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Third Circuit Holds Solicitations to Purchase Products and for Participation in Surveys can be Advertisements Under the TCPA

by Michael R. McDonald and Genna A. Conti

On May 27, 2020

On May 15, 2020, the Third Circuit in Fishbein v. Olson Research Group, Inc. held “that solicitations to buy products, goods, or services can be advertisements under the TCPA and that solicitations for participation in . . . surveys in exchange for [money] by the sender were for services within the TCPA” making such solicitations advertisements that fall within the TCPA’s ambit. This opinion comes just one year after the Third Circuit issued its precedential decision in Mauthe v. Optum, Inc., holding that, in order for a fax to be considered an advertisement under the TCPA, “there must be a nexus between the fax and the purchasing decision of an ultimate purchaser whether the recipient of the fax or a third party,” meaning that “the fax must promote goods or services to be bought or sold, and it should have profit as an aim.” The consolidated appeal in Fishbein arose from two District Court decisions, Fishbein v. Olson Research Group, Inc., which involved a fax offering the recipient money in exchange for participating in a medical study, and Mauthe v. ITC, Inc., which involved faxes that offered the recipient money in exchange for completing surveys. After applying the Third Circuit’s precedential opinion in Optum, the District Courts dismissed the plaintiffs’ cases under Federal Rule of...

Supreme Court Asked to Decide Prior Salary/Equal Pay Act Issue

by Richard S. Zackin

Posted in Discrimination

On May 26, 2020

The Fresno County Office of Education has requested the Supreme Court to hear an appeal from an en banc decision of the Ninth Circuit Court of Appeals holding that the Equal Pay Act (“the EPA”) prohibits an employer when setting the compensation of a female employee from considering her compensation at her prior job. If the Supreme Court agrees to hear the County’s appeal, it will be the second time the case will come before the Supreme Court. Previously, the Supreme Court vacated the Ninth Circuit’s decision because one of the appellate court judges who considered Fresno County’s appeal passed away, and was not replaced before the Ninth Circuit issued its opinion. Given that there is now a properly issued Ninth Circuit opinion, and given a split among the Courts of Appeals over whether and under what circumstances the EPA permits a new employer’s consideration of a woman’s prior salary when setting compensation, it seems likely that the Supreme Court will take up the case. Background After teaching middle school for a number of years, Aileen Rizo was hired by Fresno County as a math consultant. The county employed a twelve-level job classification system and each level was comprised of a ten-step salary schedule. In accordance with its standard operating procedures, the County determined Rizo’s...

New York Issues Guidance on Use of Sick Leave and Paid Family Leave for COVID-19

by Gibbons P.C.

Posted in Family Leave

On May 20, 2020

As discussed previously, New York recently passed a COVID-19 sick leave law that provides job protection and paid leave for employees who are subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19 (“COVID-19 quarantine leave” or “quarantine leave”). New York State has since published guidance (“Guidance”) and FAQs relating to the COVID-19 sick leave law (“FAQs”), which discuss, among other things, how employees may be compensated under the new law, through a combination of benefits that include COVID-19 sick leave, New York’s Paid Family Leave (PFL), and short-term disability (DBL) benefits while in quarantine. Under the COVID-19 sick leave law, as clarified by the Guidance and FAQs: An employee who works for a small employer – one with ten or fewer employees as of January 1, 2020 (with a net income of less than $1 million in the prior tax year) – and is subject to a mandatory or precautionary order of quarantine or isolation issued by the state of New York, department of health, local board of health, or any other government entity authorized to issue such an order due to COVID-19 (“quarantine order”) is entitled to unpaid sick leave until the termination of the quarantine order. The employee may also be eligible to receive compensation for the duration...

Governor Murphy Signs Executive Order Number 142 Allowing Resumption of Non-Essential Construction, Curbside Pick-Up from Non-Essential Retail Stores, and Gatherings in Vehicles

