Gibbons Law Alert

Gibbons Law Alert Blog

COVID-19: Federal Reserve Announces $2.3 Trillion in Loans

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

On April 15, 2020

On April 9, 2020, acting with the approval and consent of the Secretary of the U.S. Treasury, the Federal Reserve took unprecedented additional action using its statutory emergency lending powers to provide immediate support to the national economy. In so doing, the Board of Governors of the Federal Reserve adopted a series of measures that will provide up to $2.3 trillion in credit facilities and loans to households, employers, and state and local governments, consistent with the Federal Reserve’s emergency lending powers under Section 13(3) of the Federal Reserve Act (12 U.S.C. 343(3)). In particular, the Federal Reserve will adopt or expand on the following programs: Main Street New Loan Facility (MSNLF) and Expanded Loan Facility (MSELF): The Federal Reserve will purchase up to $600 billion in loans, and the Department of Treasury, through Section 4027 of the Coronavirus Aid, Relief, and Economic Securities Act (“CARES Act”), will make a $75 billion equity investment in a single common special purpose vehicle (SPV) in connection with the MSNLF and MSELF, both of which are designed to facilitate lending to small and medium sized businesses by eligible lenders (i.e., US insured depository institutions, US bank holding companies, and US savings and loan holding companies). The MSELF will provide four-year loans to companies employing up to 10,000 workers...

The New Jersey WARN Act and the Coronavirus Epidemic—An Update

by Richard S. Zackin

Posted in Reductions in Force

On April 15, 2020

In response to the COVID-19 crisis, New Jersey Governor Phil Murphy has signed into law new amendments to the Millville Dallas Airmotive Plant Job Loss Notification Act, more commonly referred to as the New Jersey WARN Act. The new amendments apply to the current statute and to prior amendments enacted on January 21 of this year that were to take effect on July 19, 2020. A full discussion of the January 21 amendments can be found here. Once the January 21 amendments go into effect, the Act will require employers with 100 or more employees to give advance notice to the affected employees of any reduction in force involving at least 50 employees. Employees not given the required notice currently may bring a civil action for damages; when the January 21 amendments take effect, even when an employer complies with the Act’s notice requirements, each affected employee will be entitled to severance pay in an amount equal to one week of pay for each year of service. The new amendments to the Act have important implications for the Act’s notice and severance provisions. On March 13, 2020, President Trump utilized the National Emergency Act to declare a national emergency due to the coronavirus outbreak. Under the current WARN Act and the January 21 amendments, an...

Governor Murphy Signs Executive Order Number 122 to Cease All Non-Essential Construction Projects and Impose Additional Mitigation Requirements

by Lisa Lombardo

Posted in Construction

On April 14, 2020

On April 8, 2020, New Jersey Governor Phil Murphy signed Executive Order Number 122 (2020) (“EO 122”), which marks the twenty-first consecutive Order issued in response to the COVID-19 pandemic. EO 122 requires all non-essential construction projects to cease and imposes additional mitigation requirements on essential retail businesses, construction projects, and industries to reduce the rate of community spread of COVID-19 in New Jersey. EO 122 took effect beginning at 8:00 p.m. on Friday, April 10, 2020 (the “Effective Date”), and remains in effect until revoked or modified by the Governor. “Essential” vs. “Non-Essential” Construction Projects and Requirements for Manufacturing and Warehousing Businesses and Essential Construction EO 122 requires the physical operations of all “non-essential” construction projects to cease as of the Effective Date but, subject to certain requirements discussed below, allows “essential construction projects” to continue. “Essential construction projects” is defined broadly to include the following 14 categories of projects: Healthcare projects at hospitals, other healthcare facilities, and pharmaceutical manufacturing facilities Transportation projects involving roads, bridges, airports, seaports, and mass transit facilities or physical infrastructure Utility projects Residential affordable housing projects Schools projects from kindergarten through higher education Projects already started involving individual single-family homes or apartments already occupied, with a construction crew of five or fewer Projects already started involving residential homes or...

