Gibbons Law Alert

Gibbons Law Alert Blog

End of the Road: GN Netcom Inc. and Plantronics Settle Eight-Year Litigation Saga Beset by E-Discovery Sanctions

On September 8, 2020

On July 12, 2020, United States District Judge Leonard P. Stark of the District Court for the District of Delaware (“District Court”) approved a joint stipulation of settlement filed by GN Netcom Inc., parent of Jabra headphones, and Plantronics. This settlement will end the eight-year old litigation saga between GN Netcom and Plantronics involving allegations that Plantronics had monopolized the relevant market via exclusive distribution deals which required its distributors to only sells Plantronics’ headsets and not those of its rivals. This case is noteworthy as to e-discovery because of the severe sanctions of $3,000,000 and an adverse inference jury instruction entered by the District Court against Plantronics in 2016 pursuant to then recently amended Federal Rule of Civil Procedure 37(e). This blog post will not recount the full panoply of discovery abuses addressed in the District Court’s July 12, 2016 Order, but, in broad strokes, Plantronics was found to have acted in bad faith in failing to take reasonable steps to preserve ESI which could not be restored or replaced. The District Court’s sanctions order was entered because Don Houston, a former executive of the company, “double-deleted” thousands of his own relevant emails despite the existence of a legal hold. Mr. Houston also directed other employees of the company to delete relevant emails. While...

New Jersey Files Six Lawsuits as Part of Its Environmental Justice Initiative

by Gibbons P.C.

Posted in Environmental and Green Issues

On September 2, 2020

Last week, New Jersey Attorney General Gurbir S. Grewal and Department of Environmental Protection (DEP) Commissioner Catherine R. McCabe announced jointly the state’s filing of six environmental enforcement actions against alleged polluters in minority and low-income communities in various locations throughout the state. The filings are this administration’s latest action in its environmental justice initiative, as Gibbons has previously covered on this blog. The six lawsuits involve sites in Newark, East Orange, Camden, and two sites in Trenton. In these suits, the state brings claims under various New Jersey environmental statutes, including the Spill Compensation and Control Act, the Water Pollution Control Act, the Air Pollution Control Act, the Solid Waste Management Act, the Industrial Site Recovery Act, and the Brownfield and Contaminated Site Remediation Act. Per the joint press release, the lawsuits in Newark and Trenton “involve companies that released hazardous substances at their properties and refused to clean them up.” In Newark, the state seeks to require the defendants to investigate the extent of the contamination, to clean up the site, and to reimburse the state for over $500,000. For one of the Trenton sites, the state similarly seeks to compel the defendants to clean up the site and to reimburse the state for over $400,000. At the other Trenton site, the state...

28 Days to Amend Contentions Following Disclosure of Preliminary Claim Constructions

by Charles H. Chevalier and Christine A. Gaddis

Posted in Patent

On August 31, 2020

In an interesting decision applying California’s Local Patent Rules, Northern District of California District Court Judge William Alsup held that “after receiving the other side’s preliminary claim construction disclosure under Rule 4-2, a party in a patent litigation must move promptly to disclose any back-up contentions it may wish (or eventually wish) to make for its infringement or invalidity case, in the event the other side’s claim construction is thereafter adopted or else any such back-up contentions will be deemed waived. Promptly means within 28 days at the latest.” Fluidigm Corp., et al. v. IONpath, Inc. at 4. Judge Alsup’s decision was his answer to “the question of the extent to which our patent local rules require infringement and invalidity contentions to set forth not only a party’s primary theory but also its backup theory in case its opponent’s claim construction prevails.” Id. at 1. In answering that question, Judge Alsup provided a brief exposition on California’s Local Patent Rules. “Before our local patent rules, parties struggled to determine the opposing party’s theory of liability via discovery requests, such as contentions interrogatories.” Id. at 6. The adoption of local patent rules “replaced the bone-crushing burden of scrutinizing and investigating discovery responses with the parties’ infringement and invalidity contentions.” In alleviating that burden, local patent rules...