by Lisa Lombardo

Posted in Construction

On May 19, 2020

Given the decrease in the rate of reported new cases of COVID-19 in New Jersey, on May 13, 2020, Governor Phil Murphy signed Executive Order Number 142 (2020) (“EO 142”) permitting, among other things, the resumption of non-essential construction, curbside pickup at non-essential retail businesses, and gatherings in vehicles. The construction and non-essential retail provisions of EO 142 went into effect at 6:00 a.m. on Monday, May 18, and the provisions allowing for gatherings in vehicles took effect when the order was signed on May 13. EO 142 is part of New Jersey’s “Road Back” strategy to begin the careful restart of the economy. Resumption of “Non-Essential” Construction and Requirements for All Construction Projects While Governor Murphy’s Executive Order Number 122 (“EO 122”) allowed only “essential construction projects” to continue, subject to adhering to certain restrictions, EO 142 provides that all construction projects in New Jersey (“essential” and “non-essential”) may proceed, provided they adopt policies that include, at minimum, the following requirements: Exclude non-essential visitors from the worksite. Restrict project meetings and workgroups to fewer than ten individuals. Follow social distancing requirements of six feet or more distance between individuals wherever possible, including when picking up or delivering materials or equipment. Stagger work start and stop times and lunch breaks where practicable. Identify congested and...

Amendments to Pennsylvania’s Unemployment Compensation Act Bring New Notice Obligations and Temporary Relief for COVID-19 Related Unemployment Benefit Charges for Employers

by John C. Romeo

Posted in Employee Benefits

On May 18, 2020

In connection with the continuing challenges arising from COVID-19, Pennsylvania Governor Tom Wolf recently signed into law amendments to Pennsylvania’s Unemployment Compensation Law, which are included in Act 9 of 2020 (“the Act”). The Act imposes new notice obligations on employers and includes “emergency provisions” that relax eligibility and access requirements for individuals filing COVID-19 related unemployment benefit claims and, among other things, provide relief to employers for charges incurred under certain circumstances. Some key provisions of the Act are discussed more fully below. New Notice Requirements The Act adds a new section (206.1) to Pennsylvania’s Unemployment Compensation Law, requiring employers to now provide separating employees with notice about the availability of unemployment compensation, regardless of whether the employer is liable for payment of contributions to the state’s unemployment compensation system. Although the Act is silent about the required form of notice, it must include the following information: Availability of unemployment compensation benefits to workers who are unemployed and qualify for benefits; An employee’s ability to file an unemployment compensation claim in the first week that employment stops or work hours are reduced; Availability of assistance and information about unemployment compensation claims on the Pennsylvania Department of Labor and Industries, Office of Unemployment Compensation’s website – www.uc.pa.gov – or at the department’s toll-free number, which...

Second Circuit Affirms Expansive Reach of Preemption Provision of Food Drug and Cosmetic Act, Defeating False Labeling Class Action Premised Upon Consumer Protection Statutes

by Michael R. McDonald

Posted in Class Action Defense

On May 15, 2020

On May 11, 2020, the Second Circuit in Critcher v. L’Oréal USA, Inc., affirmed the dismissal of a putative class action, holding that the broad preemption clause of the Food Drug and Cosmetic Act (“FDCA”), 21 U.S.C. § 379s, barred plaintiffs from seeking to impose additional or different labeling requirements through their state consumer protection law claims, where Congress and the FDA already had provided for specific labeling requirements. In Critcher, purchasers of the defendant’s “liquid cosmetics” products claimed that while the net-quantities on the products’ labels were accurate, the product packaging was misleading because it omitted critical information that the creams could not be fully dispensed from the containers. Because they could not utilize the represented quantity of product, the plaintiffs claimed that they were deceived into buying more of the cosmetics than they could use. The District Court dismissed the complaint, concluding, among other things, that the claims were expressly preempted by the FDCA, and alternatively, preempted by the Federal Packaging Labeling Act (FPLA), 15 U.S.C. § 1451, et seq. On appeal, the plaintiffs argued that mere compliance with that net quantity disclosure requirement was not enough because it had the effect of making the packaging misleading in that a consumer would think the amount identified on the label is the amount accessible....

Does “100% Natural” Mean “No GMOs”? First Circuit Holds That Deceptive Label Claim Not Barred Where FDA Leaves Question Unresolved

by Michael R. McDonald

Posted in Class Action Defense

On May 12, 2020

On May 7, 2020, the First Circuit in Lee v. Conagra Brands, Inc., reversed the dismissal of a consumer fraud class action on the ground that the complaint plausibly stated that the product’s “100% Natural” statement may be deceptive to a consumer where the product contains genetically modified organisms (GMOs). In Lee, the plaintiff claimed that a “100% Natural” representation on the product label for Wesson Oil enticed her to buy the product because it indicated to her that the oil was GMO-free, when in fact it was not. She filed a class action alleging unfair or deceptive trade practices in violation of the Massachusetts consumer fraud law, Chapter 93A. The district court granted Conagra’s motion to dismiss, finding that the “100% Natural” language was “consistent with the FDA’s longstanding policy for the use of the term ‘natural’ on the labels of human food.” Additionally, the district court held that the FDA does not require a product to disclose on its label the use of GMOs. An act or practice violates Chapter 93A if it is “either unfair or deceptive.” The First Circuit’s decision addressed only the “deceptive” prong as plaintiff failed to raise, and thus waived, any argument that the label was “unfair.” Noting that its “analysis begins and ends with the allegations in...

