Gibbons Law Alert

Gibbons Law Alert Blog

IP Licenses in Bankruptcy Webinar!

On February 17, 2012

The recently announced Kodak bankruptcy has focused much needed attention on the intersection of bankruptcy law with IP rights. Gibbons P.C., with robust bankruptcy and IP practices, will be participating in a live webinar on Tuesday, February 21, 2012 from 1:00 – 2:30 pm to address the impact of the Bankruptcy Code on IP licenses. The webinar will feature an update on case law developments and practical tips for dealing with IP licenses in a bankruptcy. Participants will be invited to a live Q & A session with the speakers at the end of the panel discussion. CLE credit will be available.

New Jersey District Court Enjoins Former Financial Services Employee from Taking Customer Information

by Gibbons P.C.

Posted in Restrictive Covenants

On February 17, 2012

In a case to be noted by financial services entities that are signatories to the “Protocol for Broker Recruiting,” a New Jersey District Court issued a preliminary injunction to a financial services employer, Ameriprise Financial Services, Inc. (“plaintiff”) to prevent a former financial advisor employee from retaining certain client information that he downloaded from his computer prior to his departure from plaintiff. Plaintiff was a party to the “Protocol for Broker Recruiting” that prescribes a method for a departing employee to retain certain client information when leaving for another financial services institution. To grant the injunction, the Court found that plaintiff showed it likely would succeed on its underlying breach of contract claim, it would suffer immediate irreparable harm absent the injunction, defendant would not suffer harm if enjoined, and the injunction favors the public’s interest. The Court essentially decided that if the Protocol is not followed in the first instance, a departing financial representative’s subsequent compliance is tainted and insufficient to withstand subsequent legal challenge.

Third Circuit, En Banc, Approves Settlement Class Containing Members Who Lack “Viable Claim”

by Gibbons P.C.

Posted in Class Action Defense

On February 14, 2012

The U.S. Court of Appeals for the Third Circuit has issued an en banc opinion in Sullivan v. DB Investments, Inc. affirming a District Court’s certification of two nationwide settlement classes. In sum, though the multiplicity of states’ laws would affect the predominance inquiry in a litigated nationwide class action, in the settlement context, the Circuit eased the burden somewhat by declining to require a showing that each class member possess “a viable claim” based upon what would have been the applicable state statute or law.

NJDEP Clarifies Impact of Site Remediation Reform Act on Requirements of Administrative Consent Orders and Remediation Agreements

by Gibbons P.C.

Posted in Environmental and Green Issues

On February 14, 2012

With full implementation of the Site Remediation Reform Act on the horizon, the New Jersey Department Environmental Protection (NJDEP) recently clarified that for parties currently proceeding with remediation under NJDEP oversight pursuant to an Administrative Consent Order (ACO) or Remediation Agreement (RA), such parties will be expected to engage a Licensed Site Remediation Professional no later than May 7, 2012. Any ACO/RA requirements to obtain NJDEP pre-approval of reports and workplans will be held in abeyance. Likewise, any ACO/RA specific timeframes will also be held in abeyance. Instead, responsible parties must meet all regulatory and mandatory timeframes prescribed in applicable rules. However, the ACO/RA will otherwise remain in effect until the remediation is complete or covered by a remedial action permit and parties will be subject to, among other requirements, the remediation funding source requirements and stipulated penalties.

Astra v. Apotex: CAFC Affirms Non-infringement of Method of Use Claims

by Gibbons P.C.

Posted in Pharmaceuticals

On February 13, 2012

In AstraZeneca Pharms. LP. v. Apotex Corp., the Federal Circuit ruled that an Abbreviated New Drug Application (“ANDA”), filed under § 355(j)(2)(B)(ii) and limited to FDA approved, but unpatented uses of a medication, is not an act of infringement of Orange Book-listed patents covering approved but different uses of the same medication. The Court did find that Plaintiff’s allegation that its listed patents are infringed was sufficient to establish subject matter jurisdiction over the generic Defendants.

New Jersey Chancery Division Determines Insurance Agents are Not Franchises for Purposes of the New Jersey Franchise Practices Act

by Gibbons P.C.

Posted in General Litigation

On February 10, 2012

New Jersey insurers and insurance agents must be aware that agents are not entitled to the broad protections of the New Jersey Franchise Practices Act (“NJFPA”) pursuant to a recent Chancery Division decision in DeLuca v. Allstate Insurance Co., in which the Court held that insurance agents do not meet the definition of a “franchise.” The Court thus concluded that Allstate Insurance Company was free to terminate its agents pursuant to the terms of their respective agency agreements, which permitted termination with or without cause.

Supervisor Can Be Held Liable Individually Under FMLA, Third Circuit Holds

by Gibbons P.C.

Posted in Family Leave

On February 9, 2012

In a case of first impression, the Third Circuit Court of Appeals held that a supervisor may be individually liable for violating the Family and Medical Leave Act (“FMLA”). While noting that individual liability is not recognized in some Circuit Courts, the Third Circuit in Haybarger v. Lawrence County Adult Probation and Parole reached a contrary conclusion.

Agree or Else: Delaware Adopts Revised Default Standards for Discovery

by Christopher Viceconte

Posted in General Litigation

On February 9, 2012

Effective December 8, 2011, the U.S. District Court for the District of Delaware revised its Default Standard for Discovery, Including Discovery of Electronically Stored Information (“ESI”). This third version of the Revised Default Standards contains some new provisions that apply to the discovery of ESI absent agreement by the parties or court order. The Revised Default Standards also set a detailed schedule for the initial exchange of discovery in patent litigation, and reinforce the Court’s expectation of cooperation among the parties and proportionality in the preservation, identification and production of relevant information. Some of the highlights and practical points of the Revised Default Standards are as follows:

2011: The Year Inequitable Conduct Changed

by Christopher H. Strate

Posted in Patent

On February 8, 2012

2011 was a significant year for the “atomic bomb” of patent defenses, inequitable conduct. Inequitable conduct is a defense to patent infringement that potentially renders a patent, and its family, unenforceable when a patent applicant breaches its duty of candor and good faith to the USPTO. Two traditional hurdles for succeeding on an inequitable conduct defense were showing that withheld information or falsely disclosed information was material and the patent applicant intended to deceive the USPTO.

U.S. Department of Labor Publishes Proposed Rules for Military FMLA

by Kelly Ann Bird

Posted in Family Leave

On February 8, 2012

On Monday, January 28, 2012 the United States Department of Labor (DOL) announced that it would publish a Notice of Proposed Rulemaking addressing statutory amendments to the Family and Medical Leave Act (FMLA) provisions concerning military family leave and flight crew eligibility. The proposed rules will be published in the Federal Register and interested parties may submit written comments within a defined period of time, which has not yet been specified.