Gibbons Law Alert

Gibbons Law Alert Blog

What is the Status Quo? How Waste Management Changed the Game in Obtaining Injunctive Relief

by Frederick W. Alworth and Jonathan S. Liss

On March 4, 2014

On December 16, 2013, in a published decision, the New Jersey Appellate Division in Waste Management of New Jersey, Inc. v. Morris County Municipal Utilities Authority clarified the standard governing interlocutory injunctions in New Jersey state courts. The court held that a trial judge’s denial of an interlocutory injunction based solely on the determination that the plaintiffs were not likely to succeed on the merits constituted reversible error because “the judge mistakenly overlooked his authority to impose interlocutory relief to preserve the parties’ positions and subject matter of the suit[.]” Stated otherwise, Waste Management holds that one can obtain an injunction preserving the status quo even where he or she cannot show a likelihood of success on the merits.

EEOC Challenges Separation/Release Agreements

by Richard S. Zackin

Posted in Employment Agreements

On February 28, 2014

It is common practice for employers in the process of terminating employees to present separation agreements that offer the employees severance benefits in exchange for a general release of claims. On February 2, 2014, the Equal Employment Opportunity Commission (“EEOC” or “Commission”) filed suit in federal court in Chicago against the CVS drugstore chain, alleging that, since August 2011, CVS has engaged in a pattern or practice of discrimination in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-1 et seq.) by using separation agreements for their non-store employees that unlawfully interfere with the rights of these employees to file charges of discrimination with the Commission.

Track B – EDTX Continues to Spearhead Efficient Patent Litigation Procedures

by Gibbons P.C.

Posted in Patent

On February 28, 2014

The Eastern District of Texas continues to lead the way with practical and efficient procedures for patent litigations. On February 25, Chief Judge Leonard Davis implemented General Order 14-3 “Regarding Track B Initial Patent Case Management Order.” This Order provides “additional efficiencies and cost savings” for appropriate patent cases, and is designed to complement the existing and now familiar case management procedures and local rules, or so-called “Track A,” case management schemes.

Tweets Contradict Court Filings, Leading to Judgment of Conviction and Appeal

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On February 28, 2014

We have been covering a case pending in the Criminal Court of the State of New York in which the State sought discovery and use of a criminal defendant’s tweets for use in his trial. Malcolm Harris was accused of disorderly conduct when he and others allegedly marched on to the Brooklyn Bridge during an Occupy Wall Street protest. For nearly a year, Harris argued in court papers that he was not guilty because the N.Y.P.D. had allegedly led the protestors onto the roadway of the Brooklyn Bridge as the protest swelled.

Watch Out: Lack of Diligence When Amending Contentions Can Lead to Preclusion

by Charles H. Chevalier

Posted in Patent

On February 27, 2014

A party needs to be cognizant of the infringing instrumentalities it identifies in its infringement contentions and any subsequent amendments. In LMT Mercer Group, Inc. v. Maine Ornamental, LLC et al, No. 10-4615, 2014 U.S. Dist. LEXIS 5719 (D.N.J. Jan. 24, 2014), Judge Wolfson denied Plaintiff LMT Mercer Group’s (“LMT”) motion to amend its infringement contentions to add a product that it removed from its previous filings and then delayed in correcting that exclusion.

David J. Freeman to Speak at Brownfield Coalition of the Northeast Conference

by Gibbons P.C.

Posted in Development/Redevelopment / Environmental and Green Issues

On February 25, 2014

David J. Freeman, a Director in the Gibbons Real Property & Environmental Law Department, will be a speaker at the upcoming Brownfield Coalition of the Northeast Conference on March 5, at the Liberty Science Center in Jersey City, New Jersey. Mr. Freeman will be discussing proposed changes to the New York State Brownfield Cleanup Act as a member of a panel entitled “Where Are The Incentives And How Could Proposed Legislation Affect Them?” As noted in our recent blog, legislation proposed by Governor Andrew Cuomo as part of his 2014 budget would have a major impact on the types of projects that are accepted into the New York State Brownfield Cleanup Program (BCP), and the extent to which those projects are eligible for state tax credits.

Court Threatens to Compel Hiring of Vendor if Document Production Problems Persist

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On February 25, 2014

Litigants who fail to meet e-discovery obligations run the risk not only of being sanctioned, but also of being subject to a court order compelling them to retain an e-discovery vendor. While the use of e-discovery vendors is becoming a common practice, it may add considerable expense to the already costly discovery phase of litigation. Additionally, compelled retention of a vendor may reduce litigants’ control over their own document production.

Supreme Court Says Unnamed Interested Parties Insufficient for Mass Action Removal Under Class Action Fairness Act

by Gibbons P.C.

Posted in Class Action Defense

On February 24, 2014

In Mississippi v. AU Optronics, the United States Supreme Court recently held that consumer actions filed in state court by an attorney general on behalf of the state’s citizens cannot be removed to federal court as “mass actions” under the Class Action Fairness Act (“CAFA”). In the unanimous opinion, authored by Justice Sotomayor, the Supreme Court held that even though the State of Mississippi was suing in a representative capacity, the Mississippi attorney general was only one person and therefore did not satisfy the 100-person requirement for removal to federal court under CAFA. While AU Optronics involved an action by the state attorney general, the Supreme Court’s ruling is instructive on the standards for removal of a mass action under CAFA and is applicable to public and private actions alike.

Time Bars for Joint Authors and Copyright Registration Cancellation: The Third Circuit Weighs in on Two Issues of First Impression

by Christopher H. Strate

Posted in Intellectual Property

On February 21, 2014

On January 29, the Third Circuit issued an opinion in Brownstein v. Lindsay that addressed two issues of first impression under United States Copyright Law. One was whether a court has authority to cancel a copyright registration. The second was when the statute of limitations begins to toll on a co-author’s claim of copyright ownership against his or her co-author.

Nothing “Safe” About It: Companies That Falsely Certify Compliance with the U.S.- E.U Safe-Harbor Framework May Receive Years of Regulatory Oversight

by Jeffrey L. Nagel

Posted in E-Discovery: Legal Decisions and Court Rules

On February 20, 2014

In 2000, the European Commission and U.S. Department of Commerce developed the so-called “U.S.-E.U. Safe-Harbor Framework” as a way to foster data transfer between the United States and E.U. countries notwithstanding concerns that U.S. privacy laws do not offer the same level of protection as E.U. laws with respect to personally identifiable information. As part of the safe-harbor framework, companies that choose to enter the program must publicly declare compliance with the safe-harbor requirements, which include adherence to seven privacy principles touching on the areas of notice, access, data integrity, individual choice (opt in/out rules), security, third-party transfer, and enforcement. The principle of “enforcement” includes making sure that procedures are in place to verify a company’s adherence to the rules and a sanctions regime sufficient to ensure compliance.