A Look at the Nine-Month State Budget Proposed By Governor Murphy

by Michael D. DeLoreto

Posted in State Legislative and Budget Matters

On August 27, 2020

Governor Murphy presented a nine-month budget on August 25, 2020, for the abbreviated State Fiscal Year starting October 1, 2020. Relying on a mix of borrowing, tax increase, and budget cuts, the Governor’s proposal for the nine-month fiscal year proposes $32.4 billion in spending, with a proposed budget surplus of $2.2 billion. Coupled with the temporary three-month budget effective July 1 to September 30, 2020, total spending over the twelve-month period would total slightly more than $40 billion. The Governor’s Budget Proposal estimates that roughly $6.2 billion of funding is required to offset anticipated lost revenues from COVID-19. To make up for that shortfall, the Governor is proposing to borrow $4.0 billion as authorized by the “COVID-19 Emergency Bond Act.” The New Jersey Supreme Court recently upheld the Act as constitutionally permissible under the Emergency Exception of the Debt Limitation Clause. An additional $1.0 billion in tax increases and $1.2 billion in programmatic cuts are also proposed. The two main tax increases proposed include a tax of 10.75 percent on income over $1.0 million and an extension of the Corporate Business Tax surcharge of 2.5 percent. The Budget Proposal does maintain some programmatic spending at levels equal to that of the prior fiscal year and proposes new spending. For example, there are no cuts to...

Government & Regulatory Affairs Department Co-Chair Named Best Lawyers Regional “Lawyer of the Year” for 2021

by Gibbons P.C.

Posted in Federal Lobbying

On August 26, 2020

David J. Pascrell, Co-Chair of the Gibbons Government & Regulatory Affairs Department, has been named a regional “Lawyer of the Year” in the 2021 edition of Best Lawyers®, the oldest and most respected peer-review publication in the legal profession. According to Best Lawyers, the “Lawyer of the Year” recognition is awarded to individual lawyers with the highest overall peer-feedback for a specific practice area and geographic region. Only one lawyer is recognized as the “Lawyer of the Year” for each specialty and location. Department Co-Chair Kevin G. Walsh and Department Directors Paul J. St. Onge and Christine A. Stearns were selected for individual inclusion on the Best Lawyers list, while Michael D. DeLoreto, an associate in the Department, was highlighted on the inaugural Best Lawyers “Ones to Watch” category, a new feature introduced for the 2021 edition of Best Lawyers. In total, 71 of the firm’s attorneys, representing all of its main practice areas and four metropolitan markets, were individually selected for inclusion. Of the 71 Gibbons attorneys ranked overall, 65 were selected for the main Best Lawyers list, while six were listed in the “Ones to Watch” category. For the full release, click here.

Do Not Treat Rule 26(g) Certifications as a Mere Formality: Southern District of Florida Cautions Against Client ‘Self-Collection’ of ESI Without Adequate Attorney Oversight

by Gibbons P.C.

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

On August 20, 2020

In a recent decision reprimanding defense counsel’s lack of oversight of a client’s collection of data during discovery, the District Court for the Southern District of Florida issued a cautionary opinion that should serve as yet another reminder to counsel of the perils associated with allowing a client to self-collect ESI. Similar to a recent decision we addressed from the District Court of the Northern District of California, Equal Employment Opportunity Commission v. M1 5100 Corp., d/b/a Jumbo Supermarket, Inc. is a strong reminder that Federal Rule of Civil Procedure 26 should serve as a guide for the action and oversight required of counsel in the search, collection, and production of documents in response to discovery demands. In this age discrimination case, the District Court addressed plaintiff’s motion to compel. Plaintiff sought more specific discovery responses to two requests, attorney’s fees and costs in addition to the “opportunity to inspect Defendant’s ESI because, by Defendant’s counsel’s own admission, Defendant ‘self-collected’ responsive documents and information to the discovery requests without the oversight of counsel.” Cautioning against the “perils of self-collection of ESI by a party or interested person,” the District Court reminded counsel of its obligation to “have knowledge of, supervise, or counsel the client’s discovery search, collection and production” pursuant to Rule 26(g)(1). The District...

