Gibbons Law Alert

Gibbons Law Alert Blog

New York State Brownfield Developments: Governor Cuomo Vetoes Tax Credit Extension; State Bar Recommends Reforms

On January 6, 2015

On December 29, Governor Andrew Cuomo vetoed a bill that would have extended, until March 31, 2017, the deadline for sites in the New York State Brownfield Cleanup Program to finish cleanups in order to qualify for the Program’s tax credits. The current deadline is December 31, 2015. The veto surprised many observers, since the Governor had earlier indicated that he would sign the bill.

No Specific Waiver, No Arbitration: Enforceability of Arbitration Provisions in New Jersey Real Estate Contracts in Doubt Following Dispenziere v. Kushner Cos.

by Andrew J. Camelotto

Posted in Development/Redevelopment / Real Estate / Transactional Real Estate and Leasing

On January 5, 2015

Companies doing business in New Jersey and accustomed to settling contract disputes through binding arbitration should carefully review their contracts – and carefully draft all future contracts – to ensure that each arbitration provision contains clear and unambiguous language that the parties are waiving their rights to sue in court. An arbitration clause stating that all disputes will be determined through binding arbitration, but failing to contain this explicit waiver, may not be enforceable in accordance with the recent holding by the Appellate Division in Dispenziere v. Kushner Cos.

NLRB Rules Employees “Presumptively Permitted” to Use Employer Email Systems for Statutorily Protected Communications

by Gibbons P.C.

Posted in Labor

On December 23, 2014

On December 11, 2014, in Purple Communications, Inc. and Communications Workers of America, AFL-CIO, Cases 21-CA-095151, 21-RC-091532, and 21-RC-091584, the National Labor Relations Board (the “Board” or “NLRB”) held that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”

Legislature Approves One-Year Extension of New Jersey’s Permit Extension Act

by Howard D. Geneslaw

Posted in Development/Redevelopment

On December 22, 2014

Our recent blog noted that New Jersey’s Permit Extension Act (“PEA”) was to sunset at the end of this year unless a further extension was enacted into law. On Thursday, December 18, both the Assembly and the Senate voted to approve a one year extension of the PEA. The legislation now awaits action by the Governor. New Jersey’s Permit Extension Act (“PEA”) was initially enacted in 2008 in response to “the crisis in the real estate finance sector of the economy.” The purpose of the PEA was to toll through the end of 2012, expiration of various approvals necessary for development. The PEA was later amended in 2012, due to the then “current national recession,” to extend the tolling of the expiration of those approvals until December 31, 2014. Unless the Legislature approves a further extension, the PEA will sunset at the end of this year, posing a problem for projects which have not yet started construction, because their approvals may expire.

USPTO Issues New Guidance on § 101 Subject Matter Eligibility

by Gibbons P.C.

Posted in Patent / USPTO

On December 22, 2014

On December 16, the United States Patent and Trademark Office issued new interim examination guidance for evaluating subject matter eligibility under 35 U.S.C. § 101. This guidance, entitled the “2014 Interim Guidance on Patent Subject Matter Eligibility” (“Interim Guidance”), was developed in view of the recent Supreme Court decisions in Alice, Myriad, and Mayo. The Interim Guidance supplements the June 25, 2014 Preliminary Examination Instructions that we previously discussed, and supercedes the March 4, 2014 Guidance following Myriad and Mayo.

Heartburn Relief: AstraZeneca Wins Nexium Antitrust Trial

by Samuel H. Megerditchian

Posted in Patent

On December 17, 2014

On December 5, 2014, an 11-person jury decided in favor of defendants AstraZeneca PLC and Ranbaxy Laboratories, Inc. in the first pay-for-delay class action trial since the United States Supreme Court in FTC v. Actavis, Inc. opened the door on antitrust suits based on patent settlements. Teva Pharmaceutical Industries, Ltd. was also defending the suit before reaching a settlement shortly before the trial ended. United States District Court Judge William Young of the District of Massachusetts last year permitted certification for the class members, including union health plans and insurance companies, based on an alleged injury of supracompetitive prices for AstraZeneca’s brand name heartburn drug, Nexium®.

Supreme Court Decides Time Spent to Undergo Security Screening is Noncompensable

by Gibbons P.C.

Posted in Wage and Hour

On December 15, 2014

The time warehouse workers spent waiting to undergo and undergoing antitheft security screenings before leaving work is not compensable under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et. seq., as amended by the Portal-to-Portal Act of 1947, §251 et. seq. (Portal-to-Portal Act), according to the United States Supreme Court, which unanimously decided Integrity Staffing Solutions, Inc. v. Busk on December 9, 2014.

Highlands Council Schedules Stakeholder Outreach Workshops and Will Accept Written Comments

by Howard D. Geneslaw

Posted in Development/Redevelopment

On December 12, 2014

The New Jersey Highlands Council has scheduled three Stakeholder Outreach Workshops to solicit public input on the Highlands Regional Master Plan (RMP) as part of its RMP Monitoring Program. According to public notices issued by the Highlands Council, the workshops are intended to provide members of the public with an opportunity to learn more about the monitoring program and to provide input. The notices also state, “[t]he Monitoring Program evaluates progress toward achieving the goals of the Highlands Regional Master Plan,” and “[t]he program requires identification of indicators and milestones to measure the impact of the Regional Master Plan on water resources, agriculture, housing, transportation, and economic development within the Highlands Region.”

Streamlined Judicial Process Signals Good News for Business Litigation

by Gibbons P.C.

Posted in General Litigation

On December 10, 2014

On November 13, 2014, the New Jersey Supreme Court approved implementation of the Complex Business Litigation Program for the handling of complex business, commercial, and construction cases. The Program, based on the report and recommendations of the Supreme Court Working Group on Business Litigation chaired by Bergen Vicinage Assignment Judge Peter E. Doyne, will begin on January 1, 2015 for those complex cases filed on or after that date that fulfill certain eligibility criteria.

Lacking A Certain Je Ne Sais Quoi – Federal Circuit Finally Holds Ultramercial’s Patent Does Not Cover Patent Eligible Material

by Robert E. Rudnick

Posted in Patent

On December 4, 2014

On November 12, 2014, the United States Court of Appeals for the Federal Circuit held that Ultramercial, LLC’s patent covering an eleven step process of watching a commercial as a condition of accessing free media content is invalid as covering patent ineligible material. The patent at issue, U.S. Patent No. 7,346,545 (“the ’545 patent”), claimed a method for distributing copyrighted products (such as songs, movies, books) over the Internet where the consumer receives a copyrighted product for free in exchange for viewing an advertisement, and the advertiser pays for the copyrighted content. The Federal Circuit had held the ’545 patent claimed patent eligible subject matter twice before and both times was reversed by the United States Supreme Court. This iteration saw the Federal Circuit uphold the grant of a motion to dismiss claims of infringement by the United States District Court for the Central District of California on the basis of patent-ineligibility.