Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

2019 Election Results Bring Little Change to State Legislature

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Posted in Elections

On November 8, 2019

Democrats billed the 2019 elections as a referendum on President Trump. Republicans dubbed the off-year contests as the “Murphy Mid-Term” and a chance to stall Democratic attempts to build on the “blue wave” of 2018. Who was right? It looks like both sides can declare victory. With the 80 seats of New Jersey General Assembly up for election, along with a Special Election for the Senate seat in the First Legislative District (Cumberland, Cape May and Atlantic Counties), the election returns produced mostly a status quo result. Democrats will continue to control both the General Assembly and State Senate, but with majorities slightly smaller than in the past session. All three Democratic incumbents in the First Legislative District lost to their respective Republican challengers. The race for the two Assembly seats in the Second Legislative District was extremely close, but it appears the Democratic incumbents will be victorious. Even with the loss in the First Legislative District, Democrats still retain a wide majority in the Assembly (52-28) and the Senate (25-15). Republican incumbents were able to hang onto victory in District 8 (Burlington County), District 21 (Morris, Somerset, and Union Counties), and District 25 (Morris and Somerset), where Democrats ran particularly hard in all three districts. Democrats did show strength at the local and county...

States Step Up Data Privacy and Security Regulation

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Posted in General Litigation / Privacy and Data Security

On November 5, 2019

State legislatures from California and New York have taken action to respond to rising privacy concerns by enacting legislation to protect consumers and their personal information, and the New Jersey legislature is actively working to pass similar legislation to enhance the privacy and security obligations applicable to personal information obtained from New Jersey consumers. This legislation typically requires businesses to inform residents of certain rights regarding the collection or sale of their personal information and to provide notice to residents if a security incident at the company involves their personal information. As deadlines quickly approach for the enforcement of these laws, it is important for businesses to take action now and revisit privacy, security, and storage practices, as well as the associated policies for maintaining appropriate data privacy and security throughout the organization. The California Consumer Privacy Act (CCPA), which takes effect January 1, 2020, accords significant new privacy rights to consumers and imposes corresponding new requirements on businesses. In general, the CCPA mandates businesses to implement procedures to provide notice to consumers at or before the collection of personal information, to respond to consumers’ requests for the production or deletion of their collected information or to opt-out from its sale, and to create privacy policies detailing their processes for selling or distributing consumer data....

Governor Murphy Signs Executive Order Addressing Climate Change Resiliency for New Jersey

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Posted in Development/Redevelopment / Environmental and Green Issues

On November 5, 2019

As storms like Superstorm Sandy continue to grow more devastating and frequent, communities, governments, businesses, and industries of all sizes and varieties must face the challenge of adapting to a changing climate. October 29, 2019 marked the seventh anniversary of Sandy hitting New Jersey. Governor Murphy marked this occasion by signing Executive Order 89, which calls on the Department of Environmental Protection (DEP) to establish a Statewide Climate Change Resilience Strategy, among other initiatives related to climate change adaptation. “New Jersey is extremely vulnerable to the impacts of sea-level rise and global warming, and [this] Executive Order outlines a bold and comprehensive set of actions to ensure that our communities and infrastructure are more resilient against future storms,” said Government Murphy about the signing. The preamble to the Executive Order notes that New Jersey is especially vulnerable to the impacts of climate change as a coastal state. Picking up on this administration’s Environmental Justice efforts, the Order acknowledges that minority and low-income communities are disproportionately affected by the impacts of climate change. Climate change of course is an issue that also impacts all communities, including the business community, industry, and government. The preamble also notes that “studies show that each dollar spent to mitigate hazards, including those associated with climate change impacts, results in a...

