Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

FOI-led: Supreme Court Restricts Public Access to Confidential Business Information

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Posted in Appellate / General Litigation

On July 11, 2019

In Food Marketing Institute v. Argus Leader Media, the United States Supreme Court expanded the meaning of “confidential” information exempt from disclosure under Exemption 4 of the Freedom of Information Act (FOIA). In doing so, the Court reversed the decision of the Court of Appeals for the Eighth Circuit and definitively rejected the “competitive harm” requirement adopted by the D.C. Circuit in National Parks & Conservation Assn. v. Morton. Respondent Argus Leader Media filed a FOIA request with the United States Department of Agriculture (USDA), seeking the names and addresses of all retail stores that participate in a federal food stamp program known as SNAP. Argus Leader also sought each store’s annual redemption data from 2005 to 2010. The USDA declined to disclose store-level SNAP data based on Exemption 4 of FOIA, which precludes disclosure of “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Argus Leader sued the USDA. The district court ordered disclosure based upon the failure to satisfy the “competitive harm” test, which requires a party to establish confidentiality by proving that disclosure is “likely … to cause substantial harm to [its] competitive position.” The Eighth Circuit affirmed the judgment. In a 6-3 decision delivered by Justice Gorsuch, the Court rejected the competitive harm test and...

New Jersey Appellate Panels Disagree on Enforceability of Arbitration Agreements Concerning Transportation Workers

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Posted in Alternative Dispute Resolution

On July 1, 2019

On June 4 and June 5, 2019, separate panels of the Appellate Division of the New Jersey Superior Court issued diametrically opposed decisions calling into question the enforceability of arbitration agreements involving employees and independent contractors who provide transportation services. In Colon v. Strategic Delivery Solutions, LLC and Arafa v. Health Express Corporation, two Appellate Division panels considered the same legal question: are arbitration agreements enforceable under New Jersey law where one of the signatories is exempt from arbitration under the Federal Arbitration Act (FAA)? Despite the uniformity of the issue considered, the respective holdings stand in stark contrast to one another, creating confusion as to how to interpret arbitration agreements moving forward. Colon and Arafa involved strikingly similar facts. Both the Colon and Arafa plaintiffs contracted with the respective corporate defendants to provide transportation and delivery services on their behalf with regard to pharmaceutical products. Both defendants classified the plaintiffs as independent contractors; and both plaintiffs executed arbitration agreements governing the terms and conditions under which they were to provide transportation services. Most significantly, in both cases the arbitration agreements at issue explicitly stated that they were to be governed pursuant to the FAA (The Arafa agreement stated that it “is governed by the Federal Arbitration Act,” while the Colon agreement stated that the...

Inadvertently Produced Privileged Material May Generally Be Used for Purpose of Challenging Assertion of Privilege

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Posted in E-Discovery: Legal Decisions and Court Rules / Litigation Preparedness and Strategies

On June 25, 2019

A New York federal court has recently held that inadvertently produced privileged documents may be used by the receiving party for the limited purpose of challenging the claim of privilege to the extent that the receiving party became aware of the contents of those documents prior to the assertion of the privilege over those documents. In re Keurig Green Mt. Single Serve Coffee Antitrust Litig. In that case, the parties had entered into a stipulated protective order with a Federal Rule of Evidence 502(d) clawback provision, but the parties relied on two different provisions of the same order to support their arguments concerning whether the privileged document could be relied upon in challenging the claim of privilege. The order stated that “[i]f a party has inadvertently or mistakenly produced Privileged Material, and if the party makes a written request for the return, … the receiving party will also make no use of the information contained in the Privileged Material … regardless of whether the receiving party disputes the claim of privilege.” However, the order also stated that “[t]he receiving party may not use the Privileged Material … for any purpose whatsoever other than moving the Court for an order compelling production of the Privileged Material…” The Court relied on two prior decisions, both authored by...