NJABC Relaxes Additional Regulations in Response to COVID-19 Crisis

by Howard D. Geneslaw

Posted in Liquor Licensing

On April 13, 2020

On April 7, 2020, we published a blog explaining the guidance and forms of relief recently provided by the New Jersey Division of Alcoholic Beverage Control (“Division”) to liquor license holders throughout the state. The issued guidance and relief pertain to operations of alcoholic beverage licensees and permittees during the state of emergency declared to address the COVID-19 crisis. Since that time, the Division has issued three new special rulings to address additional COVID-19 related issues. Each special ruling is summarized briefly below. Special Ruling Granting Relaxation of Signature Requirement, Product Returns, Credit, Notices of Obligation, and Bill and Hold This special ruling grants relaxation of several regulations promulgated under the Alcoholic Beverage Control Act (the “Act”), as well as under a previous special ruling. Signature on Invoices: To comply with social distancing protocols, the Division temporarily suspended the requirement that a licensee must sign and date a delivery slip, invoice, manifest, waybill, or similar document at the time of delivery of any alcoholic beverage by a licensed manufacturer, importer, or wholesaler. It sets forth acceptable alternative methods for signature, which includes methods like sending a contemporaneous email confirming receipt, photographing the invoice and confirming electronically with the wholesaler, or using the retailer’s own pen to acknowledge receipt. This modification runs through the period of...

SCOTUS Provides Clarity to Charterers in Oil Spill Case and All Parties Subject to OPA Should Take Note

by Gibbons P.C.

Posted in Environmental and Green Issues

On April 13, 2020

On March 30, 2020, the U.S. Supreme Court issued a decision that will directly affect those in the maritime charter industry, and may ripple out to anyone performing a cleanup or defending a claim under the Oil Pollution Act (OPA). The case began with a 1,900-mile voyage by the M/T Athos I, which was a 748-foot single-hulled oil tanker, from Venezuela to Paulsboro, New Jersey in November 2004. Only 900 feet from the ship’s intended destination, it struck a nine ton anchor that was abandoned in the Delaware River. The anchor pierced the hull of the vessel and caused over 250,000 gallons of crude oil to spill into the river, which resulted in a $133 million cleanup. Frescati Shipping Company, the owner of the ship, together with the United States, paid for the cleanup as required under OPA, and then sought its cleanup costs from the charterer, CITGO Asphalt Refining Company (“CARCO”). The question before the High Court was “whether the safe-berth clause is a warranty of safety, imposing liability for an unsafe berth regardless of CARCO’s diligence in selecting the berth.” Frescati and the U.S. argued that CARCO breached the charter-contract’s “safe-berth” clause, which obligated CARCO to designate a safe-berth where the ship would be able to come and go “always safely afloat.” CARCO,...

A Refinery Is Not a Gas Station: N.J. Court Says Former Oil Operation Was Abnormally Dangerous Activity

by Gibbons P.C.

Posted in Environmental and Green Issues

On April 9, 2020

The 1976 Spill Compensation and Control Act (“Spill Act”) gave New Jersey a wide variety of new powers to address, and seek reimbursement for, environmental contamination. Despite its broad new remedies, however, it did not pre-empt or “subsume” common-law theories such as strict liability for abnormally dangerous activities. Moreover, the historical operations at an oil refinery and terminal that resulted in substantial discharges and pollution of nearby waterways could constitute an abnormally dangerous activity. So held the Appellate Division in its recent opinion in New Jersey Department of Environmental Protection v. Hess Corporation. Hess involves a property in the Port Reading section of Woodbridge historically operated as an oil refinery and terminal. In its 2018 complaint against Hess (which developed the property in 1958 when it was known as Amerada Hess Corporation) and Buckeye Partners, LP (which acquired the property from Hess in 2013), the New Jersey Department of Environmental Protection (NJDEP) alleged discharges of oil affecting the nearby Smith Creek and Arthur Kill during Hess’s period of ownership. The NJDEP asserted claims under the Spill Act, the Water Pollution Control Act, strict liability, trespass, and public nuisance, seeking both injunctive relief and money damages in connection with the defendants’ failure to assess injuries to natural resources and to restore the injured resources. Hess and Buckeye...

Governor’s New Executive Order Halts Non-Essential Construction Projects Throughout New Jersey

by Cameron W. MacLeod

Posted in Construction

On April 9, 2020

On April 8, 2020, Governor Murphy issued Executive Order 122 (EO 122), which further limited non-essential business operations throughout the state during the COVID-19 pandemic. This Executive Order halts all non-essential construction as of 8:00 PM on Friday, April 10, 2020. The Executive Order expressly identifies those limited projects that may continue construction during the state of emergency. Of note, these include: Projects necessary for the delivery of healthcare services, including, but not limited to, hospitals, other healthcare facilities, and pharmaceutical manufacturing facilities Transportation projects, including roads, bridges, and mass transit facilities or physical infrastructure, including work done at airports/seaports Utility projects, including those necessary for energy and electricity production and transmission, and any decommissioning of facilities used for electricity generation Residential projects that are exclusively designated as affordable housing Schools projects Projects involving single-family homes that are under contract, or a project underway on a single-family home or single apartment where an individual already resides Projects involving facilities for the manufacture, distribution, storage, or servicing of goods sold by online retailers or essential retailers Projects involving data centers or facilities that are “critical” to a business’s ability to function Projects necessary for the delivery of essential social services, including homeless shelters Projects necessary to support law enforcement agencies or first responder units in response...

