Gibbons Law Alert

The Federal Circuit Affirms in AstraZeneca v. Apotex, Finding Induced Infringement Based On Use of FDA-Mandated Labeling

On December 6, 2010

The Federal Circuit’s recent decision in AstraZeneca LP v. Apotex Inc. illustrates the tension that generic drug manufacturers may face between complying with FDA labeling requirements and avoiding trespassing on others’ patent rights. In that decision, the Federal Circuit affirmed the District Court of New Jersey’s ruling enjoining Apotex’s “at risk” launch of a generic version of an inhaled corticosteroid for asthma patients. In short, AstraZeneca owned a method patent on once-daily dosing of the drug at issue. Although Apotex omitted all references to once-daily dosages from its product label, it was required by the FDA to include “downward titration” language that encouraged patients to reduce their daily intake of the drug to the lowest dose that provides a beneficial effect. AstraZeneca argued that this language induced patients to infringe its method patent, and the court agreed.

N.J. Judge Dismisses Potential Juror for Attempting to “Friend” Defendant on Facebook

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On December 6, 2010

As recently reported by The Press of Atlantic City, on November 4, 2010, the Honorable Raymond Batten, J.S.C., dismissed a potential juror after defense counsel advised that the juror attempted to “friend” his client on Facebook. The potential juror was dismissed from serving in the trial of Atlantic City Councilman Marty Small, LuQuay Zahir and ten others who are accused of voter fraud during the councilman’s unsuccessful bid for mayor in 2009

Gibbons to Exhibit at ICSC New York National Conference & Deal Making

by Howard D. Geneslaw

Posted in Development/Redevelopment

On December 3, 2010

The Gibbons Real Property & Environmental Department will once again exhibit at the International Council of Shopping Centers (“ICSC”) National Conference & Deal Making Idea Exchange at the Hilton New York on December 6-7. The Department’s booth will be in the same location as prior years, #490 in America’s Hall II. Stop by and meet with some of the Department’s six attorneys who will be attending. Show hours are Monday, December 6, from 9:00 am to 5:30 pm, and Tuesday, December 7, from 8:30 am to 4:00 pm.

Supreme Court Denies Certiorari in Tiffany v. eBay Appeal

by Gibbons P.C.

Posted in Trademarks

On November 29, 2010

Earlier today, the Supreme Court denied certiorari in the Tiffany v. eBay action, permitting a ruling to stand that places the burden on trademark owners to police infringements taking place on on-line auction sites. The Supreme Court’s denial of cert was without comment. Critical to the underlying decisions of the Second Circuit Court of Appeals and the U.S. District Court for the Southern District of New York was that eBay was not itself the seller of the infringing goods, and that it acted promptly to take down auctions when it received notice that the goods were not legitimate. eBay reportedly has made investments of up to $20 million per year to stop fraud and infringements occurring via its site.

No Privilege for Information Posted on Social Network Sites — Court Orders Production of Plaintiff’s Social Network Account Usernames and Passwords

by Robert D. Brown, Jr.

Posted in E-Discovery: Legal Decisions and Court Rules

On November 29, 2010

A Pennsylvania Court of Common Pleas has ordered the production of a plaintiff’s social network account passwords and usernames in the recent decision of McMillen v. Hummingbird Speedway, Inc., Case No. 113-2010 CD (Pa. Ct. of Common Pleas, Jefferson Cty. September 9, 2010) In this case, McMillen sued Hummingbird Speedway Inc. and others for injuries he allegedly suffered when he was rear-ended during a cool down lap after a stock car race in 2007 on Hummingbird’s premises. During discovery, Hummingbird requested that plaintiff disclose information regarding social network websites that plaintiff belonged to and asked that plaintiff turn over his log-in and passwords for his accounts. McMillen responded that he had accounts on Facebook and MySpace but objected to any request for his log-in and passwords on the basis that the requested information was privileged and would lead to the production of private communications. Ultimately, Hummingbird filed a motion to compel the production of the requested information as they wanted “to determine whether or not plaintiff has made any other comments which impeach and contradict his disability and damages claims.” The court found that such information is not protected by any evidentiary privileges under Pennsylvania law and thus, is discoverable.

Individual Paychecks Re-start the Statute of Limitations in Discriminatory Compensation Claims Under the NJLAD

by Gibbons P.C.

Posted in Discrimination

On November 29, 2010

Peace of mind. That is what the two-year statute of limitations period applicable to claims filed under the New Jersey Law Against Discrimination (“LAD”) afforded employers. With respect to discriminatory compensation claims, however, the New Jersey Supreme Court’s decision in Alexander v. Seton Hall University has destroyed that peace of mind, holding that each individual paycheck effecting a discriminatory compensation decision constitutes an actionable unlawful employment practice. No longer is the two-year statute of limitations measured from the date of the compensation decision.

Neither Presence Nor Participation at Township Proceedings Required in Order to Appeal Subdivision/ Land Development Approval in Pennsylvania

by Gibbons P.C.

Posted in Development/Redevelopment

On November 29, 2010

In what appears to be a case of first impression in Pennsylvania, the Commonwealth Court of Pennsylvania found that a party has standing to appeal a township’s grant of subdivision/land development approval even if that party was not present at, or did not participate in, the township proceedings on the application. This decision, filed on October 28, 2010, is in sharp contrast to established Pennsylvania case law concerning the standing of a party to appeal the decision of the Zoning Hearing Board, where that party’s appearance or objection at the Zoning Hearing Board level is a prerequisite to its ability to appeal.

Employers Must Accommodate Deviation from Dress Code When Based on Religion

by Gibbons P.C.

Posted in Policies and Handbooks

On November 23, 2010

The importance of making reasonable accommodations to workplace dress codes based on an employee’s religious practices was the focus of a recent settlement between the U.S. Department of Justice (DOJ) and Essex County, New Jersey. According to the Complaint filed by the DOJ in United States of America v. Essex County, New Jersey, Yvette Beshier, a Muslim corrections officer, was suspended and then terminated because the religious head scarf she wore violated the Essex County Department of Correction’s uniform policy. The DOJ alleged that Essex County’s treatment of Beshier constituted religious discrimination in violation of Tile VII of the 1964 Civil Rights Act because it failed to accommodate her religious beliefs.

EEOC Issues Final Rule for the Genetic Information Nondiscrimination Act (GINA)

by Gibbons P.C.

Posted in Discrimination

On November 22, 2010

The EEOC issued its final rule implementing Title II of the Genetic Information Nondiscrimination Act (“GINA”) and provided background information regarding the new regulations, which shall take effect on January 10, 2011. GINA generally restricts employers and other covered entities from deliberate acquisition of genetic information, prohibits use of genetic information in employment decision-making, and strictly limits disclosure of genetic information.

“Cached” Web Files May Serve as Evidence in Child Pornography Case

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On November 22, 2010

In a prosecution for promoting and possessing computer images of child pornography, a Brooklyn appellate panel upheld the conviction of defendant and determined that temporary files automatically “cached” by an internet browser may serve as evidence of promoting and possessing child pornography. People v. Kent, ___ A.D.3d ___, 2010 N.Y. Slip. Op. 7364, 2010 N.Y. App. Div. LEXIS 7405 (App. Div. 2d Dept. Oct. 12, 2010). The defendant, a professor of public administration at a Dutchess County college, was found guilty of 134 counts of possession of a sexual performance and 2 counts of promotion related to his use of an office computer.