms of their procedural rights, or the ultimate outcome, would
have been no different. Petitioners had one jury trial, a post trial
revision of that verdict by the trial judge (which had the same
effect as a judgment notwithstanding the verdict), an appellate
review of both, resulting in the reinstatement of the jury verdict,

18. At no time did the jury ever learn of this disposition.

21

and a full briefing and oral argument before the highest court of
the state, which only thereafter declined to upset the rulings below.
The petitioners did not suffer any denial of procedural due process.
The procedure did not differ in effect from any civil case where a
judgment notwithstanding the verdict is ordered by a trial judge,
but reversed by an appellate court, which after review elects to
reinstate the original jury verdict.

The trial court did not erroneously characterize the jury as
“advisory”"’ until after the jury had already been charged and sent
out to commence deliberations; nor was the jury, itself, ever told
that it would merely be acting in an “advisory” capacity.

In Thompson v. Parks, 963 F.2d 885 (6th Cir. 1992), the
court, in reinstating the jury verdict, held that where the trial court
failed to determine that the jury would be advisory until after the
trial was completed, the jury verdict was valid. The court in Bereda
v. Pickering Creek Industrial Park, Inc., 865 F.2d 49, 53 (3rd Cir.
1989), found that “. . . as a matter of law . . .”, where the trial court
had not decided that the jury would act in an advisory capacity
until “... after the verdict had been rendered . ..”, the jury was
then in fact not an advisory jury.

As noted by the Hon. Sylvia B. Pressler, P.J.A.D., in writing
for the Appellate Division:

. It was not until the jury retired to deliberate,
after summations and charge, that its status as the

19. The trial court indicated its intent was to present the Appellate Division
with all foreseeable options, to avoid a remand. Prior to the trial court advising
that he would decide the matter sitting as an Israeli Judge, the defendants had
already submitted their proposed jury charges based on New Jersey law and
positions of the Restatement (second) Chapter 25 (which the defendants asked
the trial court to follow). See Pa85S et seq., and Pa-116 et seq., in particular.
Thus, when the trial Judge explained that the punitive damage phase would be
submitted to the jury to decide under the law of New Jersey, the defendants
(who had three attorneys at their side, and were given 40 days advance notice)
did not then (or at any other time during the remaining three days of trial) object.
Raa 70-72 et seq.

22

final arbiter was challenged. The lawyers proceeded
tactically on the understanding that this was a jury
trial, as did the court. Nor did the jurors have any
inkling during their deliberations that their status
was anything but that of ultimate finders of the facts.
That was what the judge had told them, and that is
how they proceeded. The same is true of the later
punitive damages trial. Thus, nothing to the contrary
said by the trial judge entered into or affected or
tainted the way the lawyers tried the case to the jury
or the way the jury deliberated. In effect, this jury
never functioned or was constituted or denominated
as an advisory jury. Consequently, there is no
prejudice we can perceive in accepting the jury’s
fact-finding as the final verdict.

Id. 298 N.J. Super. at 160.

Based On The Unique Facts Presented Herein, It Was Not
Violative Of Due Process For The Trial Court Not To Require
Individualized Determinations From The Jury As To The
Liability And Damages Attributable To Each Defendant.

Based on the unique facts presented at the trial below,
individual determinations of guilt were not required (and would
have served no purpose).” The defendant mother and daughter:
(a) wrote every slanderous letter jointly; (b) jointly participated in
every meeting where they slandered Mr. Almog; (c) jointly
conducted all aspects of their business; (d) conducted every
slanderous phone conversation jointly *'; (e) even reside together;

20. Furthermore, defendants offer no authority (governing at the time of
trial) for their proposition that when an award is made jointly and severally against
defendants, the individual financial circumstances of each defendant must be
taken into account.

21. See, e.g., testimony of petitioner Shar. Raa 56{3]-57[17].

23

and (f) are truly inseparable. (Raa 37[13-25]). In fact, the testimony
(which was largely uncontradicted, and found to be credible and
overwhelming by the jury, trial judge and Appellate Division),
was that both ladies, in each instance, actively participated in the
defamatory statements.” Therefore, Judge Hague properly denied
the defendants’ untimely request to split them into three individual
defendants for the purpose of determining liability.” As noted by
the trial court, the entire case was presented by one law firm on
behalf of all three defendants; they operated as one unit; and that
no information was presented to the jury by the defendants to
enable it to make an allocation; and that he did not believe that
under the circumstances that there should be separate punitive
damage awards. Nevertheless, the court did draft special
interrogatories for the jury to decide whether there should be
individual assessments or a joint award (Raa 69[13-17]; Raa 112;
Raa 166[20]-168[14]). Because the jurors found that the petitioners
had indeed acted jointly, it awarded punitive damages against the
petitioners jointly.

