Gibbons Law Alert

Gibbons Law Alert Blog

New Jersey Adopts Federal White-Collar Overtime Exemptions

On September 20, 2011

The New Jersey Department of Labor and Workforce Development (“NJDOL”) has adopted the so-called “white collar” exemptions for Administrative, Executive, Professional, Outside Sales, and Computer employees as contained within the Federal Fair Labor Standards Act (“FLSA”). The adoption of these changes – which are considered by many to be long overdue – was announced in the New Jersey Register on September 6, 2011. The new regulations became effective immediately upon publication. As explained below, these changes will benefit employers and provide clarity and consistency to the wage and hour landscape in New Jersey.

The Gibbons Institute of Law, Science & Technology presents “The 2011 Federal Circuit Year in Review”

by Gibbons P.C.

Posted in Patent

On September 19, 2011

On October 3, The Gibbons Institute of Law, Science & Technology will host its annual “Federal Circuit Year in Review” event at Seton Hall Law School. Ralph A. Dengler, Counsel to the Gibbons Intellectual Property Department, along with a panel of practitioners and jurists, including Chief Judge Brown and District Judge Simandle of the District of New Jersey, will review and discuss the Federal Circuit’s key decisions from 2011, and their practical and future implications for the bar. These discussions will include cases involving damages; inequitable conduct; jurisdiction and venue; licensing; patentability of business methods; and preservation of ESI in anticipation of litigation, among other topics.

Limited Partners May Be Liable for Partnership’s Obligations Under Traditional Veil-Piercing Standards

by Christopher Walsh

Posted in General Litigation

On September 19, 2011

In Canter v. Lakewood of Voorhees, the Appellate Division held that limited partners may be liable for their partnership’s obligations under traditional common-law veil-piercing standards, as well as under the circumstances set forth in the limited partnership statute. In a negligence suit against a nursing home and one of its limited partners, the limited partner sought to avoid liability by arguing that limited partners may be liable to third parties for the partnership’s obligations only under the narrow circumstances set forth in the New Jersey Uniform Limited Partnership Law, specifically N.J.S.A 42:2A-27(a) .

Corporate Officers and Employees May Be Liable for Corporation’s Violations of Consumer Fraud Act

by Christopher Walsh

Posted in General Litigation

On September 19, 2011

In Allen v. V and A Bros., Inc., the New Jersey Supreme Court broke new ground under the New Jersey Consumer Fraud Act (“CFA”) by holding that officers and employees of corporations and other businesses can be personally liable under the CFA for the entity’s CFA violations, even when the violations are regulatory in nature and do not require affirmative actions by the corporation’s agents and employees. Indeed “principals” of a corporation will be “broadly liable” for the corporation’s CFA violations.

AT&T Mobility Permits Nullification of Arbitration Agreements Containing Class-Action Waivers When Agreements are so Ambiguous and Internally Inconsistent that Mutual Assent is Lacking

by Christopher Walsh

Posted in Class Action Defense

On September 19, 2011

In AT&T Mobility LLC v. Concepcion, the United States Supreme Court held that the Federal Arbitration Act preempted state laws providing that arbitration agreements containing class-action waivers are unconscionable and therefore unenforceable. But the Supreme Court also stated that “generally applicable contract defenses” continue to apply to arbitration agreements, so long as such defenses do not conflict with the FAA or frustrate its purposes.

No Class Certification When Class Members Can Obtain Adequate Statutory Damages in Small Claims Court

by Christopher Walsh

Posted in Class Action Defense

On September 19, 2011

In Local Baking Prods., Inc. v. Kosher Bagel Munch, Inc., the New Jersey Appellate Division held that private causes of action under the Telephone Consumer Protection Act (TCPA), which prohibits the sending of unsolicited faxes, cannot be prosecuted as class actions under Rule 4:32. The court reasoned that a class action is not a “superior” method for adjudicating such claims, as required by Rule 4:32-1(b)(3), because the TCPA entitles victims to at least $500 in statutory damages which can be recovered in the Small Claims section of the Special Civil Part in a matter of months.

Clock Ticking for Trademark Registrants Seeking to Block Registration of Their Marks on .XXX Domain

by Gibbons P.C.

Posted in Trademarks

On September 15, 2011

As has been widely reported by the mainstream press and most legal publications, the Internet Corporation for Assigned Names and Numbers (ICANN) has approved a new “.XXX” top-level domain expected to be utilized by the adult entertainment industry. Given the connotation of the .XXX domain, companies and individuals around the globe are considering how best to protect their trademarks from the potential harms of registry misuse, including cyber squatters targeting this new domain to register well known trademarks. Although the creation of the .XXX domain will be a boon to those in the adult entertainment industry and domain registrars, it raises serious threats of infringement, brand dilution or tarnishing for trademarks uninvolved in those industries. If they have not already, all trademark owners should be considering the potential impact of the .XXX domain to their marks and determining whether to take the necessary steps to “opt-out” of .XXX domain registration by the October 28, 2011 deadline for doing so.

America Invents Act Introduces First-to-File to the United States

by Christopher H. Strate

Posted in Patent

On September 14, 2011

On Thursday, September 8, 2011, the Senate passed the America Invents Act and President Obama is expected to sign the legislation this week. Every 2 years since 2005, Congress has taken up the issue of patent reform to address issues surrounding patent validity (e.g. first-to-file v. first-to-conceive; best mode), patent prosecution (e.g. opposition proceedings; inventor’s oath), and patent litigation (e.g. forum shopping, damages, willful infringement, patent unenforceability).

Third Circuit Decides First Cat’s Paw Case Post-Staub

by Susan L. Nardone

Posted in Discrimination

On September 13, 2011

On August 17, 2011, the Court of Appeals for the Third Circuit rendered its decision in McKenna v. City of Philadelphia, the first significant cat’s paw theory case out of the Third Circuit since the United States Supreme Court’s March 2011 decision in Staub v. Proctor Hospital, which was the subject of a previous Employment Law Alert post. The Staub decision addressed the circumstances under which an employer can be held liable for the discriminatory or retaliatory animus of a nondecisionmaker – often referred to as the “cat’s paw” theory. The primary issue in McKenna was whether an intervening act between the alleged retaliatory conduct and the employee’s termination – a hearing before a neutral board – was sufficiently independent to break any causal link between the allegedly retaliatory act and the employment action. Based upon the underlying facts of this particular case, the Court determined that it was not.

Courts Embrace Sua Sponte Imposition of Rule 502 Clawback Provisions

by Stephen J. Finley, Jr.

Posted in E-Discovery: Legal Decisions and Court Rules

On September 13, 2011

In 2008, Congress adopted Federal Rule of Evidence 502. FRE 502 was designed to promote discovery by providing litigants with a tool to control review costs in large-scale document or electronic evidence productions while avoiding the risk of wholesale subject matter waiver in cases of inadvertent production of privileged materials. Under Rule 502, where privileged material (or other information protected from disclosure) is inadvertently revealed, the disclosing party retains the privilege so long as it took reasonable steps both to prevent the disclosure and to rectify its mistake. Although it is still in its infancy, Rule 502 nonetheless appears to be living up to expectations. Indeed, as two recent federal decisions demonstrate, FRE 502 is not simply a tool available to litigants but rather, it is yet another weapon in a judge’s arsenal, permitting the court to manage discovery and protect privilege, through sua sponte entry of clawback orders.