Gibbons Law Alert

Gibbons Law Alert Blog

Reopening Considerations for New Jersey: What Employers Need to Know About OSHA

On June 17, 2020

As New Jersey begins to reopen under Governor Murphy’s reopening plan and more employees prepare to return to their physical workplaces, employers must continue to navigate a myriad of federal, state, and local guidance regarding how to best protect their workforces and prevent the spread of COVID-19. While many employers, particularly those outside of the construction industry, may not be used to regular dealings with the United States Department of Labor Occupational Safety and Health Administration (OSHA), all employers must consider OSHA’s COVID-19 Guidelines as they prepare reopening plans. While OSHA’s reopening guidance is advisory in nature, employers should remember that the Occupational Safety and Health Act’s (“OSH Act”) General Duty Clause (Section 5(a)(1)) requires all employers to provide employees with workplaces that are free from recognized harms that are likely to cause death or serious physical harm, which could include exposure to COVID-19. Thus, employers should be careful to ensure that their reopening plans comply with OSHA’s guidelines (along with more stringent state or local guidelines if they exist). The OSHA Guidelines categorize risk of worker exposure to COVID-19 from low to very high and lay out specific measures of protection that are recommended at each risk level. Employers should consult this portion of the Guidelines for specific guidance. The Guidelines also outline more...

Gibbons Again Ranked Among World’s Leading Patent Professionals by Intellectual Asset Management

by Gibbons P.C.

Posted in Intellectual Property

On June 15, 2020

Intellectual Asset Management (IAM) has again ranked the Intellectual Property Department of Gibbons P.C. among “The World’s Leading Patent Professionals,” granting the firm its “Gold Band” rating for practices that earned the highest number of positive reviews from sources. Gibbons is one of only three Gold Band firms in New Jersey. In addition, eight Gibbons attorneys—David E. De Lorenzi, Chair of the Intellectual Property Department, and Thomas J. Bean, Charles H. Chevalier, George M. Gould, George W. Johnston, Samuel H. Megerditchian, Robert E. Rudnick, and Christopher H. Strate—were ranked individually among IAM’s leading patent practitioners, spanning the litigation, prosecution, and transactions categories. Gibbons has the highest number of ranked attorneys on the New Jersey list this year. This is the tenth straight year that David De Lorenzi and the firm have been recognized by IAM. “Remarkably, nearly half of the Gibbons patent team have top-flight in-house experience,” notes IAM. The publication later reports, “This is a group, then, that intimately understands what clients need, and how and when they need it – and it delivers on all fronts.” To compile the IAM Patent 1000, the IAM team conducts extensive research over the course of five months with thousands of private practice attorneys based in dozens of countries, as well as the users of their services, in order to identify the practitioners and practices that are considered to excel at providing...

District of New Jersey Denies Class Certification in Product Defect Case Against BMW

by Caroline E. Oks

Posted in Class Action Defense

On June 12, 2020

The District of New Jersey recently denied class certification in a putative class action alleging a product defect in BMW engines. Afzal v. BMW of North America, LLC concerned whether BMW defectively designed its car engine so that a component wears out too quickly and failed to disclose that defect to purchasers. Two Plaintiffs, both California residents who allegedly suffered premature rod bearing wear, filed a putative class action raising various causes of action including violations of several California consumer protection statutes, breach of warranty, and fraud. Plaintiffs sought certification of two classes: (1) the Dealership Class and (2) the Warranty Class. The “Dealership Class” was defined as: “All persons who after November 12, 2011, purchased a model year 2008 to 2013 BMW M3 (the “Class Vehicle”) in California from an authorized BMW dealership, and who resided in California at the time of that purchase, and who as of the date of the Court’s Certification Order, either 1. Currently owns a Class Vehicle with 120,000 miles or less; or 2. Currently or formerly owned a Class Vehicle and, when the Class Vehicle had 120,000 miles or less, incurred out-of-pocket costs to replace the connecting rod bearings in the Class Vehicle.” The “Warranty Class” was defined as: “All persons who after November 12, 2011, purchased a...