In Refuse & Env. Systems v. Industrial Serv. of Am., 932 F.2d
37, 40 (1st Cir. 1991)**, the trial court instructed the jury that:

(1) if the jury “found joint and several liability on
the various counts, damages should be assessed
jointly and severally”; and that

(2) The law does not require the injured party to
establish how much of the injury was done by one

22. See, e.g., the testimony of Tommy Haendler, Pamela Cohen, Benny
Sivan and Ben Ami Geller (Raa 19[7]-20[4], Raa 20[9]-21[20]; Raa 10[5}-15[6);
Raa 24[1]-34[6)).

23. Judge Hague did instruct the jury that they could either find the
defendants individually liable or jointly and severally liable (Raa 172[10]-173[3)).

24. Which the defendants cite to (out of context) in their brief.

24

person and how much ... was done by another ...
[it] permits the injured party to treat all concerned in
the injury jointly, and all are liable to respond to the
plaintiff in the total sum you find to be damages.

Id. The First Circuit found both instructions to be proper. /d.

The only New Jersey “authority” to which petitioners cite,
Wilson v. Savino, 10 N.J. 11, 89 A.2d 399 (1952), is clearly
distinguishable in that Wilson was decided on post trial motion as
to liability. The New Jersey Supreme Court specifically held therein
that there was a question of fact as to whether or not each of the
alleged owners was actively involved in the running of the defendant
newspaper. Liability in the matter sub judice was decided by the
jury; and the record reflects that the only evidence presented to the
jury was that the two individual defendants, and their wholly
owned corporation, acted in concert, in all respects.

Ill. TO THE EXTENT THAT CONCEPTS OF
SUBSTANTIVE DUE PROCESS UNDER THE
FOURTEENTH AMENDMENT CAN HAVE ANY
POSSIBLE APPLICATION TO A CIVIL TORT
JUDGMENT IN STATE COURT, NO KNOWN DUE
PROCESS RIGHTS OF DEFENDANTS WERE
VIOLATED IN THE PROCEEDINGS BELOW.

While petitioners lead this Court to believe that the verdict
was excessive and arbitrary, a review of the record clearly shows
that the evidence supports the unanimous decision of the Superior
Court of New Jersey, Appellate Division. Thus, the punitive damage
award was not “grossly excessive” and in no way violates the Due
Process Clause of the Fourteenth Amendment.

A. Degree of Reprehensibility

Petitioners reference numerous unrelated cases in an attempt
to support their argument that the punitive damage awards herein

25

are excessive. However, this sidetracking put forth by the petitioners
simply provides no support for this Court to grant the writ.

In the case of Filartiga v. Pena-Irala, 577 F. Supp. 860 (E.D.
N.Y.), while faced with the wholly unrelated issue of human torture,
the Court, some 14 years ago, awarded a total of $10,000,000 in
punitive damages (not $5,000,000 as represented by petitioners).
In the matter of Abebe-Jira v. Negewo, 72 F.3d 844 (11th. Cir.
1996), the Eleventh Circuit Court of Appeals, again presented with
the unrelated issue of human torture, affirmed a total punitive
damage award of $900,000 (not $300,000 as represented by
petitioners). In citing to Xuncax v. Gramajo, 886 F. Supp. 162
(D. Mass. 1995), petitioners focus on the levying of punitive
damages for the unrelated issue of human torture, and fail to
mention the separate $1,000,000 compensatory and punitive
damage awards based upon defamation. Finally, petitioners cite to
J.S. and M.S. v. R.T.H. and R.G.H., 301 N.J. 150, 693 A.2d
1191 (N.J. App. 1997), in which a punitive damage award was
given based upon the unrelated issue of sexual abuse.

Petitioners claim that the compensatory damage award is greater
than the combined net worth of all three defendants. As noted by
Judge Pressler, “... we have carefully examined the evidence
adduced at the punitive damages trial. Suffice it to say that the
awards were commensurate with the evidence of defendants’ wealth
...> The petitioners chose to refuse to comply with notices to
produce highly relevant financial and business records” and chose
not to present any expert testimony on the related issues of damages,
their income, the value of ITAS, or of the individual petitioners’

25. Almog at 161.

26. Resulting in the trial court taking judicial notice that documents
requested by respondents were not produced by the defendants (Raa 64{11]-
65[10]). See also the trial court’s post verdict October 1, 1993 letter ruling referring
to“. . . the defendants’ flagrant and cavalier violation of the Court’s discovery
orders concerning their financial condition . . .” and “. . . defendant's almost
laughably transparent failure to produce financial information.” (Pa 130).

