Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

(State) Settlors Beware, Too: In Reversal, Third Circuit Declares that State Settlement Does Not Protect Against Federal Claims under CERCLA

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Posted in Environmental and Green Issues

On September 14, 2020

Previously, the District of New Jersey ruled that a polluting party’s settlement agreement with the New Jersey Department of Environmental Protection (NJDEP) provided contribution protection from the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) claims based on costs incurred by the United States Environmental Protection Agency (USEPA) at the same site, even though USEPA was not a party to the settlement. In a prior blog post discussing that decision, we noted that the District Court’s decision was likely to be appealed. It was. On appeal, the Third Circuit considered the inquiry of “[w]hether a polluting party’s settlement with the State of New Jersey protects it from lawsuits seeking contributions toward expenditures made by the Federal Government on the same site,” and determined in a precedential opinion that, “the answer here is no.” CERCLA section 113(f)(2) provides that “[a] person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement.” The District Court applied the analysis commonly adopted by other federal courts to determine the “matters addressed” of the previous settlement where the scope is not made explicit by the agreement itself. This analysis includes factors such as the location, time frame,...

New Jersey Files Six Lawsuits as Part of Its Environmental Justice Initiative

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Posted in Environmental and Green Issues

On September 2, 2020

Last week, New Jersey Attorney General Gurbir S. Grewal and Department of Environmental Protection (DEP) Commissioner Catherine R. McCabe announced jointly the state’s filing of six environmental enforcement actions against alleged polluters in minority and low-income communities in various locations throughout the state. The filings are this administration’s latest action in its environmental justice initiative, as Gibbons has previously covered on this blog. The six lawsuits involve sites in Newark, East Orange, Camden, and two sites in Trenton. In these suits, the state brings claims under various New Jersey environmental statutes, including the Spill Compensation and Control Act, the Water Pollution Control Act, the Air Pollution Control Act, the Solid Waste Management Act, the Industrial Site Recovery Act, and the Brownfield and Contaminated Site Remediation Act. Per the joint press release, the lawsuits in Newark and Trenton “involve companies that released hazardous substances at their properties and refused to clean them up.” In Newark, the state seeks to require the defendants to investigate the extent of the contamination, to clean up the site, and to reimburse the state for over $500,000. For one of the Trenton sites, the state similarly seeks to compel the defendants to clean up the site and to reimburse the state for over $400,000. At the other Trenton site, the state...

Do Not Treat Rule 26(g) Certifications as a Mere Formality: Southern District of Florida Cautions Against Client ‘Self-Collection’ of ESI Without Adequate Attorney Oversight

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Posted in E-Discovery: Legal Decisions and Court Rules / Technology Developments and Issues

On August 20, 2020

In a recent decision reprimanding defense counsel’s lack of oversight of a client’s collection of data during discovery, the District Court for the Southern District of Florida issued a cautionary opinion that should serve as yet another reminder to counsel of the perils associated with allowing a client to self-collect ESI. Similar to a recent decision we addressed from the District Court of the Northern District of California, Equal Employment Opportunity Commission v. M1 5100 Corp., d/b/a Jumbo Supermarket, Inc. is a strong reminder that Federal Rule of Civil Procedure 26 should serve as a guide for the action and oversight required of counsel in the search, collection, and production of documents in response to discovery demands. In this age discrimination case, the District Court addressed plaintiff’s motion to compel. Plaintiff sought more specific discovery responses to two requests, attorney’s fees and costs in addition to the “opportunity to inspect Defendant’s ESI because, by Defendant’s counsel’s own admission, Defendant ‘self-collected’ responsive documents and information to the discovery requests without the oversight of counsel.” Cautioning against the “perils of self-collection of ESI by a party or interested person,” the District Court reminded counsel of its obligation to “have knowledge of, supervise, or counsel the client’s discovery search, collection and production” pursuant to Rule 26(g)(1). The District...

Christopher Strate to Speak at the Upcoming American Conference Institute’s Virtual Conference

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Posted in Intellectual Property

On August 10, 2020

On August 20, Christopher H. Strate, a Director in the Gibbons Intellectual Property Department, will speak at the American Conference Institute’s Virtual Conference, “Paragraph IV on Virtual Trial: COVID-19 Edition.” Mr. Strate’s discussion is scheduled from 4:00 – 5:00 pm ET and will address virtual trial and adjudication matters. For additional information or to register for this Conference, please visit AmericanConference.com/PIVCOVID.

