Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

NJ Supreme Court Holds a Supervisor’s Use of Two Racial Slurs Was Enough to Send the Claims to a Jury

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Posted in Discrimination

On July 8, 2021

On June 16, 2021, the New Jersey Supreme Court ruled in Rios v. Meda Pharmaceutical, Inc., Tina Cheng-Avery, Glenn Gnirrep, et. al. that a supervisor’s use of two offensive slurs based on race/national origin and directed at a Hispanic employee was sufficiently “severe and pervasive” to establish a hostile work environment claim under the New Jersey Law Against Discrimination (“LAD”), survive summary judgment, and proceed to trial. In Rios, Meda Pharmaceutical, Inc. (“Meda” or “Company”), hired plaintiff, Armando Rios, Jr., a Hispanic male, as the Company’s Director of Brand Marketing, reporting to individual defendant Tina Cheng-Avery, the Senior Director of Commercial Operations (“supervisor”). Plaintiff alleged that his supervisor directed the term “Sp–” towards him while at work. More specifically, plaintiff claimed that a month after his hire in May 2015, he told his supervisor that he and his wife were searching for a new home, and, in response, she stated, “it must be hard for a Sp– to have to get FHA loans.” According to plaintiff, shortly after this comment was made, his supervisor allegedly stated to him that an actress who had been “auditioning” for a company commercial would be hired “if she didn’t look too Sp–ky.” (Chief Justice Rabner noted that the court had used “the offensive language in the record” as it...

A Poor Substitute: The Eastern District of Texas Holds That Facebook Screenshots Are Not Sufficient to Avoid Sanctions Under Rule 37

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Posted in E-Discovery: Legal Decisions and Court Rules

On July 7, 2021

In Edwards v. Junior State of America Foundation, the Eastern District of Texas determined that screenshots of social media messages are not sufficient evidentiary substitutes for spoliated native files. As a result of the plaintiffs’ discovery misconduct and spoliation of relevant electronically stored information (ESI), the court imposed sanctions under Rule 37(c) and (e) against the plaintiffs for failing to preserve Facebook messages in native format, including its metadata, which prevented the defendant from authenticating the messages. The plaintiffs filed a complaint against the defendant alleging that a student member of the defendant, a youth organization, sent “racist and homophobic Facebook messages” to one of the plaintiffs (the “Messages”). After the alleged Messages were sent, the student’s father filed a complaint with the youth organization which included .jpeg “snapshot” images of the Messages. During the litigation, the defendant served written discovery requests on the plaintiffs, seeking production of ESI from the plaintiff’s Facebook Messenger account to authenticate the alleged Messages, including the production of the Messages in HTML or JSON format. The native format of Facebook messages can typically be retrieved and produced in HTML or JSON format and contain metadata that can be used for authenticity purposes. The defendant’s request for native format would have allowed the defendant to authenticate the Messages. The plaintiffs never...

Fourth Time’s a Charm: The Third Circuit Reverses Dismissal of Trade Secrets Complaint and Clarifies Pleading Standard

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Posted in Appellate

On June 29, 2021

The Third Circuit issued a precedential decision in Oakwood Laboratories LLC v. Bagavathikanun Thanoo et al. that clarified the pleading requirements for trade secrets misappropriation claims under the Defend Trade Secrets Act, 18 U.S.C. § 1836(b) (DTSA). In that decision, the Third Circuit held that the Third Amended Complaint was “so factually detailed that, on appeal, we conclude it easily meets the pleading requirements of the Federal Rules of Civil Procedure and pertinent substantive law.” Earlier, the District Court for the District of New Jersey had dismissed four of Oakwood Laboratories LLC’s (“Oakwood”) complaints on the grounds that each complaint was not specific enough to support a claim. The District Court dismissed Oakwood’s Third Amended Complaint (its most recent attempt), because it did not show precisely how defendants misappropriated Oakwood’s trade secrets, but noted that Oakwood did plead facts sufficient to identify its trade secrets and support the information’s protected status. Oakwood appealed, and the Third Circuit reversed. Oakwood alleged that defendants Aurobindo Pharma U.S.A. and its subsidiaries misappropriated Oakwood’s trade secrets regarding microsphere technology when Aurobindo hired an Oakwood employee who specializes in this technology, Dr. Bagavathikanun Thanoo, and relied on a memorandum provided for the limited purpose of exploring a business opportunity to develop Aurobindo’s own microsphere technology. In reversing the District Court’s...

EEOC Issues Updated COVID-19 Technical Assistance Guidance for Employers

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Posted in COVID-19

On June 11, 2021

The Equal Employment Opportunity Commission (EEOC) recently issued updated and expanded guidance concerning the COVID-19 pandemic (“Guidance”), addressing questions arising under the federal equal employment opportunity (EEO) laws concerning mandatory employer vaccination programs and accommodation requirements, along with vaccine incentives.

Gibbons Director David J. Freeman Receives Distinguished Service Award From New York City Brownfield Partnership

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Posted in Development/Redevelopment

On June 8, 2021

David J. Freeman, a Director in the Environmental Group of Gibbons P.C., has been honored by the New York City Brownfield Partnership (NYCBP) as the 2021 recipient of the organization’s Distinguished Service Award. The Award promotes excellence in brownfield redevelopment each year by honoring an individual who has made a significant impact on brownfield redevelopment in New York City.

