Gibbons Law Alert

Gibbons Law Alert Blog

Orange County Clerk’s Office Closes, Preventing Property Searches and Threatening to Delay Real Estate Closings

Posted in Transactional Real Estate and Leasing

On September 12, 2011

Due to building conditions resulting from recent heavy rains, the County Executive of Orange County, New York, closed indefinitely the Orange County Government Center as of 3:00 p.m. last Thursday. In a press release, Orange County Executive Edward A. Diana announced having “ordered that the building be closed until further notice as we evaluate and remediate the situation.” The Orange County Government Center houses the County Clerk’s Office, among other government offices.

EPA Issues Final Chemical Data Reporting Rule

by Susanne Peticolas

Posted in Environmental and Green Issues

On September 12, 2011

On August 16, 2011, the United States Environmental Protection Agency (USEPA) issued its final rule on chemical reporting which will apply to the next reporting period running from February 1, 2012 through June 30, 2012. Adopted pursuant to section 8(a) of the Toxic Substances Control Act (TSCA), the rule increases the type and amount of information USEPA will collect on commercial chemicals from chemical manufacturers, including importers, allowing USEPA to better identify and publish information on the manufacturing, processing, and use of commercial chemical substances and mixtures on the TSCA Chemical Substance Inventory (TSCA Inventory).

ICSC Philadelphia Dealmaking is Upcoming – New Date Scheduled

by Howard D. Geneslaw

Posted in Development/Redevelopment

On September 7, 2011

The International Council of Shopping Centers (ICSC) annual PA/NJ/DE Idea Exchange is coming up soon. Although the show usually is held in mid-September, this year it has been pushed back to October 12-13. As in the past, the show will be held at the Pennsylvania Convention Center and will provide an opportunity for real estate professionals to network and focus on getting deals done.

Patent Reform Act of 2011 on the Horizon

by Gibbons P.C.

Posted in Biotech / Patent / Pharmaceuticals / USPTO

On September 7, 2011

On Tuesday, September 6, 2011, the Senate invoked cloture on H.R. 1249, also known as the America Invents Act, making it almost a done deal for passage of this Act. One reason that this bill has succeeded over its predecessors is that, with one major exception, there is little difference between the House and Senate versions. The passage of H.R. 1249 will mark the culmination of a 6-year process to pass patent reform legislation that started with H.R. 2795

DuPont v. Kolon: A Lesson In How To Avoid Sanctions For Spoliation Of Evidence

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On September 6, 2011

Two recent decisions in the same case illustrate that, when it comes to imposing sanctions for spoliation of evidence, what matters is not simply whether you’ve intentionally deleted relevant evidence, but how you go about deleting it, and what the record reflects about your intentions. Although both the plaintiff and the defendant in E.I. du Pont De Nemours and Co. v. Kolon Industries, Inc., Civil Action No. 3:09cv58, demonstrated that the other intentionally destroyed relevant evidence, as is detailed below, the Court sanctioned only defendant Kolon Industries, Inc. (“Kolon”) based on its manifest bad faith (read the decision here). As is discussed in an earlier post on Gibbons’ E-Discovery Law Alert (which you can read here), plaintiff E.I. du Pont de Nemours and Company (“DuPont”) escaped a similar fate based on its demonstrable good faith. In short, this case teaches that the intentional deletion of relevant evidence does not per se lead to sanctions. Rather, the parties’ conduct — or misconduct, as the case may be — must be judged contextually.

Placement on PIP Without Change to Job Status Not Adverse Employment Action

by Gibbons P.C.

Posted in Discrimination

On August 30, 2011

Joining several of its sister courts, the Third Circuit has held that, unless accompanied by a change in pay, benefits, or employment status, placement on a performance improvement plan (“PIP”) does not amount to an adverse employment action for purposes of the Age Discrimination in Employment Act (“ADEA”). Noting concerns over “naked claims of discrimination and greater frustration for employers seeking to improve employees’ performance,” the Reynolds v. Department of Army Court reinforces the notion that employers can utilize PIPs as a means to improve employee performance and conduct with decreased apprehension that the employee will initiate legal action based on the presence of the PIP alone.

Copyrights in Works For Hire

by Gibbons P.C.

Posted in Copyright

On August 26, 2011

What can the Hulk, Spiderman and the X-Men teach us about copyrights? Well, artists and authors alike must understand the terms under which they are creating their works, or potentially lose any copyrights they, and their heirs, might otherwise enjoy. IP Law360 recently reported on Marvel Worldwide v. Kirby from the Southern District of New York, which underscores the importance of such understanding.

Wage and Hour Guidance: Individual Liability for Officers and Directors Under the FLSA

by Gibbons P.C.

Posted in Wage and Hour

On August 25, 2011

Corporate directors, officers, and agents need to be aware of the potential personal risks associated with the non-payment of wages to their company’s employees. Although the existence of a corporate or other business-entity form generally provides protection from individual liability for corporate actors, one significant exception is for claims brought pursuant to the Fair Labor Standards Act (“FLSA”). A corporate director, officer or agent’s own individual assets may be used to satisfy any judgment for unpaid wages in favor of the company’s employees. As employers continue to deal with the economic downturn, and more companies are finding themselves struggling to meet payroll, corporate officers, directors, or agents may more frequently find themselves the individually-named targets of an FLSA lawsuit.

COAH Fees – Some Certainty in an Uncertain World

by Douglas J. Janacek

Posted in Development/Redevelopment / Transactional Real Estate and Leasing

On August 25, 2011

While much of the uncertainty regarding affordable housing requirements in NJ remains, the questions involving the applicability and future of the 2.5% nonresidential development fee were answered yesterday. Acting Governor Kim Guadagno signed into law legislation that reestablishes the exemption from the fee for eligible projects. Perhaps the most broadly applicable exemption provides that projects which obtain preliminary or final site plan approval prior to July 1, 2013 are not subject to the development fee provided that building permits are issued by December 31, 2015.

So You Want to Be “Friends?” Why Attorneys Should Think Twice About “Friending” Represented Parties or Witnesses on Facebook

by Gibbons P.C.

Posted in Litigation Preparedness and Strategies

On August 25, 2011

So you, as an attorney, want to be Facebook “friends” with an unrepresented party or witness? Well, what is your motivation? If you practice in California and want to use the private information in furtherance of your client’s case, think again because doing so may violate ethical rules and constitute engaging in “impermissible deception.”