The Need for Counsel to Maintain Active Involvement in Discovery: California District Court Sanctions Attorney for Failing to Make “Reasonable Inquiry” as Required by Fed. Rule 26(g)

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Posted in Litigation Preparedness and Strategies

On August 7, 2020

On June 1, 2020, the District Court for the Northern District of California in Optronic Techs., Inc. v. Ningbo Sunny Elec. Co., issued a strong reminder to counsel: act in accordance with the obligation to manage and oversee the collection of discovery, or risk running afoul of the attorney certification obligations of Federal Rules of Civil Procedure 26(g). In this case, defendant’s attorney signed a certification pursuant to Rule 26(g) as to the completeness of defendant’s responses to discovery requests despite being unaware of what defendant actually did to search for responsive documents. The District Court found the lack of involvement by defendant’s attorney to be worthy of sanctions based on the specific circumstances of the case. Plaintiff sought sanctions concerning defendant’s responses to its post-judgement document requests in a litigation in which defendant had previously been found to have deliberately withheld documents, contradicting certain representations made to the court. Plaintiff did not seek sanctions pursuant to Rule 37 and/or the court’s inherent authority. Plaintiff claimed, among other issues, that defendant’s production was not complete and that defendant’s counsel “had not taken a sufficiently active role” in supervising the collection and production of documents. In response, defendant admitted that its counsel did not personally collect the documents, and instead provided “guidance” on what should be...

Disappearing Act: Northern District of California Issues Rare Terminating Sanctions for Spoliation on a Massive Scale

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Posted in E-Discovery: Legal Decisions and Court Rules / Technology Developments and Issues

On July 17, 2020

In WeRide Corp. v. Kun Huang, the Northern District of California addressed an egregious case of discovery abuses and spoliation by defendants in a business litigation involving the alleged theft of autonomous vehicle technology. Applying Federal Rules of Civil Procedure 37(b) and 37(e), the court issued rare terminating sanctions against several defendants who willfully and intentionally deleted various forms of ESI, including relevant emails, status reports, and source code, well after the commencement of litigation and after a preservation order issued by the court requiring the preservation of such information. Defendants compounded these abuses by adopting the use of “DingTalk,” an ephemeral communication technology, after the court had issued the preservation order. WeRide, a technology company engaged in the business of developing autonomous cars, employed defendant Jing Wang as CEO in January 2018. WeRide alleged that Wang went on to form his own company, AllRide, as a direct competitor. WeRide also alleged that former employee defendant Kun Huang was recruited by Wang to work for AllRide while still employed by WeRide. WeRide alleged that Huang downloaded various forms of data during this time period and transferred this data onto several USB devices from two WeRide-issued computers, then proceeded to delete files from the devices. WeRide further alleged that AllRide and Huang stole WeRide’s source code,...

Supreme Court Severs TCPA’s Government Debt-Collection Exception as Content-Based Restriction on Free Speech, but Leaves Autodialer Restriction

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Posted in Class Action Defense

On July 16, 2020

The Supreme Court of the United States recently analyzed the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq., highlighting the importance of the Act’s ban on “robocalls,” (i.e., calls placed using an “automatic telephone dialing system” or “autodialer”), but leaving key questions unanswered. In Barr v. American Association of Political Consultants, Inc., the Court upheld the TCPA but severed Congress’s 2015 amendment that allowed entities to make robocalls to collect government-backed debt. Enacted in 1991, the TCPA generally prohibits robocalls to cell phones and home phones. At the heart of the Court’s opinion here was the decision whether to uphold Congress’s 2015 amendment which allowed an exception to the general ban on robocalls for entities collecting government-backed debt. The plaintiffs, organizations that participate in the political system, make calls to citizens for a multitude of purposes, such as discussing political issues, soliciting donations, and conducting polls. If robocalls to cellphones were allowed for political outreach, the plaintiffs believe that their efforts would be more effective and efficient. The plaintiffs filed a declaratory judgment action against the U.S. Attorney General and the Federal Communications Commission to invalidate the TCPA’s entire 1991 autodialer restriction, arguing that allowing certain entities to make robocalls to collect government-backed debt, but prohibiting other robocalls, was a content-based restriction...