Third Circuit Clarifies Requirements for “Regarded As” ADA Claims

by Richard S. Zackin

Posted in Disability

On June 10, 2020

In Eshleman v. Patrick Industries, the United States Court of Appeals for the Third Circuit issued a significant decision concerning claims brought under the American With Disabilities Act (ADA) by employees alleging their employers perceived them to be disabled. The decision clarifies the pleading requirements in such cases and explains the ADA provision that exempts employers from liability for disabilities that are “transitory and minor.” Notably, the Court did not provide a specific definition of a “minor” disability, leaving that determination for the lower courts on a case-by-case basis. Background William Eshleman took leave from his job as a truck driver for Patrick Industries to have a module removed from his lungs. Six weeks after he returned to work he suffered a severe respiratory infection and was out of work for four days. Patrick Industries terminated his employment after his second shift back to work. At various times, the employer gave Eshleman different reasons for his termination. Eshleman brought suit alleging the shifting reasons for his termination were pretextual and the true reason was that his employer regarded him as disabled in violation of the ADA. The perceived disability was alleged to be that he “suffered from [a] long-term or chronic medical condition which would affect his attendance in the future, like it had in...

New Jersey Publishes Formal Stringent Drinking Water Standards for PFOA and PFOS

by Gibbons P.C.

Posted in Development/Redevelopment / Environmental and Green Issues

On June 10, 2020

On June 1, 2020, the New Jersey Department of Environmental Protection (DEP) officially published health-based drinking water standards for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS). These chemicals have received serious attention from the environmental community in the last several years due to increasing science that has confirmed the harmful impact of PFOA/PFOS on human health and the environment. These new more stringent rules, published in the New Jersey Register, set maximum contaminant levels (MCLs) at: 14 parts per trillion for PFOA and 13 parts per trillion for PFOS. The DEP also added PFOA and PFOS to the state’s list of hazardous substances. Site remediation activities and regulated discharges to groundwater of PFOA and PFOS will now have to comply with these new standards. These new formal standards establish a regulatory framework that will provide consistency in remediation activities statewide. It is important to note that PFOA and PFOS are just two of potentially thousands of per- and polyfluoroalkyl substances (or PFAS). To date Vermont and New Hampshire are the only other two states to set MCLs for PFAS. New York is working on similar standards. New Jersey issued a standard of 13 parts per trillion for perfluorononanoic acid (PFNA) in 2018. The federal government has not yet established MCLs for PFAS. While there...

Internal Investigations and Compliance in a Post-Pandemic Environment: Risks and Opportunities

by John D. Haggerty

Posted in General Litigation

On June 9, 2020

The COVID-19 pandemic has presented not only novel challenges, but also opportunities for companies hoping to enhance or regain productivity while preventing wrongdoing and maintaining robust compliance functions. As workplaces reopen, historical challenges will persist and new risks will emerge. To be best positioned during this transition phase and beyond, companies should embrace the opportunity to evaluate their existing compliance processes and make the adjustments now that are necessary to adapt to a risk landscape that will likely never again be the same. Empower Legal, Compliance, and Investigative Resources Responsible companies will not be receptive to attempts to excuse misconduct due to the pandemic, nor will regulators. After all, there will be no “pandemic defense” to wrongdoing, and hindsight tends to be unforgiving—particularly through the lens of regulators looking at current events months or years from now. And as businesses emerge from state stay-at-home orders, an increased focus on productivity threatens to exacerbate the already heightened risk environment. It is critical that compliance, legal, and internal and external investigative resources be empowered to mitigate these risks effectively. Some immediate mitigation actions to be considered include: Conducting mandatory training on the enhanced risk environment and compliance best practices. Assessing existing policies and procedures, including those specific to internal investigations, and revamping them as needed to address...

Recent CERCLA Decision Allows Divisibility of Comingled Groundwater Plume

by Gibbons P.C.

Posted in Environmental and Green Issues

On June 8, 2020

In Burlington Northern, when the United States Supreme Court decided that joint and several liability under section 107 of CERCLA could be ameliorated in cases where the harm was theoretically capable of apportionment, potentially responsible parties (PRPs) hailed the decision outlining the test for divisibility as a great breakthrough. In practice, however, the availability of the divisibility defense that PRPs hoped would flow from the Burlington Northern decision has been limited, particularly in complex, comingled groundwater plume cases. In March 2020, however, the District Court in Von Duprin LLC v. Moran Electric Service, Inc. et al. (United States District Court, Southern District of Indiana – Indianapolis Division. Case No. 1:16-cv-01942-TWP-DML) issued the first CERCLA decision finding that a comingled groundwater plume was capable of apportionment because there was a reasonable basis to divide the harm. The District Court relied on the findings of one of the technical experts, who analyzed substantial groundwater monitoring results from four different source areas and demonstrated that the magnitude of the concentrations and chemical characteristics of the Chlorinated Volatile Organic Compounds (CVOCs) were different in the four source areas. The Von Duprin case involved the release of hazardous substances at four properties located in Indianapolis, Indiana, including property previously owned by Von Duprin (the “Von Duprin Facility”) and three upgradient...