Gibbons Director David J. Freeman to Serve as Co-Chair for NYS-NYC Bar Program

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Posted in Development/Redevelopment / Environmental and Green Issues

On November 4, 2019

Gibbons Director David J. Freeman will serve as Program Co-Chair of an upcoming New York State Bar/New York City Bar conference on Federal and New York State brownfield and Superfund programs. The conference will take place from 10:00 a.m. to 3:00 p.m. on December 12, 2019 at the New York City Bar Association, 42 West 44th Street, New York, NY 10036. The program’s distinguished faculty includes New York State Attorney General Letitia James, Environmental Protection Agency (EPA) Region 2 Administrator Pete Lopez, and other officials from the EPA, the New York State of Department of Environmental Conservation (NYSDEC), the New York State Office of Attorney General, and the New York City Office of Environmental Remediation. The topics to be discussed will include: trends in federal Superfund enforcement, including natural resource damages claims and the impact of the Superfund Task Force recommendations; NYSDEC policies and practices in implementing the 2015 Amendments to the Brownfield Cleanup Act; the intersection between Superfund and brownfields, focusing on developments at the Gowanus Canal Superfund Site; and an analysis of case law developments in these areas. Click here for a brochure describing the program and here for a further description and registration information.

NJ District Court Leaves Plaintiff Without Course of Relief Under CERCLA

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Posted in Environmental and Green Issues

On September 24, 2019

In Stahl v. Bauer Auto, Inc., the U.S. District Court for the District of New Jersey handed down a decision that may be troubling for parties seeking to recover environmental cleanup costs under the Comprehensive Environmental Responsive Compensation and Liability Act (CERCLA). By way of background, CERCLA generally provides a private cause of action to plaintiffs in two circumstances. The first falls under section 107(a), which allows a plaintiff to seek recovery of response costs that it has incurred from other potentially responsible parties. The second falls under section 113(f), which allows a plaintiff that is or was the defendant of a cost recovery claim, or that has resolved its liability with the Environmental Protection Agency (EPA) under a judicially approved settlement, to seek contribution from other potentially responsible parties. Generally, a party that has incurred or will incur costs under CERCLA falls under one or both of these two categories. However, the N.J. District Court in Stahl held that there is at least one scenario where a plaintiff does not fall into either of these two categories and therefore has no claim under CERCLA. The factual history in the Stahl matter is long and complex. In short, the underlying environmental cleanup was at a property in Chatham, New Jersey. The plaintiffs owned a company...

U.S. Supreme Court Provides Guidance on the Disclosure of Confidential Information Under FOIA

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Posted in Environmental and Green Issues

On August 21, 2019

Businesses often share sensitive information with the government either voluntarily or by mandate. This information becomes subject to requests under the Freedom Of Information Act (FOIA), which is a source of concern to any business worried about disclosure of competitive business information. The United States Supreme Court recently handed down a decision that directly addresses this concern. In Food Marketing Institute v. Argus Leader Media, the Court provides guidance on the protection from the disclosure of shared information deemed “confidential” under FOIA’s Exemption 4. In addition to businesses, this decision will have significant impact on public interest groups and media that may seek information through FOIA. Justice Gorsuch authored the opinion for the majority, which Chief Justice Roberts and Justices Thomas, Alito, Kagan, and Kavanaugh joined. Justice Breyer added an opinion concurring in part, and dissenting in part that Justices Ginsburg and Sotomayor joined. Argus Leader Media, a newspaper in South Dakota, filed a request under FOIA seeking information the United Stated Department of Agriculture collected as part of the national food stamp program known as the Supplemental Nutritional Assistance Program (SNAP). Specifically, Argus Leader sought the names and addresses of retailers that participate in SNAP and each store’s annual redemption data. The USDA released the names and addresses of participating retailers, but invoked FOIA’s...

Gibbons Hosts “Keys to Negotiating Better Software & Software-as-a-Service Agreements” Seminar – October 16-18, 2019

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Posted in E-Discovery / General Litigation / Intellectual Property / Privacy and Data Security

On August 16, 2019

From October 16-18, Peter J. Frazza, a Director in the Gibbons Commercial & Criminal Litigation Department, will lead a seminar in Las Vegas analyzing the negotiation of software licenses and software-as-a-service agreements, including data protection and privacy issues companies face that are specific to software transactions, artificial intelligence, and the Internet of Things (IoT). Mr. Frazza has over 30 years of experience handling complex lawsuits and contract negotiations on behalf of licensees and users in software licensing and software-as-a-service matters. For additional seminar details or to register, visit https://conta.cc/31AYf0h.

