Partner, Litigation Department
Mr. Hertzberg focuses on business litigation and professional liability defense. He also has handled matters involving lender liability, partnership law, insurance law, environmental law, securities law and chancery practice. He has a broad range of experience litigating franchise disputes and complex commercial cases.
- Finderne Management Co., Inc. v. Barrett, 402 N.J. Super. 546 (App. Div. 2008); certif. denied by Finderne Management v. Barrett, 2009 N.J. Lexis 786 (N.J. June 16, 2009). Successfully defended actuarial consulting firm in multimillion dollar case involving plaintiffs’ enrollment in an allegedly fraudulent tax and insurance program. In affirming the lower court, the Appellate Division determined, among other things, that the New Jersey Consumer Fraud Act was inapplicable because the financial planning at issue did not constitute a consumer transaction. In addition, the court found out-of-pocket loss to be the appropriate measure of damages for an action based on failure of an insurance program to meet its represented goals, rejecting a benefit of the bargain analysis.
- Cetel v. Kirwan Financial Group, 460 F.3d 494 (3d Cir. 2006), cert. denied by Schneider v. Kirwan Financial Group, 127 Sup. Ct. 1267 (2007). Successfully defended actuarial consulting firm in multimillion dollar case in which plaintiffs alleged they were sold a fraudulent tax and insurance planning program designed by the actuarial firm. Plaintiffs’ claims sounded in violations of ERISA, Federal RICO, New Jersey RICO, the New Jersey Consumer Fraud Act, as well as state common law claims. In affirming summary judgment dismissing plaintiffs’ claims, the Third Circuit determined, among other things, that the New Jersey Supreme Court would likely look to Federal RICO jurisprudence in construing unsettled aspects of the New Jersey RICO statute.
- Glass v. Suburban Restoration, 317 N.J. Super. 574 (App. Div. 1998). Successfully defended attorney in professional negligence action. The Appellate Division upheld the dismissal of claims against the attorney, finding that the complainant’s delay warranted striking its expert report, and that the complainant’s allegations did not fall within the common knowledge exception.
- Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218 (1998): Primarily responsible for handling case at the trial level and prepared submissions to the Supreme Court and Appellate Division in this seminal matter defining the scope of the affidavit of merit statute.
- Sarwari v. BP Prods. N.A. Inc 2006 U.S.Dist Lexis 65987 (D.N.J. September 15, 2006). Served as co-counsel for nearly 40 franchised gasoline station owners. Succeeded in obtaining an injunction to restrain one of the world’s largest petroleum companies from terminating its New Jersey franchisees.
Professional Activities / Honors
- Listed in Super Lawyers - New Jersey Edition (2009-2011) and Super Lawyers - Business Edition (2012) in the Business Litigation practice area.
- Listed in Who's Who in America (63rd Edition).
- Listed in Who’s Who in American Law (7th Edition).
- Martindale-Hubbell Peer Review Rated AV® Preeminent.
- Member of the American Bar Association.
- Member of the Trial Attorneys of New Jersey.
- Member of the Columbia Law School Association.
- Member of Phi Beta Kappa.
Publications / Articles / Presentations
- Author, "The Employee's Common Law Duty of Loyalty - Combatting the Faithless Employee," Exhibit A, Fall 2006.
- Author, "Affidavit of Merit - Tort Reform Makes Strange Bedfellows," Exhibit A, Summer 1998, Vol. 2 No. 3.
- New Jersey, 1988
- New York, 1989
- U.S. District Court, District of New Jersey, 1989
- U.S. District Court, Southern and Eastern Districts of New York, 1989