Gibbons Law Alert

New York Appellate Division Strikes Conditions of Approval Unrelated to Site Plan Which Arose from Applicant’s Past Conduct

On May 31, 2012

In its recent decision in the Matter of Kempisty v. Town of Geddes, the Appellate Division, Fourth Department, provides an important reminder to approving authorities that conditions attached to the approval of site plans must have some legitimate relationship or “nexus” to the project’s impacts or they will be stricken. Although the case breaks no new ground, it does effectively outline the considerations that should be applied when determining whether to impose conditions of approval.

Seventh Circuit Applies FLSA’s Administrative Exemption to Pharmaceutical Sales Representatives

by Richard S. Zackin

Posted in Wage and Hour

On May 29, 2012

The United States Court of Appeals for the Seventh Circuit has held that two pharmaceutical companies did not violate the Fair Labor Standards Act (FLSA) by failing to pay overtime to their sales representatives, concluding that the FLSA’s “administrative exemption” from the statute’s overtime requirements was applicable to these employees. Although the Court’s opinion focused on the job duties of pharmaceutical sales representatives (PSRs), the Court’s analysis of the general scope of the administrative exemption may prove useful to employers in other industries.

Update: GPX Intl. Tire Corp. v. U.S.: Federal Circuit Grants Rehearing and Remands to the Trade Court

by Gibbons P.C.

Posted in International Trade Commission

On May 29, 2012

On December 19, 2011, in GPX Intl. Tire Corp. v. U.S., the Federal Circuit affirmed the International Court of Trade’s ruling that countervailing duty law does not apply to a non-market economy (“NME”) country, such as China. We previously summarized the Federal Circuit’s ruling. Recently, the United States and Titan Tire Corporation petitioned for a rehearing of the Federal Circuit’s decision. While the petition was pending, Congress passed legislation to apply countervailing duty law to NME countries. The new legislation applies retroactively and applies to this case. Congress’ intent plainly was to overrule the Court’s previous decision. Further, the new legislation contains a provision regarding an adjustment of antidumping duties on imported goods. This so-called “double counting” provision does not apply to the rehearing proceeding. Although the scope of the new legislation is clear, the appellees argue that it is unconstitutional. As a result, the Federal Circuit ordered that the Trial Court should decide this issue.

Strategic Growth in the Face of a Recession: Gibbons IP Department Continues to Soar While Matching Clients’ Needs

by Gibbons P.C.

Posted in Patent

On May 25, 2012

David E. De Lorenzi, Chair of the Gibbons Intellectual Property Department, was interviewed recently by Metropolitan Corporate Counsel regarding the IP Department’s strategic growth strategies during the recent economic downturn and the resulting added benefits to the firm’s clients. A copy of the complete interview may be viewed here.

Following Kappos v. Hyatt, Supreme Court Denies Certiorari in Streck v. R&D Systems

by Gibbons P.C.

Posted in Patent / USPTO

On May 23, 2012

The Supreme Court on Monday denied Research & Diagnostics Systems Inc.’s petition for a writ of certiorari to consider the degree of deference that should be afforded administrative decisions of the PTO on appeal to Federal District Court when new evidence is presented. Streck Inc. sued R&D Systems, a blood test technology company, for patent infringement in Federal District Court. A Nebraska jury held R&D Systems liable for infringement following a finding that it had failed to establish a claim of priority over the disputed patents. In a parallel interference proceeding, the PTO awarded priority to R&D Systems. Streck appealed the PTO ruling in District Court under 35 U.S.C. § 146, where a patent holder may appeal a PTO determination concerning priority made pursuant to an interference proceeding.

Industry Report Criticizes EPA Fracking Study for Poor Design, Insufficient Data

by Paul M. Hauge

Posted in Environmental and Green Issues

On May 23, 2012

As we reported this past December and January, last year the U.S. Environmental Protection Agency (EPA) released a draft report that linked contamination found in wells near Pavillion, Wyoming to the practice of hydraulic fracturing, or fracking. A report prepared for an oil and gas industry group, however, says the EPA study was deeply flawed.

Your Tweets May Be Held Against You in a Court of Law – #tweetsdiscoverable

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On May 23, 2012

In a recent case before the Criminal Court of the State of New York, the prosecution served a subpoena duces tecum on Twitter, Inc., seeking user information including the e-mail address and Tweets for a two-month period under the Twitter account, @destructuremal, which was believed to be that of the defendant Malcolm Harris. The People of the State of New York v. Harris, Index No. 080152/2011, (Crim. Ct. Apr. 20, 2012). Mr. Harris had been charged with disorderly conduct after allegedly marching on to the roadway of the Brooklyn Bridge during an Occupy Wall Street protest. The prosecution sought to refute Mr. Harris’s expected defense that the police led him into stepping on to the roadway of the Brooklyn Bridge, by examining his contradictory, contemporaneous Tweets.

New Jersey Legislative Update: New Laws Could Limit Employer’s Use of Credit Reports and Social Networking Information

by Gibbons P.C.

Posted in Policies and Handbooks

On May 22, 2012

If passed into law, two bills currently pending before the New Jersey General Assembly will place significant limitations on the categories of information that New Jersey employers may use and rely upon in connection with the hiring, promotion, and termination of employees. Credit Reports & Related Information – Bill A2840, introduced in the Assembly on May 10, 2012, proposes legislation that would prohibit an employer from obtaining, requiring or otherwise basing employment decisions, such as hiring, promotion, and discipline on reports containing information about an applicant’s or current employee’s credit history, credit score, credit account balances, payment history, and savings or checking account balances or numbers.

Clean it Up New York Landlords – Tenants May Have a Toxic Mold Case Against You

by Gibbons P.C.

Posted in Environmental and Green Issues

On May 21, 2012

For several years, landlords in New York have defended against personal injury liability for mold, arguing that Fraser v. 301-52 Townhouse Corp., 870 N.Y.S.2d 266 (2008), established a categorical rule that epidemiological studies were insufficient to support a finding of causation for respiratory illnesses. In a recent Appellate Division decision, Cornell v. 360 West 51st Street Realty, LLC, 939 N.Y.S.2d 434 (App. Div. 2012), the Court clarified Fraser and held that the scientific evidence in each case should be evaluated under the Frye test, thus opening the door to mold cases.

Social Media in the Securities Industry: Complying with Reg FD

by Gibbons P.C.

Posted in Corporate Information and Records Management Policies

On May 21, 2012

Delivering non-public material information through Internet-based social media, especially social networking sites such as Facebook, LindedIn, and Twitter, means that this information will first reach only a fraction of the investing public — those who “follow” the company using those platforms. As illustrated by the hypothetical below, this may create a potential “Reg FD” issue for a public company. As we addressed in a previous blog, the SEC has recently issued guidance to investment advisers concerning their use of social media. We have also addressed in a previous blog that FINRA, too, has issued Regulatory Notices which make it clear that member firms are expected to have policies and procedures in place that cover the use of social media by the firm and its associated persons. While direct guidance to public companies on the use of social media to report a company’s material financial matters has yet to issue, this post offers suggestions for avoiding pitfalls in this regard.