Gibbons Law Alert

Supreme Court Set to Weigh in on Whether Offer of Judgment for Complete Relief to Named Plaintiff in Putative Class Action Moots TCPA Claims

On June 17, 2015

The Supreme Court of the United States has granted certiorari in Campbell-Ewald v. Gomez, which is positioned to resolve the circuit split as to whether an offer of judgment to the named plaintiff in a class action for the full amount of the plaintiff’s individual claim can moot claims brought under the Telephone Consumer Protection Act (“TCPA”) for that named plaintiff only and prevent the matter from proceeding to the class certification stage.

Supreme Court Rejects Belief of Invalidity Defense for Inducement

by Samuel H. Megerditchian

Posted in Patent

On June 15, 2015

A recent Supreme Court decision has held that an accused infringer’s good-faith belief that a patent is invalid is not a defense to inducement of infringement. In Commil USA, LLC v. Cisco Systems, Inc., Commil sued Cisco alleging infringement of its patent relating to a method of implementing short-range wireless networks. Commil alleged that Cisco had infringed Commil’s patent by making and using networking equipment and that Cisco induced others to infringe the patent by selling the infringement equipment for them to use.

Waiting For Brulotte’s Fate

by Charles H. Chevalier

Posted in Licensing

On June 11, 2015

As licensing professionals await the decision of the Supreme Court in the case of Kimble v. Marvel Enterprises, Inc., which is widely believed to determine the future viability of the fifty year old decision of the Court in Brulotte v. Thys Co., it may be useful to consider the practical impact such a decision may have. The Brulotte decision held that use of the monopoly power of a patent to exact royalty payments on post expiration activities was a per se violation of the anti-trust laws. The reasoning was based on an analogy of the Court’s earlier prohibitions against tie-in arrangements where the use of a patented article required the purchase of an unpatented article. The patented invention was considered to be in the public domain upon expiration and thus free to use by all.

Federal Law Preempts NJ Fair Credit Report Act and TCCWNA Claims, New Jersey Court Says

by Jason R. Halpin

Posted in Class Action Defense

On June 9, 2015

Claims based on a retailer’s improper inclusion of too many credit card digits or a credit card expiration date on a sales receipt may not be brought under either the New Jersey Fair Credit Report Act (“NJFCRA”) or New Jersey’s Truth-in-Consumer Contract, Warranty, and Notice Act (“TCCWNA”), according to a recent ruling by the New Jersey Law Division.

Supreme Court Rules an Employer’s Failure to Accommodate a Job Applicant’s Religious Practice Violates Title VII Without Proof the Applicant Requested An Accommodation

by Richard S. Zackin

Posted in Discrimination

On June 4, 2015

In its much anticipated decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., the U.S. Supreme Court has held that a prospective employee who was turned down for a job because she wore a headscarf, which the employer suspected was worn for religious reasons, can proceed with her claim of religious discrimination under Title VII of the Civil Rights Act of 1964, although when she applied for the job the applicant never requested permission to wear the headscarf as an accommodation to her religious practices. Employers should be aware that the Court’s decision (1) imposes on an employer an affirmative obligation to reasonably accommodate the religious practices of its employees and prospective employees and (2) exposes an employer to potential liability for intentional discrimination, and thus for compensatory and punitive damages, for failing to make such accommodations.

New Jersey Appellate Division Says Ascertainability Not Required for Class Certification

by Gibbons P.C.

Posted in Class Action Defense

On June 4, 2015

As recently reported by this blog, the U.S. Court of Appeals for the Third Circuit upheld and clarified the implied requirement of Rule 23 that a class be ascertainable in order to be certified. But a New Jersey appellate court recently ruled that there is no such requirement under the New Jersey Court Rules, at least where each class member holds a low-value claim.

Missed the Starting Gun? Application of the Statute of Repose in Construction and Defective Product Cases

by Lisa Lombardo

Posted in Construction Litigation

On June 3, 2015

On April 30, 2015, the New Jersey Supreme Court decided State of New Jersey v. Perini Corporation, et al., which is likely to become a seminal case on how the ten-year limitations period of New Jersey’s Statute of Repose is applied in construction cases, in particular those involving multi-phase projects. The Perini case is also noteworthy for its ruling that the statute of repose does not apply to claims against manufacturers and suppliers of allegedly defective materials supplied on a project.

New Jersey Appellate Panel Upholds Pre-Discovery Dismissal of Weak Class Action Claims

by Gibbons P.C.

Posted in Class Action Defense

On June 2, 2015

In Myska, et al. v. New Jersey Manufacturers Insurance Co. et al., New Jersey’s Appellate Division recently upheld a pre-discovery striking of a complaint’s class allegations and dismissal of its Consumer Fraud Act claims because the complaint, the underlying policies, and other documents referenced by the complaint showed that class treatment was not warranted and that the plaintiffs could not prevail on their Consumer Fraud Act claims.

New Connecticut Law Passed to Protect Employee Online Privacy

by Gibbons P.C.

Posted in Policies and Handbooks / Privacy and Data Security

On June 2, 2015

Effective October 1, 2015, employers in the State of Connecticut are restricted from requiring or requesting employees and job applicants to provide access to “personal online accounts,” which include email, social media and retail-based Internet web sites used exclusively for personal reasons. Specifically, the new law (Public Act No. 15-6) (“the Act”), prohibits employers from requesting or requiring employees or job applicants to: provide the username and password, password, or other means of authentication to access an individual’s personal online account; authenticate or access a personal online account for the employer to view; or invite an employer to accept an invitation or be compelled to accept an invitation from an employer to join a group related to a personal online account.

Business Organizations Seeking Quick and Inexpensive Resolutions of Business Disputes Need to Know About Delaware’s Rapid Arbitration Act

by Christopher Walsh and Christopher Viceconte

Posted in General Litigation

On June 1, 2015

Arbitration is supposed to achieve quick, fair, and inexpensive resolutions of business disputes. But, seemingly more often than not, arbitration fails to fulfill its promise due to expensive and time-consuming pre-hearing discovery, lengthy hearings, and spiraling judicial review of arbitral awards. The Delaware Rapid Arbitration Act, which became effective on May 4, 2015, is Delaware’s unique and cutting-edge effort to offer a new brand of arbitration designed to achieve the original promise of quick and efficient justice.