Gibbons Law Alert

Gibbons Law Alert Blog

Third Circuit Affirms Bankrupt Asbestos Defendants’ Transfer of Insurance Recovery Rights to Personal Injury Trusts Notwithstanding Insurance Policies’ Anti-Assignment Provisions

Posted in General Litigation / Insurance

On May 18, 2012

The U.S. Court of Appeals for the Third Circuit, in its May 1, 2012, decision in In re: Federal-Mogul Global, Inc. held that asbestos defendants who file Chapter 11 petitions and seek to resolve their asbestos-related liabilities through the creation of a personal injury trust under Section 524(g) of the Bankruptcy Code may transfer their rights under their liability insurance policies to the trust notwithstanding the policies’ anti-assignment provisions.

New York Court Dismisses $20 Million Case as Spoliation Sanction

by Paul E. Asfendis

Posted in E-Discovery: Legal Decisions and Court Rules

On May 18, 2012

In a recent decision out of the New York State Supreme Court in Manhattan, a spoliator’s worst fears were recognized when the Court dismissed its entire Complaint as a sanction for failing to preserve electronic evidence. The decision, 915 Broadway Associates, LLC, v. Paul, Hastings, Janofsky & Walker, LLP, 2012 NY Slip. Op. 50285U (N.Y. Sup. February 16, 2012), is instructive in its clear statement and analysis of New York’s spoliation law and its demonstration of the Court’s willingness to impose the ultimate spoliation sanction where warranted.

Employee Participation in Internal Investigation Not Covered by Anti-Retaliation Provision of Title VII, According to Second Circuit

by Gibbons P.C.

Posted in Discrimination

On May 17, 2012

The Second Circuit, in a case of first impression, ruled that an employee is not protected against retaliation prohibited by Title VII of the Civil Rights Act of 1964 (“Title VII”) for participating in an investigation of sexual harassment conducted by an employer before a charge of discrimination has been filed with the Equal Employment Opportunity Commission (“EEOC”). Although under Title VII, employers are duty-bound to appropriately remedy discrimination and harassment in the workplace uncovered by such investigation, employers in the Second Circuit can breathe a modest sigh of relief that a negative employment action affecting an employee who claims protection under Title VII based on “participating” in an investigation following an internal complaint is not actionable.

Twitter’s Twist on Patents

by Gibbons P.C.

Posted in Patent

On May 17, 2012

Last month, Twitter introduced a draft of a radical employee patent assignment plan that the company hopes will play a part in a world “that fosters innovation, rather than dampening it.” The popular social media platform hopes that this initiative will affect how companies use their patents, which according to Twitter, sometimes impedes the innovation of others.

Court Applies the Brakes to “Quickie” Election Rules

by Gibbons P.C.

Posted in Labor

On May 16, 2012

As previously discussed on the Employment Law Alert, the National Labor Relations Board (the “Board” or the “NLRB”) recently implemented a rule that could speed up the union election process and, in turn, leave employers with less time to communicate their positions on unions to employees. Yesterday, the United States District Court for the District of Columbia declared the rule invalid because only two Board members were “present” when the NLRB passed the rule last December. The court explained that the Board did not satisfy the National Labor Relations Act’s requirement that the NLRB have a quorum (typically the presence of three Board members) to conduct business when it voted on the rule. “According to Woody Allen, eight percent of life is just showing up,” wrote the court. “When it comes to satisfying a quorum requirement, though, showing up is even more important than that.”

Predictive Coding Upheld by District Court: Judge Carter Endorses Judge Peck’s Approval of Computer-Assisted ESI Review

by Phillip J. Duffy

Posted in E-Discovery: Legal Decisions and Court Rules

On May 16, 2012

On March 2, 2012, we reported on Magistrate Judge Andrew Peck’s February 24, 2012 decision in Monique Da Silva Moore, et al., v. Publicis Groupe & MSL Group, Civ. No. 11-1279 (ALC)(AJP) (S.D.N.Y. Feb. 24, 2012), wherein Judge Peck issued the first judicial opinion approving the use of predictive coding “in appropriate cases.” On April 25, 2012, District Judge Andrew L. Carter, Jr. rejected plaintiffs’ bid to overturn that decision, and cleared the way for the use of computer-assisted ESI review in this case and others.

Recent Impact of Reexams on Stays in E.D. Texas

by Gibbons P.C.

Posted in Patent

On May 15, 2012

A district court’s inherent powers to control its docket and to stay proceedings are well-settled, harkening back to at least Landis v. N. Am. Co., 299 U.S. 248 (1936). Within the Eastern District of Texas, in determining whether a stay is warranted pending reexamination in a patent litigation, district courts typically consider factors such as whether a stay will unduly prejudice one party; whether a stay will simplify the issues in the case; and whether discovery is complete and a trial date has been set. E.g., Soverain Software LLC v. Amazon.com, Inc., 356 F.Supp.2d 660, 662 (E.D.Tex.2005).

Chapter 91 – Failure to Comply Still Absolute Bar to Tax Appeal in N.J.

by Shepard A. Federgreen

Posted in Transactional Real Estate and Leasing

On May 14, 2012

In United Parcel Service v. Secaucus, UPS failed to properly respond to a request for information as to income and expenses made by the tax assessor pursuant to N.J.S.A. 54:4-34, universally known as a “Chapter 91 request.” Later, when UPS brought an action in the Tax Court to challenge its 2011 assessment, the assessor moved to have the action dismissed due to UPS’s failure to properly respond to the Chapter 91 request. This is what a tax assessor typically does in these circumstances because the statute is clear that the failure of the owner to respond to a Chapter 91 request within 45 days is an absolute bar to the right to bring an appeal of the assessment.

ESI Guidelines for the Bankruptcy Case: The ABA’s Electronic Discovery in Bankruptcy Working Group Issues Interim Report

by Gibbons P.C.

Posted in Technology Developments and Issues

On May 14, 2012

Although the Federal Rules of Civil Procedure were updated in 2006 specifically to deal with electronically stored information (“ESI”), Bankruptcy Courts and Bankruptcy practitioners have had little bankruptcy-specific guidelines for managing ESI and electronic discovery issues. As a result, the ABA commissioned the Electronic Discovery (ESI) in Bankruptcy Working Group “to study and prepare guidelines or a best practices report on the scope and timing of a party’s obligation to preserve [ESI] in bankruptcy cases.” On March 15, 2012, the Working Group published their interim report on ESI in bankruptcy cases in an effort to invite and stimulate comments from a wider audience regarding how ESI issues should be handled in (i) large Chapter 11 cases; (ii) middle market and smaller Chapter 11 cases; and (iii) Chapter 7 and Chapter 13 cases.

New Law Generates Buzz Among South Jersey’s Wine Growers

by Brett S. Theisen

Posted in Liquor Licensing

On May 11, 2012

On May 1, 2012, a law took effect that will allow New Jersey farmers and wineries to skip wholesalers and sell directly to retailers and consumers. The new law grants similar rights to out-of-state wineries and finally cleared the way for the Garden State to begin issuing new winery licenses to growers. While local business and political leaders are hoping the relaxed regulations will encourage further investment in the state’s wine industry, producers, retailers, and wine lovers alike are cheering the increased access to locally-grown wines ahead of the summer tourism season.