Gibbons Law Alert Blog

May I Come In?: N.J. Supreme Court Approves Warrantless DEP Searches of Residential Property Subject to Freshwater Wetlands Permit

In a unanimous decision that was at once sweeping and limited, the New Jersey Supreme Court held that the Department of Environmental Protection (DEP) need not obtain a warrant before entering a residential parcel to ensure compliance with the terms of a wetlands permit. The Court stopped short of a blanket validation of all warrantless searches under the wetlands statute, or of all warrantless searches of residential property subject to any sort of permit, instead grounding its holding in the protections afforded by the process that DEP must follow, and limiting it to searches of properties that are subject to a wetlands permit.

Update of Proposed Rule Changes: A Universal Federal Sanctions Standard for the Failure to Preserve ESI Could be a Reality

The United States Courts’ Advisory Committee on Civil Rules (“the Committee”) has proposed various amendments to the Federal Rules of Civil Procedure that, if adopted, will profoundly affect the range and scope of sanctions a court may impose for failures to preserve electronically stored information (“ESI”). F.R.C.P. 37(e), which currently addresses sanctions in those instances, is one of several rules slated for amendment.

Performance of Corrective Work Does Not Extend the Deadline to File Mechanics’ Lien Claims in Pennsylvania

Mechanics’ liens are powerful remedies for contractors involved in payment disputes with owners of construction projects in Pennsylvania, but the six month deadline under the Mechanics’ Lien Law is strictly construed and contractors who delay filing them may lose their rights. In Neelu Enterprises, Inc. v. Agarwal, the Pennsylvania Superior Court considered the deadline for a contractor to file lien claims “within six months after the completion of his work” set forth in Section 502 of the Pennsylvania’s Mechanics’ Lien Law. Specifically, the two issues in the case were whether the deadline begins to run after a contractor is terminated and whether the deadline can be extended by the subsequent performance of corrective or remedial work.

New Report Considers Options For Tweaking Brownfields Programs in NY

New York State was among the first to enact programs aimed at remediation and redevelopment of contaminated sites. The goal of such programs is both to promote economic revitalization and to encourage private entities to remediate the state’s contaminated sites. Three such programs, the Voluntary Cleanup Program (“VCP”), the Environmental Restoration Program (ERP), and the Brownfield Cleanup Program (“BCP”), have achieved considerable success, with over 400 sites having been remediated in the past two decades. Nevertheless, policy makers continue to search for ways to make these programs better and more cost efficient. Prompted by the impending expiration of key provisions of the BCP, a report released by the New York State Comptroller’s office in April 2013, provides an assessment of these programs, as well as some options for improvement going forward.

Supreme Court Reviews Employer Reimbursement Provisions in Employee Benefits Plans

In US Airways, Inc. v .McCutchen, decided on April 16, 2013, the U.S. Supreme Court once again emphasized that in disputes involving employee benefits plans governed by the Employee Retirement Income Security Act, 29 U.S.C. § 1001, et seq. (“ERISA”), it is the unambiguous language of the plan in question that controls the rights of the parties and that general equitable principles cannot be used to supersede the terms of the plan. In areas where the plan is silent, however, courts may employ appropriate equitable principles to construe the plan. At issue in US Airways was the reimbursement provision of an employer’s health benefits plan that purported to give the employer the right to recoup medical benefits paid to an employee injured in an automobile accident who thereafter recovered funds from third parties as a result of the accident, although the amount the employee actually recovered after paying his attorney was less than the amount he owed his employer. The Supreme Court rejected the employee’s attempt to apply equitable principles of unjust enrichment to limit the application of the reimbursement provision. Holding, however, that the plan was silent as to the allocation of the costs, including attorneys fees, incurred by the employee in his efforts to recover from third parties, the Court further held the equitable principle known as “the common fund rule” should apply, entitling the employee to reasonable attorneys fees from the funds recovered. The decision makes clear the importance to employers of accomplishing the objectives of their benefits plans with clear-cut language.

