Gibbons Law Alert

Gibbons Law Alert Blog

New Jersey Appellate Division Requires Arbitration Provisions to Include Specific Waiver of Right to Sue in Court

On December 3, 2014

Two recent New Jersey Appellate Division decisions have serious implications for employers utilizing or contemplating arbitration provisions. In both decisions – Kelly v. Beverage Works NY Inc., decided on November 26, 2014, and Dispenziere v. Kushner Cos., decided on November 21, 2014 – the Appellate Division relied on the New Jersey Supreme Court’s September decision in Atalese v. U.S. Legal Services Group, which held that an arbitration provision was unenforceable because it lacked “clear and unambiguous language” that the party signing the agreement is waiving its right to sue in court.

Third Circuit Holds Truth in Consumer Contract Notice and Warranty Act Claim May Not Be Based Upon Omission of Price Information

by Gibbons P.C.

Posted in Class Action Defense

On December 2, 2014

In Watkins v. DineEquity, Inc., the Third Circuit recently considered whether the District Court properly dismissed a putative class action brought against Applebee’s and International House of Pancakes, in which Plaintiff claimed that Defendants violated the New Jersey Truth in Consumer Contract Notice and Warranty Act (“TCCNWA”) by failing to disclose beverage prices on their menus. In affirming the District Court’s dismissal, a divided Third Circuit panel ruled that the “TCCNWA encompasses only illegal provisions in writings covered by the statute, and does not make actionable omissions, including the omission of beverage prices from a restaurant menu.”

“Safe and Effective,” Without More, Does Not Warrant Unqualified Safety and Efficacy

by Gibbons P.C.

Posted in Class Action Defense / General Litigation

On December 1, 2014

The Third Circuit in In re: Avandia Marketing Sales Practices & Products Liability Litigation recently refused to revive a putative class action accusing GlaxoSmithKline PLC (“GSK”) of violating an express warranty allegedly contained on the label of its diabetes drug, Avandia, which declared the drug “safe and effective.” In so doing, the Court reaffirmed the narrow scope of a breach-of-express-warranty claim under New Jersey law and the requirements necessary to sustain such a claim.

Tolling of Approvals Under New Jersey’s Permit Extension Act: Will The End Of The Year Be The End Of The Line? Approved Projects Could Be At Risk

by Howard D. Geneslaw

Posted in Development/Redevelopment

On November 24, 2014

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” — for the purpose of tolling, through the end of 2012, expiration of various approvals necessary for development. It was later extended, 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, and that could pose a problem for projects which have not yet started construction, because their approvals may expire.

Attorneys’ Fees, Costs, and an Enhancement! Oh My!

by Charles H. Chevalier

Posted in Patent

On November 21, 2014

We have previously posted on the judiciary’s attempts to address frivolous and unwarranted suits brought by patent holding, non-practicing entities (“NPEs”). To deter such litigation, courts have the power to award attorneys’ fees and costs to defendants subject to such baseless suits. In an October 23 Opinion and Order in Lumen View Tech., LLC v. Findthebest.com, Inc., District Judge Denise Cote, applying 35 U.S.C. § 285 (“Section 285”), not only awarded the defendant its attorneys’ fees and costs, but also applied an enhancement to the awarded fees.

Paid Sick Leave is Gaining Momentum in New Jersey

by Gibbons P.C.

Posted in Employee Benefits

On November 20, 2014

Trenton and Montclair became the latest New Jersey municipalities to approve paid sick leave laws in 2014. The issue was put before voters on Election Day and was approved by a comfortable margin in both cities. The Trenton and Montclair ordinances, which will take effect on March 4, 2015, are part of a growing trend in the state of New Jersey which began last year when Jersey City became the first municipality in the State to pass such a law. In early 2014, Newark followed suit with a similar law. Thereafter, Passaic, East Orange, Paterson, and Irvington have all passed paid sick leave laws scheduled to take effect between December 31, 2014 and January 7, 2015. In addition, a bill is pending in the New Jersey State Legislature which would, if passed, make paid sick leave a statewide law.

Opinion Holds That Non-Monetary Reverse Payments Trigger Actavis Antitrust Scrutiny, Creating Split Within D.N.J.

by Kevin R. Reich

Posted in Antitrust

On November 12, 2014

An opinion issued on October 6, 2014, by Judge Sheridan of the United States District Court for the District of New Jersey further muddied the legal waters as to what type of “reverse payments” made by makers of brand-name pharmaceuticals to their generic competitors to settle patent litigation are subject to antitrust scrutiny under the Supreme Court’s decision in FTC v. Actavis. Judge Sheridan held that Actavis applies to non-monetary payments, such as a promise by the brand-name manufacturer in exchange for which the generic agrees to delay entry. Importantly, however, a non-monetary payment must be capable of being reliably converted to a monetary value so that it can be evaluated against the Actavis factors. Judge Sheridan’s holding runs counter to Judge Walls’s decision earlier this year in In re Lamictal Direct Purchaser Antitrust Litigation, which limited Actavis to reverse payments involving an exchange of cash and was the subject of a prior blog post.

Neither Baritsu Nor the Supreme Court Can Stop Sherlock Holmes from Falling Into the Public Domain

by Gibbons P.C.

Posted in Copyright

On November 11, 2014

We previously reported on the failed attempts by the Conan Doyle Estate, Ltd., to extend the umbrella of United States copyright protection for Sir Arthur Conan Doyle’s pre-1923 Sherlock Holmes-related works. After suffering a setback at the district court level (N.D. Ill.), the Conan Doyle Estate sought a reversal with the U.S. Court of Appeals for the Seventh Circuit. However, the Estate was again denied, with the Seventh Circuit panel unanimously affirming the lower court decision.

Recent Case Reveals Effective Strategy for Responding to NPE Suits

by Thomas J. Bean and Wendy R. Stein

Posted in Patent

On November 10, 2014

A recent decision from the United States District Court of the District of Hawaii reveals an effective strategy for responding to non-practicing entity (NPE) suits and obtaining leverage early on in the litigation. This strategy takes into account the business model of some NPEs to name many (unconnected) industry players in one lawsuit and plead only bare allegations of patent infringement.

Untapped Potential in New Jersey’s Nascent Craft Beer Industry

by Brett S. Theisen

Posted in Liquor Licensing

On November 5, 2014

Two years ago, New Jersey lawmakers revised an archaic law that had been a major obstacle to anyone who wanted to launch a start-up brewery in the state. New Jersey’s old law severely restricted craft brewers’ ability to actually sell their beer to visitors of the brewery, thus undermining the economics of on-site bars or tap rooms, which most small operations in other states rely on as an important revenue source, especially in the early stages. The old law even limited how many free samples a brewer could hand out, which proved particularly troublesome for entrepreneurs trying to gain brand recognition and market share, and appeal to consumers’ varied tastes. The new law was intended to put brewpubs, microbreweries and so-called “nanobreweries” on an equal footing with competitors in neighboring states. While this legislation was a welcome step for the craft beer industry, more can be done.