Gibbons Law Alert

Gibbons Law Alert Blog

Opening the Flood Gates?: U.S. Supreme Court Holds That Takings Clause Covers Temporary Flooding

Posted in Environmental and Green Issues

On December 12, 2012

When government actions cause flooding of your land, does it constitute a “taking” that triggers the Fifth Amendment’s requirement of “just compensation?” Supreme Court precedent dating back to 1872 teaches that when the flooding is permanent, such as when a new dam creates a lake, a compensable taking has occurred. But what if the flooding is only temporary? Can that constitute a taking? The Federal Circuit said, “Never.” In Arkansas Game and Fish Commission v. United States, the Supreme Court disagreed, and said, “Sometimes.”

ITC Finds That a “Pattern of Circumvention” is not Required Under Section 337(d)(2) to Obtain a General Exclusion Order

by Gibbons P.C.

Posted in International Trade Commission

On December 10, 2012

The International Trade Commission (the “ITC”) recently issued its opinion in Certain Lighting Control Devices Including Dimmer Switches and Parts Thereof (IV), Inv. No. 337-TA-776. The ITC opinion addressed whether the complainant had established the facts necessary for a finding of circumvention of a Limited Exclusion Order to justify the issuance of a General Exclusion Order. The ITC ultimately issued the General Exclusion Order sought by the complainant, disagreeing with the findings of the Administrative Law Judge and the recommendation of the Commission Investigative Staff.

The New Jersey Appellate Division Holds that Requiring Self-Declared Alcoholics to Abstain From Alcohol Use and to Submit to Alcohol Testing Constitutes Handicap Discrimination in Employment

by Richard S. Zackin

Posted in Disability

On December 10, 2012

In a recent decision, A.D.P. v. ExxonMobil Research and Engineering Company, the New Jersey Appellate Division held that an employer’s drug and alcohol policy requiring recovering alcoholics to submit to periodic testing to determine whether they have used alcohol since returning to work after undergoing rehabilitation constitutes handicap discrimination in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 (the “LAD”). The decision presumably applies as well to recovering drug addicts. Employers with alcohol and drug policies should immediately evaluate and, if necessary, modify them in light of the Court’s decision.

Supreme Court Takes on Myriad

by Gibbons P.C.

Posted in Patent

On December 7, 2012

As anticipated, the Supreme Court has granted certiorari in Association for Molecular Pathology v. Myriad Genetics, et al. (the “Myriad” case) to review the Circuit Court’s opinion. The Court previously granted certiorari to vacate and remand the Federal Circuit’s Myriad decision for reconsideration in view of the Court’s 2012 decision in Mayo Collaborative Services, et al. v. Prometheus Laboratories, Inc. (“Mayo”). Notwithstanding Mayo, the Federal Circuit reached the same result on remand as its initial decision.

Communication Between Counsel and Client’s Independent Contractors May Be Privileged

by Gibbons P.C.

Posted in General Litigation

On December 6, 2012

The Eastern District of Pennsylvania recently found that communications generated and documents created by a party’s independent consultant may be entitled to attorney-client privilege protection. In In re Flonase Antitrust Litigation, direct and indirect purchasers of Flonase launched a class action against GlaxoSmithKline PLC (“GSK”) for allegedly delaying market entry of generic Flonase into the market. A dispute arose between GSK and direct purchasers as to whether the attorney-client privilege protects communications between GSK and its independent contractor, Swiftwater, which is a pharmaceutical consulting company. In this case, Swiftwater assisted GSK’s Flonase brand team in three areas: legal and regulatory, business development, and standard business practices. In the legal arena, Swiftwater assisted in the evaluation of legal and regulatory matters, such as evaluating GSK’s patent and intellectual property rights and FDA application to market over-the-counter Flonase.

U.S. v. Aleynikov Redux: Senate Closes Loophole in EEA

by Gibbons P.C.

Posted in Trade Secrets

On December 6, 2012

This past spring, we reported the Second Circuit’s reversal in U.S. v. Aleynikov, where the Court considered violations of the Economic Espionage Act of 1996 (“EEA”), 18 U.S.C. § 1832, and the National Stolen Property Act (“NSPA”), 18 U.S.C. § 2314. In short, the Second Circuit ruled that the EEA pertains to trade secrets “placed in” commerce, and that Aleynikov’s alleged misappropriation of the source code of Goldman Sachs & Co.’s trading system, which was for internal use, therefore was not violative of the EEA or the NSPA.

NJIPLA Pharmaceutical/Chemical Patent Practice Program

by Gibbons P.C.

Posted in Patent

On December 3, 2012

The 26th Annual New Jersey Intellectual Property Law Association (NJIPLA) Pharmaceutical/Chemical Patent Practice Update will feature the Honorable Faith S. Hochberg of the United States District Court for the District of New Jersey, who will provide a judge’s perspective on emerging issues under the AIA. The program will take place on December 5, 2012, from 12:00 – 5:15 p.m. at the Woodbridge Hilton in Iselin, New Jersey. The program offers 4.5 NJ and NY CLE credits, and 4.0 PA CLE credits, and will also provide a look at Already v. Nike, antitrust pitfalls in product improvements, and new issues regarding biotech patents.

Patent Litigators: Be Careful What You Plead, Part II

by Gibbons P.C.

Posted in Patent

On December 3, 2012

We previously reported on a sua sponte Memorandum Order where Senior U.S. District Court Judge Milton I. Shadur of the Northern District of Illinois took counsel to task for the quality of its answer and counterclaim. In New Paradigm Enterprises, Inc., d/b/a Q101 v. Merlin Media LLC, No. 12 C 5160, Slip Op. (N.D. Ill. Oct. 12, 2012), Judge Shadur again took issue with the pleadings. This time, the Court sua sponte found New Paradigm’s responses to Merlin Media’s answers, counterclaims and affirmative defenses to be “problematic.”

Gibbons Director David Freeman Reelected President of the New York City Brownfield Partnership

by Gibbons P.C.

Posted in Development/Redevelopment / Environmental and Green Issues

On November 30, 2012

David J. Freeman, a Director in the Real Property & Environmental Department of Gibbons P.C., has been unanimously reelected to a second term as president of the New York City Brownfield Partnership, a public/private nonprofit organization dedicated to promoting the cleanup and redevelopment of brownfields in New York City. The Partnership is a member organization of more than 40 real estate developers and owners, community organizations, governmental agencies, and environmental professionals who are active on brownfield matters.

Commercial Tenant Relieved of Duty to Maintain Common Areas in N.J. Appellate Division Decision

by Gibbons P.C.

Posted in Development/Redevelopment / Environmental and Green Issues

On November 29, 2012

Commercial tenants in multi-tenant shopping centers can now breathe a sigh of relief as the New Jersey Appellate Division in Kandrac v. Marrazzo’s Market of Robbinsville, safeguards the boundaries of commercial tenant liability for business invitees, reiterating that a commercial tenant does not owe a duty to its patrons to maintain a common area, such as a parking lot, that the landlord is contractually obligated to maintain.