Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

Federal Judge Rules Government Failed to Preserve Text Messages and Orders Adverse Inference Instruction in Criminal Case

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Posted in E-Discovery: Legal Decisions and Court Rules

On November 2, 2010

On October 21, 2010, in the highly publicized New Jersey government corruption case U.S. v. Suarez, et ano., No. 09-932, 2010 U.S. Dist. LEXIS 112097 (D.N.J.), the Honorable Jose L. Linares, U.S.D.J., held that the FBI had a duty to preserve Short Message Service electronic communications (i.e., text messages) exchanged between its agents and their cooperating witness, Solomon Dwek, during the course of the investigation of defendants Anthony Suarez (mayor of Ridgefield, NJ) and Vincent Tabbachino (former Guttenberg, NJ councilman and police officer). Despite the lack of evidence of bad faith on the part of the government, because the text messages were not preserved, the Court found clear prejudice to defendants and ordered that the appropriate sanction was a “permissive” adverse inference jury instruction.

Legal Hold Best Practices after Victor Stanley II, Pension Committee and Rimkus

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Posted in E-Discovery

On November 2, 2010

Relevance. Scienter. Prejudice. These three themes permeated a roundtable discussion entitled “Legal Hold Best Practices after Victor Stanley II, Pension Committee and Rimkus” during Gibbons Fourth Annual E-Discovery Conference on October 28, 2010, at Gibbons headquarters in Newark, New Jersey. A distinguished panel discussed legal hold best practices and lessons learned from recent decisions, including proactive measures and creative strategies for companies of all sizes to meet their e-discovery obligations. E-discovery preservation obligations have been a critical issue in employment litigation since Judge Scheindlin’s groundbreaking opinion in Zubulake v. UBS Warburg (in which the defendant/employer was sanctioned for failing to preserve documents in a sex discrimination case brought under Title VII).

Muddied Waters – EPA’s Stormwater Rules for Construction Projects

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Posted in Development/Redevelopment / Environmental and Green Issues

On November 1, 2010

Roman lawyers were timed by water clocks which they realized could be slowed by the addition of dirt or sand and thereby gaining more time to argue. Hence lawyers are often cited for “muddying the waters.” In the case challenging the US Environmental Protection Agency’s stormwater rules for construction sites, it is the court that has muddied the waters. By holding the suit in abeyance, but keeping the problematic standard in place, the Seventh Circuit Court of Appeals has managed to confuse all of the parties.

Bereavement Leave Obligations Extended to Same-Sex Partners in New York

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Posted in Employee Benefits

On October 29, 2010

New York State employers who extend funeral or bereavement leave to employees after the death of a relative must, effective October 29, 2010, provide the same leave after the death of a same-sex committed partner. Although this amendment to the New York Civil Rights Law creates no obligation for employers who do not offer funeral or bereavement leave to any employees, it does require a change for the many New York employers who currently provide such leave to various groups of defined relatives, but not to same-sex committed partners. Those policies and related practices should be revised promptly to comply with the new law. Additionally, while the new law does not apply to employers outside New York State, they may want to consider similar revisions for business reasons.

Howard Geneslaw to Speak at 2010 New Jersey Planning Conference

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Posted in Development/Redevelopment

On October 29, 2010

Howard D. Geneslaw, Esq., PP, AICP, a Director in the Gibbons Real Property & Environmental Department, will be a speaker at the 2010 New Jersey Planning Conference on Friday, November 5, 2010, in New Brunswick, New Jersey. Howard’s topic will be “The Due Diligence Process: Protection for Both the Public and Private Sectors.” Two consulting planners will also be a member of the panel.

New Jersey Business & Industry Association Recognizes Company Excellence

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Posted in Development/Redevelopment / Environmental and Green Issues

On October 27, 2010

On Wednesday evening, October 19, 2010, the New Jersey Business and Industry Association (NJBIA) presented its annual “Awards For Excellence” to eleven New Jersey businesses for laudable Business Expansion, Environmental Quality, as Outstanding Employers, and for Public Service. Gibbons P.C. was amongst four companies honored for Public Service, joining two Gibbons clients, Peloton Advantage, LLC, the winner of the Business Expansion Award, and Hall’s Warehouse Corp., honored with a NJ Businesses Environmental Quality Award.

Cancer in Remission is Disability under the ADAAA

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Posted in Disability

On October 26, 2010

In holding that an employee with cancer in remission is “disabled” under the expanded definition of “disability” in the Americans with Disabilities Act Amendments Act (“ADAAA”), a federal court has signaled a major change in the way courts have considered cases involving diseases that are in remission. The case is among the first in the nation to interpret the extent to which the Act broadens the scope of the conditions that may qualify as a “disability.” Specifically, the court addressed that portion of the ADAAA that defines “disability” to include “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”

New York Requires Attorneys to Verify Residential Foreclosure Pleadings in Response to National Foreclosure Freeze

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Posted in Transactional Real Estate and Leasing

On October 26, 2010

On October 20, 2010, Chief Judge Jonathan Lippman of the State of New York announced that lender’s counsel in residential foreclosure actions will now be required to file an affirmation certifying that they have taken reasonable measures to verify the accuracy of documents submitted in connection with the action. The new rule is effective immediately. The New York State Unified Court System has provided a sample affirmation that was released with Judge Lippman’s statement.

Farouk Systems Wins $300 Million Damages Award Against On-Line Chinese Counterfeiting Ring

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Posted in E-Commerce / Trademarks

On October 25, 2010

On October 14, 2010, the U.S. District Court for the Southern District of Texas granted what is reportedly the largest judgment ever awarded in an action involving on-line counterfeiting. In Farouk Systems, Inc. v. Eyou Int’l Trading Co., Judge Kenneth M. Hoyt entered a default judgment and permanent injunction against more than seventy defendants, who were operating an Internet counterfeiting ring out of China. The judgment required that each of the defendants pay Farouk statutory damages of $4 million, resulting in an award of approximately $300 million. In addition to being significant because of the amount of the damages awarded, this decision is noteworthy for the pragmatic approach that the court took to ensure that the relief awarded to the plaintiff would be meaningful.

Southern District of New York Denies Request for Advance Notice of an at Risk Launch

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Posted in Patent / Pharmaceuticals

On October 21, 2010

Recently, the U.S. District Court for the Southern District of New York ruled that a generic drug manufacturer may not be required to provide advance notice to the innovator of their intent to launch at-risk a competing product. This decision is noteworthy in that it contrasts with the practice in the District Court of New Jersey where at least one generic company has been ordered to provide advance notice to the brand companies of an impending at-risk launch.

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