Gibbons Law Alert

Gibbons Law Alert Blog

The Patent Troll Assaults Continue … But To What End?

Posted in Patent

On May 30, 2013

Somewhere, someone must have taken the famous cartoon of Elmer Fudd, in full hunting regalia, and changed the caption to read, “Shhhhhhhhhhh, I’m hunting Twolls.” (After securing the appropriate IP permissions, of course.) This past fall, we posed the hypothetical question of whether it was open season for patent trolls, euphemistically referred to as non-practicing entities (“NPEs”) or patent assertion entities (“PAEs”), in the wake of the new 35 U.S.C. § 299.

Reminder to NYC Employers: Unemployed in Protected Class Beginning June 11, 2013

by Gibbons P.C.

Posted in Discrimination

On May 29, 2013

As previously reported, the group of individuals protected by the New York City Human Rights Law (“NYCHRL”) has been expanded to cover the status of being “unemployed.” The Amendment to the NYCHRL — which goes into effect June 11, 2013 — prohibits discrimination against job applicants because they are unemployed. The NYCHRL provides for a private right of action against employers.

Law Division Holds Unfiled Discovery Protected From Common-Law Right of Access

by Thomas J. Cafferty

Posted in General Litigation

On May 29, 2013

The Law Division in a to-be-published opinion in Drinker Biddle & Reath LLP v. New Jersey Department of Law & Public Safety, Division of Law, recently held that public policy does not favor access to unfiled discovery in public sector litigation under New Jersey’s common-law right of access. Plaintiff filed a complaint in lieu of prerogative writs for failure to comply with the Open Public Records Act, (“OPRA”), and the common-law right of access in refusing to provide plaintiff with copies of unfiled transcripts of expert depositions in environmental litigation brought by the State of New Jersey, Department of Environmental Protection (“NJDEP”). Because the transcripts in their entirety had not been filed with the Court, NJDEP denied plaintiff’s OPRA request on privilege and confidentiality grounds.

Thank You to Our Armed Forces of the United States and All Those Who Serve

by Gibbons P.C.

Posted in Intellectual Property

On May 27, 2013

Gibbons takes this opportunity to express our eternal gratitude for the men and women of our Armed Forces of the United States who have paid the ultimate sacrifice so that we may enjoy our freedom, and to all those who serve. We also wish all of our readers a happy and safe Memorial Day weekend. We also wish all of our readers a happy and safe Memorial Day weekend.

“Operation Swill”: New Jersey ABC and Division of Criminal Justice Raid 29 Bars and Restaurants That Allegedly Served Cheap Alcohol as “Premium” Brands

by Brett S. Theisen, Mark B. Conlan and Howard D. Geneslaw

Posted in Liquor Licensing

On May 24, 2013

On May 23, 2013, New Jersey’s Attorney General Jeffrey Chiesa and Division of Alcoholic Beverage Control (“ABC”) Director Michael Halfacre announced the details of “Operation Swill,” a year-long investigation involving more than 100 investigators throughout New Jersey. Operation Swill reached its climax one day earlier when ABC and Division of Criminal Justice personnel executed raids on 29 establishments throughout New Jersey suspected of substituting premium alcoholic beverage brands with “well brand spirits,” i.e., non-premium brands. N.J.A.C. § 13:2-23.19 prohibits a licensee from substituting another brand other than ordered by a customer unless agreed to by the customer. Approximately 1,000 bottles were seized during the raids, which will be held for further testing by the ABC and manufacturers.

New Jersey’s Prompt Payment Act Does Not Apply to Contracts for the Upkeep and Maintenance of Land

by Gibbons P.C.

Posted in Construction / Construction Litigation

On May 24, 2013

New Jersey’s Prompt Payment Act (“PPA”) can be a valuable tool available to contractors, subcontractors, sub-subcontractors, and product suppliers that are owed money on New Jersey construction projects, as aggrieved parties can recover interest on unpaid amounts at prime plus one (1%) percent in the event payment is not made within the time period provided by the PPA and attorneys’ fees. N.J.S.A. § 2A:30A-2. In TBI Unlimited, LLC v. Clearcut Lawn Decisions, LLC, the United States District Court for the District of New Jersey considered the scope of the PPA, which is only the subject of a handful of written opinions.

Show Your Work: Google Ordered to Produce Search Terms and Custodians Used When Responding to Apple’s Subpoena

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On May 23, 2013

In a recent order in Apple Inc. v. Samsung Electronics Co. Ltd., et al., United States Magistrate Judge Paul S. Grewal reinforced the importance of cooperation and transparency in the discovery process, especially when it involves electronically stored information. The order granted Apple’s motion to compel Google, a non-party, to produce the search terms and list of custodians Google used when responding to Apple’s subpoena. Judge Grewal’s order is significant because it underscores that a responding party, whether or not a party to the litigation, should be prepared to disclose the methodology it used to identify and collect electronically stored information in response to a discovery request.

Third Circuit Deems NLRB “Recess Appointments” Unconstitutional

by Gibbons P.C.

Posted in Labor

On May 22, 2013

On May 16, 2013, in NLRB v. New Vista Nursing & Rehab., a divided panel of the Court of Appeals for the Third Circuit joined the D.C. Circuit in holding that the Recess Appointment Clause of the Constitution allows the President to make “recess appointments” (that is, without the advice and consent of the Senate) only when the Senate is on a formal intersession recess, as opposed to an intra-session break. Both the Third Circuit’s decision and the D.C. Circuit’s recent decision in Canning v. NLRB (as elaborated upon in Nat’l Ass’n of Mfrs. v. NLRB) arise from actions taken by the National Labor Relations Board (the “Board” or the “NLRB”) some of whose members had been appointed during an intra-session break. To summarize: (1) at least three Board members must participate in a Board decision; (2) according to these courts, the Board has not had three validly-appointed Members since August 27, 2011; and (3) although the NLRB has had four sitting Members between April 5, 2010 and August 27, 2011, it has issued some three-Member decisions during this time wherein one decision-maker, Craig Becker, was arguably unconstitutionally-appointed, rendering those decisions invalid. Potentially hundreds of decisions by the Board over the past three years are at risk of being declared invalid.

NJIPLA to Honor Chief IP Counsel of Johnson & Johnson with Jefferson Medal

by Gibbons P.C.

Posted in Intellectual Property

On May 22, 2013

Robert E. Rudnick, a Director in the Gibbons Intellectual Property Department and the President of the New Jersey Intellectual Property Law Association, is pleased to announce that the 2013 NJIPLA Jefferson Medal Dinner will take place on Friday, June 7, 2013, at the Hilton Short Hills, NJ. For 63 years the NJIPLA Jefferson Medal has been presented to someone who has made outstanding contributions to the field of intellectual property. In the past, the Jefferson Medal has been presented to judges, leaders of the Intellectual Property Bar and Patent & Trademark Office officials. The 2013 medalist is Philip S. Johnson, the Chief Intellectual Property Counsel of Johnson & Johnson. This year’s dinner will honor Mr. Johnson’s accomplishments in the realm of intellectual property.

New Jersey Appellate Division Takes “Hands-Off” Approach to Contractual Breaches of the Duty of Good Faith and Fair Dealing

by Gibbons P.C.

Posted in General Litigation

On May 21, 2013

In Sun Pharmaceutical Industries v. Core Tech Solutions, New Jersey’s Appellate Division affirmed a Trial Court order dismissing plaintiff’s claims that defendants had breached their contractual duty of good faith and fair dealing. The decision is notable because it sheds light on the definition of “good faith” in the context of a preliminary agreement, an area where there is little New Jersey precedent.