Gibbons Law Alert

Judge Scheindlin Weighs Comity Concerns and Orders Production of Documents from Bank of China Despite Violation of Chinese Laws

Posted in E-Discovery: Legal Decisions and Court Rules

On May 17, 2013

In Aerospatiale v. District Court of Iowa the United States Supreme Court admonished lower courts that international comity compels them to “take care to demonstrate due respect for any special problem confronted by the foreign litigant on account of its nationality or the location of its operations, and for any sovereign interest expressed by a foreign state.” As previously noted, some prominent groups such as the ABA and The Sedona Conference® recently have developed principles and standards to help courts heed that advice.

Declaratory Judgment Jurisdiction Considerations in Patent Cases: The District of New Jersey Speaks

by Gibbons P.C.

Posted in Patent

On May 16, 2013

IP practitioners should read and heed Judge Martini’s recent decision in Medidata Solutions, Inc. v. DATATRAK Int’l, Inc., 2-12-cv-04748 (D.N.J. May 13, 2013, Docket 33), which addresses considerations for declaratory judgment jurisdiction in a patent dispute. The case involved two patents owned by DATATRAK, the “parent” ‘087 patent, and the “child” ‘294 patent, which issued from a continuation application.

The Seed Giant Stands Tall: The Supreme Court Rules in Favor of Monsanto

by Estelle J. Tsevdos, Ph.D.

Posted in Patent

On May 14, 2013

This Spring has been fruitful for seed giant, Monsanto. We reported earlier that Monsanto and rival DuPont entered into technology licensing agreements, ending nearly four years of patent and antitrust litigation. On Monday, May 13, Monsanto’s cornucopia arrived, with the Supreme Court ruling unanimously in its favor. This case revolved around the question of whether the doctrine of patent exhaustion allowed a farmer who bought patented seeds to, without permission, reproduce the seeds through planting and harvesting. The seeds in question were glyphosate herbicide-resistant soybean seeds, covered under two patents issued to Monsanto.

‘Required’ Union Poster Unlawful According to D.C. Circuit

by Gibbons P.C.

Posted in Labor

On May 13, 2013

On May 7, 2013, in Nat’l Ass’n of Mfrs. v. NLRB, the United States Court of Appeals for the District of Columbia decided that a rule implemented by the National Labor Relations Board (“Board” or “NLRB”) requiring most private sector employers to post a notice about workers’ rights to unionize was invalid. As previously reported, the Board issued the rule almost two years ago, and has repeatedly postponed its effective date pending the outcome of legal challenges to the rule by business groups.

New York State Comptroller Sets Forth Options for Revitalizing State’s Brownfield Cleanup Programs

by David J. Freeman

Posted in Development/Redevelopment

On May 13, 2013

Late last month, New York State’s Comptroller, Thomas P. DiNapoli, issued a report reviewing options for modifying the way the state incentivizes and administers cleanups of its thousands of remaining brownfield sites. The Report has special significance in light of Mr. DiNapoli’s expertise in this area: he is a former Chair of the State Assembly’s Environmental Conservation Committee and one of the architects of the state’s Brownfield Cleanup Act, passed in 2003.

Gov. Christie Issues Conditional Veto of Social Networking Privacy Bill

by Gibbons P.C.

Posted in Privacy and Data Security

On May 9, 2013

On Monday, May 5, 2013, New Jersey Governor Chris Christie issued a conditional veto of Assembly Bill No. 2878, the controversial piece of proposed legislation that sought to bar most employers from requiring current or prospective employees to provide user names or passwords to social networking accounts and from inquiring as to whether current or prospective employees even had social networking accounts.

Clash of MDL and AIA?

by Gibbons P.C.

Posted in Patent

On May 9, 2013

We previously reported on the interplay between the Judicial Panel on Multi-District Litigation (“MDL”) under 28 U.S.C. § 1407(a) and the joinder rules under 35 USC § 299 of the America Invents Act (“AIA”). In Unified Messaging Solutions, LLC v. United Online, Inc., et. al., 1-13-cv-00343 (N.D. Il. May 3, 2013) Judge Lefkow recently denied defendants’ motion to sever plaintiff’s infringement claims against them from pretrial consolidation in an MDL case, and rejected their argument that § 299 had been violated.

In Clean Water Act Case, Three Justices Invite Future Challenge to Rule of Deference to Agencies in Interpretation of Their Own Regulations

by Paul M. Hauge

Posted in Environmental and Green Issues

On May 8, 2013

A victory in the Supreme Court is generally welcome news for the U.S. Environmental Protection Agency (EPA). But, the Court’s decision last month in a Clean Water Act case may foreshadow a sweeping change in administrative law that would certainly not please EPA or other agencies: the end of a long-standing rule of judicial deference to agencies in the interpretation of their own regulations.

Supreme Court Rules that FLSA Collective Actions Are Distinct From Rule 23 Class Actions, But Fails to Resolve Circuit Split on Effect of Unaccepted Offers of Judgment

by Gibbons P.C.

Posted in Class Action Defense

On May 8, 2013

On April 16, 2013, the U.S. Supreme Court ruled in Genesis Healthcare Corp. v. Symczyk, that a plaintiff-employee’s Fair Labor Standards Act (“FLSA”) collective action could not proceed because her claims were moot after the defendant offered the plaintiff, per Federal Rule of Civil Procedure 68, full relief for her individual claims. Although the decision is limited to FLSA collective actions, the Court’s rationale has the potential to apply to Rule 23 class actions as well.

Expert Witness Selection: Choosing an Expert Without the Right Experience Can Be Fatal to a Claim

by Gibbons P.C.

Posted in Construction / Construction Litigation

On May 7, 2013

The selection of an expert witness can be critical to the outcome of a construction dispute. A well-qualified and strong expert witness can be essential to a party prevailing on its claim or defense. Conversely, as the recent New Jersey Appellate Division decision in Wellinghorst v. Arnott, highlights, retaining the wrong expert can have significant negative consequences and potentially result in the dismissal of a claim.