Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

Appellate Division Affirms Dismissal of Class Action Claims and Compels Arbitration in Case Against Sirius XM

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Posted in Class Action Defense

On February 9, 2022

In Parrella v. Sirius XM Holdings, Inc., the Appellate Division upheld a 2020 trial court decision dismissing a Sirius XM radio customer’s proposed class action complaint and compelling arbitration. The plaintiff had claimed that the satellite radio provider falsely advertised discounts in order to induce customers to reactivate their Sirius radio accounts. The radio provider moved to dismiss the complaint and compel arbitration, which it alleged was required under the parties’ customer agreement. The plaintiff had a 15-year relationship with the radio provider, during which he used its services for various intervals of time. The plaintiff restarted or cancelled his services and each time, upon renewal, he received a copy of the customer agreement. The plaintiff had also contacted Sirius XM customer service to discuss reactivating his account, at which time the customer service representative informed the plaintiff of the customer agreement and told him where he could find a copy of that agreement on the company’s website. The customer agreement clearly and conspicuously contained a binding arbitration clause. Based on these facts, the trial court held that the plaintiff impliedly assented to the terms of the customer agreement and therefore was compelled to arbitrate his claims. In his appeal, the plaintiff alleged that the trial court incorrectly found that he impliedly assented to the...

Meade v. Twp. of Livingston: Subordinate’s Indirect Influence Can Leave Employers Open to Liability Under the New Jersey Law Against Discrimination

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Posted in Discrimination

On January 25, 2022

On December 30, 2021, the Supreme Court of New Jersey reversed a grant of summary judgment in favor of an employer in a case involving an allegation that a subordinate’s discriminatory animus indirectly influenced an employment termination decision in violation of New Jersey’s Law Against Discrimination (LAD). In Meade v. Twp. of Livingston, the employee, a town manager, claimed that the town council decided to terminate her employment due to the gender bias of a male subordinate, the town police chief. Contrary to the trial court and appellate division, the Supreme Court concluded that there was a genuine dispute as to whether the police chief’s alleged bias influenced the town council’s decision, thereby rendering the case appropriate for a trial. In so ruling, the court noted that the matter was not a cat’s paw case (as argued by amicus curae National Employment Lawyers Association of New Jersey) because the town manager was not alleging the police chief influenced the town council to fire her, but that the town council’s decision simply was influenced by the police chief’s own purportedly discriminatory view of women. In coming to its decision, the court walked through the familiar McDonnell-Douglas burden shifting framework. It first explained that the town manager presented a prima facie case of employment discrimination: (1) the...

Gibbons Congratulates 2022 Class of Directors

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Posted in Firm News

On January 5, 2022

Gibbons P.C. is pleased to announce that three attorneys from the firm’s Commercial & Criminal Litigation Group have been named Directors, effective January 1, 2022. All are resident in the firm’s Newark office. “We are incredibly proud of this year’s class of new Directors,” said Patrick C. Dunican Jr., Chairman and Managing Director of Gibbons. “These outstanding, up-and-coming attorneys have proven to be exceptional assets to the firm and its clients, and we are confident that their contributions will be even greater as they take on the increased responsibilities of their new roles.” “Having been their practice group Chair for the past several years, I am well aware that Annie, Charlotte, and Josh possess all of the qualities that define a Gibbons Director,” noted Peter J. Torcicollo, Co-Chair of the firm’s Commercial & Criminal Litigation Group and incoming Managing Director. “With their well-deserved promotions and new, higher profiles, they will be excellent representatives of the firm as they continue to develop in their careers.” The attorneys promoted to Director are: Anne M. Collart Ms. Collart is an experienced and trusted counselor who has represented individual and corporate clients in a variety of criminal and civil matters. Her white collar criminal defense practice includes trial and appellate matters, and she has argued cases in both federal...

Gibbons Announces New Leaders for Commercial & Criminal Litigation Group

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Posted in Firm News

On December 14, 2021

Gibbons P.C. is pleased to announce that longtime firm Directors Frederick W. Alworth, Jennifer A. Hradil, and Thomas R. Valen have been named to new leadership positions in the Commercial & Criminal Litigation Group, the firm’s largest and most wide-ranging practice area. Effective February 1, 2022, Mr. Alworth will serve as Chair of the practice, with Ms. Hradil and Mr. Valen as Vice Chairs. In their new positions, these attorneys will oversee the work of the attorneys in their respective practice groups and manage group activities and workload. Their oversight responsibilities include fees and billings, matter management, case staffing, associate training and broader professional development, client relations, and business development. All have served, or are serving, in various other management capacities at the firm.

