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Gibbons Law Alert Blog

Southern District of California Strikes Defendant’s Invalidity Theories and References for Failing to Comply With District’s Patent Local Rules

by Charles H. Chevalier and Christine A. Gaddis

Posted in Patent

On May 16, 2023

In Taction Technology, Inc. v. Apple Inc., the United States District Court for the Southern District of California recently granted plaintiff Taction Technology, Inc.’s (“Taction”) motion to strike portions of defendant Apple Inc.’s (“Apple”) amended invalidity contentions. The case is a patent infringement action that addresses the distinctions between discovery under the Federal Rules of Civil Procedure and contention disclosure requirements under a district’s local patent rules. In Taction, following the district court’s claim construction order, Apple served “Post Claim Construction Amended Invalidity Contentions” in which it alleged for the first time that two prior art references anticipate the asserted claims of two of the patents-in-suit and that the same prior art references satisfy a claim limitation at issue. Taction filed a motion to strike the two new prior art references. Apple raised multiple issues in opposition. First, Apple argued that the motion was not timely because it was not brought within the period to raise discovery disputes in the court’s case management order. The court rejected that argument because, in the Southern District of California, a challenge to a party’s infringement or invalidity contentions is not a “discovery dispute.” Second, Apple argued that the motion should be denied because it merely “supplemented” its invalidity contentions, as is allowed by Patent Local Rule 3.6. The...

Appellate Division Affirms: Binding Dispute Resolution Provisions in Standard AIA Construction Contracts Are Enforceable

by Leonardo A. Di Stasio

Posted in Construction

On May 10, 2023

In a recent unpublished opinion, the New Jersey Appellate Division held that an agreement to arbitrate set forth in the binding dispute resolution provision in a standard form American Institute of Architects (AIA) construction contract between a condominium association and contractor was enforceable. The binding dispute resolution provision appears in the AIA standard form as a series of checkboxes in which the parties may select arbitration, litigation, or another dispute mechanism by placing an “X” in one of the boxes. The AIA standard form also contains language that applies if the parties have selected arbitration as the method of binding dispute resolution, including the rules for conducting that arbitration and finalizing an award. Arbor Green Condo. Ass’n, Inc. v. Start 2 Finish Restoration & Bldg. Servs., LLC et al. arose out of Start 2’s alleged deficient workmanship under a construction contract to restore two buildings damaged by a storm, which resulted in Arbor Green terminating the contract. Start 2 subsequently filed two construction liens and two demands for arbitration (one for each building) in accordance with the selected dispute resolution method in the parties’ AIA form agreement. Arbor Green failed to answer the demands for arbitration, resulting in awards in Start 2’s favor. Start 2 then filed two orders to show cause and verified complaints that...

Delaware District Court Allows for Single Claim to Proceed Against Amazon in Illinois Biometric Information Privacy Act Class Action Suit

by Gibbons P.C.

Posted in Class Action Defense / Privacy Class Actions

On May 3, 2023

The Illinois Biometric Information Privacy Act (BIPA) is designed to protect and regulate the use of both “biometric identifiers” and “biometric information” of Illinois residents. “Biometric identifiers,” for instance, include “a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry.” In contrast, “biometric information” means “any information … based on an individual’s biometric identifier used to identify an individual.” On March 29, 2023, in McGoveran v. Amazon Web Servs., Inc., the United States District Court for the District of Delaware granted in part Amazon Web Services (“Amazon”) and Pindrop Security’s (“Pindrop”) motion to dismiss a proposed class action brought pursuant to BIPA for lack of standing, based on a strict interpretation of the definitions of “biometric identifiers” and “biometric information” and the plaintiffs’ failure to adequately allege that they suffered any concrete, actual, or imminent injury as a result of the defendants’ conduct. In McGoveran, a group of Illinois residents alleged that Amazon and Pindrop violated BIPA by extracting their biometric information for authentication purposes when the plaintiffs called John Hancock to discuss their retirement accounts. At the outset, the court held that the plaintiffs lacked Article III standing to bring a claim under BIPA Section 15(a) and Section 15(c) or to otherwise obtain injunctive relief. Under Section 15(a), a company is...

Let’s Not Just Chat About It: District Court Sanctions Google for Failing to Preserve Chat Messages in Antitrust Suit

by Gibbons P.C.

