Gibbons Law Alert

Factual Allegations in Superceded Complaint Not Judicial Admissions, But May Be Used for Rebuttal Purposes

On April 26, 2013

In West Run Student Housing Associates., LLC v. Huntington National Bank, the United States Court of Appeals for the Third Circuit ruled that, under the liberal policy of allowing amendment under Rule 15, factual allegations made in a superceded complaint are not binding judicial admissions for purposes of a motion to dismiss, but such allegations may be used in the litigation to rebut the plaintiff’s subsequent factual contentions.

Vapor Intrusion Guidance Continues to Take Form With the Release of EPA’s Final Draft Guidance

by Gibbons P.C.

Posted in Environmental and Green Issues

On April 26, 2013

The United States Environmental Protection Agency (“EPA”) recently released its long-awaited final vapor intrusion draft guidance (“Final VI Guidance”). The nearly 200-page document establishes a complex framework for assessing vapor intrusion from analyzing key factors; making risk management decisions; and implementing, monitoring and terminating mitigation strategies and is intended to be used at any site that is being evaluated under CERCLA, RCRA, EPA’s brownfield grantees, or state agencies with delegated authority. The Final VI Guidance supercedes all prior EPA guidance documents addressing vapor intrusion assessment and mitigation including the 2002 Draft Vapor Intrusion Guidance, but takes into account the public comments submitted from 2002 through 2012 and the recommendations of the Office of Inspector General (OIG).

More Streamlining of Permit Procedures for Rebuilding After Superstorm Sandy

by Gibbons P.C.

Posted in Environmental and Green Issues

On April 24, 2013

A recent news release on the NJDEP website discusses new efforts by the Christie Administration to streamline vital rebuilding projects necessitated by the destruction caused by Superstorm Sandy. The new rules, which were adopted on an emergency basis on April 16th, are intended to eliminate some of the red tape typically associated with permit procedures, while ensuring the protection of coastal resources and encouraging the rebuilding of a more resilient New Jersey coastline. This is just the latest action taken by the Governor and NJDEP to ease the burden on residents, businesses and municipalities seeking to rebuild. Beginning as early as five days after the storm swept through New Jersey, actions were already being taken to waive permitting requirements for those rebuilding vital infrastructure such as roads and bridges. More recently, the Christie Administration adopted a streamlined process for property owners wanting to rebuild to new elevation standards in flood zones.

In Comcast, Supreme Court Reinforces Difficult Standard for Obtaining Class Certification

by Gibbons P.C.

Posted in Class Action Defense

On April 24, 2013

In its much-anticipated opinion in Comcast Corp. v. Behrend, the United States Supreme Court continued its recent trend of requiring a more demanding standard for plaintiffs seeking class certification. Citing its notable opinion in Wal-Mart Stores, Inc. v. Dukes, the Court made clear that district courts must conduct a rigorous analysis of plaintiffs’ evidence before certifying a proposed class, including addressing questions that ultimately bear on the merits.

New Form I-9 To Go Into Effect On May 7, 2013

by Gibbons P.C.

Posted in Policies and Handbooks

On April 24, 2013

The U.S. Citizenship and Immigration Services (USCIS) recently released an updated Employment Eligibility Verification Form I-9. Beginning May 7, 2013, the new Form I-9 must be used for all new hires, including reverification or rehires. The new Form I-9 denotes a revision date of March 8, 2013 in the lower left hand corner of the form and is available on the USCIS’s website. Employers are not required to complete the new Form I-9 for current employees if they have maintained properly-completed unexpired forms on file for those employees.

Third Circuit Finds Private Healthcare Facility and Its Operator to be Single Employer for Liability Under the NLRA

by Gibbons P.C.

Posted in Labor

On April 23, 2013

In a recent decision, Grane Health Care v. NLRB, the Third Circuit ruled that a private healthcare facility and its operator – in which it has a 99.5% ownership stake and a near complete overlap of company officers – are a single employer subject to the National Labor Relations Act (the “Act” or “NLRA”). Accordingly, the two entities were found to be jointly and severally liable for remedying unfair labor practices committed by either of them.

Rejecting Tele Aid, the Third Circuit in Maniscalco v. Brother Holds that the Laws of Consumers’ Home States Apply in Nationwide Class Actions

by Michael R. McDonald

Posted in Class Action Defense

On April 22, 2013

On March 8, 2013, the United States Court of Appeals for the Third Circuit issued its precedential decision in Maniscalco v. Brother International Corp., which significantly restricts the ability of out-of state plaintiffs to use the New Jersey Consumer Fraud Act (“NJCFA”) to pursue nationwide class actions in New Jersey against New Jersey based companies.

Federal Judge in New Jersey Issues Adverse Inference Instruction Due to Plaintiff’s Failure to Preserve Facebook Information in Personal Injury Action

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On April 22, 2013

Recently, a federal judge in New Jersey imposed sanctions for a personal injury plaintiff’s failure to preserve his Facebook account. The Court concluded that it was “beyond dispute that Plaintiff had a duty to preserve his Facebook account,” and granted the defendant’s motion for an adverse inference instruction. The plaintiff allegedly suffered serious injuries at work, which purportedly left him permanently disabled, unable to work, and limited in his “physical and social activities.” The defendants sought the plaintiff’s Facebook information, alleging it related to damages, but the plaintiff declined to provide an authorization form for Facebook. During a settlement conference, the Magistrate Judge ordered the plaintiff to execute the appropriate form, and the plaintiff agreed to change his account password to allow defense counsel to access his Facebook page. Defense counsel then accessed his account and printed portions of the plaintiff’s Facebook page.

Suffolk Tech. v. AOL et al., In Search of a Reasonable Royalty Post-Uniloc

by Christopher H. Strate

Posted in Patent

On April 22, 2013

On April 12, United States District Judge Ellis of the Eastern District of Virginia excluded the testimony of patentee Suffolk’s damages expert directed to a reasonable royalty based on the Nash Bargaining Solution, a kind of negotiation model. Suffolk’s expert used the Nash Bargaining Solution to determine that damages should be based on a 50/50 split of incremental profits. The Court struck this analysis, finding that the 50/50 split was analogous to the 25% rule previously rejected by the Federal Circuit in Uniloc v. Microsoft.

Insurers Doing Business in New Jersey are Being Increasingly Precluded from Arbitrating Out-of-State

by Gibbons P.C.

Posted in Insurance

On April 19, 2013

In Allied Professionals Insurance Co. v. Jodar, New Jersey’s Appellate Division affirmed a trial court order denying enforcement of an arbitration choice-of-forum provision in a medical malpractice insurance contract. The decision is notable because it broadly interprets prior Appellate Division case law, reaches a contrary result to a recent Law Division case where the issue went unchallenged, and paves the way for further extension of the result.