Jennifer Phillips Smith Named Co-Chair of Gibbons Real Property Group

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Posted in Development/Redevelopment

On December 9, 2021

Gibbons P.C. is pleased to announce that Jennifer Phillips Smith has been named Co-Chair of the firm’s Real Property Group, effective February 1, 2022. She joins Co-Chair Douglas J. Janacek, who has been a leader of the Real Property Group for over a dozen years. Ms. Smith is lead land use attorney on several of New Jersey’s largest, most high-profile development and redevelopment projects, which garner extensive media coverage. Examples include a $2.5 billion redevelopment, which is being called the “largest mixed-use development site in New Jersey’s history,” the transformation of the Asbury Park Waterfront, and the repositioning of a former manufacturing and office site, named “Mixed-Use Deal of the Year” by the leading statewide commercial real estate development association. As Co-Chair of the Real Property Group, she will work with Mr. Janacek in overseeing the work of group attorneys and managing group activities and workload, including fees and billings, matter management, case staffing, associate training and broader professional development, client relations, and business development. In her legal practice, Ms. Smith helps businesses in New Jersey expand and optimize the reach of their markets and operations through the development and redevelopment of real property for their facilities, directing project and case strategies, guiding teams, and serving as primary Gibbons contact broadly responsible for these client...

“Is That All There Is?” The Western District of Kentucky Gives a Fresh Look to the Standard Supporting ESI Search Sufficiency Challenges

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Posted in General Litigation

On September 28, 2021

A long-established precept of ESI production challenges is, if you’re complaining that they “must have more than that,” you’d best be able to support that position if your goal is to force your adversary to redo its search. Maker’s Mark Distiller, Inc. v. Spalding Grp., Inc., et al., No. 3:19-CV-00014-GNS-LLK (W.D. Ky. Apr. 20, 2021) brings this point home in full force. In that decision, which involved a Lanham Act trade dress dispute, United States Magistrate Judge Lanny King addressed plaintiff Maker’s Mark’s complaint that defendant Spalding’s ESI production was so paltry and otherwise deficient that Spalding should be compelled to implement a new ESI search. Ultimately, the court was having none of it. This decision is a reminder of the importance of communication between counsel before and after the Rule 26 conference, as well as the need to establish a compelling factual record of discovery deficiencies before seeking judicial relief.

OSHA Issues Updated COVID-19 Guidance

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Posted in Policies and Handbooks

On September 14, 2021

The United States Department of Labor’s Occupational Safety and Health Administration (OSHA) recently updated its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (“Guidance”), to bring it in line with the most recent recommendations published by the Centers for Disease Control and Prevention (“CDC”) on July 27, 2021, which were updated in view of the Delta variant. The updated Guidance is designed to help employers (outside of healthcare) protect workers who are “unvaccinated” or otherwise at risk, and differentiates, in certain respects, as to recommendations for unvaccinated and vaccinated employees, with vaccinated employees not subject to the same level of precautionary measures as their unvaccinated peers. The Guidance recommends that employers engage with their employees – and, where applicable, employee representative associations – to determine how to implement multilayered interventions to protect unvaccinated and otherwise at-risk employees, and to mitigate the spread of COVID-19 at the workplace. The recommended interventions are summarized, in part, below: Facilitating Vaccinations: Employers should grant employees paid time off to obtain the COVID-19 vaccine and to recover from any side effects. Employers should also consider working with local public health authorities to provide vaccinations in the workplace and should adopt policies that require employees to either get vaccinated or undergo regularly scheduled Covid testing in addition...

Gibbons Environmental Director David J. Freeman: “A ‘Bridge Builder’ Whose Vision Came to Fruition,” Featured in New York City Brownfield Partnership Interview

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Posted in Development/Redevelopment

On July 26, 2021

In June 2021, Gibbons Director David J. Freeman received the Distinguished Service Award from the New York City Brownfield Partnership, an organization he co-founded. Further honoring David for his extensive contributions to environmental law and the development of brownfields policy, the Partnership published an engaging and wide-ranging interview of David. In the interview, David describes how the Partnership’s goal of creating a bridge between the private sector and the Mayor’s Office of Environmental Remediation, which David developed with his co-founder, Dr. Daniel Walsh, grew over 15 years to include pro bono work, internships, and scholarships. The Partnership’s contributions to shaping brownfields law helped vitalize the Brownfield Opportunity Area initiative with its focus on neighborhood revitalization and community outreach. With the current focus at the federal and state levels on environmental justice for disadvantaged communities, the Brownfield Opportunity Area initiative has taken on an even more critical role.

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