Posted in General Litigation / Legal Decisions & Court Rules / Litigation Preparedness and Strategies

On May 1, 2023

In a highly anticipated opinion addressing allegations that Google failed to preserve relevant internal chat messages – despite assuring the court in a case management conference that it had – United States District Court Judge James Donato of the Northern District of California ordered Google to cover the plaintiffs’ legal costs in pursuing a Rule 37 motion and left open the possibility of the plaintiffs later pursuing nonmonetary sanctions. Judge Donato’s scathing opinion in In re Google Play Consumer Antitrust Litigation represents yet another cautionary tale for attorneys certifying that a client has taken appropriate steps to preserve all pertinent electronic discovery without providing meaningful oversight. While Judge Donato chose to focus his criticism (and ultimate sanction) on Google, he clearly was concerned with the lack of oversight and misleading representation by both Google and its attorneys. The Google cases arise from a highly publicized multidistrict litigation (MDL) involving allegations that Google Play Store’s practices were anticompetitive in violation of antitrust laws. The plaintiffs include several gaming companies, Attorneys Generals of 38 states (and the District of Columbia), and numerous consumer plaintiffs. The plaintiffs alleged that Google engaged in exclusionary conduct leading to Google monopolizing the Android app distribution market. After a long and tortured procedural history that included extensive discovery and motion practice, the...

Securities Plaintiffs Beware: Third Circuit Holds Initiating Suit to Force Settlement May Violate Rule 11 and Can Lead to Mandatory Sanctions Under the PSLRA

by Samuel I. Portnoy

Posted in Securities

On April 24, 2023

With the 30th anniversary of the Private Securities Litigation Reform Act (PSLRA) on the horizon, the Third Circuit’s recent precedential opinion in Scott v. Vantage Corp. provides timely guidance on an important aspect of the landmark statute that may not always be top of mind – its interplay with Rule 11. The PSLRA, in its effort to curb frivolous securities litigation, not only imposes heightened pleading requirements and an automatic stay of discovery pending motions to dismiss, but also requires Rule 11 compliance findings as to each party and attorney based on what they knew at the time suit was filed. In Scott, the Third Circuit reiterated these principles and held that district courts must impose some form of sanction for any Rule 11 violation, no matter how insubstantial the violation – a characteristic unique to the application of Rule 11 in PSLRA cases. The decision also reminds us that the PSLRA creates a presumption in favor of awarding attorneys’ fees in cases of “substantial failure” to comply with Rule 11, which is defined by the court in the opinion. Finally, the decision stands for the remarkable proposition that filing a complaint to force settlement may violate Rule 11 even when the claims asserted are sufficient to withstand a motion to dismiss. In Scott, a...

Governor Murphy Announces First-in-the-Nation Environmental Justice Rules

by Gibbons P.C.

Posted in Development/Redevelopment / Environmental and Green Issues

On April 20, 2023

On Monday, April 17, 2023, New Jersey Governor Phil Murphy announced the adoption of the New Jersey Department of Environmental Protection’s (DEP) Environmental Justice Rules (EJ Rules) implementing New Jersey’s landmark Environmental Justice (EJ) Law signed in 2020. The EJ Law and implementing rules are the first in the nation aimed at reducing pollution in historically overburdened communities that have been subjected to a disproportionately high number of environmental and public health stressors. In his announcement, Governor Murphy stated, “As we enter Earth Week 2023, the final adoption of DEP’s EJ Rules will further the promise of environmental justice by prioritizing meaningful community engagement, reducing public health risks through the use of innovative pollution controls, and limiting adverse impacts that new pollution-generating facilities can have in already vulnerable communities.” DEP Commissioner Shawn M. LaTourette added that, “With the adoption of the nation’s first EJ Rules, New Jersey is on a course to more equitably protect public health and the environment we share.” Under the new rules, which are effective immediately, state environmental officials considering permit requests of eight specific types of facilities must include impacts to residents of affected communities in their decision-making process. The eight types of facilities that must comply with the new EJ Rules are: gas-fired power plants, cogeneration facilities, and other...

2023 Is Shaping Up to Be a Big Year for the Clean Water Act and Its “Waters of the United States”

by Gibbons P.C.

Posted in Environmental and Green Issues

On April 17, 2023

In January, the Biden Administration promulgated the federal government’s latest rule defining “waters of the United States” (WOTUS Rule). The WOTUS Rule, which defines the waters that are subject to federal permitting and oversight under the Clean Water Act (CWA) by the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE), went into effect on March 20, 2023. As with past attempts to define “waters of the United States,” the new WOTUS Rule is already triggering legal challenges. Since the enactment of the CWA in 1972, courts, agencies, and landowners have struggled to define the statute’s geographic scope, especially with respect to wetlands, which do not fit neatly within familiar notions of “water” or “land.” The statute prohibits unpermitted discharges of pollutants (including fill material) into “navigable waters” but defines that term broadly as “the waters of the United States, including the territorial seas.” The Biden Administration’s WOTUS Rule replaces the Trump Administration’s Navigable Waters Protection Rule (NWPR), which was promulgated in 2020 but subsequently vacated by two federal district courts. The NWPR followed the Trump Administration’s 2019 repeal of a 2015 Obama Administration rule (the 2015 Clean Water Rule) that had taken a categorical approach to defining “waters of the United States.” The Biden Administration’s WOTUS Rule seeks to return to...

