Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

NYC Paid Sick/Safe Time Law Expands

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Posted in Family Leave

On May 30, 2018

New York City’s Sick Leave Law was expanded on May 5, 2018, to include additional reasons for eligible employees to use NYC paid sick leave (called “safe leave”) including: to obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program for relief from a family offense matter, sexual offense, stalking, or human trafficking; to participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members from future family offense matters, sexual offenses, stalking, or human trafficking; to meet with a civil attorney or other social service provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding, including but not limited to, matters related to a family offense matter, sexual offense, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, discrimination in employment, housing or consumer credit; to file a complaint or domestic incident report with law enforcement; to meet with a district attorney’s office; to enroll children in a new school; or to take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or the employee’s family member or to protect those who associate or work...

U.S. Supreme Court Issues “Epic” Decision for Employers Upholding Arbitration Agreements and Class Action Waivers

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Posted in Alternative Dispute Resolution

On May 24, 2018

On May 21, 2018, the United States Supreme Court resolved the split amongst several Federal Circuit Courts by finding the Federal Arbitration Act (FAA) enables employers enforce class action waivers in arbitration agreements with their employees notwithstanding employees’ rights under the National Labor Relations Act (NLRA) to engage in “concerted activity.” The Court’s 5-4 decision, with the majority opinion authored by Justice Gorsuch, was rendered in In Epic Systems Corp. v. Lewis and companion cases Ernst & Young LLP et al. v. Stephen Morris et al. and National Labor Relations Board v. Murphy Oil, Inc. (all decided simultaneously). The Court ruled that Congress did not intend the NLRA to provide for class and collective actions, and although the NLRA provides employees the right to organize and bargain collectively, the statute does not dictate how claims must be adjudicated. Accordingly, the Court determined that the NLRA cannot be interpreted to provide employees with an implicit right to class and collective actions in contravention of the FAA, which explicitly confers upon employers and employees the ability to arbitrate and determine their chosen arbitration procedure. Instead, these laws must be interpreted consistently. The three companion cases involve employees challenging arbitration agreements containing class and collective action waivers entered into with their employers. As an example, in the Ernst &...

A Domestic Corporation Can Reside in Only One District in the State of Its Incorporation for Patent Venue

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Posted in Patent

On May 21, 2018

The Federal Circuit in In Re BigCommerce recently held in a mandamus opinion that a domestic corporation incorporated in a state having multiple judicial districts “resides” for the purposes of 28 U.S.C. § 1400(b) only in a single judicial district within that state. In so holding, the Federal Circuit resolved a district court split with competing interpretations from the Eastern District of Texas and the Central District of California. The court’s opinion provides further guidance to practitioners and clarifies jurisprudence post TC Heartland. The patent venue statute provides that patent infringement suits may be brought (1) “in the judicial district where the defendant resides,” or (2) “where the defendant has committed acts of infringement and has a regular and established place of business.” 28 U.S.C. §1400(b) (emphasis added). The Central District of California in Realtime Data LLC v Nexenta System held that a domestic corporation “resides” in the state of its incorporation “only in the judicial district in which it maintains in principal place of business.” No 2:17-cv-07690, Dkt. 28 (C.D. Cal. Jan. 23, 2018). The Eastern District of Texas in Diem v. BigCommerce came to a different conclusion, holding that “a domestic corporation resides in the state of its incorporation and if that state contains more than one judicial district, the corporate defendant resides in each such judicial...

USPTO Proposes a New Rule to Use Narrower Phillips Standard During Claim Construction in AIA Trial Proceedings

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Posted in Patent / USPTO

On May 11, 2018

On May 9, 2018, the United States Patent and Trademark Office (USPTO) proposed to amend the current rules to change the claim construction standard used in America Invents Act (AIA) reviews and bring it in line with the standard used in district court and ITC proceedings. Under the amended rules, the Patent Trial and Appeal Board (PTAB) would no longer use the broadest reasonable interpretation (BRI) standard for claim construction, and instead would use the narrower Phillips standard. The proposed rules would apply to claim interpretations occurring in inter partes review (IPR), post-grant review (PGR), and covered business method (CBM) patents proceedings. The Board currently construes unexpired patent claims and proposed claims in AIA trial proceedings using the BRI standard, as directed by 37 CFR 42.100(b), 42.200(b), and 42.300(b). Each of these sections currently provides that “[a] claim in an unexpired patent that will not expire before a final written decision is issued shall be given its broadest reasonable construction in light of the specification of the patent in which it appears.” This standard differs from the Phillips standard used by district courts. Under the proposed changes to these sections, the PTAB will adopt the Phillips standard and construe claims “given their ordinary and customary meaning,” which is “the meaning that the term would have to a...

Governor Murphy Signs New Jersey Paid Sick Leave Law

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Posted in Employee Benefits

On May 4, 2018

On May 2, 2018, Governor Murphy signed the comprehensive paid sick leave bill passed by the New Jersey Legislature in April. For a description of the law and how it will affect New Jersey employers, please see our previous blog post. For questions regarding this bill, or paid sick leave laws generally, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.