Technology-Assisted Review Is Not Compulsory, but Litigants’ Reluctance to Accept New E-Discovery Technologies Comes With Consequences

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Posted in General Litigation

On July 9, 2020

A Special Master appointed to administer discovery disputes in In re Mercedes-Benz Emissions Litigation, pending in the District of New Jersey, rejected Plaintiffs’ application to compel Defendants to utilize technology assisted review (“TAR”) or predictive coding in connection with the parties’ negotiation of their search term protocol. While we have previously addressed courts that have “endorsed” the use of predictive coding and/or TAR and have recommended that litigants consider the use of such technologies to promote efficiency in the discovery process, courts will be extremely hesitant to impose affirmative requirements on litigants in carrying out discovery. TAR is a process “in which human reviewers and a computer engage in an interactive process to ‘train’ the computer how to identify responsive documents based on properties and characteristics beyond simple search terms.” Special Master Dennis M. Cavanaugh, U.S.D.J. (ret.) observed that courts have universally concluded that TAR is “cheaper, more efficient and superior to keyword searching.” Nevertheless, the Special Master acknowledged that “responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for producing their own electronically stored information.” Thus, while courts have permitted parties to use TAR for document review, no court has compelled predictive coding over another party’s objection. The Special Master followed the approach of the few courts that have addressed...

DOJ Updates Corporate Compliance Program Evaluation Guidelines to Invite the Practice of Continuous and Evolving Improvements Through Data Analysis

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Posted in General Litigation

On June 24, 2020

The Department of Justice (DOJ) recently updated its Evaluation of Corporate Compliance Programs guidelines, which federal prosecutors consider when making decisions to prosecute corporate compliance violations, impose monetary penalties, and require future compliance commitments. The guidelines highlight what prosecutors should deem relevant in evaluating a corporate compliance program, both at the time of the offense(s) and at the time of the charging decision and resolution. In turn, the guidelines serve as a roadmap for corporate compliance and control personnel in designing a corporate compliance program, allocating resources to the program, evaluating the efficacy of the program in practice, and redesigning the program as needed on a regular basis. The updates make clear that the DOJ is interested in the continuous evaluation and evolution of corporate compliance programs, and that prosecutors will now be examining whether and how a compliance program incorporates data analytics. As before, the guidelines instruct federal prosecutors to ask three questions, though now slightly revised as follows: Is the compliance program well designed? Is the program adequately resourced and empowered to function effectively? Does the program work in practice? A welcome addition to the guidelines is a stated recognition that the circumstances of the company, e.g., size, industry, geographic footprint, regulatory landscape, etc., are relevant to prosecutors’ analysis. The guidelines also suggest...

Gibbons Again Ranked Among World’s Leading Patent Professionals by Intellectual Asset Management

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Posted in Intellectual Property

On June 15, 2020

Intellectual Asset Management (IAM) has again ranked the Intellectual Property Department of Gibbons P.C. among “The World’s Leading Patent Professionals,” granting the firm its “Gold Band” rating for practices that earned the highest number of positive reviews from sources. Gibbons is one of only three Gold Band firms in New Jersey. In addition, eight Gibbons attorneys—David E. De Lorenzi, Chair of the Intellectual Property Department, and Thomas J. Bean, Charles H. Chevalier, George M. Gould, George W. Johnston, Samuel H. Megerditchian, Robert E. Rudnick, and Christopher H. Strate—were ranked individually among IAM’s leading patent practitioners, spanning the litigation, prosecution, and transactions categories. Gibbons has the highest number of ranked attorneys on the New Jersey list this year. This is the tenth straight year that David De Lorenzi and the firm have been recognized by IAM. “Remarkably, nearly half of the Gibbons patent team have top-flight in-house experience,” notes IAM. The publication later reports, “This is a group, then, that intimately understands what clients need, and how and when they need it – and it delivers on all fronts.” To compile the IAM Patent 1000, the IAM team conducts extensive research over the course of five months with thousands of private practice attorneys based in dozens of countries, as well as the users of their services, in order to identify the practitioners and practices that are considered to excel at providing...

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With 200 attorneys, Gibbons is a leading law firm in New Jersey, New York, Pennsylvania, Delaware, Washington, DC, and Florida, ranked among the nation’s top 200 by The American Lawyer. More…

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