Gibbons Law Alert

Gibbons Law Alert Blog

EEOC and NJ’s DCR Publish COVID-19 Guidance

On April 6, 2020

The U.S. Equal Employment Opportunity Commission (EEOC) and the New Jersey Division on Civil Rights (DCR) have joined a growing number of governmental agencies and public health organizations in issuing specific COVID-19 related guidance. The EEOC and DCR guidance each includes a series of frequently asked questions directed at ensuring compliance with federal and state anti-discrimination laws in the treatment of individuals affected by the novel coronavirus, in connection with employment, housing, and places of public accommodation. The DCR guidance, “Civil Rights and COVID-19: Frequently Asked Questions,” reminds employers, housing providers, and places of public accommodation of their obligations under the New Jersey Law Against Discrimination (LAD) and the New Jersey Family Leave Act (NJFLA). Among the topics covered by the DCR, the guidance: Reminds employers that the prohibitions against discrimination and harassment because of an LAD-protected characteristic apply even when the conduct at issue “stems from concerns related to COVID-19.” The DCR explains that firing an employee who is perceived to have a disability related to COVID-19 is unlawful. In addition, behavior such as referring to COVID-19 as the “the Chinese virus” or harassing employees of East Asian heritage by claiming Asian people caused COVID-19 is expressly prohibited, and employers must take steps to immediately stop the behavior. Reminds landlords and building managers that...

Senator Sasse Proposes Legislation Extending the Patent Term for Inventions Intended to Treat COVID-19

by Gibbons P.C.

Posted in Biotech / USPTO

On April 6, 2020

On March 30, 2020, Senator Ben Sasse, R-Neb., introduced a bill that would create the Facilitating Innovation to Fight Coronavirus Act. The first part of the legislation would shield healthcare providers from federal, state, and local civil liability if they are testing or treating coronavirus patients in certain circumstances. The second part of the bill would extend patent protection for new and existing medical devices and drugs intended to treat COVID-19. The added patent protection under the bill would only apply to eligible patents. An eligible patent is “a patent issued for a new or existing pharmaceutical, medical device, or other process, machine, manufacture, or composition of matter, or any new and useful improvement thereof used or intended for use in the treatment of the Coronavirus Disease.” The bill proposes that the term for new eligible patents “not begin until the date on which the national emergency declared by the President …terminates.” Moreover, the bill provides that the term for an eligible patent “shall extend for 10 years longer than it otherwise would under [the Patent Act].” Thus the bill would enhance patent protection for inventions covering technologies created to treat the coronavirus and inventions covering existing technologies adapted to treat the coronavirus. The CARES Act, enacted on March 27, 2020, provides $140.4 billion in...

USPTO Waives Certain Deadlines in Light of the Coronavirus Outbreak

by Gibbons P.C.

Posted in Patent / USPTO

On April 3, 2020

On March 31, 2020, the United States Patent and Trademark Office (“USPTO”) issued a notice permitting 30-day extensions to the time allowed to file certain patent-related documents and to pay certain required fees. Gibbons previously analyzed the first USPTO coronavirus guidance. For this second guidance, the USPTO determined, under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), that the COVID-19 “emergency has prejudiced the rights of applicants, patent owners, or others appearing before the USPTO in patent matters, and has prevented applicants, patent owners, or others appearing before the USPTO in patent matters from filing a document or fee with the Office.” The USPTO thus provided parties with the ability to extend certain patent deadlines if the party is personally affected by the COVID-19 outbreak. The USPTO notice expressly provides that three Patent Trial and Appeal Board (PTAB) deadlines may be extended for 30 days upon request: a request for rehearing of a PTAB decision; a petition to the Chief Judge under 37 C.F.R. § 41.3; and a patent owner preliminary response in a trial proceeding. “For all other situations, a request for an extension of time where the COVID-19 outbreak has prevented or interfered with a filing before the Board can be made by contacting the PTAB.” Relief under the notice is...

