Gibbons Law Alert

Gibbons Law Alert Blog

NLRB General Counsel Issues Memorandum Addressing New Arbitral Deference Standard

Posted in Labor

On March 17, 2015

The National Labor Relations Board’s General Counsel recently issued a memorandum providing guidance regarding the amount of deference the Board should afford arbitrations and settlements resolving unfair labor practice (ULP) allegations under sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (NLRA). These sections prohibit interference with employees’ rights to engage in protected concerted activities (8(a)(1)) and discrimination against employees for union affiliation (8(a)(3)). The General Counsel’s memorandum was issued to provide guidance in light of the NLRB’s recent decision in Babcock & Wilcox Constr. Co. — a decision that altered decades’ old law by giving the Board greater discretion (1) to initially decide these types of ULP allegations, which had previously been subject to arbitration in the first instance, and (2) to review arbitration decisions concerning such ULP charges. Companies that are negotiating collective bargaining agreements or have such agreements in place and that prefer to arbitrate ULP claims rather than litigate them before the NLRB, should carefully review the General’s Counsel’s memorandum—as should companies settling ULP allegations, as the memorandum deals with settlements as well.

New Jersey Supreme Court Appoints Trial Court the Venue for Affordable Housing Disputes

by Jennifer P. Smith

Posted in Development/Redevelopment

On March 16, 2015

Last week, the New Jersey Supreme Court issued a green light to developers and other interested parties to eventually pursue builders’ remedy actions in New Jersey Superior Court. The decision is the latest in a battle over affordable housing that has been in and out of the courts since the Mount Laurel decision in 1975. Most recently, in September 2013, the Supreme Court overturned the Council on Affordable Housing’s (“COAH”) latest attempt at adopting affordable housing regulations and ordered COAH to adopt new regulations within five months. That period was eventually extended to November 2014. COAH, however, did not adopt new regulations. Its inaction prompted a motion in aid of litigants’ rights, whereby parties to the prior action sought to break the bureaucratic logjam. Last week’s decision, designating trial courts as the venue for affordable housing disputes, is the New Jersey Supreme Court’s solution to the logjam.

Retroactive Effect Given to Delaware Statute Authorizing Up to 20-Year Statute of Limitations for Certain Breach of Contract Actions

by Christopher Viceconte

Posted in General Litigation

On March 16, 2015

The Delaware Court of Chancery, in Bear Stearns Mortgage Funding Trust 2006-SL1 v. EMC Mortgage LLC, C.A. No. 7701-VCL (Del. Ch. Jan. 12, 2015) (Laster, V.C.), held that the recently enacted 10 Del. C. § 8106(c), which authorizes parties to a written contract involving at least $100,000 to agree to a statute of limitations of up to 20 years, should be applied retroactively to the plaintiff’s breach of representation and warranty claims filed almost six years after the closing of the underlying transaction.

DOL Extends FMLA Spousal Care Leave Rights to Same-Sex Spouses

by Gibbons P.C.

Posted in Family Leave

On March 16, 2015

The U.S. Department of Labor (“DOL”) recently issued a Final Rule revising the definition of “spouse” under the Family and Medical Leave Act (“FMLA”) to include same-sex spouses for purposes of FMLA leave, regardless of the couple’s state of residence. Under the prior FMLA regulations, whether or not an employee had a “spouse” was determined by the law of the state where the employee resided. Notably, however, the Final Rule does not expand the definition of “spouse” to include domestic partners. Rather, only employees who are legally married are covered under the new regulations. The Final Rule takes effect on March 27, 2015.

Federal Circuit Limits Patent Exhaustion

by Christopher H. Strate

Posted in Patent

On March 11, 2015

A recent decision by the Federal Circuit, Helferich Patent Licensing LLC v. The New York Times Co., has held that the applicability of the patent exhaustion defense may be limited to a claim-by-claim determination depending on the nature of the licensed rights granted. In Helferich, the patent owner held rights to a portfolio of patents with claims relating to providing content to wireless handsets and relating to methods for updating content stored on the wireless handsets. Prior to bringing the present litigation, Helferich had licensed handset manufacturers under the patents with the license grants being directed specifically to the handset claims. Subsequently, the patent owner brought suit against The New York Times Company and others asserting infringement of the content claims.