FDA Will Now Provide More Data on 180-Day Exclusivity in the Orange Book

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Posted in Biotech / Licensing / Patent

On June 21, 2019

In a recent alert, the FDA announced that effective June 18, 2019, the Agency will publish additional data in the Orange Book Paragraph IV Certifications list. To enhance the already published data, the Orange Book will now include (1) the number of potential first applicants; (2) the 180-day decision date; (3) the date of the “first applicant” approval; (4) the date of first commercial marketing by any first applicant; and (5) the expiration date of the last qualifying patent. According to the FDA, the updated data listing comports with the Agency’s commitment under the Drug Competition Action Plan where the FDA “committed to enhancing efficiency of the development and approval of ANDAs, with the ultimate goal of more approvals.” Historically, the Orange Book Paragraph IV Certifications list has contained relevant information related to 180-day eligibility for generic drug products. Until recently, the listings included the name of the drug product, dosage form, dosage strength(s), the reference listed drug, the New Drug Application Number and the date upon which the first substantially complete application containing a Paragraph IV certification was submitted to the Agency. The new data will provide greater clarity to Hatch-Waxman litigants in a variety of ways. More specifically, with respect to the number of first applicants, the data will provide the number of...

Is Employer to Whom Trade Secrets are Allegedly Disclosed a Necessary Party in DTSA Claim Against Former Employee?

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Posted in Trade Secrets

On June 20, 2019

Given increased employee mobility, claims under the Federal Defend Trade Secrets Act (DTSA) are on the rise. The DTSA provides a federal cause of action for misappropriation of a trade secret related to a product or service used in, or intended for use in, interstate or foreign commerce. See 18 U.S.C. § 1836(b). When considering a complaint against a former employee for violations under the DTSA, is the new employer to whom information is allegedly disclosed a necessary and indispensable party? A Massachusetts district court recently said no. In Phio Pharms. Corp. v. Khvorova, the plaintiff Phio Pharmaceuticals Corporation (PPC) sued the defendant—the company’s former Chief Scientific Officer—for misappropriation under the DTSA. PPC alleged that the defendant assigned to U Mass Medical School (defendant’s new employer and competitor of PPC) a patent application describing a class of molecules that PPC and the defendant allegedly investigated while the defendant was working for PPC. PPC sought the return of all trade secret information allegedly in the defendant’s possession and an injunction against further use or disclosure of its confidential information. The defendant moved to dismiss claiming that U Mass was an indispensable party under Federal Rule of Civil Procedure 19. The court denied the motion and held that U Mass was not a necessary or indispensable party....

District Court Must Consider Whether the Patentee Must be Joined Before Dismissing the Case for Lack of Statutory Standing

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Posted in Licensing / Patent

On June 19, 2019

The question of who must join a patent infringement suit often raises interesting questions of rights, obligations, and control of the litigation. In the global marketplace with increased licensing arrangements, the extent of retaining rights can have a direct impact on the viability of a lawsuit and protecting intellectual property. Recently, the Federal Circuit in Lone Star Silicon Innovations v. Nanya Technology provided further clarification on what meets the standing requirement to bring a patent infringement case, and for dismissing a case for lack of standing. In this patent litigation, the asserted patents (twelve in all) were originally assigned to Advanced Micro Devices (AMD). AMD later executed an agreement purporting to transfer “all right, title and interest” in the patents to Lone Star. The transfer agreement, however, imposes several limitations on Lone Star. For example, Lone Star may only assert the patents against “Unlicensed Third Party Entit[ies]” specifically listed in the agreement. To add new entities, Lone Star and AMD both must agree. If Lone Star sues an unlisted entity, AMD has the right, without Lone Star’s approval, to sublicense the patents to the unlisted entity. Further, AMD can prevent Lone Star from assigning the patents, and AMD and its customers can continue to practice the patents. Finally, AMD shares in any revenue Lone Star...