Timing Is Everything: SDNY Limits Relief for Plaintiffs Prematurely Seeking Serious ESI-Related Sanctions Under Rule 37(e)(2)

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Posted in General Litigation

On June 3, 2021

In DoubleLine Capital LP v. Odebrecht Finance, Ltd., the Southern District of New York issued a decision with important implications regarding the timing of spoliation motions and imposition of e-discovery sanctions under Federal Rule of Civil Procedure 37(e)(2). The decision highlights the challenges litigants face when seeking relief under this provision and, in particular, satisfying the onus to establish an “intent to deprive” the opposing party of deleted discovery. As this blog has previously discussed, the sanctions available under this subsection are available only in “egregious cases,” require a high evidentiary bar, and are highly dependent on timing and the proper development of a factual record. In this securities fraud case, the plaintiffs sought a mandatory adverse inference based on the claim that the defendants destroyed encryption keys needed to access the “MyWebDay” platform, an internal “shadow” accounting system used to track illicit bribe payments, which they contended contained evidence essential to the litigation. Despite ultimately admitting to destroying the encryption keys, the defendants argued that it was too early in discovery for the court to impose sanctions. Specifically, the defendants argued that spoliation sanctions would be inappropriate because the plaintiffs “have not (and cannot) demonstrate that the lost information cannot be replaced in discovery, and therefore have not shown that any relevant facts ‘have...

Don’t Jump the Gun: The Northern District of California Compels the Production of Litigation Hold Letters, Holding Duty to Preserve Not Terminated When Related Lawsuits Were Resolved

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Posted in E-Discovery: Legal Decisions and Court Rules

On May 13, 2021

In Thomas v. Cricket Wireless, LLC (“Thomas II”), Judge Tse of the Northern District of California compelled the production of defendant Cricket Wireless LLC’s litigation hold letters, despite the defendant’s privilege and relevance objections. The court compelled the production of such letters to allow the plaintiffs to investigate and possibly prove whether the defendant had engaged in spoliation of evidence in Thomas II and two similar class actions that were brought against the defendant. While the duty to preserve potentially relevant documents is generally terminated at the conclusion of a litigation, Thomas II reminds us that this duty may continue even after a related litigation is dismissed. The plaintiffs in Thomas II filed a putative class action alleging the defendant engaged in false advertisement related to its 4G/LTE coverage services. The defendant had already been sued in two prior lawsuits. In May 2015, different plaintiffs filed suit against the defendant on nearly identical claims in Barraza v. Cricket Wireless, LLC (“Barraza”) before Judge Alsup. Barraza was resolved when both named plaintiffs accepted the defendant’s offer of judgment for the full value of their claims. At a hearing before the dismissal, Judge Alsup asked whether there was “any scenario under which the merits of the case could come back to life” and whether there was “any kind...

Gibbons Attorneys’ Offshore Wind Article Published by ABA’s Section of Environment, Energy, and Resources Quarterly Magazine

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Posted in Environmental and Green Issues

On April 30, 2021

“New Jersey’s Plan to Become the National Capital of Offshore Wind,” authored by Gibbons environmental attorneys Susanne Peticolas and Christopher Cavaiola, appeared in the Spring edition of Natural Resources and Environment, the quarterly magazine of the ABA’s Section of Environment and Energy Resources. New Jersey’s Governor Phil Murphy and his administration have made combating climate change a key priority in the State since his election. Governor Murphy has unveiled arguably his most ambitious plan to date, introducing plans in June that would make New Jersey the hub of the eastern seaboard’s offshore wind industry. The article explores how Governor Phil Murphy plans to do this and examines the relevant state and federal policy and legal implications of same. Click here [Link 1] to read the article.

USEPA Creates PFAS Council

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Posted in Environmental and Green Issues

On April 30, 2021

Per- and Polyfluoroalkyl Substances (PFAS) are synthetic chemicals nicknamed “forever chemicals” because they are persistent and resistant to degradation. They have been used in a wide variety of everyday products and are found in detergents, non-stick pans, stain-resistant and waterproof fabrics, fragrances, drugs, disinfectants, pesticides, and fire-fighting foam. PFAS comprise more than 4,700 compounds. Many of them have been identified as potential environmental or public health risks.

Negligent Deletion of Meeting Notes Does Not Warrant Adverse Inference Sanctions

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Posted in Litigation Preparedness and Strategies

On April 15, 2021

Recently, in the District Court for the Southern District of California, Magistrate Judge Karen Crawford declined to impose adverse inference sanctions against the defendants, despite the defendants’ negligent destruction of relevant evidence. Instead, the court found that the plaintiffs were not severely prejudiced by the defendants’ spoliation of relevant handwritten notes from meetings pertaining to the subject matter of the litigation. Therefore, the court opted for the “least burdensome sanction” and recommended that the defendants be precluded from offering testimony or other evidence about the discussions at the meetings, during which the handwritten notes at issue were taken, in support of their defenses during the trial. In Al Otro Lado, Inc., et al. v. Chad v. Wolf, Acting Secretary, U.S. Department of Homeland Security, et al., the plaintiffs claimed that the U.S. Department of Homeland Security (the “Department”) implemented a policy, known as the “Turnback Policy,” at the U.S.-Mexico border that discouraged individuals from seeking asylum in the U.S.. The plaintiffs requested that adverse-inference sanctions be imposed against the Department due to the admitted destruction of handwritten notes by two senior officials within the U.S. Customs and Border Protection (CBP) made during the Department’s daily operation meetings where the Turnback Policy would be discussed. Essentially, the plaintiffs sought an adverse inference finding (to be adopted...

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