New York City and New York State Pass Comprehensive Anti-Harassment Legislation

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Posted in Discrimination

On May 2, 2018

The New York City Council recently passed the Stop Sexual Harassment in NYC Act (“NYC Act”), a series of bills that address sexual harassment prevention in the workplace. Mayor Bill de Blasio is expected to sign the legislation into law in the near future. The passage of the NYC Act coincides with the signing of the 2018-2019 New York State Budget (“the Bill”), which includes comprehensive and significant changes to State anti-harassment laws described as “necessary to combat sexual harassment in the workplace.” STOP SEXUAL HARASSMENT IN NYC ACT Mandatory Anti-Harassment Training The NYC Act would require employers (with 15 or more employees including interns) to conduct annual anti-sexual harassment training beginning on April 1, 2019 for all employees, including supervisors and managers. The training is required for all employees who work more than 80 hours in a calendar year and for new employees within 90 days of hire. The training must cover a range of topics, including a statement that harassment is a form of discrimination under state and federal law; a description of sexual harassment (including examples of what constitutes harassment); internal complaint procedures for an employee to make a harassment complaint; information about the complaint process under local, state, and federal law (including agency contact information); prohibitions on retaliation; information about bystander...

USPTO Issues Guidance Applying SAS Institute to Pending and Future PTAB Trials

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Posted in Patent / USPTO

On May 1, 2018

On April 26, 2018, the United States Patent and Trademark Office (USPTO) issued a guidance, applying SAS Institute v. Iancu to the America Invents Act (AIA) trial proceedings. The U.S. Supreme Court in SAS Institute held that when the Patent Trial and Appeal Board (PTAB) institutes an inter partes review, it must decide the patentability of all claims challenged in the original petition. The USPTO guidance gives a general outline of how the PTAB will review patents in the future, and how it will handle cases that are already pending. The memo makes clear that the PTAB will no longer have partial institutions: “if the PTAB institutes a trial, the PTAB will institute on all challenges raised in the petition.” For pending trials in which the PTAB has instituted trial on only some of the petitioned claims, “the panel may issue an order supplementing the institution decision to institute on all challenges raised in the petition.” The final written decision will address, to the extent claims are still pending at the time of decision, “all patent claims challenged by the petitioner and all new claims added through the amendment process.” When supplementing the institution decision, the panel has discretion to manage the trial proceeding. The panel may permit “additional time, briefing, discovery, and/or oral argument, depending on...

Howard Geneslaw Argues Before NJ Supreme Court in Dunbar Homes on Behalf of NJ State Bar Association

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Posted in Development/Redevelopment

On May 1, 2018

On Monday, April 9, 2018, Howard D. Geneslaw, a Director in the Gibbons Real Property Department, argued before the Supreme Court of New Jersey on behalf of the New Jersey State Bar Association (“NJSBA”) as an amicus curiae in the matter of Dunbar Homes, Inc. v. Zoning Board of Adjustment of the Township of Franklin. The NJSBA was one of several amici involved in this case of first impression on the key question of when a submission to a municipal planning board is considered an “application for development” for purposes of being afforded protection under the “time of application” rule. The “time of application” rule provides that the zoning regulations which govern the review of an application for development are those in effect at the time it is submitted. The issue to be decided by the New Jersey Supreme Court centers on what constitutes submission of an application for development which allows the applicant to invoke the protection of the “time of application” rule. The Appellate Division, in a reported decision, ruled that protection is not available until an applicant submits all documents specified in the municipality’s application checklist adopted by ordinance, although the application need not have been deemed complete for protection to vest, but did not address what occurs when the checklist is...

Supreme Court Upholds the Constitutionality of Inter Partes Review

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Posted in Patent

On April 27, 2018

The Supreme Court in Oil States Energy Services v. Greene’s Energy Group upheld the constitutionality of inter partes reviews, holding that inter partes review does not violate Article III or the Seventh Amendment of the Constitution. The Supreme Court held that inter partes review involves public rights and is simply a reconsideration of the grant of a public franchise. Therefore, allowing the Patent and Trademark Office (PTO) to reconsider the grant of a public right does not violate Article III. The Supreme Court concluded that the grant of a patent has long been recognized as a public right, and the Seventh Amendment is not violated because a jury is not necessary since the PTO can properly conduct inter partes review. The Supreme Court qualified that its holding was narrow. The Supreme Court’s constitutionality determination applied to inter partes review only. The Court did not rule on the retroactive application of inter partes review to a patent granted before AIA post-grant proceedings were in place, nor to any due process challenges. Oil States Energy Services and Greene’s Energy are oilfield services company. After Oil States sued Greene’s Energy for infringing a patent related to hydraulic fracturing, Greene’s Energy challenged the patent’s validity in an inter partes review. The inter partes review and litigation progressed in parallel. A...

Governor Murphy Signs New Jersey Pay Equity Legislation

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Posted in Discrimination

On April 25, 2018

Yesterday, Governor Murphy signed the Diane B. Allen Equal Pay Act. The new law will go into effect July 1, 2018. For a description of the law and how it will affect New Jersey employers, please see our previous blog post. If you have any questions regarding how to comply with New Jersey’s new pay equity law, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department.

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