Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

New Jersey District Judge Upholds Sanctions for Camden County’s Grossly Negligent Litigation Hold Procedures

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Posted in E-Discovery: Legal Decisions and Court Rules

On July 6, 2012

On March 21, 2012, New Jersey District Judge Noel Hillman upheld Magistrate Judge Ann Marie Donio’s ruling against Camden County, New Jersey (the “County”) for spoliation of evidence in an insurance dispute arising out of injuries to a motorist on a county road. State National Insurance Co. v. County of Camden, 08-cv-5128 (D.N.J. March 21, 2012). Judge Hillman’s March 21, 2012, decision addresses the County’s appeal of a June 30, 2011, decision of Judge Donio granting State National Insurance Company’s (“State National”) motion regarding the County’s failure to preserve electronically stored information (“ESI”). Specifically, the County failed to institute a litigation hold, to disable its automatic email deletion program, and to preserve copies of its backup tapes after litigation was commenced.

Consent to Class Arbitration: What is the Meaning of “Silence?”

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Posted in Class Action Defense

On April 24, 2012

In Stolt-Nielsen S.A. v. Animal Feeds International Corp., the United States Supreme Court held that “a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” As the parties in Stolt-Nielsen stipulated that their arbitration “agreement was ‘silent’ in the sense that they had not reached any agreement on the issue of class arbitration,” the Court ruled that the arbitrator could not infer the parties’ consent to class arbitration solely from the fact of their agreement to arbitrate, or failure to preclude it.

In re Facebook Privacy Litigation – Uphill Battle for Plaintiffs

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Posted in E-Discovery: Legal Decisions and Court Rules

On December 8, 2011

In a recent case in California, Facebook account holders filed a putative class action lawsuit against Facebook, alleging that Facebook knowingly forwarded personal information to online advertisers without its users’ consent. In In re Facebook Privacy Litigation, Plantiffs asserted eight causes of action against Facebook, including violations of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510, et seq. and various California laws (both statutory and common law), and all were dismissed.

Negotiated Sale of Customized Computer to Sophisticated Business Is Not a Sale of “Merchandise” Within the Meaning of the New Jersey Consumer Fraud Act

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Posted in General Litigation

On November 15, 2011

New Jersey courts have long held that businesses may assert claims under New Jersey’s Consumer Fraud Act (“CFA”) in appropriate circumstances. See Hundred E. Credit Corp. v. Schuster. Whether a business is entitled to assert a CFA claim typically turns on the specific facts of the case and whether the transaction at issue constitutes a “sale of merchandise” within the meaning of the CFA. See N.J.S.A. § 56:8-2. In Princeton Healthcare System v. Netsmart New York, Inc., the Appellate Division confronted this precise issue in holding that Princeton Healthcare, a sophisticated business entity, was not entitled to assert a CFA claim against Netsmart arising out of the sale and implementation of a customized computer system.

Minority Shareholders Not Precluded From Seeking Damages for Majority Shareholders’ Post-Merger Breaches of Fiduciary Duty

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Posted in General Litigation

On September 30, 2011

In Mitchell Partners, L.P. v. Irex Corporation, et al., the Third Circuit concluded that Pennsylvania’s appraisal statute does not preclude dissenting minority shareholders who are “squeezed out” in a merger from seeking remedies beyond the appraisal remedies provided in the statute. In the precedential ruling, the Third Circuit predicted that the Supreme Court of Pennsylvania would “permit a post-merger suit for damages based on the majority shareholders’ breach of their fiduciary duties.”

Caution to Anonymous Internet Posters – Your Cover Might Be Blown

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Posted in Technology Developments and Issues

On July 11, 2011

Next time you consider posting something on the Internet, think again as your identity could be revealed! Under the presumed cloak of anonymity, individuals often throw caution to the wind and voice controversial and unfiltered views on the Internet. Based upon a recent ruling by an Indiana State Court in a defamation case, however, the rules of engagement on the Internet may have changed.

Blind CCs and “Replies to All” – An Email Trap for the Unwary Attorney

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 15, 2011

Some traditional practices from the paper era don’t translate well to the world of e-communication. And some are downright dangerous. Back in the day, attorneys would often “bcc” their clients on correspondence to adversaries, an efficient and relatively safe means of keeping the client apprised. No longer in the age of email, where the ability to instantly respond invites quick, at times reactionary, replies that can easily fall into the wrong hands, with potentially devastating consequences.

“Cached” Web Files May Serve as Evidence in Child Pornography Case

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Posted in E-Discovery: Legal Decisions and Court Rules

On November 22, 2010

In a prosecution for promoting and possessing computer images of child pornography, a Brooklyn appellate panel upheld the conviction of defendant and determined that temporary files automatically “cached” by an internet browser may serve as evidence of promoting and possessing child pornography. People v. Kent, ___ A.D.3d ___, 2010 N.Y. Slip. Op. 7364, 2010 N.Y. App. Div. LEXIS 7405 (App. Div. 2d Dept. Oct. 12, 2010). The defendant, a professor of public administration at a Dutchess County college, was found guilty of 134 counts of possession of a sexual performance and 2 counts of promotion related to his use of an office computer.

The 2010 E-Discovery Landscape: Panel Discussion on the Essential E-Discovery Decisions of 2010 at Gibbons Fourth Annual E-Discovery Conference

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Posted in E-Discovery: Legal Decisions and Court Rules

On November 11, 2010

Gibbons’ Fourth Annual E-Discovery Conference kicked off with a panel discussion on the essential e-discovery decisions from 2010. The panel, comprised of renowned e-discovery authority Michael Arkfeld of Arkfeld & Associates, Scott J. Etish, Esq., an associate at Gibbons and member of the firm’s E-Discovery Task Force, and the Hon. John J. Hughes, United States Magistrate Judge for the District of New Jersey (Retired), addressed numerous recent decisions related to the following areas: (1) the need for outside and inside counsel to monitor compliance; (2) obtaining electronically stored information from foreign companies; (3) cooperation between adverse parties; (4) social media discovery; (5) searches and inadvertently disclosed privilege documents; and (6) legal holds and sanctions. The panel provided guidance as to best practices related to numerous areas, including navigating e-discovery challenges in the aftermath of the seminal Pension Committee, Rimkus and Victor Stanley II decisions. A brief summary of all of the cases the panel discussed is available here, and a copy of the PowerPoint slides the panel used is available here.

How Dirty Is Dirty? Court of Appeals Says Even Minimally Contaminated Sites Can Qualify for New York Redevelopment Incentives

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Posted in Development/Redevelopment / Environmental and Green Issues

On March 9, 2010

The tables were turned in a case decided by the New York Court of Appeals on February 18. In a reversal of their usual roles, an upstate developer argued that its properties were contaminated, while the Department of Environmental Conservation (DEC) argued that the sites did not require remediation. The court agreed with the developer, and the result could mean significant tax credits for potential redevelopers of contaminated sites throughout the state.

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