Gibbons Law Alert Blog

NJ Senate Considering Whether to Limit Power of DEP, DCA Commissioners

On February 17, 2011, the Assembly unanimously adopted bill A 2722. The bill, which is intended to implement some of the findings of the Red Tape Review Group, would amend the Administrative Procedures Act and provide administrative law judges (“ALJs”) with more tools to streamline contested administrative law cases. Interestingly, however, the bill would also strip the Commissioners of the New Jersey Department of Environmental Protection (“DEP”) and Department of Community Affairs (“DCA”), as well as some others, of their power to review, modify, or reject ALJs’ decisions in contested cases.

Deadline to File Real Estate Tax Appeals in New Jersey is Rapidly Approaching

The deadline to file real estate tax appeals in New Jersey to challenge the assessment of real property is April 1 (or 45 days from the bulk mailing of assessment notices, whichever is later). Given widespread declines in market values in recent years, there may be an opportunity for property owners — particularly owners of multifamily, commercial and industrial property — to reduce their assessments, and hence their property taxes, by filing a tax appeal.

New York Appellate Court Refuses to Amend Confidentiality Order to Address Runaway Data Issue

Confidentiality agreements and protective orders are a commonplace, yet indispensable, feature of modern commercial litigation. These agreements are typically the end result of a series of negotiations between counsel specifically designed to balance the seemingly incompatible objectives of ensuring ready access to vital evidence and ensuring that sensitive information, such as trade secrets, remains carefully shrouded from the public eye and industry competitors. The importance of ensuring that sensitive information remains confidential vis-à-vis the world at large during a lawsuit cannot be overstated. Confidentiality agreements often provide detailed provisions addressing who may access information and how information may be used. Once the litigation has concluded, parties are often faced with the sometimes challenging task of ensuring that all confidential information is either returned to the producing party or destroyed. Without proper planning, it may be difficult to put the proverbial genie back into the bottle.

Gibbons Real Property & Environmental Law Alert Nominated for LexisNexis Top 50 Environmental Law & Climate Change Blogs for 2011

For the first time, the LexisNexis Environmental Law & Climate Change Community is honoring a select group of blogs that they believe set the online standard for the practice area. This Real Property & Environmental Law Alert is among the nominees. According to LexisNexis, they selected the nominees based on timely topics, quality writing, frequent posts and that certain something ‘extra’ that keeps a web audience coming back for more. They described our blog as follows: “A rotating group of contributors writes about transactional real estate, development and redevelopment, and environmental law. Although there is some focus on developments in New Jersey, New York, Philadelphia and Delaware, the content is also national in scope.”

New Jersey Appellate Division Holds That Absence of Emotional Distress Damages Award Does Not Preclude Consideration of Punitive Damages

The New Jersey Appellate Division recently held in Rusak v. Ryan Automotive, LLC that a plaintiff was entitled to further proceedings on her punitive damages claim following a jury verdict in her favor on her hostile work environment and retaliation claims even though the jury did not award her emotional distress damages and rejected her separate intentional infliction of emotional distress claim. Although the case involved unique circumstances that are unlikely to be present in future matters, the decision serves as a reminder that the absence of an emotional distress award does not preclude further proceedings on punitive damages.

Davis v. Grant Park Holds That Sanctions Motions for Breach of Duty to Preserve Electronic Communications are Premature Until the Close of Discovery

Magistrate Judge John M. Facciola recently struck down, without prejudice, a motion for sanctions for the alleged destruction of electronic communications, finding it “premature to consider the question of sanctions until discovery ends and the Court can assess accurately what prejudice, if any, the loss of the electronically stored information has caused.” Davis v. Grant Park, No. 08-cv-1764 (PLF/JMF), 2010 U.S. Dist. (D.D.C. Nov. 9, 2010). Deeming the assessment of prejudice the critical issue, and citing D’Onofrio v. SFX Sports Group, Inc., No. 06-cv-687 (JDB/JMF), 2010 U.S. Dist. LEXIS 86711, at *11 (D.D.C. Aug. 24, 2010) (Facciola, J.), Judge Facciola determined that “the nature and extent of the loss suffered” could not be “accurately gauged” until “all the information that is available” is gathered, which occurs at the close of discovery. Id. at *3. As such, the court directed plaintiff to decide whether to renew the motion after discovery ended, noting further that a renewed motion should “show as clearly as possible the nature of the prejudice,” and that defendant’s submission should “make a similarly precise showing in opposition.” Id. at *4. The decision is consistent with D’Onofrio, wherein Judge Facciola instructed, “[i]t is only after establishing the prejudice the plaintiff suffered that any resulting sanction will fairly address that prejudice, consistent with this Circuit’s insistence that any sanctions imposed be a function of the prejudice done to a party by its offending opponent.” 2010 U.S. Dist. LEXIS 86711, at *11 (citing Bonds v. District of Columbia, 93 F.3d 801, 808 (D.C. Cir. 1996)). Judge Facciola’s directive serves as an important reminder to litigants that any sanctions imposed should ultimately bear a relationship to the prejudice suffered by the other party, and that such prejudice may not be discernable until the close of discovery in a contested matter.

Gibbons Institute Presents, “The Future of America’s Innovation Economy,” Event Featuring David Kappos & Q. Todd Dickinson – February 23, 2011

The Gibbons Institute of Law, Science & Technology, Seton Hall University School of Law, and New Jersey Intellectual Property Law Association present, “The Future of America’s Innovation Economy – Progress and Challenges at the USPTO,” event featuring David Kappos, Under Secretary of Commerce for Intellectual Property and Director of the USPTO, and Q. Todd Dickinson, Former Director of the USPTO and the current Executive Director of the AIPLA. This event will be held at Gibbons Newark office (One Gateway Center, 21st floor) on Wednesday, February 23, at 4:00 pm. CLE credits for New York and New Jersey will be offered, with pending approval for Pennsylvania credits. The cost to attend this event is $25 and includes CLE credits, food and beverage.

U.S. Patent & Trademark Office Circulates Supplementary Patent Examination Guidelines Regarding Definiteness of Claim Language

On February 9, 2011, the U.S. Patent & Trademark Office (USPTO) issued Supplementary Examination Guidelines for Determining Compliance With 35 U.S.C. § 112 and for Treatment of Related Issues in Patent Applications (the “Guidelines”). The Guidelines have immediate effect, but the USPTO will consider written comments received by April 11, 2011. Part 1 of the Guidelines pertains to the provisions of 35 U.S.C. § 112, 2 regarding claim definiteness, while Part 2 of the Guidelines pertains to the examination of so-called “computer-implemented functional claim limitations.”

Blind CCs and “Replies to All” – An Email Trap for the Unwary Attorney

Some traditional practices from the paper era don’t translate well to the world of e-communication. And some are downright dangerous. Back in the day, attorneys would often “bcc” their clients on correspondence to adversaries, an efficient and relatively safe means of keeping the client apprised. No longer in the age of email, where the ability to instantly respond invites quick, at times reactionary, replies that can easily fall into the wrong hands, with potentially devastating consequences.

Court Finds Pictures Downloaded from MySpace Inadmissible

Obtaining data and images from social networking sites (“SNS”) such as Facebook, LinkedIn and MySpace has become commonplace in civil and criminal litigation. However, issues surrounding proper authentication of this information at trial remain unresolved. The New York Supreme Court’s recent opinion in People v. Karon Lenihan, 1714/2008 (Sup. Ct., Queens Cty. Nov. 12, 2010)highlights judicial skepticism surrounding the use of SNS evidence.