Gibbons Law Alert

Gibbons Law Alert Blog

Third Circuit Opens the Door for “Hybrid” Wage & Hour Claims in New Jersey, Pennsylvania, Delaware, and the U.S. Virgin Islands

On April 4, 2012

On March 27, 2012, the United States Court of Appeals for the Third Circuit issued a precedential decision in Knepper v. Rite Aid Corp. which dramatically alters the landscape for wage and hour litigation for employers operating in the jurisdictions within the Third Circuit, i.e., in New Jersey, Pennsylvania, Delaware, and the U.S. Virgin Islands. Specifically, the Third Circuit ruled that the procedures for litigating a class action alleging state wage and hour violations is not “inherently incompatible” with the procedures for litigating a collective action under the federal Fair Labor Standards Act (“FLSA”). As a result, courts in these jurisdictions may well see a wave of hybrid class/collective actions alleging wage and hour violations under both the FLSA and the corresponding state wage and hour laws in the same complaint.

Gibbons Welcomes Charles H. Chevalier, Esq.

by Gibbons P.C.

Posted in Patent

On April 4, 2012

Gibbons is pleased to announce that Charles H. Chevalier, Esq. has joined the firm as an Associate in the Intellectual Property Department. He will reside in Gibbons Newark office. Prior to joining Gibbons, Charles was an attorney at Fitzpatrick, Cella, Harper & Scinto, where he focused his practice on complex patent litigation. Charles received his J.D., cum laude, from Seton Hall University School of Law and his B.A., in Biochemistry, from Swarthmore College.

Third Circuit Rejects Employee’s Unconscionability Arguments in Compelling Arbitration

by Gibbons P.C.

Posted in Class Action Defense

On April 4, 2012

In Quilloin v. Tenet HealthSystem Phila. Inc., the Third Circuit reversed the Eastern District of Pennsylvania’s denial of a motion to compel arbitration, finding error in the district court’s conclusion that genuine disputes of material fact might render the parties’ arbitration agreement unconscionable and unenforceable under Pennsylvania law.

NJ Bulk Sales Notification Requirements

by Gibbons P.C.

Posted in Transactional Real Estate and Leasing

On April 2, 2012

Russell B. Bershad, Co-Chair of the Gibbons Real Property & Environmental Department and Peter J. Ulrich, a Director in the Gibbons Corporate Department, recently co-authored an article published in the New Jersey Law Journal entitled, “N.J. Bulk Sales Notification Requirements: Recent Changes and Guidance.” The article describes key issues of concern with applicability of the law which was broadened significantly in 2007 and then scaled back last fall.

E-SIN: Court Orders Identification of Suspected Porn Pirates

by Paul E. Asfendis

Posted in E-Discovery: Legal Decisions and Court Rules

On April 2, 2012

“Anonymous” copyright infringers — in this case the downloaders of a pornographic video — should take note of a recent decision. In what is becoming increasingly common, a court was recently asked by a copyright holder to issue an order requiring non-party Internet Service Providers (“ISP”) to identify individual Internet users for purposes of filing a copyright lawsuit against them pursuant to 17 U.S.C. § 101 et seq.

EEOC Publishes New ADEA Regulations for the “Reasonable Factors Other Than Age” Defense

by Richard S. Zackin

Posted in Discrimination

On March 30, 2012

The Equal Opportunity Commission (“EEOC”) today published its final regulations and commentary concerning the “reasonable factors other than age” provision of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), as that provision pertains to claims of disparate impact. A disparate impact claim is one that alleges that the implementation by an employer of a policy or practice, although non-discriminatory on its face, has had an adverse impact on a category of employees protected by the laws against discrimination in employment.

Inadvertent Production of Two Privileged Pages Among Over Two Million May Waive the Attorney-Client Privilege

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On March 30, 2012

The burdens associated with a massive document review of electronically-stored information (“ESI”) will not, in and of themselves, preclude a court from finding that a party has waived the attorney-client privilege with respect to an inadvertently produced document. In Jacob v. Duane Reade, Inc., Magistrate Judge Katz of the United States District Court for the Southern District of New York held that a privileged, two-page email that was inadvertently produced during the review of over two million documents in less than one month did not have to be returned and that the privilege had been waived because the producing party, Duane Reade, had failed to timely request its return. Duane Reade had used an outside vendor and review team to conduct its review of this large volume of ESI. The document in question concerned a meeting among several individuals, including an in-house attorney at Duane Reade. Duane Reade argued that the email was inadvertently produced because it was neither from nor to an attorney, and only included advice received at a meeting from an in-house attorney, identified in the email only by the first name “Julie.”

Federal Circuit to Revisit Myriad after Mayo Decision

by Charles H. Chevalier

Posted in Biotech / Patent

On March 30, 2012

On Monday, the United States Supreme Court granted certiorari in the well-publicized Assn. For Molecular Pathology v. Myriad Genetics, et al. case (“Myriad”) for the purpose of vacating the underlying Federal Circuit decision — finding isolated DNA sequences from human genes as patentable subject matter — and remanding the case for reconsideration in view of its recent ruling in Mayo Collaborative Services, et al. v. Prometheus Laboratories, Inc. (“Mayo”).

Pinterest: Potential IP Pitfalls for New Social Networking Trend

by Gibbons P.C.

Posted in Copyright / Trademarks

On March 30, 2012

Pinterest, a play on words of “pin” and “interest,” is a virtual, online “pin board,” where user’s can organize and share things they find on the web. While Pinterest is attracting a loyal community of social media users, the site is also the source of some concern for those same users and owners of intellectual property. The stated Mission of Pinterest is “to connect everyone in the world through the ‘things’ they find interesting . . . a favorite book, toy, or recipe [which] can reveal a common link between two people.

Third Circuit Finds That Failing to Produce Original Documents May Constitute Sanctionable Spoliation

by Susan L. Nardone

Posted in Discrimination / E-Discovery: Legal Decisions and Court Rules

On March 28, 2012

Although in recent years employers have become increasingly focused on the preservation, discovery and production of electronically-stored information, the Third Circuit’s January 4, 2012 decision in Bull v. United Parcel Service serves as a reminder to companies that original documents can and often do play a critical role in employment litigation matters. The preservation and discovery of originals should not be overlooked. Employers should be certain to both request original documents in discovery (and pursue their production through motion practice as necessary) and take necessary steps to preserve originals when litigation is threatened or commenced.