Gibbons Law Alert

Gibbons Law Alert Blog

Contracting Around the Discovery Rule: The Oregon Court of Appeals Enforces a Clause in a Construction Contract That Defined the Date of Accrual

Posted in Construction / Construction Litigation

On April 17, 2013

Parties to construction contracts often include provisions that set forth time frames to file actions arising out of the contract that are different than the applicable statute of limitations. In the absence of any statutory prohibition, contract provisions limiting the time to file an action to less than the applicable statute of limitations are generally enforceable provided the time frame is reasonable. Although perhaps less common, some construction contracts include provisions that attempt to define when the applicable limitations period begins to run (i.e. when causes of action arising out of the contract accrue).

Trade Secrets Litigation: DuPont Wins Property from U.S. Subsidiary as Part of its $920M Damages Award Against the Parent

by Gibbons P.C.

Posted in General Litigation / Trade Secrets

On April 16, 2013

Kolon USA, Inc., the U.S. subsidiary of South Korea-based Kolon Industries Inc. (“Kolon”), recently was ordered by New Jersey District Court Judge Esther Salas to turn over its property to DuPont as part of DuPont’s efforts to enforce the $920 million damages award that DuPont won against Kolon during a 2011 trade secrets litigation in the Eastern District of Virginia.

BMW Alleged Battery Defect Putative Class Action Holds a Charge

by Gibbons P.C.

Posted in Class Action Defense

On April 15, 2013

In Morano v. BMW of N. America, LLC, the Court refused to dismiss warranty and tort claims in a putative class action alleging a known defect in a BMW vehicle’s battery. The plaintiff alleged that the battery in his vehicle would not hold a charge and that his local dealer would not replace it because it was excluded from the BMW’s warranty and maintenance program. The plaintiff alleged that Defendant failed to disclose the battery coverage exclusion, and he sought to represent a Florida class of purchasers or leasees.

Supreme Court Prohibits Efforts to Evade CAFA’s Scope

by Michael R. McDonald

Posted in Class Action Defense

On April 12, 2013

In a unanimous decision interpreting the Class Action Fairness Act (“CAFA”), the U.S. Supreme Court in The Standard Fire Insurance Co. v. Knowles, held that a named plaintiff cannot avoid the scope of CAFA jurisdiction by stipulating that the class he seeks to represent will not seek damages that exceed the $5 million amount in controversy threshold.

Legislation to Invalidate Certain Non-Compete Agreements Introduced in New Jersey

by Christine A. Amalfe

Posted in Employee Benefits

On April 12, 2013

Earlier this month, a new bill, A3970, was introduced in the New Jersey State Assembly by Assemblymen Peter J. Barnes, III, Joseph V. Egan, and Wayne P. Deangelo limiting the enforcement of certain provisions in employment contracts if the individual is eligible for unemployment compensation. It is unclear if the bill will ultimately pass, and be signed into law by the Governor, but there appears to be support within the state Assembly and Senate. The bill provides that if an unemployed individual is found to be eligible to receive unemployment compensation benefits, that individual shall not be bound by any covenant, contract, or agreement not to compete, not to disclose, or not to solicit. The bill only applies to agreements entered into AFTER the date of enactment.

The Laws of Physics and Copyright Law: SDNY Rules that First-Sale Doctrine Does Not Apply to the Resale of “Used” Digital Media

by Gibbons P.C.

Posted in Copyright

On April 12, 2013

Owners of books and music in physical media form need not fear if ever they decide to sell, rent, or otherwise dispose of these copyright-protected materials. The first-sale doctrine permits such activities by extinguishing a copyright owner’s exclusive right of distribution of copyrighted items that have been lawfully sold or transferred. However, according to a recent federal court ruling, Capitol Records, LLC. v. ReDigi Inc., No. 12 Civ. 95 (S.D.N.Y. March 30, 2012) owners of digital versions of the same works may find it more difficult to sell, rent, or otherwise dispose of their digital files.

ITC Announces Exclusion Order Study

by Gibbons P.C.

Posted in International Trade Commission

On April 10, 2013

Yesterday’s Federal Register included a public notice indicating the U.S. International Trade Commission’s (“ITC”) intention to solicit input from complainants who obtained exclusion orders from the ITC following proceedings under 19 U.S.C. § 1337 (“Section 337”). Section 337 addresses unfair practices in the import trade, and especially, for enforcing U.S. intellectual property rights at the border. An exclusion order may be “limited” or “general,” and it prevents articles found to be infringing from being imported into the U.S.

A Contractor’s Repair Estimate Provides Evidence of an Ascertainable Loss Under the New Jersey Consumer Fraud Act

by Gibbons P.C.

Posted in Construction / Construction Litigation

On April 10, 2013

The New Jersey Consumer Fraud Act (“CFA”) allows parties to recover damages if they have suffered an ascertainable loss. See N.J.S.A. 56:8-19. In the recent decision from the New Jersey Appellate Division, Pope v. Craftsman Builders, Inc., the court considered the type of evidence that can provide proof of an ascertainable loss in the context of a CFA claim involving a construction project.

Gibbons Directors Robert Rudnick & Thomas Bean to Serve on Panel for Upcoming Gibbons Institute of Law, Science & Technology Event

by Gibbons P.C.

Posted in Patent / USPTO

On April 9, 2013

Robert E. Rudnick and Thomas J. Bean, Directors in the Gibbons Intellectual Property Department, will serve as panelists at the upcoming Gibbons Institute of Law, Science & Technology event, “USTPO Patent Post-Issuance Proceedings Under the American Invents Act — a New Frontier” on April 23. Mr. Rudnick and Mr. Bean, along with Kenneth Corsello of IBM and other industry and academic leaders, will address post-grant proceedings under the American Invents Act (AIA), from both the patent owner’s and challenger’s perspectives, as well as discovery and other new rules of practice before the Patent Trial and Appeal Board (PTAB). CLE credits for New Jersey and New York will be offered.

Federal Computer Fraud and Abuse Act Claim Asserted in Complaint Tethers Lawsuit to Federal Court

by Gibbons P.C.

Posted in Restrictive Covenants

On April 9, 2013

A Federal District Court recently refused to dismiss a complaint for lack of subject matter jurisdiction because, among several state law claims, the plaintiff – the individual defendant’s former employer – also asserted a claim under the Federal Computer Fraud and Abuse Act (CFAA). In NouvEON Tech. Partners, Inc. v. McClure, No. 3:12-CV-633-FDW-DCK, 2013 U.S. Dist. LEXIS 29208 (March 5, 2013), a North Carolina Federal District Court denied defendants’ Rule 12(b)(1) motion to dismiss, for lack of subject matter jurisdiction, a myriad of state law claims filed by NouvEON against its former employee (McClure) and her new employer (Smarter Systems).