U.S. Supreme Court Remands Clean Water Act Case to the Fourth Circuit for Further Consideration in Light of “Functional Equivalent” Test from County of Maui

by Gibbons P.C.

Posted in Environmental and Green Issues

On May 8, 2020

The effects of the recent U.S. Supreme Court decision in County of Maui v. Hawaii Wildlife Fund have begun to ripple out. In County of Maui, the Court held that the Clean Water Act requires a permit where there is a “functional equivalent of a direct discharge” from a “point source” into “navigable waters.” The Court acknowledged the “difficulty with this approach” in dealing with the “middle instances,” and provided a non-exhaustive list of seven factors that may be considered in determining whether a “functional equivalent of a direct discharge” exists in a particular circumstance. “Time and distance will be the most important factors in most cases, but not necessarily in every case,” the Court guided. In Kinder Morgan Energy v. Upstate Forever, a Clean Water Act case seeking certiorari of a decision from the Fourth Circuit, the Supreme Court followed County of Maui by issuing an Order granting certiorari, vacating the Fourth Circuit’s decision, and remanding the case to the Court of Appeals for “further consideration in light of County of Maui.” In Kinder Morgan Energy, two environmental groups argued that Kinder Morgan was illegally discharging pollutants into navigable waters without a permit under the Clean Water Act. Similar to the facts of the Maui case, the discharge by Kinder Morgan was alleged to...

UPDATE: Federal Reserve Board Expands Main Street Lending Program

by Paul J. St. Onge, Robert Johnson and Karl Teo Molin, III

Posted in Federal Legislation

On May 7, 2020

After receiving extensive public comment during the past month, the Federal Reserve announced on April 30, 2020 that it will expand the scope and eligibility of its Main Street Lending Program (“Program”). The Federal Reserve’s recent action follows the unprecedented steps taken by the Board of Governors of the Federal Reserve on April 9, 2020, to provide up to $2.3 trillion in credit facilities to households, employers, and state and local governments in response to the COVID-19 emergency’s impact on the U.S. economy. Gibbons previously covered these newly announced programs in a client alert. The Program facilitates lending to small and medium sized businesses. The Federal Reserve received 2,200 submissions relating to the Program, and on April 30, 2020 issued two updated Term Sheets and an initial Term Sheet, which are summarized as follows: The Program comprises the Main Street New Loan Facility (MSNLF), the Main Street Expanded Loan Facility (MSELF), and the new Main Street Priority Loan Facility (MSPLF). Below is a side-by-side comparison chart and additional details about the Program. Program Loan Options MSNLF MSPLF MSELF Term 4 years 4 years 4 years Minimum Loan Size $500,000 $500,000 $10,000,000 Maximum Loan Size Lesser of $25M or 4x 2019 adjusted EBITDA Lesser of $25M or 6x 2019 adjusted EBITDA Lesser of $200M, 35% of...

Who’s in Charge Here?: Third Circuit Holds That Government Was Not an “Operator” of Jersey City Chromium Facility for Purposes of Superfund Liability

by Gibbons P.C.

Posted in Environmental and Green Issues

On May 7, 2020

Federal courts have long struggled to determine the shape and boundaries of the wide liability net cast by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund law. In its recent decision in PPG Industries Inc. v. United States, the Third Circuit applied circuit and Supreme Court precedent to hold that the government’s influence over a chromite ore processing plant in Jersey City during World War I and World War II was not pervasive or intrusive enough to make the government a past “operator” of the plant and thus liable for cleanup costs. Prior to PPG’s 1954 acquisition of the plant (which it continued to operate until 1963), Natural Products Refining Corporation (NPRC) operated the plant, which processed chromite ore into various chromium chemicals, including sodium bichromate. During both World War I and World War II (when it designated the plant’s output as critical war materials, i.e., products manufactured for direct military use), the government regulated the production of chromium chemicals. Through a variety of price, labor, and production controls, the government sought to encourage increased production of these key chemicals. Those efforts, however, did not extend to direct control over day-to-day operations or to the use of government employees to run the facility. Moreover, while the government was aware...