Gibbons Law Alert

Gibbons Law Alert Blog

Computer Fraud and Abuse Act Continues to be “Employer Friendly”

On December 29, 2011

The Computer Fraud and Abuse Act (“CFAA”) is a federal law that, in part, makes it a crime to access a computer in an unauthorized manner. In the employment context, the statute has proven valuable in protecting confidential and proprietary information that employees can access on their employers’ electronic systems. Recent decisions by the United States Courts of Appeals for the Ninth and Third Circuits emphasize the breadth of the CFAA’s application to the workplace.

NLRB Postpones Effective Date of Workplace Posting Requirement – Again

by Gibbons P.C.

Posted in Labor

On December 28, 2011

We previously reported that the National Labor Relations Board (the “Board” or “NLRB”) issued a final rule requiring most private-sector employers to post a notice of employee rights to unionize in their workplaces. In a follow-up report, we explained that the Board delayed the posting’s effective date from November 14, 2011 until January 31, 2012 in the wake of lawsuits filed by business and industry organizations (including the United States Chamber of Commerce, the National Association of Manufacturers and the National Federation of Independent Business challenging the NLRB’s authority to issue such a rule. The Board recently announced that it once again is postponing the effective date of the posting — this time until April 30, 2012 — in order to “facilitate the resolution of the legal challenges that have been filed with respect to the rule.” We continue to encourage employers to take advantage of this additional time to assess the potential impact that the required posting may have on their workplaces, and the manner in which they may want to communicate with employees regarding their positions on unions (if any). Attorneys in Gibbons Employment and Labor Law Department have extensive experience counseling both union and non-union employers regarding labor relations issues. If you have any questions regarding the impact that this rule may have on your business, please feel free to contact any of the attorneys in the Department.

Southern District of New York Implements Pilot Program to Require Early Identification & Resolution of E-Discovery Issues in Complex Cases

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules / Litigation Preparedness and Strategies

On December 22, 2011

The Judicial Improvements Committee of the Southern District of New York issued a report announcing the initiation of a Pilot Project Regarding Case Management Techniques for Complex Civil Cases (the “JIC Report”) in October 2011. The pilot project, which became effective on November 1, 2011, is designed to run for 18 months and for now, applies only to specific matters designated as “complex cases.” The project, which seeks to enhance the caliber of judicial case management, arose out of recommendations from the May 2010 Duke Conference on Civil Procedure and E-Discovery. This blog posting focuses on that portion of the pilot program devoted to the discovery of electronically stored information (“ESI”).

Southern District of New York Implements Pilot Program to Govern Pretrial Procedures in Complex Civil Cases

by Daniel S. Weinberger

Posted in General Litigation

On December 22, 2011

The Judicial Improvements Committee of the Southern District of New York issued a report for a Pilot Project Regarding Case Management Techniques for Complex Civil Cases (the “JIC Report”) in October 2011. The pilot project is designed to run for 18 months and apply to certain matters designated as complex civil cases. The “complex civil case” designation applies to class action lawsuits, multi-district litigation actions, stockholder suits, most product liability cases, antitrust suits, patent and trademark suits, securities cases, environmental matters and cases involving the constitutionality of state statutes. Although many Southern District of New York judges already had individual procedures in place similar to those implemented by the JIC, some of the more novel aspects of this pilot project are described below.

Claims Handling Manuals Discoverable in Bad Faith Insurance Actions

by Gibbons P.C.

Posted in Insurance

On December 16, 2011

In Platt v. Fireman’s Fund Insurance Company, the Eastern District of Pennsylvania held that an insurer sued for insurance coverage benefits and for bad faith under Pennsylvania law was required to produce any material which pertains to instructions and procedures given to the adjuster for adjusting the plaintiff’s claims.

Chief Judge Finds That Alteration of Facebook Page Can Lead to Spoliation Inference

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On December 16, 2011

In a trademark infringement case involving two restaurants, Katiroll Company, Inc. v. Kati Roll and Platters, Inc. et al., Plaintiff sought a spoliation inference, alleging various discovery abuses involving several types of evidence including social media. Specifically, Plaintiff requested sanctions for the individual Defendant’s failure to preserve his Facebook pages in two different ways. Recognizing that Facebook users change their pages frequently given the nature of the media at issue, Chief Judge Brown of the District of New Jersey crafted a creative remedy, which was based in large part on the level of prejudice to Plaintiff.

EPA Report Points to Fracking as Possible Source of Groundwater Contamination

by Paul M. Hauge

Posted in Environmental and Green Issues

On December 14, 2011

A draft report from United States Environmental Protection Agency’s (EPA) Office of Research and Development has tentatively pointed a finger at hydraulic fracturing (“fracking”) as a cause of groundwater contamination detected in a number of wells near the town of Pavillion, Wyoming. The report, which has not yet undergone outside peer review, is likely to set off alarm bells among both proponents and opponents of fracking, including those in eastern states like New York, New Jersey, and Pennsylvania.

Update: IPXI Gains Momentum as Five More Entities Join and $10 Million is Secured from Investors

by Gibbons P.C.

Posted in Patent

On December 14, 2011

Gibbons published an IP Law Alert this summer describing the forthcoming Intellectual Property Exchange International (“IPXI”). Along with providing background information about how the IPXI will monetize patents, and the process for listing an IP asset on the IPXI, this post discussed the growing pains associated with starting a financial exchange pegged to IP.

NYSBA Publishes Guidelines for “Best Practices In E-Discovery”

by Gibbons P.C.

Posted in Litigation Preparedness and Strategies

On December 14, 2011

The E-Discovery Committee of the Commercial and Federal Litigation Section of the New York State Bar Association recently issued a Report entitled, “Best Practices in E-Discovery in New York State and Federal Courts.” The Report offers fourteen (14) “Guidelines” for the New York litigator dealing with ESI, and includes a helpful glossary and bibliography. The Report provides a brief and straightforward interpretation of the current state of e-discovery law and recommendations on how to “best” navigate that current landscape.

Coming Soon to New Jersey . . . Trade Secrets Law!

by Thomas J. Bean

Posted in Trademarks

On December 13, 2011

New Jersey, along with New York, Massachusetts and Texas, are the only states that have not adopted some form of the Uniform Trade Secrets Act. Not for much longer. Last week, the New Jersey Trade Secrets Act, A-921/S-2456 passed unanimously in the New Jersey Assembly, and is on its way to the Governor’s desk. Governor Christie will have 45 days to sign the measure into law. Once enacted, the law will be effective immediately, but will not apply retroactively.