Gibbons Law Alert

Gibbons Law Alert Blog

N.J. Appellate Court Extends Time Limit for Bringing Strict-Liability Claim for Natural Resource Damages

Posted in Environmental and Green Issues

On June 2, 2011

Thanks to a special “extension statute” enacted in 2001, the statute of limitations that requires the State of New Jersey to commence a civil action within ten years of its accrual does not apply to an action for natural resource damages (NRDs) that is brought “pursuant to the State’s environmental laws.” The Appellate Division recently held that the Legislature intended “the State’s environmental laws” to include the common law — or at least the common law of strict liability — and revived a claim that otherwise would have been time-barred.

Federal Circuit Reins In Doctrine of Inequitable Conduct in Therasense, Inc. v. Becton, Dickinson & Co.

by Thomas J. Bean

Posted in Patent

On May 27, 2011

On May 25, 2011, the Court of Appeals for the Federal Circuit handed down an en banc decision in Therasense, Inc. v. Becton, Dickinson & Co., revamping the standards used for judging patentees’ inequitable conduct in patent infringement cases. Significantly, the decision raises the bar for accused infringers wishing to demonstrate the requisite intent and materiality needed to support a finding of inequitable conduct. In particular, the decision reaffirms that intent and materiality standards are to be independently applied, and establishes a “but-for” test for materiality that is satisfied only when a patent claim would not have been allowed in prosecution but-for an alleged bad act (for example, a failure to disclose certain prior art references). It is hoped that the heightened standards will reduce the incidence of unwarranted inequitable conduct claims made by accused infringers during patent litigation, and reduce the volume of marginally relevant prior art disclosures made by patentees during patent prosecution.

New Law Prohibits Discrimination Against the Unemployed by NJ Employers

by Gibbons P.C.

Posted in Discrimination

On May 27, 2011

Beginning on June 1, 2011, New Jersey employers are prohibited from discriminating against the unemployed in print and Internet job advertisements. Specifically, pursuant to section one of the recently-enacted statute, employers may not knowingly or purposefully publish a job posting that states any of the following: current employment is a job qualification; currently unemployed candidates will not be considered; or only currently employed job applicants will be considered.

Caveat E-Mailer: New York Court Holds E-Mail May Be Binding in Real Estate Transaction

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On May 26, 2011

Acknowledging the widespread use of electronic communications in commercial transactions, courts and legislatures have recognized e-mails as binding legal documents. The Appellate Division of the Supreme Court of New York recently reinforced this trend by holding that an e-mail from a real estate broker could satisfy the writing and subscription requirements of the New York statute of frauds. In Naldi v. Grunberg, the plaintiff sued the owner of a commercial property in Manhattan claiming that the owner breached the plaintiff’s right of first refusal when the owner sold the property to another buyer. The plaintiff had offered through his broker to purchase the property for $50 million. The owner’s broker responded three days later with an e-mail that included the following statements: Counteroffer: $52 million; DD: No due diligence period although complete unfettered access and first right of refusal on any legitimate, better offer during a 30 day period.

New iPhone Application Allows Employees to Track Hours Worked and Wages Owed

by Gibbons P.C.

Posted in Wage and Hour

On May 24, 2011

On May 9, 2011, the U.S. Department of Labor (“DOL”) issued a press release announcing that there is now an application for the iPhone or iPod Touch that employees can use to easily and independently record their hours worked (including overtime and break times) and calculate wages that are owed to the employee. The free application is called “DOL-Timesheet” and is available in both English and Spanish. Although it is premature to assess whether this application will in fact be utilized by the DOL and employees in wage and hour enforcement and litigation, the emergence of the new technology serves to remind employers of the importance of accurate recordkeeping of employee hours worked and training of employees regarding policies on overtime, rest and meal breaks. In addition, to minimize the risk of an enforcement action and/or litigation and associated penalties, employers should encourage employees to come forward if they notice any disparity between the employer’s time records and the records the employee maintains independently through the application.

Introducing the Gibbons Employment Academy Webinar Series

by Kelly Ann Bird

Posted in Policies and Handbooks

On May 23, 2011

As highlighted in our January “Focus on Training in 2011” post, training programs directed to human resources and supervisory employees are a win-win for employers. Whether as a primer or refresher, a legal overview and update on current developments will enable decision-makers to work within the boundaries of the law and reduce costs associated with employee complaints and litigation. Although employees are entitled to various protections under the law, employers must feel that they are empowered to make decisions and manage their employees, from the hiring process through separation.

Third Circuit Considers Privacy Interests in Electronically Collected Information and Whether Such Information is Voluntarily Publicized By User of Electronic Communication Devices

by Jennifer A. Hradil

Posted in E-Discovery: Legal Decisions and Court Rules

On May 16, 2011

In September 2010, the Third Circuit Court of Appeals became the first federal appeals court to rule on the question of whether the government is required to establish probable cause to obtain cell site location information (“CSLI”) from a cell phone provider. See In the Matter of the Application of the U.S. for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 620 F.3d 304 (3d Cir. 2010). CSLI includes historical information that is collected by cell towers during cell phone calls, which can later be used to render some opinions as to the location of the cell phone during those calls.

Russell Bershad to Moderate Panel at ScheinMedia’s 5th Annual New Jersey Real Estate Conference

by Gibbons P.C.

Posted in Development/Redevelopment / Transactional Real Estate and Leasing

On May 13, 2011

On Thursday, June 9, 2011, Russell Bershad, Co-Chair of the Gibbons Real Property & Environmental Department, will moderate a panel, “State of the Market: Drill down on all facets of development, finance, law and economic development” at ScheinMedia’s 5th Annual New Jersey Real Estate Conference. The New Jersey Real Estate Conference has become the business standard for the state’s most influential professionals from the real estate, finance, legal, and governmental communities.

6th Circuit Applies “Primary Benefit” Test to Students in Work-Study Program

by Gibbons P.C.

Posted in Wage and Hour

On May 13, 2011

The United States Court of Appeals for the Sixth Circuit recently held that the proper test for determining whether persons participating in employer-sponsored training programs qualify as “employees” under the FLSA is an examination into which party derives the primary benefit from the relationship. The Sixth Circuit’s decision in Solis v. Laurelbrook provides guidance to any employer using students to perform work as part of a work-study or trainee program who are not monetarily compensated for such work.

Updated Guidance From USEPA Concerning Brownfield Redevelopment

by Gibbons P.C.

Posted in Environmental and Green Issues

On May 12, 2011

Encouraging development of environmentally challenged real estate — brownfields — is usually the task of state agencies. In New Jersey the Office of Smart Growth; the Economic Development Authority and the Department of Environmental Protection all offer programs intended to encourage redevelopment of brownfields. However, states are struggling to fund and support their brownfield programs and funds for outreach to potential developers and their allied professionals are in short supply.