Gibbons Law Alert
On cross appeals from a $1.4 million judgment, the Superior Court of Pennsylvania, in Portside Investors, L.P. v. Northern Ins. Co. of N.Y., affirmed judgment in favor of an insured for breach of a property insurance policy, but also affirmed judgment in favor of the insurer on the insured’s statutory claim for bad faith under 42 Pa.C.S.A. § 8371.
An effective and up-to-date set of records management policies may help companies reduce the likelihood of sanctions and other adverse consequences by ensuring records are retained and preserved in accordance with legal requirements, according to Gibbons Director Phillip Duffy; TechLaw Solutions’ Northeast Regional Director Michael Landau; and Inventus LLC Senior Consultant Bryan Melchionda.
Recently, a federal court in Illinois held in Thorncreek Apartments III, LLC v. Village or Park Forest that a defendant waived the attorney-client privilege when it inadvertently produced 159 documents that it later claimed were privileged. The defendant’s failure to take reasonably adequate measures to prevent such disclosure serves as a lesson for all attorneys, especially those who manage large, rolling document productions with the help of a vendor.
In a recent case in California, Facebook account holders filed a putative class action lawsuit against Facebook, alleging that Facebook knowingly forwarded personal information to online advertisers without its users’ consent. In In re Facebook Privacy Litigation, Plantiffs asserted eight causes of action against Facebook, including violations of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510, et seq. and various California laws (both statutory and common law), and all were dismissed.
An 1881 deed and an 1882 Supreme Court decision formed the background for a very modern controversy recently addressed by the Pennsylvania Superior Court. The decision, Butler v. Estate of Powers, casts a shadow over ownership rights in natural gas contained in the Marcellus Shale formation, and has left many companies in the “fracking” industry uncertain about what they own.
Oral argument was recently heard before the Federal Circuit in the appeal of AstraZeneca Pharms. LP. v. Aurobindo Pharma Ltd. AstraZeneca, along with IPR Pharmaceuticals, Inc., and The Brigham and Women’s Hospital, Inc., (“Plaintiffs) sued ten generic drug companies alleging infringement of US Patent Nos. 6,858,618 (“the ‘618 patent”) and 7,030,152 (“the ‘152 patent”) under the Hatch-Waxman Act. These patents claim methods of treatment using rosuvastatin calcium, which Plaintiffs market as Crestor®.
The issue of whether pharmaceutical company sales representatives who promote their employer’s products to doctors and hospitals are exempt from the overtime requirements of the Fair Labor Standards Act (“FLSA”) has spurred litigation across the country. Courts have considered whether these employees are entitled to overtime compensation or are exempt under the “outside salesman” or “administrative” exemptions recognized by the FLSA. The results have been inconsistent, leaving employers with many questions. For example, the Second Circuit (covering the states of New York, Connecticut, Vermont) has held that the pharmaceutical company sales representatives at issue did not qualify for either the “outside salesman” or “administrative” exemptions and were entitled to overtime compensation. Conversely, the Ninth Circuit (covering California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) recently held the pharmaceutical sales representatives were exempt from the FLSA’s overtime requirements under the “outside salesman” exemption, noting that the term “sale” must be ready broadly to include employees who “in some sense” sell. The Ninth Circuit ruled that the Department of Labor regulations, which supported a finding that the “outside salesman” exemption applied to the pharmaceutical representatives, were entitled to substantial deference and disagreed with the Second Circuit’s conclusion to the contrary. Most recently, the Third Circuit (covering New Jersey, Pennsylvania and Delaware) held that a pharmaceutical company’s sales representatives qualified for the “administrative” exemption in large part because they “executed nearly all of [their] duties without direct oversight.” Interestingly, despite the different results, the sales representatives at issue in the cases decided by the Second and Third Circuits performed similar functions.
As we previously reported on September 6, 2011, the New Jersey Department of Labor and Workforce Development (NJDOL) adopted the so-called “white collar” exemptions for Administrative, Executive, Professional, Outside Sales, and Computer employees as contained in the Federal Fair Labor Standards Act (“FLSA”). Employers are not required to pay overtime compensation (i.e. compensation at the rate of 1.5 percent of the employee’s regular hourly rate) to an employee who qualifies for one of these exemptions. The new regulations were intended to provide consistency between federal and New Jersey law. They leave open the possibility, however, that employees who previously qualified for an exemption under New Jersey law may now have to be reclassified as non-exempt. The issue is raised by the New Jersey Appellate Division’s recent decision in Anderson, et al. v. Phoenix Health Care, Inc., et al.
The Gibbons Real Property & Environmental Department will once again exhibit at the International Council of Shopping Centers (ICSC) National Conference & Deal Making Idea Exchange at the Hilton New York on December 5-6. The Department’s booth will be in the same location as prior years, #490 in Americas Hall II. Stop by and meet with some of the Department’s seven attorneys who will be attending. Show hours are Monday, December 5, from 9:00 am to 5:30 pm, and Tuesday, December 6, from 8:30 am to 4:00 pm.
The recent establishment of .XXX, a new Top-Level Domain Name (“TLD”) intended for adult-oriented content, has been met with some trepidation and sparked controversy from those within and outside of the adult-oriented industries. Although much has been made of the threat of .XXX cybersquatting relating to mainstream companies, institutions and brands, ironically, the first formal legal challenge to the .XXX TLD, comes from those within the adult industry.