CAFC Decision Issues Interpreting the Original Patent Requirement

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Posted in Patent

On June 18, 2019

As reported in a prior post, the Court of Appeals for the Federal Circuit (CAFC) recently had the opportunity to revisit the legal standard for invalidating reissue patent claims under the original patent requirement. In Forum US, Inc. v. Flow Valve, LLC, the CAFC affirmed a district court grant of partial summary judgment that certain reissue claims were invalid under the original patent requirement of 35 U.S.C. § 251. In the process, the Federal Circuit reaffirmed the legal standard set forth in a 2014 CAFC decision, Antares Pharma, Inc. v. Medac Pharma Inc., 771 F.3d 1354 (Fed. Cir. 2014). In Antares Pharma, the Federal Circuit held that to comply with the original patent requirement, an invention claimed in a reissue patent must either be for: (i) the same invention disclosed in the original patent or (ii) a newly claimed invention “clearly and unequivocally” disclosed as a separate invention in the original patent. See id. at 1362-1363. In Forum US, the plaintiff sought a declaratory judgment that claims 14-20 of U.S. Reissue Patent 45,878 were invalid. The original patent related to the machining of pipe joints used in the oil and gas industry. Each of the thirteen original patent claims required “a plurality of arbors.” The summary of the invention likewise referred to a plurality of...

NJ Supreme Court Narrowly Construes Shareholder’s Right to Inspection of Corporate Records

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Posted in General Litigation

On June 5, 2019

In R.A. Feuer v. Merck & Co., Inc., the New Jersey Supreme Court affirmed the Appellate Division’s narrow construction of the scope of a shareholder’s right to inspect a corporation’s records under N.J.S.A. 14A:5-28 and the common law. In the underlying case, a Merck & Co, Inc. shareholder sought documents in order to elicit evidence that Merck acted wrongfully in its acquisition of another pharmaceutical firm. Merck appointed a “Working Group” to respond to the shareholder’s demand, which rejected the shareholder’s request for documents relating to the acquisition. Following this rejection, the shareholder sought twelve broad categories of corporate documents, including documents pertaining to the Working Group’s activities, communications, and formation; documents provided to the board regarding the target pharmaceutical firm and two of its drugs; and the board’s consideration of the shareholder’s demands and the Working Group’s recommendation. Merck disclosed pertinent minutes of the board and of the Working Group, but denied the remainder of the shareholder’s demand. The shareholder sued Merck, alleging entitlement to the documents under N.J.S.A. 14A:5-28(4), which permits a shareholder to compel the corporation to produce its “books and records of account, minutes, and record of shareholders,” and the common law. The trial court denied the shareholder’s request and the Appellate Division affirmed. In a per curiam decision, the New...

Third Circuit Offers Reminder that Pansy Does Not Govern Sealing of Documents

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Posted in General Litigation

On June 4, 2019

The Third Circuit has clarified the standard for sealing documents filed with a court, emphasizing in In re Avandia that litigants who wish to prevent public access to such documents face a more exacting standard than litigants pursuing a protective order under Fed. R. Civ. P. 26. In connection with its motion for summary judgment as to consumer protection claims filed by two health plans, GlaxoSmithKline (GSK) filed certain documents under seal and sought to maintain the confidentiality of those documents after the plans appealed the District Court’s order granting summary judgment to GSK. The District Court granted GSK’s sealing motions in significant part, and the plans appealed. The Third Circuit held that, in ordering the documents to remain sealed, the District Court incorrectly applied the standard, articulated in Pansy v. Stroudsburg, for preserving the confidentiality of discovery materials under Rule 26. In so doing, the Third Circuit opined, the District Court failed to recognize the “strong presumption” of public access that applies to documents filed on the court’s public docket. The Third Circuit held that the District Court should have applied the more exacting common-law right-of-access standard to the motions for continued confidentiality. That standard “begins with a thumb on the scale in favor of openness” and requires the party seeking to seal court...

Gibbons Advises Leading Car Rental Companies on $500 Million Project at Newark Airport — Industry’s First P3-Structured Consolidated Rent-A-Car Facility

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Posted in Development/Redevelopment

On May 15, 2019

Gibbons P.C. served as lead counsel to Avis Budget Group, The Hertz Corporation, Enterprise Holdings Inc., and Advantage Inc., operators of national rental car brands Budget, Alamo, Thrifty, Payless, Zipcar, and National, among others, in connection with the industry’s first public-private partnership (P3) financing structure for the development of a $500 million Consolidated Rent-A-Car facility as part of the redevelopment of Terminal A at Newark Liberty International Airport. Gibbons led the corporate and real estate negotiations on behalf of the national car companies in connection with their long-term concessionaire agreement and real estate leases. Such agreements provide the credit support for the $500 million P3 financial arrangements. Click here to view the full press release issued by Conrac Solutions.

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