Inventors’ Notebooks in a First-to-File Patent System

Since March 16, 2013, the United States has been under a first-inventor to-file patent system. Although it has always been good scientific practice for inventors to keep and maintain laboratory notebooks, it was all the more important in a first-to-invent patent system. In light of the recent changes in U.S. patent law, will keeping and maintaining a laboratory notebook have any importance for patent applications filed under the new system?

New York State’s Design Build Statute May Pave the Way for Public Private Partnerships

On December 9, 2011, New York became one of a growing number of states to pass legislation to allow design-build delivery for certain infrastructure projects. Given the current trend in repairing and replacing aging infrastructure through public private partnerships (“P3”), which traditionally use the design-build model, the passage of the design-build legislation may be a precursor to formal legislation allowing P3’s in New York.

The Supreme Court Addresses Offers of Judgment in the Context of Collective Actions

In Genesis Healthcare Corp. v. Symcyk, the U.S. Supreme Court, by a vote of 5 to 4, rejected an employee’s contention that her employer should not have been permitted to thwart her attempt to bring a collective action under the Fair Labor Standards Act (“FLSA”) by making an offer of judgment to her under Rule 68 of the Federal Rules of Civil Procedure that included all of the relief to which she would have been entitled in connection with her individual FLSA claim. The Court’s April 16, 2013, ruling provides encouragement to employers who may seek to block an FLSA collective action with an offer of judgment–although, as detailed below, the Court’s opinion did leave one issue unresolved. The Court’s opinion also applies to cases brought under the Age Discrimination in Employment Act (“ADEA”) and the Equal Pay Act (“EPA”), as both of those statutes are governed by the collective action procedures of the FLSA rather than by the class action procedures of Rule 23 of the Federal Rules of Civil Procedure.

Patentee Prevails on Liability But Denied Damages

A recent non-published case from the District Court of New Jersey serves as a reminder that navigating the damages phase of patent infringement is just as important as proving liability. In Unicom Monitoring, LLC v. Cencom, Inc., Judge Cooper court denied the patent owner damages despite the fact that it succeeded in proving infringement. The patent at issue covered a device for rerouting alarm reports through a telephone line. Defendant Cencom was found to infringe claim 1 of the patent. Before the trial on Unicom’s damages, Cencom moved for summary judgment to dismiss Unicom’s damages claim because it failed to present expert evidence. Cencom also moved for summary judgment on injunctive relief because Unicom failed to establish its burden under the factors articulated by the Supreme Court in eBay Inc. v. MercExchange, LLC. Cencom argued that the only proof Unicom provided supporting Unicom’s reasonable royalty position was attorney argument, Cencom’s sales records, and statements from Unicom’s owners. The Court held that while expert testimony is not required to prove reasonable royalties, it agreed with Cencom that Unicom failed to establish competent proof to support its claim.

Defective Lien Notices Can Be Amended Under New York’s Lien Law if Defects Are Not Substantial

New York’s mechanic’s lien law sets forth seven items that must be included in a claimant’s notice of lien. See New York Lien Law § 9. While the statute states that the lien notice “shall” include each of the seven items, a recent New York Supreme Court decision demonstrates that failure to include one or more of these seven items can have varying consequences depending upon whether the omission is considered a substantial or a technical defect. See Avon Contractors v. D.C.M. of New York, LLC, et al. In Avon, plaintiff-general contractor D.C.M. of New York, LLC (“DCM”) moved to discharge a mechanic’s lien filed by subcontractor J.E. Berkowitz, L.P. (“JEB”), claiming that the notice of lien violated subdivisions 1 and 1-a of New York Lien Law Section 9 (which provides that a lien notice must include “1. The name and residence of the lienor; and if the lienor is a partnership or corporation, the business address of such firm, or corporation, the names of partners and principal place of business, and if a foreign corporation, its principal place of business within the state; [and] 1-a. The name and address of the lienor’s attorney, if any”). Specifically, DCM claimed JEB’s lien should be discharged because the lien notice was defective because it listed a P.O. Box...