Gibbons Law Alert

Gibbons Law Alert Blog

Recent New Jersey Appellate Division Case Reminds Employers to Carefully Draft Written Communications to Employees Regarding Leaves of Absence

On June 17, 2011

The New Jersey Appellate Division’s recent decision in Lapidoth v. Telcordia Techs., Inc., 2011 N.J. Super. LEXIS 103 (App. Div. June 9, 2011) serves as an important reminder that an employer must exercise care in communications with employees regarding leaves of absence to avoid unintended contractual obligations, even when the employer has complied with its statutory obligations.

Release of New Jersey’s Draft 2011 Energy Master Plan – Solar Incentives Will Survive — But With Changes

by Frank T. Cannone

Posted in Environmental and Green Issues

On June 17, 2011

On Tuesday, June 7, the Christie Administration released the State’s draft 2011 Energy Master Plan (Master Plan). The Master Plan provides the Administration’s strategic vision of energy in New Jersey. In particular, the “use, management and development of energy in New Jersey over the next decade,” and includes in-depth discussion of New Jersey’s electricity sources, uses, regulations, challenges, and incentives across all users of electricity in the State: residential, commercial, and governmental. These links provide access to the official State of New Jersey Governor’s Release of Tuesday, June 7th, and the full Draft.

The Gibbons E-Discovery Task Force and the NJ Chapter of Women in E-Discovery present “The Internet and Social Media in the Courtroom”

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules / Technology Developments and Issues

On June 16, 2011

Please join the Gibbons E-Discovery Task Force and the NJ Chapter of Women in E-Discovery in its presentation of “The Internet and Social Media in the Courtroom,” hosted at Gibbons on Tuesday, June 21, 2011, from 6:30 to 7:30 pm. CLE credit is available for NJ and NY, and pending for PA. Jennifer A. Hradil will moderate a panel featuring Mara E. Zazzali-Hogan, Jennifer Marino Thibodaux, and Suzanne Herrmann Brock, regarding the use of social media in litigation and the courtroom.

NJ Supreme Court Rules That Lost Wages are Recoverable Under CEPA Even in Absence of Actual or Constructive Discharge

by Kristin D. Sostowski

Posted in Whistleblower

On June 15, 2011

In a case of particular interest to New Jersey employers, the New Jersey Supreme Court ruled on June 9, 2011, in Donelson v. DuPont Chambers Works (A-112-09) that an employee who files suit under the Conscientious Employee Protection Act (“CEPA”) may recover back and front pay, even if the employee was not fired or constructively discharged, if the employee can show that he became mentally disabled as a result of the employer’s retaliation. The Court rejected the conclusion of the Appellate Division that the same standards govern remedies under CEPA and the New Jersey Law Against Discrimination (“LAD”), and that a constructive discharge must be proven to obtain back and front pay damages.

The Role of Lawyers in the Age of Electronic Discovery — Don’t Hit Delete!

by Gibbons P.C.

Posted in Technology Developments and Issues

On June 13, 2011

Will developments in technology make lawyers more efficient or will they become extinct? A March 2011 article in The New York Times, entitled “Armies of Expensive Lawyers, Replaced by Cheaper Software,” discussed the significant efficiency and accuracy of e-discovery software in document review over that of human review. Although technology has enabled computers to imitate humans’ ability to reason at even higher levels, rest assured that Armageddon is not looming on the legal profession’s horizon.

District Court Awards Tory Burch $164 Million in Anti-Counterfeiting Litigation

by Gibbons P.C.

Posted in E-Commerce / Trademarks

On June 13, 2011

Tory Burch LLC (“Tory Burch”), the makers of women’s apparel, designer shoes and fashion accessories, recently obtained a $164 million damages award against forty-one defendants accused of selling counterfeit versions of its products through numerous websites. This decision confers the largest award ever granted to a fashion company in a counterfeiting action.

Pennsylvania Court Orders Plaintiff to Disclose Facebook and MySpace Passwords, User Names, and Log in Names to Defendant

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On June 10, 2011

A Pennsylvania trial court recently became one of a growing number of courts to rule that a plaintiff’s non-public Facebook and MySpace postings are discoverable. On May 19, 2011, in Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Comm. Pl. May 19, 2011) the Court of Common Pleas of Pennsylvania granted the defendant’s motion to compel the plaintiff, a former employee of the defendant, to disclose his Facebook and MySpace passwords, user names and log in names. Notably, the Court reasoned that because the plaintiff voluntarily posted all of the pictures and information on his Facebook and MySpace sites, he had no reasonable expectation of privacy to the postings although the posts were on non-public pages.

U.S. Supreme Court to Montana: “Stay Thirsty, My Friend.”

by Gibbons P.C.

Posted in Environmental and Green Issues

On June 9, 2011

The Supreme Court in Montana v. Wyoming –U.S.–, 131 S.Ct. 1765 (2011), rejected Montana’s claim that Wyoming’s usage of water depleted the amount of water available to it under the Yellowstone River Compact between Montana and Wyoming. Montana contended that Wyoming breached Article V(A) of the Compact which provided that “appropriative rights to the beneficial uses of the water of the Yellowstone River System existing in each signatory State as of January 1, 1950, shall continue to be enjoyed in accordance with the laws governing the acquisition and use of water under the doctrine of appropriation.”

New Jersey Program to Fund Brownfield Clean Ups Closed Temporarily

by Gibbons P.C.

Posted in Development/Redevelopment / Environmental and Green Issues

On June 8, 2011

The Brownfield Reimbursement Program (the “Program”), a New Jersey State initiative designed to reimburse developers up to 75% of costs incurred to remediate a brownfield site, has run out of money and is temporarily shut down. This development arrives on the heels of a recent New Jersey Department of Environmental Protection (“NJDEP”) announcement that, effective May 3, 2011, applications to the Underground Storage Tank Fund, a similar initiative to help homeowners remove USTs, will not be reviewed or processed due to insufficient funds.

Knockout Punch: Claims of Futility & Computer Crashes Not Enough to Prevent Key Word Searches Requested by Former Champ

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On June 6, 2011

Sports. Steroids. E-Discovery? Former middleweight champion Shane Mosley asserted claims of defamation against defendant Victor Conte, owner of Bay Area Laboratory Cooperative (BALCO), regarding Conte’s statements that Mosely allegedly used illegal steroids in his championship bout with Oscar De La Hoya. Mosely requested that a computer forensics expert be permitted to conduct key word searches on defendant’s computer hard drives and equipment. Defendant objected, claiming that all relevant documents had been disclosed and that a computer search would be futile. The New York Supreme Court disagreed. Mosley v. Conte, No. 110623/2008, 2010 N.Y. Misc. (Sup. Ct. New York Co. Aug. 17, 2010).