Gibbons Law Alert

Gibbons Law Alert Blog

Antitrust Pleading Standards: A(nother) Cautionary Tale

On April 8, 2013

A New Jersey federal district court’s March 18th opinion granting defendants’ motions to dismiss an antitrust complaint is yet another reminder of the need to inject precision and factual detail into an antitrust claim in order to meet the strict pleading requirements applicable to such claims. The putative class of indirect purchaser plaintiffs in In re Ductile Iron Pipe Fittings (“DIPF”) Indirect Purchaser Antitrust Litigation brought a total of ten claims, alleging principally that iron pipe fitting manufacturers and distributors conspired to fix prices and monopolized the domestic iron pipe fitting market in violation of Sherman Act Sections 1 and 2. In holding that the pleadings failed to establish antitrust impact with sufficient specificity (but granting plaintiffs leave to amend their complaint), the Court reasoned as follows:

Susan L. Nardone to Speak at Upcoming NJBIA Employment Seminar

by Gibbons P.C.

Posted in Discrimination

On April 8, 2013

Susan L. Nardone, a Director in the Gibbons Employment & Labor Law Department, will speak at the upcoming NJBIA Employment Seminar on Friday, April 12, 2013, at Forsgate Country Club. Ms. Nardone’s panel, “The EEOC: the New Sheriff in Town?,” will discuss how the EEOC’s actions and enforcement priorities can impact New Jersey businesses.

Raising Standards for Rebuilding After Sandy

by Gibbons P.C.

Posted in Environmental and Green Issues

On April 5, 2013

For the first time in more than two decades, the Federal Emergency Management Agency (“FEMA”) has updated its Advisory Base Flood Elevation (“ABFE”) maps for New Jersey’s coastal counties. The Christie Administration adopted these new standards as an emergency measure on January 24, 2013, and through formal NJDEP regulations, has now made them permanent. The revised FEMA elevations, which remain subject to change, are anywhere from two to four feet higher on average than the standards that had been in effect prior to Hurricane Sandy. New Jersey residents, particularly those impacted by flooding from Hurricane Sandy, should be aware of this change, as the NJDEP has incorporated these revised maps as the new standard throughout the state for the elevation of reconstructed homes in flood zones.

Russell Bershad to Speak at Upcoming RealShare New Jersey Conference

by Gibbons P.C.

Posted in Transactional Real Estate and Leasing

On April 4, 2013

Russell B. Bershad, Co-Chair of the Gibbons Real Property & Environmental Department, will serve as a panelist at the upcoming RealShare New Jersey Conference on Wednesday, April 10, 2013, at the Newark Club in Newark, NJ. Mr. Bershad’s panel, “The Needs of the Modern Office User,” will discuss both the design and demand for space, as companies constrict their physical space and telecommuting becomes more prevalent. The panelists will also discuss their approach to doing business in today’s challenging marketplace, including site and office selection in urban versus suburban regions, owning vs. leasing, the impact of the economy and job market on decisions, and the overall burdens and benefits of doing business in New Jersey.

Uniloc v. Rackspace – 35 U.S.C. § 101 Lockdown in the Eastern District of Texas

by Robert E. Rudnick

Posted in Patent

On April 4, 2013

In Uniloc USA, Inc. v. Rackspace Hosting, Inc., Eastern District of Texas Chief District Judge Leonard Davis granted Rackspace’s motion to dismiss Uniloc’s complaint under Fed. R. Civ. P. 12(b)(6) for failure to allege infringement of a patentable claim under 35 U.S.C. § 101. This ruling is notable for several reasons: the Court granted an early motion to dismiss for the defendant in a historically pro-patentee jurisdiction (E.D. Texas), and the early dismissal resulted from the court finding the patent invalid under 35 U.S.C. § 101.

New Law Places Stricter Limits on Shareholder Derivative Suits

by Gibbons P.C.

Posted in General Litigation

On April 3, 2013

On April 2, 2013, Governor Christie signed A-3123, which revises New Jersey’s law concerning shareholder derivative proceedings under N.J.S.A. § 14A:3-6. According to the New Jersey Corporate and Business Law Study Commission, the purpose of this new law is to preclude derivative lawsuits that impose excessive and unnecessary costs on New Jersey corporations. The law applies to both derivative proceedings brought on behalf of a single shareholder and shareholder class actions against a corporation or its directors that arise out of a breach of duty imposed by New Jersey statutory or common law.

Not All Wrongs are the Same: The Florida Supreme Court Holds That a Contractor That Knowingly Hires an Unlicensed Subcontractor Can Recover for Breach of Contract Against That Subcontractor

by Gibbons P.C.

Posted in Construction / Construction Litigation

On April 3, 2013

Like other states, Florida regulates parties in the construction industry and requires that contractors performing certain work be properly licensed. See Flor. Stat. Ch. 489. If an unlicensed contractor enters into a construction contract it cannot enforce that contract. See Flor. Stat. Ch. 489.128. In the recent decision in Earth Trades, Inc. v. T&G Corp., the Florida Supreme Court considered the impact of this law in a contract dispute between an unlicensed subcontractor and a general contractor, where the subcontractor claimed that the general contractor knew that it was unlicensed.

Gibbons Business & Commercial Litigation Department Named the New Jersey Law Journal’s Commercial Litigation Department of the Year

by Gibbons P.C.

Posted in General Litigation

On April 2, 2013

The Gibbons Business & Commercial Litigation Department has been named the Commercial Litigation Department of the Year by the New Jersey Law Journal. This marks the publication’s first list of leading litigation departments, which evaluated law firms with a New Jersey presence and significant litigation results in 2012.

An End to the Seed War: Monsanto and DuPont Call Off Their Patent and Antitrust Lawsuits as a Decision in Bowman v. Monsanto is Pending

by Estelle J. Tsevdos, Ph.D.

Posted in Licensing / Patent

On April 2, 2013

On March 25, seed giants DuPont and Monsanto entered into technology licensing agreements that ended their ongoing patent and antitrust lawsuits. According to the terms of the agreement, DuPont will pay at least $1.75 billion in licensing and royalty fees to Monsanto from 2014 to 2023. These payments include fixed royalty payments from 2014 to 2017, totaling $802 million, and per-unit based royalty payments from 2019 to 2023, subject to annual minimums, totaling $950 million. DuPont and Monsanto also will dismiss their respective patent and antitrust lawsuits, including the August 2012 damage award of $1 billion against DuPont that have been pending since 2009. Further details on these agreements can be found in DuPont and Monsanto’s joint March 26 press release and DuPont’s March 26 Form 8-K.

Patent and Copyright First-Sale and International Exhaustion Standards to Remain in Conflict … For Now!

by Estelle J. Tsevdos, Ph.D.

Posted in Patent

On April 1, 2013

On the heels of its March 19, 2013, decision in Kirtsaeng v. John Wiley & Sons, Inc., where the Supreme Court held that international exhaustion , i.e., an ex-U.S. first-sale rule applies to copyrights, the Court has surprisingly denied Ninestar Technology Co. Ltd.’s (“Ninestar”) petition for certiorari to consider whether international exhaustion applies to patents.