Gibbons Law Alert
We previously reported on the recent efforts by Congress to reform patent litigation procedures by way of the House’s “Innovation Act” H.R. 3309. The Senate is considering its version of the bill, entitled the Patent Litigation Integrity Act, S. 1612.
Keeping track of all of the state and federal family and medical leave laws, paid family leave laws, and workers’ compensation and disability laws is difficult for any business owner or HR professional. Properly determining leave eligibility and ensuring that leave is not abused is even harder and generates the most mistakes and lawsuits.
In an opinion beneficial to class action defendants, the Seventh Circuit has taken some of the guesswork out of removal by holding that the 30-day period for removing a case to federal court only begins once the defendant has received a pleading or other litigation paper that includes a specific, unequivocal statement that the damages sought meet the jurisdictional amount.
Following the rule announced in Standard Fire Ins. Co. v. Knowles, the Ninth Circuit has reversed course on the burden borne by defendants seeking to remove under the Class Action Fairness Act (“CAFA”). Now, defendants need only establish the amount in controversy by a preponderance of the evidence. In Rodriguez v. AT&T Mobility Services, the Ninth Circuit was faced with a putative class representative’s waiver of all damages above $5 million. The waiver was designed to avoid removal under the Class Action Fairness Act (“CAFA”), but earlier this year, the Supreme Court held in Standard Fire that such waivers are ineffective. Therefore, the Ninth Circuit vacated the District Court’s order remanding the case to state court and remanded to the District Court for further proceedings.
Many Responsible Parties will be scrambling to meet the May 7, 2014 deadline to complete their remedial investigations. Failure to meet the deadline risks that the New Jersey Department of Environmental Protection (NJDEP) will undertake direct oversight of an entire contaminated site. Pursuant to the Site Remediation Reform Act (SRRA), the May 2014 deadline applies to all discharges or contaminated areas of concern that have been or should have been identified on or before May 7, 1999, due to an obligation to complete a site investigation or preliminary assessment.
Many Responsible Parties will be scrambling to meet the May 7, 2014 deadline to complete their remedial investigations. Failure to meet the deadline risks that the New Jersey Department of Environmental Protection (NJDEP) will undertake direct oversight of an entire contaminated site. Pursuant to the Site Remediation Reform Act (SRRA), the May 2014 deadline applies to all discharges or contaminated areas of concern that have been or should have been identified on or before May 7, 1999, due to an obligation to complete a site investigation or preliminary assessment.
The question concerning the enforceability of class action waivers in arbitration agreements to foreclose an employee’s ability to litigate collective actions under the Fair Labor Standards Act (“FLSA”) has been answered affirmatively in New York by the Second Circuit Court of Appeals. On October 15, 2013, the Second Circuit rejected a rehearing petition from Stephanie Sutherland, a former Ernst & Young LLP employee, who challenged a class action wavier in an arbitration agreement that barred her from pursuing a collective action for overtime pay under the FLSA. The decision lets stand the Circuit Court’s August 9th panel ruling that an employee can be required as a condition of employment to waive, pursuant to an arbitration agreement, the right to bring a collective or class action.
Environmental attorneys have long wrestled with the issue of whether particular clean-up activities under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) fall under the statute of limitations for remedial actions, considered to be permanent responsive action, or for removals, considered to be interim remedial measures to address immediate threats to public health. In a governmental cost recovery action, guessing wrong can deprive a federal or state governmental entity of its ability to recover its clean up costs from Potentially Responsible Parties. In State of New York v. Next Millenium Realty, LLC, the Second Circuit vacated the District Court’s determination, holding that once an activity is instituted as a removal, it remains a removal until completion, even if it is incorporated into the final permanent remedy.
The National Institute of Standards and Technology (NIST) has just released its Preliminary Cybersecurity Framework: a set of best practices to help owners and operators of critical infrastructure reduce cybersecurity risks. This voluntary framework provides both private and public-sector organizations with a common language for understanding and managing cybersecurity risks internally and externally. The framework stems from President Obama’s February 2013 Executive Order on cybersecurity, previously covered by this blog. The Final Framework is due to be released in February 2014, following a 45-day public comment period on the Preliminary Framework.
On October 2, 2013, New York City Mayor Michael Bloomberg signed into law Int. No. 974-2012A, amending the New York City Human Rights Law (NYCHRL) to prohibit discrimination in employment based on pregnancy, childbirth or a related medical condition. The law goes into effect on January 30, 2014. It prohibits an employer from refusing to provide a reasonable accommodation to the needs of an employee for her pregnancy, childbirth, or related medical condition that will allow the employee to perform the essential requisites of the job. According to the New York City Council’s legislative findings accompanying the amendment, reasonable accommodations for an employee’s pregnancy, childbirth, or related medical condition may include “bathroom breaks, leave for a period of disability arising from childbirth, breaks to facilitate increased water intake, periodic rest for those who stand for long periods of time, and assistance with manual labor.”