Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

The Federal Circuit Further Loosens the Eastern District of Texas’ Iron Grip

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Posted in Patent

On December 15, 2010

In Re Acer America Corp. is the latest in a growing body of opinions authored by the Federal Circuit finding that the United States District Court for the Eastern District of Texas has abused its discretion in denying the transfer of a case to a more convenient venue under 28 U.S.C. § 1404(a). The United States Court of Appeals for the Fifth Circuit launched the opening salvo against the Eastern District’s unwillingness to transfer cases in its In re Volkswagen of America, Inc. opinion, and the Federal Circuit repeatedly has followed suit, granting writs of mandamus in favor of transfer in In re Nintendo Co., In re Hoffman-La Roche, Inc., In re Genentech, and In re TS Tech.

New Jersey Supreme Court Holds That Employees Disciplined for Stealing Confidential Company Documents in Support of Discrimination Claims Can Sue for Unlawful Retaliation

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Posted in Whistleblower

On December 14, 2010

The New Jersey Supreme Court has just announced a new test under which an employer may be held liable for unlawful retaliation when taking action against an employee who misappropriates and uses confidential company documents against the employer in support of a discrimination claim. Those who believe that simplicity is a virtue will not have their minds changed by the New Jersey Supreme Court’s decision in Quinlan v. Curtiss-Wright Corporation, in which the Court, by a 5-2 majority, established a complex and confusing seven-part “balancing test” for determining whether an employee’s wrongful taking of company documents nevertheless constitutes “protected activity” under the New Jersey Law Against Discrimination (the “LAD”). Applying this test, the Court held that the plaintiff in Quinlan could have been terminated for the wrongful taking of documents, but should not have been terminated for her attorney’s use of one of the documents at a deposition.

Revisions to Federal Rule of Civil Procedure 26 – New Untested Protections for Testifying Experts

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Posted in Copyright / Patent

On December 7, 2010

On December 1, 2010, the latest version of the Federal Rules of Civil Procedure went into effect. As part of the new rules, significant changes were made to Rule 26 regarding the discovery of information from experts retained to provide testimony. As of Wednesday, witnesses who were not previously required to provide a written report must now provide a summary disclosure of their opinion. In addition, draft expert reports and some communications between expert witnesses and counsel will no longer be discoverable, and expert reports will now only need to contain information regarding “facts or data considered by the witness in forming” an opinion.

The Federal Circuit Affirms in AstraZeneca v. Apotex, Finding Induced Infringement Based On Use of FDA-Mandated Labeling

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Posted in Patent / Pharmaceuticals

On December 6, 2010

The Federal Circuit’s recent decision in AstraZeneca LP v. Apotex Inc. illustrates the tension that generic drug manufacturers may face between complying with FDA labeling requirements and avoiding trespassing on others’ patent rights. In that decision, the Federal Circuit affirmed the District Court of New Jersey’s ruling enjoining Apotex’s “at risk” launch of a generic version of an inhaled corticosteroid for asthma patients. In short, AstraZeneca owned a method patent on once-daily dosing of the drug at issue. Although Apotex omitted all references to once-daily dosages from its product label, it was required by the FDA to include “downward titration” language that encouraged patients to reduce their daily intake of the drug to the lowest dose that provides a beneficial effect. AstraZeneca argued that this language induced patients to infringe its method patent, and the court agreed.

N.J. Judge Dismisses Potential Juror for Attempting to “Friend” Defendant on Facebook

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Posted in E-Discovery: Legal Decisions and Court Rules

On December 6, 2010

As recently reported by The Press of Atlantic City, on November 4, 2010, the Honorable Raymond Batten, J.S.C., dismissed a potential juror after defense counsel advised that the juror attempted to “friend” his client on Facebook. The potential juror was dismissed from serving in the trial of Atlantic City Councilman Marty Small, LuQuay Zahir and ten others who are accused of voter fraud during the councilman’s unsuccessful bid for mayor in 2009

Supreme Court Denies Certiorari in Tiffany v. eBay Appeal

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Posted in Trademarks

On November 29, 2010

Earlier today, the Supreme Court denied certiorari in the Tiffany v. eBay action, permitting a ruling to stand that places the burden on trademark owners to police infringements taking place on on-line auction sites. The Supreme Court’s denial of cert was without comment. Critical to the underlying decisions of the Second Circuit Court of Appeals and the U.S. District Court for the Southern District of New York was that eBay was not itself the seller of the infringing goods, and that it acted promptly to take down auctions when it received notice that the goods were not legitimate. eBay reportedly has made investments of up to $20 million per year to stop fraud and infringements occurring via its site.

Individual Paychecks Re-start the Statute of Limitations in Discriminatory Compensation Claims Under the NJLAD

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Posted in Discrimination

On November 29, 2010

Peace of mind. That is what the two-year statute of limitations period applicable to claims filed under the New Jersey Law Against Discrimination (“LAD”) afforded employers. With respect to discriminatory compensation claims, however, the New Jersey Supreme Court’s decision in Alexander v. Seton Hall University has destroyed that peace of mind, holding that each individual paycheck effecting a discriminatory compensation decision constitutes an actionable unlawful employment practice. No longer is the two-year statute of limitations measured from the date of the compensation decision.

Neither Presence Nor Participation at Township Proceedings Required in Order to Appeal Subdivision/ Land Development Approval in Pennsylvania

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Posted in Development/Redevelopment

On November 29, 2010

In what appears to be a case of first impression in Pennsylvania, the Commonwealth Court of Pennsylvania found that a party has standing to appeal a township’s grant of subdivision/land development approval even if that party was not present at, or did not participate in, the township proceedings on the application. This decision, filed on October 28, 2010, is in sharp contrast to established Pennsylvania case law concerning the standing of a party to appeal the decision of the Zoning Hearing Board, where that party’s appearance or objection at the Zoning Hearing Board level is a prerequisite to its ability to appeal.

Employers Must Accommodate Deviation from Dress Code When Based on Religion

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Posted in Policies and Handbooks

On November 23, 2010

The importance of making reasonable accommodations to workplace dress codes based on an employee’s religious practices was the focus of a recent settlement between the U.S. Department of Justice (DOJ) and Essex County, New Jersey. According to the Complaint filed by the DOJ in United States of America v. Essex County, New Jersey, Yvette Beshier, a Muslim corrections officer, was suspended and then terminated because the religious head scarf she wore violated the Essex County Department of Correction’s uniform policy. The DOJ alleged that Essex County’s treatment of Beshier constituted religious discrimination in violation of Tile VII of the 1964 Civil Rights Act because it failed to accommodate her religious beliefs.

EEOC Issues Final Rule for the Genetic Information Nondiscrimination Act (GINA)

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Posted in Discrimination

On November 22, 2010

The EEOC issued its final rule implementing Title II of the Genetic Information Nondiscrimination Act (“GINA”) and provided background information regarding the new regulations, which shall take effect on January 10, 2011. GINA generally restricts employers and other covered entities from deliberate acquisition of genetic information, prohibits use of genetic information in employment decision-making, and strictly limits disclosure of genetic information.

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