Significant Changes Coming To the Paycheck Protection Program

by Robert Johnson and Paul J. St. Onge

Posted in Federal Legislation

On June 5, 2020

As of 6/3/20, over $100 billion in PPP funding was still available from SBA authorized participating lenders. Today, President Trump signed HR7010, the Paycheck Protection Program Flexibility Act of 2020. The bill changes specific loan forgiveness provisions of the Paycheck Protection Program (PPP). PPP was a part of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) passed by Congress to mitigate the effects of COVID-19. Companies or organizations who secured PPP loans are cautioned and advised to review the new legislation very carefully, as detailed below. Under PPP, eligible businesses could apply for forgivable loans of 2.5 times their average monthly payroll or $10 million, whichever is the lesser amount. A recipient can have 100 percent of its PPP loan forgiven if it uses the proceeds of the loan on the following items during the eight weeks beginning on the date of loan origination: Payroll costs as defined by the CARES Act; Any payment of interest on any covered mortgage obligation (which shall not include any prepayment of or payment of principal on a covered mortgage obligation); Any payment on any covered rent obligation; and Any covered utility payment. Loan recipients were also required to spend at least 75 percent of the loan proceeds on payroll costs. The new law contains the following...

USPTO Takes Measures to Help Small Businesses Patent and License COVID-19 Inventions

by Thomas J. Bean

Posted in USPTO

On June 2, 2020

On May 8, 2020, the United States Patent and Trademark Office (USPTO) announced a new COVID-19 Prioritized Examination Pilot Program. Under this Pilot Program, the USPTO will grant qualified requests for prioritized examination of COVID-19-related patent applications without requiring payment of fees associated with other prioritized examination programs. Why is the COVID-19 Prioritized Examination Pilot Program important? This Pilot Program is the latest measure by the USPTO to spur innovation related to fighting the coronavirus. “Independent inventors and small businesses are often the difference makers when it comes to cutting-edge innovation and the growth of our economy,” said USPTO Director Andrei Iancu. “They are also in most need of assistance as we fight this pandemic.” Iancu continued, “Accelerating examination of COVID-19-related patent applications, without additional fees, will permit such innovators to bring important and possibly life-saving treatments to market more quickly.” Who may participate in the Pilot Program? Applicants of COVID-19-related patent filings who qualify for either small entity (37 C.F.R. §1.27) or micro entity status (37 C.F.R. §1.29) may participate. When can I apply? On May 14, 2020, the USPTO started accepting requests for prioritized examination under the COVID-19 Prioritized Examination Pilot Program. How long will the Pilot Program continue? The program will continue until the USPTO has accepted a total of 500 requests....

Third Circuit Clarifies How Arbitration Language Should be Presented to Consumers

by Caroline E. Oks

Posted in Class Action Defense

On May 28, 2020

The Third Circuit recently issued a precedential decision further explaining the requirements when presenting consumers with otherwise enforceable language requiring arbitration. In Bacon v. Avis Budget Group Inc., six plaintiffs rented cars from defendant Payless Car Rental, Inc., a subsidiary of defendant Avis Budget Group, Inc. At the rental counter, plaintiffs each signed identical one-page rental agreements, which, among other things, itemized charges and fees and showed whether the customer had accepted or declined certain products and services. Each plaintiff signed below the final paragraph, which provided: “I agree the charges listed above are estimates and that I have reviewed & agreed to all notices & terms here and in the rental jacket.” The rental jackets were kept at the rental counter, typically near the rental associate’s computer terminal or printer. The rental associates were trained to give a rental jacket to each customer after the customer signed the agreement and to any customer who requested one, but the associates were not trained to alert customers to the additional terms in the rental jacket. The rental associates said nothing about the rental jacket when plaintiffs reviewed their agreements. After plaintiffs signed their agreements, the rental associate folded the agreement into thirds, placed it into the rental jacket, and handed the jacket to plaintiffs. The rental...