Gibbons Law Alert

Gibbons Law Alert Blog

EPA and Army Corps Propose to Clear the Mud Stirred Up by Rapanos

Posted in Environmental and Green Issues

On April 2, 2014

In 2006, the U.S. Supreme Court created great confusion in Rapanos v. United States over what wetlands fell within the coverage of the Clean Water Act (CWA) by setting out two separate tests for jurisdiction, one in the four-justice plurality opinion led by Justice Scalia, and one in a separate concurrence by Justice Kennedy. In an attempt to resolve the confusion, the Environmental Protection Agency (EPA) and the Army Corps of Engineers jointly released a draft rule. The rule is intended to clarify what streams and wetlands are covered by the Clean Water Act.

Eleventh Circuit Becomes Latest Court of Appeals to Enforce Agreement to Arbitrate FLSA Collective Action

by Gibbons P.C.

Posted in Wage and Hour

On April 1, 2014

On March 21, 2014, the United States Court of Appeals for the Eleventh Circuit joined a growing number of federal Courts of Appeals to reject arguments that class waivers contained in arbitration agreements should not be enforced in the employment context. In Walthour v. Chipio Windshield Repair LLC, the Eleventh Circuit (which covers Georgia, Florida, and Alabama) upheld a broad arbitration provision which required employees to bring all employment claims in their “individual capacity and not as a plaintiff of class member in a purported class or representative proceeding ….”

Divisibility Under CERCLA

by Gibbons P.C.

Posted in Environmental and Green Issues

On March 31, 2014

Although not expressly required under the statute, applied joint and several liability has usually been applied by courts when the government pursues cleanup against polluters under CERCLA. A party seeking to avoid joint and several liability has the burden of proving not only that divisibility of harm is possible amongst potentially responsible parties, but that a reasonable basis for such divisibility exists. Case law from federal district courts, circuit courts, and the U.S. Supreme Court makes it clear that satisfying this burden requires a very case-specific and fact intensive inquiry. Early planning and a focused strategy for how to frame the facts and theory of the case can make the difference in determining whether divisibility is both possible and reasonable.

Patent 101

by Charles H. Chevalier

Posted in Patent

On March 31, 2014

On the heels of CLS Bank Int’l v. Alice Corp. Pty presently before the Supreme Court, the Federal Circuit and district courts in 2014 have continued to issue decisions analyzing computer-implemented inventions under 35 U.S.C. § 101. These courts have generally sought to answer similar questions: whether the claim is an abstract idea; whether this abstract idea preempts all other uses or can be performed in the human mind (or on a pen and paper); and whether the claim contains other limitations to narrow it sufficiently, such as being tied to a specific machine or transforming the data into a different thing.

Supreme Court Holds that Severance Payments to Employees Terminated Involuntarily are Taxable Wage for FICA Purposes

by Gibbons P.C.

Posted in Wage and Hour

On March 31, 2014

On March 25, 2014, the Supreme Court of the United States unanimously ruled that severance payments ─ that are not linked to the receipt of state unemployment benefits ─ are taxable wages subject to the Federal Insurance Contributions Act (“FICA”). United States v. Quality Stores, Inc., 572 U.S. ___ (2014). Specifically, the Supreme Court ruled that the severance payments made to employees who were terminated involuntarily fit within the broad definition of “wages” under both FICA § 3121(a) and Internal Revenue Code § 3401(a).

Propping Open Cracks in Secret Depths of Fracking Chemicals: How the Wyoming Supreme Court Is Demanding More of Companies Seeking Trade Secret Protection

by Gibbons P.C.

Posted in Trade Secrets

On March 28, 2014

In Powder River Basin Resource Council v. Wyoming Oil and Gas Conservation Commission, 2014 WY 37 (2014), the Wyoming Supreme Court recently held that state district courts receiving appeals of denied record requests must independently determine whether the information must be disclosed or not, rather than merely reviewing the determination of the Commission as an administrative decision. Further, when determining whether the disclosed chemicals qualify as trade secrets protected under the Wyoming Public Records Act (WPRA), Wyo. Stat. Ann. § 16-4-203, the Wyoming high court held that district courts must apply the more narrow definition of what constitutes a trade secret under the Freedom of Information Act (FOIA) as developed through federal case law when determining if the chemical formulations used in fracking qualify as trade secrets protected under the Wyoming Public Records Act (WPRA), Wyo. Stat. Ann. § 16-4-203.