Short and Concise Release Agreement Saves the Day for Employer According to NY Federal District Court

by Gibbons P.C.

Posted in Discrimination

On March 9, 2015

On February 24, 2015, in Brewer v. GEM Industrial Inc., the United States District Court for the Northern District of New York found a two-plus page separation agreement sufficient to dismiss the plaintiff’s court complaint because it was short, understandable by a lay person and included a provision notifying the employee of the right to seek counsel before signing it. The plaintiff, Samuel Brewer, sued his employer claiming discrimination in violation of Title VII of the Civil Rights Act of 1964 related to his termination. Before filing his discrimination lawsuit, he executed a separation agreement containing a release of claims. His employer moved to dismiss the lawsuit based on the release in the separation agreement.

Potential Delay Enough to Reduce PTA

by Charles H. Chevalier

Posted in Patent / USPTO

On March 9, 2015

The Federal Circuit recently addressed the issue of whether Patent Term Adjustment (“PTA”) can be reduced under 35 U.S.C. § 154(b)(1)(C) by conduct that does not actually cause delay in the conclusion of prosecution. Section 154(b)(1)(C) provides that PTA “shall be reduced by a period equal to the period of time during which the applicant failed to engage in reasonable efforts to conclude prosecution of the application.” The USPTO has interpreted the statute to mean that conduct that did delay or that could potentially delay the examination of a patent applications should be sanctioned. In Gilead Sciences Inc. v. Lee, Gilead Sciences, Inc. (“Gilead”) contested the USPTO’s interpretation and argued that the statue required actual delay in the conclusion of prosecution. The Federal Circuit held that Congress’s intent in enacting the statute was “to sanction not only applicant conduct or behavior that result in actual delay, but also those having the potential to result in delay irrespective of whether such delay actually occurred.”

Heightened Pleading in Patent Complaints to Frustrate Trolls – Exception for Hatch-Waxman/ANDA Cases

by Charles H. Chevalier

Posted in Patent

On March 3, 2015

All branches of government have worked to decrease frivolous litigation by non-practicing entities (“NPEs”), or patent trolls, in order to both encourage developing technology and allow businesses to utilize that technology without a looming threat of disruptive and costly litigation. In the course of our coverage of these efforts, we have seen state and federal legislative bodies, as well as the United States Patent and Trademark Office (“USPTO”), the executive branch, and the courts, suggesting potential solutions. Congress is currently weighing a revamped version of House Judiciary Committee Chairman Bob Goodlatte’s Innovation Act bill, which seeks to reform patent litigation by focusing on pleading standards.

The United States Deposits Ratification of the 1999 Geneva Act of the Hague Agreement and Becomes a Member Country of the Hague System

by Thomas J. Bean

Posted in Patent / USPTO

On February 24, 2015

On Friday, February 13, 2015, the United States deposited an instrument of ratification to the 1999 Geneva Act (Geneva Act) of the Hague Agreement Concerning the International Registration of Industrial Designs (Hague Agreement) with the World Intellectual Property Organization (WIPO). With this final step by the United States to become a signatory to the Geneva Act, qualifying U.S. applicants will be able to more easily protect their design patents in member countries and intergovernmental organizations (Contracting Parties) that have also signed on to the Geneva Act.

Court Finds Lack of Standing in Medical Data Breach Case

by Gibbons P.C.

Posted in Privacy and Data Security

On February 23, 2015

In Peters v. St. Joseph Servs. Corp., the United States District Court for the Southern District of Texas recently dismissed a class action complaint seeking damages arising out of a data incursion. The Court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of standing without leave to amend, while granting the plaintiff 30 days to raise her state and common law claims in state court.