Supreme Court to Finally Decide Definition of Autodialer in TCPA Litigation

by Michael R. McDonald

Posted in Class Action Defense

On August 11, 2020

On July 9, 2020, the U.S. Supreme Court granted a long-pending petition for certiorari in Facebook Inc. v. Duguid, Noah, et al. to address a hotly debated question in Telephone Consumer Protection Act (TCPA) litigation: “whether the definition of [automated telephone dialing system] encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’” The grant of certiorari comes on the heels of the Court’s sweeping decision in Barr v. American Ass’n of Political Consultants, severing the government debt collection exception to the TCPA’s “autodialer” prohibition as a content-based restriction on free speech. The TCPA broadly prohibits most calls using any ATDS or autodialer, defined by statute as “equipment which has the capacity – (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” Given the lack of clarity in the statutory language, courts have grappled with whether “a random or sequential number generator” must be used to only “store” the numbers, or only to “produce” the numbers, or to “dial” the numbers after having “randomly or sequentially” generated or produced them. Further complicating court interpretations is the FCC’s interpretations stating that a dialing system known as a “predictive...

Christopher Strate to Speak at the Upcoming American Conference Institute’s Virtual Conference

by Gibbons P.C.

Posted in Intellectual Property

On August 10, 2020

On August 20, Christopher H. Strate, a Director in the Gibbons Intellectual Property Department, will speak at the American Conference Institute’s Virtual Conference, “Paragraph IV on Virtual Trial: COVID-19 Edition.” Mr. Strate’s discussion is scheduled from 4:00 – 5:00 pm ET and will address virtual trial and adjudication matters. For additional information or to register for this Conference, please visit AmericanConference.com/PIVCOVID.

Third Circuit Affirms Class Certification in In re Suboxone Antirust Litigation

by Gibbons P.C.

Posted in Class Action Defense

On August 10, 2020

On July 28, 2020, the Third Circuit in In re Suboxone (Buprenorphine Hydrochloride & Nalaxone) Antitrust Litigation, affirmed certification of a direct purchaser class, concluding that common evidence existed to prove the plaintiffs’ antitrust theory and resulting injury and that the proposed class representative, Burlington Drug Company, Inc., was an adequate class representative. The direct-purchaser plaintiffs alleged that the defendant drug manufacturer of the opioid-treatment drug, Suboxone, engaged in anticompetitive conduct that impeded the entry of generic versions of the drug into the market. Specifically, plaintiffs asserted that defendant “shifted the market” from Suboxone tablets to Suboxone film by the time generic tablets entered the market, thereby maintaining a monopoly and suppressing competition. According to plaintiffs, the defendant’s transition from tablets to film was coupled with six tactics to “eliminate demand for Suboxone tablets and to coerce prescribers to prefer film,” including making false statements about the safety of the tablets and withdrawing brand-name Suboxone tablets from the market. The plaintiffs argued that due to defendant’s anticompetitive conduct, they paid more for brand Suboxone products than they would have for generic tablets. The district court certified the class, and the Third Circuit granted the defendant’s petition for leave to appeal under Rule 23(f). First, the Third Circuit addressed defendant’s argument that plaintiffs did not provide...

The Need for Counsel to Maintain Active Involvement in Discovery: California District Court Sanctions Attorney for Failing to Make “Reasonable Inquiry” as Required by Fed. Rule 26(g)

by Gibbons P.C.

Posted in Litigation Preparedness and Strategies

On August 7, 2020

On June 1, 2020, the District Court for the Northern District of California in Optronic Techs., Inc. v. Ningbo Sunny Elec. Co., issued a strong reminder to counsel: act in accordance with the obligation to manage and oversee the collection of discovery, or risk running afoul of the attorney certification obligations of Federal Rules of Civil Procedure 26(g). In this case, defendant’s attorney signed a certification pursuant to Rule 26(g) as to the completeness of defendant’s responses to discovery requests despite being unaware of what defendant actually did to search for responsive documents. The District Court found the lack of involvement by defendant’s attorney to be worthy of sanctions based on the specific circumstances of the case. Plaintiff sought sanctions concerning defendant’s responses to its post-judgement document requests in a litigation in which defendant had previously been found to have deliberately withheld documents, contradicting certain representations made to the court. Plaintiff did not seek sanctions pursuant to Rule 37 and/or the court’s inherent authority. Plaintiff claimed, among other issues, that defendant’s production was not complete and that defendant’s counsel “had not taken a sufficiently active role” in supervising the collection and production of documents. In response, defendant admitted that its counsel did not personally collect the documents, and instead provided “guidance” on what should be...