Gibbons Handles All Development Aspects of Major Turnpike Corridor Industrial Project

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Posted in Development/Redevelopment

On August 7, 2019

Real Estate New Jersey recently reported on Prologis, the publicly-traded global leader in logistics real estate, regarding its development of nearly 1 million square feet of industrial space in Burlington Township, New Jersey. Gibbons represented DCT Industrial Trust, which was subsequently acquired by Prologis, in all development aspects of the project, including entitlements and redevelopment agreements, such as tax abatements, as well as litigation challenging the development approvals granted to DCT – which was successfully concluded with the court dismissing the challenge. The regional significance of this project is notable, thanks to its location proximate to a recently widened stretch of the New Jersey Turnpike where it meets the Pennsylvania Turnpike, which has made the area all the more attractive to industrial users. Douglas J. Janacek, Chair of the Gibbons Real Property Department, and Department Directors Russell B. Bershad and Jennifer Phillips Smith were primarily responsible for the legal services provided in connection with this project. Real Estate New Jersey’s story on the project can be found here.

Another Motion to Dismiss Federal Defend Trade Secret Act Claim is Denied

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Posted in Trade Secrets

On July 19, 2019

Following a national trend, another Defend Trade Secrets Act (DTSA) claim has survived a motion to dismiss filed in a California district court. The DTSA enables trade secret owners to pursue trade secret misappropriation claims in federal court if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce. In the recent Volans-i, Inc. v. SpektreWorks, Inc. case, the parties both developed and built long-range high-payload aircrafts known as drones. Pursuant to a consulting agreement, the defendant allegedly assisted Volans-i with design, engineering, testing and other work related to Volans-i’s C-10 and C-20 drones and had access to Volans-i’s trade secrets related to the same. The consulting agreement allegedly prohibited SpektreWorks from using Volans-i’s confidential information or its consultant work product other than to provide consulting services to Volans-i. Volans-i alleged that in violation of the DTSA and in breach of the parties’ agreement, the defendant sold a knockoff of its C-10 containing an avionics board which copied the design of Volans-i’s avionics board and utilized many identical components—thereby “copying plaintiff’s design and component choice[.]” 2019 U.S. Dist. LEXIS 90923, at *5. In its motion to dismiss, SpektreWorks argued that Volans-i failed to sufficiently define its trade secrets or properly allege misappropriation. The court...

UPDATE: The Deepwater Horizon Drilling Rig Accident Continues to Cause Ripples: Texas Supreme Court Holds That Defense Costs are Not Liabilities Under Insurance Policy

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Posted in Environmental and Green Issues

On July 15, 2019

UPDATE: The Supreme Court of Texas recently refused an application for rehearing and declined to revisit its January holding that defense costs are not liabilities under an energy insurance policy. That decision, in the matter captioned Anadarko Petroleum Corporation, et al. v. Houston Casualty Company, et al., stemmed from the April 20, 2010 Deepwater Horizon drilling-rig accident that has been called, “the largest accidental marine oil spill in U.S. history.” The Court held that Lloyd’s of London Underwriters (“Lloyd’s”) were liable to cover approximately $112 million as a result of policy language that the Court interpreted as distinguishing between “liability” and “expenses.” The case involved the Anadarko Petroleum Corporation and Anadarko E&P Company, L.P. (collectively, “Anadarko”) and a group of insurance underwriters led by the Houston Casualty Company (the “Underwriters”). Anadarko was a 25% minority interest holder in the Macondo Well that blew out in the Gulf of Mexico in April 2010. Anadarko reached a settlement agreement with BP under which Anadarko agreed to provide its 25% interest and to pay $4 billion to BP in exchange for a release and indemnity against all other liabilities arising out of the accident. Anadarko’s legal fees and defense expenses were not included in the settlement agreement, and Anadarko sought these fees and expenses from the Underwriters pursuant...

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