26

personal holdings. As a result, the respondents had to rely upon
admissions made by petitioner Ceil Shar, financial statements
petitioners furnished to a bank in /987 (obtained by subpoena)
(Pal87), inconsistent factual representations as to their sales and
profits made by the petitioners in a contemporaneous lawsuit of
which the trial court was asked to take judicial notice (Pa73), and
upon certain calculations and projections made by respondent
Shalom Almog and by respondents’ expert accountant at trial
(Pa377, Pa401).”’ Furthermore, petitioners refused to take
advantage of the trial court’s October 1, 1993 sua sponte offer to
petitioners to cooperate with a Court appointed accountant to assist
the trial court in determining whether the jury’s award of punitive
damages was excessive based on petitioners’ true financial situation
(to be ascertained) (see Pal30, Pal37, Pal38), and informed the
Court that they would not provide any of the financial documents
requested by the court appointed accountant (Pal38).” At trial,
petitioner Shar blithely testified to giving away hundreds of
thousands of dollars to petitioner Ziemke’s husband and children
prior 10 trial.” Raa 162 [10]-163 [6]; Raa 164 [3-15]. As noted
supra, the extent of the malicious injury caused by the petitioners,
coupled with the petitioners’ blithe indifference, if not arrogance,
in refusing to make disclosure of their assets and income, were
undoubtedly considered by the jury, which relied upon the
competent proofs presented by the respondents. Simply stated, the
petitioners did not obtain an unjust result.

2’. E.g., ITAS grosses approximately $6.1 million per year (Raa 122[21-
25]; RAA 123[17]-124[9}; RAA 125[11-15)]; and Pa84) and earns $1.642 million
per yea (Raa 126[6-20]; Raa 127[6-13); Raa 128(8}-129(11)).

2. By letter to counsel dated February 23, 1994, the trial Judge noted that
there hid been a“. . . flagrant lack of cooperation. . .” by the defendants with
the cout appointed accountant (Pa 137).

2). On September 21, 1993, petitioner Shar testified that within the past
year she gave her granddaughter $164,000; she gave her son-in-law approximately
$200,000; that she gave each of her grandchildren about the same amount; and
that she gave her other granddaughter $100,000 as a wedding gift three months
prior tc the trial (Raa 136[18]-162{21)}).

27
B. Ratio

Clearly, the 3:1 ratio of punitive damages to compensatory
damages which were awarded to the Almog Respondents is not
“grossly excessive”.

C. Comparative Legislative Sanctions

Petitioners refer this Court to the Punitive Damages Act enacted
by the State of New Jersey (N.J. Stat. Ann 2A:15-5.9 et seq. (West
1998)) subsequent to the completion of the trial of this matter.
While Petitioners concede that the act does not apply in this matter,
Petitioners claim that the Act “illustrates the concern of the New
Jersey legislature that punitive damage verdicts are often excessive
and unreasonable”.

However, the punitive damages award entered in favor of the
Almog Respondents falls within the provided 5:1 ratio (between
punitive and compensatory damages, respectively). Furthermore,
said Act sets forth that the purpose is to “. . . punish the defendant
and to deter that defendant from repeating such conduct. . .” (N.J.
Stat. Ann. 2A:15-5.14(a)).

Indeed, at the time of the trial of this matter in 1993, the law
of New Jersey was:

The amount of punitive damages is a matter of
resting in the sound discretion of the jury or other
triers of the facts, since there is no established
standard by which the amount of punitive damages
may be fixed.

New Jersey Practice, Vol. 24 § 742, 2nd edition. _

28

CONCLUSION

The malicious conduct of the petitioners, as well as the extent
of damages caused thereby, has been well documented. The
respondents’ proofs thereof have been accurately characterized by
the New Jersey Appellate Division as being “overwhelming”.
Respondents Shalom and Irit Almog filed their suit in October
1989. Throughout 9 years of litigation, the petitioners have been
the perpetrators of pre-trial, trial and post-trial discovery abuse,
and bad faith litigation tactics. It is not at all surprising that they
complain of the result. However, they received a fair trial. The
Respondents are entitled to repose.

WHEREFORE, for all the reasons set forth herein, the petition
for writ of certiorari to the Superior Court of New Jersey, Appellate
Division should be denied.

Respectfully submitted,

DAVID FEINSILVER

Counsel of Record

THE FEINSILVER LAW GROUP, P.C.
Attorneys for Respondents

Shalom Almog and Irit Almog

215 Millburn Avenue

P.O. Box 312

Millburn, New Jersey 07041

(973) 376-4400

On the Brief:
DAVID FEINSILVER

JAIME R. PLACEK
DANIEL V. SOLLECITO

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1606%3A3. Public record. Not legal advice.