Gibbons Law Alert
Susanne Peticolas, a Director in the Gibbons Real Property & Environmental Department, was the Dinner Speaker at the April meeting of the Institute for Supply Management – New Jersey, Inc. on April 13, 2011. She addressed the issue of greenwashing, unjustifiable product claims of being environmentally sensitive and strategies to help companies avoid the problem.
The Audit Committee of the New Jersey Department of Environmental Protection’s Site Remediation Professional Licensing Board is soliciting comments on its draft process and questionnaire for the completion of statutorily required audits of the work of Licensed Site Remediation Professionals (LSRPs). The Committee is accepting comments until April 18, 2011. The Board intends to finalize the process and questionnaire at its May 2, 2011 meeting.
Amendments to the regulations implementing Title II of the Americans with Disabilities Act (ADA), 28 CFR 35.101 et seq., which applies to public entities, went into effect on March 15, 2011. A public entity is defined in the regulations as: “(1) Any state or local government; (2) Any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (3) The National Railroad Passenger Corporation, and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act).” See 28 CFR 35.104. On the same date, amendments to the regulations implementing Title III of the ADA, 28 CFR 36.101 et seq., which applies to public accommodations (including private businesses that fall within one of twelve categories established by the statute) and commercial facilities also went into effect.
When a party voluntarily dumps data on its adversary without first conducting a meaningful privilege review, that party may be deemed to have waived any applicable privileges, particularly where it fails to timely argue that a privilege review would be too costly. That is the lesson of In re Fontainebleau Las Vegas Contract Litig., 2011 U.S. Dist. LEXIS 4105 (S.D. Fla. Jan. 7, 2011), a cautionary tale of the dangers of data dumping. After repeatedly failing to meet court-ordered production deadlines, in response to a subpoena, Fontainebleau Resorts, LLC (“FBR”) essentially dumped on the requesting parties (the “Term Lenders”) three servers containing approximately 800 GB of data–without first conducting any meaningful privilege review. Consequently, in its January 7th decision, the court granted the Term Lenders’ motion seeking a declaration that FBR waived its privilege claims. Had FBR litigated this matter differently, it might have protected its privileged information.
Last month, the New Jersey Supreme Court issued an opinion in Town of Kearny v. Discount City of Old Bridge, which refined and further complicated the process of condemning a leasehold interest. The decision also called into question condemnation provisions in existing leases. The atypical facts in the case likely led to the complex conclusion. The Town of Kearny designated an industrial area as an area in need of redevelopment pursuant to the Local Redevelopment and Housing Law.
The explosion of social media and the universal availability of electronic devices have presented a host of courtroom issues the judicial system must address, ranging from substantive legal questions like the admissibility of Facebook accounts and Twitter postings, to more ministerial issues such as the extent to which electronic devices may be utilized by counsel in the courtroom. While different courts have reached varied conclusions on these questions, courts have uniformly rejected any attempt by jurors to use technology to research a case or to post information about a case to social media sites, and increasingly use pre-trial and post-closing jury instructions.
One of the problems with electric cars (EVs) is – what do you do when the battery runs down? Currently there are 500 charging stations in the United States and 400 of them are in California. In an attempt to address the dead battery problem and encourage purchase of EVs, on March 21, 2011, the New Jersey State Senate introduced Bill S2784 (the “Bill”) which requires owners of shopping center developments to include charging stations. Under the Bill, owners of a “shopping center development” must equip not less than five (5%) percent of the parking spaces for the shopping center development with electric vehicle charging stations. Moreover, such stations must be available for use during the hours of operation of the shopping center development.
A defendant in an employment action discovers through Facebook that a plaintiff has lied about her discrimination claim. The information essentially undermines plaintiff’s entire claim. However, such information does not make it to a factfinder at trial unless the evidentiary foundations can be established — proof of authorship and timeliness. These evidentiary foundations are not easy to establish in the ever-changing medium of social media. The anonymity offered by some social networking sites may be what makes them attractive to users, but it also makes establishing authorship of content difficult. Similarly, social media sites are constantly changing, as users can add, remove or edit content at any time. As a result, recreating a post or a profile from a particular moment in time can be difficult, if not impossible, depending on how a partciluar site functions.
On May 18, 2011, the New Jersey Appellate Division upheld a trial court’s decision that the New Jersey Department of Environmental Protection had failed to establish sufficient “nexus” or connection between the operator of a dry cleaner and regional groundwater contamination. In New Jersey Department of Environmental Protection v. Dimant, et al., (Docket A-3180-09T2), the Appellate Division soundly rejected New Jersey’s claim that “the Spill Act must be interpreted and applied very broadly to find that any discharge at any time, even a de minimis one, imposes liability on all operators handling that product, and that a direct causal connection between the discharge and the damages need not be established.” This sort of argument which asks the court to overlook critical connections is all too common in environmental cases. Indeed, governmental plaintiffs often invoke policy reasons when asking for relaxed nexus requirements whereas private parties seeking contribution frequently call on the courts to shift the burden to the alleged dischargers.
To echo a popular tag line frequently heard on Top 40 radio stations, when it comes to court-imposed sanctions for e-discovery failures, “the hits just keep on comin’!” According to a recent study published in the Duke Law Journal, sanctions for e-discovery violations are occurring more frequently than ever. Dan H. Willoughby, Jr., Rose Hunter Jones, Gregory R. Antine, Sanctions for E-Discovery Violations: By The Numbers, 60 Duke Law J. 789 (2010). However, there may be light at the end of the tunnel, as it appears that the frequency of sanctions awards is trending downward after hitting an all-time high in 2009.