NJ Supreme Court to Address “Watchdog” Exception to CEPA

by Gibbons P.C.

Posted in Whistleblower

On March 28, 2014

The New Jersey Supreme Court recently decided to review a recent decision by the Appellate Division which threatens to expand the protections of the Conscientious Employee Protection Act (“CEPA”) to those employees whose job duties and responsibilities expressly require them to report to their employer potential or actual violations of law or public policy. The issue to be decided by the Supreme Court in Lippman v. Ethicon will be whether employees who are responsible for monitoring and reporting on employer compliance with relevant laws and regulations — so-called “watchdog” employees — seek whistleblower protection under CEPA, and, if so, under what circumstances?

College Football Players Can Unionize Says NLRB Regional Director

by John C. Romeo

Posted in Labor

On March 27, 2014

Did you know that college football players are not “primarily students”? Well, not if the students are football players on regimented schedules, who receive grant-in-aid scholarships to play football from which their school profits, according to a Regional Director at the National Labor Relations Board. In a decision issued yesterday, the Regional Director concluded that Northwestern University football players who receive scholarships are statutory employees under the National Labor Relations Act, and, therefore, directed an election for the players to decide whether to unionize in light of a petition a union recently filed to represent them. The Regional Director relied upon the common law definition of an employee in rendering his decision, finding that: the school’s interest in the students initially stems from their football talents; letters the University sends them offering scholarships to play football (called tenders) are contracts; the school controls the players through rules and regimented workout and playing schedules; and the scholarships the players receive are compensation that cover living expenses. The Regional Director distinguished the case from Board precedent finding that graduate students are not statutory employees, by reasoning that football is unrelated to the students’ academics unlike the case involving the graduate students.

Appraisal Provisions in Leases Mean More Than You Think in New Jersey

by Shepard A. Federgreen

Posted in Transactional Real Estate and Leasing

On March 27, 2014

It is a common belief that appraisal provisions in leases governing future renewal rents don’t really mean anything. The logic behind this conclusion is that regardless of what the lease says, if the tenant doesn’t receive a new rent number that justifies staying, it will leave. There is a lot of truth to this. However, a recent New Jersey Appellate Division decision, Cablevision of Oakland, LLC vs CK Bergen Holdings, LLC, App Div 27-2-3149 demonstrates neither a landlord nor a tenant can rely on conventional wisdom as a reason to forego doing the right job in the documents. If you are concerned about the methodology to be used in the appraisal process you had better make that clear in the lease. And if you want the Court to have the power to review an appraisal to determine whether there was compliance with the methodology mandated by the lease, you better make that clear in the lease, too.

NJ Supreme Court Grants Leave to Appeal to Employee After NJ Appellate Division Permits Indictment Arising From Her Theft of Employer Documents to Prove LAD and CEPA Claims

by Gibbons P.C.

Posted in Discrimination

On March 26, 2014

The New Jersey Supreme Court recently granted defendant Ivonne Saavedra’s leave to appeal the Appellate Division’s decision in State v. Saavedra, the subject of a previous post, affirming the trial court’s denial of her motion to dismiss an indictment charging her with official misconduct for stealing confidential documents from her employer to support her claims under New Jersey’s Conscientious Employee Protection Act (“CEPA”) and the Law Against Discrimination (“LAD”). The majority in the Appellate Division was not persuaded by Saavedra’s argument that her actions were protected under Quinlan v. Curtiss-Wright Corp., also the subject of a previous post, where the Supreme Court held that an employee who was allegedly terminated for using stolen documents in litigation against her employer could assert a claim of retaliation. A dissenting opinion in the Appellate Division in Saavedra, authored by Judge Simonelli, concluded that the indictment should be dismissed with prejudice. For Judge Simonelli, it was fundamentally unfair to criminally prosecute an employee for taking employer documents while engaged in protected activity pursuant to CEPA or the LAD because the law does not give fair warning that the conduct is illegal. Though Saavedra concerns a public employee/employer, it has important implications for private employers as well. The Gibbons Employment & Labor Law Department will continue to monitor developments in the case...