How the Elections Transparency Act Changes New Jersey’s Political Contribution Landscape

by Michael D. DeLoreto

Posted in Political and Campaign Finance Compliance

On April 12, 2023

Governor Murphy signed into law one of the most sweeping campaign and political law reform bills since the enactment of The New Jersey Campaign Contributions and Expenditures Reporting Act in 1977. The Elections Transparency Act (“Act”) has been the focus of much attention due to the changes in the leadership and enforcement operations at the New Jersey Election Law Enforcement Commission (NJELEC). However, the Act’s most significant impacts will be felt in the areas of campaign contribution limits, reporting requirements, and the standardization of the state’s pay-to-play laws. Campaign Contributions Current law provides for contribution limits on a per election or per year basis, ranging from $2,600 to “no limit” contributions between leadership and party committees. These limits remain in effect until after the June 2023 Primary Election. Following the June 2023 Primary Election, the contribution limits dramatically increase to double, or in some instances, triple the current limits. For example, individuals, corporations, unions, associations, and groups will be subject to the following limits: $5,200 per election cycle to a Candidate Committee $14,400 per election cycle to a Political Committee $14,400 per year to a Continuing Political Committee or Municipal Political Party Committee $75,000 per year to a Legislative Leadership Committee, State Political Party Committee, or County Political Party Committee Contribution limits will also be...

Appellate Division Holds Settlement Reached at Voluntary Mediation Is Unenforceable in the Absence of a Signed Written Settlement Agreement

by Christopher P. Anton

Posted in General Litigation

On April 6, 2023

In Willingboro Mall, Ltd. v. 240/242 Franklin Avenue, LLC, a case decided 10 years ago, the New Jersey Supreme Court upheld the confirmation of an oral settlement agreement that was made at a court-ordered mediation session. The court announced, however, that “going forward, a settlement that is reached at mediation but not reduced to a signed written agreement will not be enforceable.” In a recent, to-be-published decision, the Appellate Division held that Willingboro’s “broad, bright-line rule” requiring a signed written settlement agreement extends to voluntary mediations, too. The new case, Gold Tree Spa, Inc. v. PD Nail Corp., involved a dispute over the plaintiffs’ sale of two nail salons to the defendants. After the plaintiffs filed suit, the parties voluntarily agreed to mediation, resulting in the mediator’s creation of a draft settlement agreement. Several hours after the mediation ended, one of the plaintiffs decided she did not want to settle and refused to sign the agreement. The defendants moved to enforce the settlement, and the plaintiffs responded that they would honor the settlement agreement only if certain contingencies regarding an assignment of the lease of one of the salons could be met. The defendants then contacted the mediator to finalize the settlement agreement and circulated the lease assignment and related documents. The plaintiffs raised issues...

Fifth Circuit Affirms District Court’s Grant of a Motion to Strike Class Allegations

by Gibbons P.C.

Posted in Class Action Defense

On April 5, 2023

The Fifth Circuit Court of Appeals recently affirmed the grant of a pre-discovery motion to strike class allegations. In Elson v. Black, 14 women from seven states sought to bring a putative class action against the defendant companies, alleging that the defendants falsely advertised its FasciaBlaster product. Specifically, the plaintiffs alleged that the FasciaBlaster had been falsely advertised as a product that would eliminate cellulite, help with weight loss, and relieve pain. The district court, in a three-sentence opinion, struck the class allegations, finding that the class failed to establish commonality. The next day, the district court dismissed the remainder of the plaintiffs’ claims in their entirety. While the Fifth Circuit Court of Appeals found the district court opinion to be “inappropriately brief,” it agreed that the class could not be certified, nor could the plaintiffs establish their claims of fraud. However, the appellate court reversed and remanded the district court’s ruling dismissing two plaintiffs’ express warranty claims, finding that the court failed to apply the law of a specific jurisdiction. The appellate court held that the class could not be certified under Rule 23(a)’s commonality requirement and Rule 23(b)(3)’s predominance requirement. First, the plaintiffs’ claims were governed by different states’ laws, and the plaintiffs were unable to meet their burden establishing that “such differences...