Gibbons Law Alert
On July 17, 2013, New Jersey Governor Chris Christie signed into law the New Jersey Security and Financial Empowerment Act (NJ SAFE Act). Effective October 1, 2013, the law requires private and public employers with at least 25 employees to provide unpaid leave to any employee who was a victim of domestic violence or whose child, parent, spouse, domestic partner, or civil union partner was a victim of domestic violence.
We previously reported that the Federal Circuit Advisory Council (“the CAFC Council”) recently approved a “Model Order Limiting Excess Patent Claims and Prior Art” that set default numerical limits on the number of asserted patent claims and prior art references. Prior to this, we reported in October 2011, that Chief Judge Randall Rader of the Federal Circuit had announced that the CAFC Council had adopted a Model Order to streamline and reduce e-discovery costs.
The U.S. Supreme Court’s landmark decision in United States v. Windsor, which struck down the Defense of Marriage Act provision limiting the federal definition of marriage to legal unions between one man and one woman, has left employers and employees alike scratching their heads regarding what the ruling means for family and medical leaves and employee benefits. Will compliance with Windsor require a bit more work for in-house counsel and human resources professionals? In the short term, yes. And given the likelihood of further changes in state marriage laws and federal agency guidance on numerous issues stemming from the Windsor ruling, continued monitoring and future adjustments are to be expected. But when the full impact of the Windsor decision shakes out, the end result should be equal treatment of same-sex couples with regard to leaves and employee benefits and fewer administrative burdens for companies in managing these benefits – changes that should be welcome to same-sex couples and employers alike.
In a decision that expands the ability of plaintiffs to bring class actions in Delaware, the Delaware Supreme Court in Dow Chemical Corp. & Dole Food Company, Inc. v. Blanco adopted so-called cross-jurisdictional tolling, holding that the statute of limitations as to the claims of individual members of a putative class is tolled while a putative class action on their behalf is pending, regardless of “whether the class action is brought in Delaware or in a foreign court.”
According to a recent e-mail alert by BioNJ, some of the top Biotechnology and Pharmaceutical companies in the world call New Jersey home, just as other Life Sciences and high tech businesses continue to move into the Garden State. As a corollary, New Jersey boasts one of the top ten regions for recent STEM graduates to work, and venture capital investing in the technology sector grew in the second quarter of 2013.
In a decision clarifying the standards of proof for retaliation claims arising under the Law Against Discrimination (“LAD”) and the Conscientious Employee Protection Act (“CEPA”), the New Jersey Supreme Court held in Battaglia v. UPS that, for purposes of an LAD retaliation claim, a plaintiff need only demonstrate a good faith belief that the complained-of conduct violates the LAD, and need not identify any actual victim of discrimination. As to the fraud-based CEPA claim, the Court held that the plaintiff must have “reasonably believed” that the complained-of activity was fraudulent. Finally, addressing the plaintiff’s emotional distress damages, the Court ruled that claims for future emotional distress must be supported by an expert opinion regarding permanency.
In In re HP Inkjet Printer Litigation, the Ninth Circuit reversed a District Court’s approval of a class action settlement providing “e-credits,” or coupons, to class members, on the ground that the class counsel fee award violated § 1712 of the Class Action Fairness Act (“CAFA”). The parties’ settlement agreement had provided for $5 million in coupons, as well as injunctive relief in the form of additional product disclosures. The District Court, recognizing that the coupons were worth significantly less than their face value, estimated that the “ultimate value” of the combined coupon and injunctive relief to the class was approximately $1.5 million, and awarded fees of $1.5 million based solely on the lodestar method, without calculating the actual redemption value of the coupons.
Judge Rich gave us the adage, “the name of the game is the claim.” Given the number of cases issued by the Federal Circuit on written description, perhaps the adage should be revised as “the name of the game is the claim – supported by the specification.” In In Re Bimeda Research & Development Ltd., the Federal Circuit issued another decision requiring the entire scope of the claims to be supported by the disclosure. While this is nothing new in patent law, the claim at issue is a negative claim that expressly excluded an element. The original claim was directed to a prophylactic method to treat infections in cow mammary glands by providing a physical barrier to the teat canal.
On May 6, 2013, the U.S. Department of Justice’s (“DOJ”) Antitrust Division approved Constellation Brands Inc.’s (“Constellation”) and Crown Imports LLC’s (“Crown”) request to use predictive coding to determine which documents were most relevant and responsive to the DOJ’s requests. Constellation is a potential buyer of assets from the huge AB InBev-Grupo Modelo merger, and Crown is a joint venture between Grupo Modelo and Constellation. Reportedly, Constellation and Crown identified in excess of one million documents that would require manual review before being handed over to the Justice Department for scrutiny. After several seed sets were run using the automated data review software and compared manually, DOJ was satisfied that the predictive coding software would identify the most relevant documents and approved its use. As reported by the Wall Street Journal, the predictive coding software used by the parties was developed by kCura Corporation, a software vendor for many entities including DOJ.
The Pennsylvania Superior Court recently set forth a new standard for determining when an insured must seek the insurer’s consent to settle underlying third-party claims where the insurer had previously offered to defend the insured under a reservation of its right to decline coverage for any adverse judgment that might be entered against the insured later.