The U.S. Department of Labor Issues Updated Guidance on the FFCRA’s Paid Leave Provisions

by Cassandra J. Neugold

Posted in Family Leave

On April 7, 2020

As the spread of COVID-19 continues to upend our day-to-day routines and creates new questions for employers and employees alike, the U.S. Department of Labor (DOL) has issued and updated guidance on the Families First Corona Response Act (FFCRA), which became effective on April 1, 2020. The FFCRA provides for two types of paid leave: leave under the Emergency Paid Sick Leave Act (EPSLA) and leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA). As a follow-up to our recent blog post, which explored the new legislation in-depth, this article identifies and explains the key points in the DOL’s most recent guidance on the FFCRA’s leave provisions. Which Employers Must Comply with FFCRA’s Paid Leave Provisions? Employers who have fewer than 500 employees at the time an employee requests to take leave are governed by the FFCRA. In calculating the number of employees for coverage purposes, employers must take into account full-time and part-time employees, employees who are already on leave, temporary employees who are jointly employed with another employer, and day laborers. Independent contractors are not considered employees for purposes of calculating the 500-employee threshold. Generally, two or more entities are separate employers for purposes of the 500-employee threshold, unless the entities meet the integrated employer test under the Family and Medical...

NJABC Issues Guidance and Provides Relief to Certain Licensees and Permit Holders During COVID-19 Crisis

by Howard D. Geneslaw

Posted in State Legislation

On April 7, 2020

The COVID-19 pandemic has presented unforeseen challenges to countless businesses across the country. Businesses that serve alcoholic beverages for on-premises consumption have been hit particularly hard. Through Executive Order No. 107 (the “Order”), and in connection with the declared State of Emergency, New Jersey Governor Phil Murphy imposed certain restrictions on restaurants and bars. On March 30, 2020, the State of New Jersey Division of Alcoholic Beverage Control (“Division”) issued Advisory Notice 2020-03, which outlines the Division’s interpretation of the Order and provides guidance to licensees concerning the activities in which they may engage in during the COVID-19 crisis. All license holders in the state should review the advisory notice in full, in addition to some of the major points outlined below. Following those points is an explanation of the special ruling regarding Limited Brewery License holders that was issued by the Division concurrently with the advisory notice, and a summary of some recent changes in protocol for interactions with the Division and its staff. Lastly, there is a brief summary of the April 1, 2020 order issued by the Division authorizing the extension of certain alcoholic beverage permits. Advisory Notice 2020-03 Retail consumption licensees: Bars, restaurants, or other establishments holding retail licenses may be open during this time and sell alcoholic beverages in their...

New Jersey Issues Guidance to Assist Land Use Boards in Holding Electronic Meetings and Hearings

by Howard D. Geneslaw

Posted in Development/Redevelopment

On April 6, 2020

In the wake of Executive Order 103 declaring the COVID-19 public health emergency and Executive Order 107 concerning restrictions on public gatherings, most planning boards and zoning boards of adjustment in New Jersey cancelled their scheduled meetings and have since been evaluating how to resume meeting in a manner that complies with social distancing requirements and Executive Order 107. This has left applicants uncertain when and in what manner their applications for development will be considered and decided. Following enactment of emergency legislation to facilitate the conduct of electronic meetings, the New Jersey Department of Community Affairs, Division of Local Government Services, has issued guidance to specifically assist planning boards and zoning boards of adjustment with conducting public hearings electronically on applications for development. The guidance, titled “Planning Board and Zoning Board of Adjustments Operational Guidance – COVID-19: N.J.S.A. 40:55D-1, Recommendations for Land Use Public Meetings in New Jersey,” is a first step in assisting land use boards – some of which have been hesitant to begin holding “virtual” meetings – with the mechanics of arranging for and conducting electronic meetings and public hearings. The Municipal Land Use Law (MLUL) requires land use boards to hold meetings at least monthly. Such boards must meet as scheduled unless there is a lack of applications for development to...