Gibbons Law Alert
A lead plaintiff in a consumer class action who attempts to recant allegations in her complaint concerning the date she purchased the product at issue places her credibility in issue and, therefore, subjects her claim to unique defenses. Such a plaintiff may not be an adequate class representative under Rule 23(a)(4) and therefore may not be able to certify a class.
The National Labor Relations Board’s Acting General Counsel recently issued a report and press release summarizing the outcomes of recent NLRB cases involving employees’ use of social media and the legality of employers’ social media policies. Among the cases discussed in the report are several in which the Board found that provisions of employers’ social media policies violated Section 8(a)(1) of the National Labor Relations Act, which prohibits work rules that would “reasonably tend to chill employees in the exercise of their Section 7 rights” to engage in “concerted activities” for the purpose of “mutual aid or protection.”
Earlier this week the Federal Circuit affirmed an International Trade Commission (“ITC”) decision by refusing to find a patent owner complainant’s litigation expenses satisfied the “domestic industry” requirement of 19 U.S.C § 337. The Court’s decision in John Mezzalingua Assocs. (d/b/a PPC, Inc.) v. International Trade Comm’n, 2010-1536 (Fed. Cir. October 4, 2011) is a blow to ITC complainants, in particular, non-practicing entities intent on relying solely on patent litigation expenses to establish the domestic industry requirement of § 337.
On September 27, 2011, Chief Judge Randall Rader of the Federal Circuit announced that the Advisory Council of the Federal Circuit unanimously adopted a Model Order regarding e-discovery in patent cases. Its purpose is to serve as a “starting point” for district courts to streamline and reduce e-discovery costs, emphasizing email production limits.
As previously reported in the Employment Law Alert, the National Labor Relations Board (the “Board” or “NLRB”) recently issued a final rule requiring most private-sector employers to post a notice of employee rights to unionize in their workplaces. On October 5, 2011, the Board announced that it is delaying the posting’s effective date from November 14, 2011 until January 31, 2012 “in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.”
The Bench Bar Media Committee of the New Jersey Supreme Court (“Committee”) has adopted, and forwarded to the Supreme Court, Guidelines for the Usage of Electronic Devices in New Jersey state courts. The proposed Guidelines comprehensively address the use of Electronic Devices in the courtroom, the common areas of a courthouse and the grounds of a courthouse. If adopted by the Supreme Court, the proposal will represent a major revision to the existing Guidelines.
The Third Circuit has made it clear that the Twombly/Iqbal pleading standard — which requires plaintiffs to plead enough facts to state a claim “that is plausible on its face” — applies to allegations of states of mind, such as knowledge and intent, notwithstanding Rule 9(b)’s allowance that such matters “may be alleged generally.”
Gibbons is pleased to announce that Nicole E. Taplin, Esq. has joined the firm as an Associate in the Gibbons Real Property & Environmental Department. Nicole concentrates her practice on commercial real estate transactions including acquisitions, dispositions, financings and leasing matters. Nicole received her J.D. from the University of Miami School of Law and her B.A., in economics and philosophy, from Emory University. Admitted to practice in the States of New Jersey and Florida, she represents clients in various aspects of commercial real estate, including the negotiation, documentation and closing of the sale, purchase and development of vacant land, office buildings, apartment buildings and complex mixed-use projects. She also has significant experience representing owners and developers in the structuring, creation and operation of residential, commercial, mixed-use and hotel condominiums, homeowners’ associations and planned communities.
In Mitchell Partners, L.P. v. Irex Corporation, et al., the Third Circuit concluded that Pennsylvania’s appraisal statute does not preclude dissenting minority shareholders who are “squeezed out” in a merger from seeking remedies beyond the appraisal remedies provided in the statute. In the precedential ruling, the Third Circuit predicted that the Supreme Court of Pennsylvania would “permit a post-merger suit for damages based on the majority shareholders’ breach of their fiduciary duties.”
The National Labor Relations Board (the “Board” or “NLRB”) recently issued a final rule requiring most private-sector employers to post a notice of employee rights under the National Labor Relations Act (the “Act” or “NLRA”) in their workplaces. (Chapter 1 of the Board’s An Outline of Law and Procedure in Representation Cases details which employers fall within the Act’s jurisdiction.) Business and industry associations, including the United States Chamber of Commerce, the National Association of Manufacturers, and the National Federation of Independent Business have filed suits challenging the Board’s authority to issue such a rule. Absent a decision by the courts that, in the words of NLRB Member Brian Hayes — who issued a dissent to the rule (starting at page 54037) — would “rescue the Board from itself and restore the law to where it was before the sorcerer’s apprentice sent it askew,” employers must post the notice by November 14, 2011.