New York City and State Close Down All “Non-Essential” Construction

by David J. Freeman

Posted in Environmental and Green Issues

On April 2, 2020

As noted in our blog published on March 24, Governor Andrew Cuomo’s March 20, 2020 Executive Order 202.8 directed all “non-essential” businesses to implement remote work policies for 100% of their workforces, effective March 22 through April 19, 2020. The Empire State Development Corporation (ESDC) issued initial guidance on March 24, 2020, whereby it interpreted the Order to allow, as a category of “essential business,” “construction,” “including skilled trades such as electricians and plumbers,” and “for essential infrastructure or for emergency repairs and safety purposes.” ESDC updated and clarified its guidance on March 27, stating that “[a]ll non-essential construction must be shut down, except for emergency construction” and certain types of “essential construction.” Per the updated guidance, “emergency construction” includes “a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site.” “Essential construction” includes “roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing and homeless shelters.” Even at emergency or essential construction sites, social distancing must be able to be maintained, or the site must shut down. Violations are punishable by fines of up to $10,000. On March 30, the New York City Office of Environmental Remediation (OER) and...

New Jersey Department of Community Affairs Temporarily Relaxes Construction Code Provisions Relating to Minor Work, Inspections, and Certificate Requirements

by Gibbons P.C.

Posted in Construction

On April 2, 2020

In response to the COVID-19 pandemic, Governor Phil Murphy issued Executive Order No. 107 (“EO 107”) on March 21, 2020, mandating that all non-essential brick-and-mortar retail businesses close to the public as long as EO 107 remains in effect. EO 107 does not require closure of construction projects. Not only does EO 107 identify “construction workers” as an example of employees who need to be physically present at their work sites in order to perform their duties, but also, shortly after issuing EO 107, Governor Murphy sent a tweet confirming that work at construction sites may continue. On the same date that Governor Murphy issued EO 107, he issued Executive Order No. 108 (“EO 108”), which provides that local officials may not enact or enforce rules or regulations that conflict with EO 107. Although work at construction sites continues in New Jersey, there are myriad ways in which construction projects can be adversely impacted by the COVID-19 virus. One potential impact concerns ongoing inspections of construction work performed by local construction code officials pursuant to the Uniform Construction Code (UCC), N.J.A.C. 5:23. Construction code officials routinely inspect ongoing projects at various points during construction and issue Certificates of Occupancy for structures when requirements for same are satisfied. From a legal perspective, as a result of...

District of New Jersey Further Clarifies TCPA’s Reach For Text-Marketing Campaigns

by Michael R. McDonald and Caroline E. Oks

Posted in Class Action Defense

On April 2, 2020

In a recent decision, Chief Judge Freda L. Wolfson of the District of New Jersey further clarified the reach of the Telephone Consumer Protection Act (TCPA) as it relates to certain text marketing campaigns by businesses. In Eisenband v. Pine Belt Automotive d/b/a Pine Belt Nissan, Eisenband filed a putative class action lawsuit against an automotive dealership, Pine Belt, claiming that Pine Belt had violated the TCPA by using an Automated Telephone Dialing System (ATDS), otherwise known as an autodialer, to send a text message to his cell phone. Eisenband had telephoned Pine Belt in 2017 requesting information about the cost of leasing a specific vehicle and instructed Pine Belt to call him back on his cell phone with the requested pricing information. Pine Belt’s sales representative obtained the cost estimate data and returned the call, as requested, but Eisenband decided not to enter into a lease for the vehicle. A few days later, Pine Belt sent Eisenband a promotional text message concerning lease options on other vehicles, which prompted him, about one week later, to file a class action lawsuit seeking statutory damages of up to $1,500 per text message, for himself and for every person in the putative class who received such text messages. Discovery revealed that Pine Belt had sent the text...

COVID-19 – Impact on Existing and Prospective Real Estate Transactions

by Shepard A. Federgreen

Posted in Transactional Real Estate and Leasing

On April 2, 2020

Uncharted waters – we are all sailing in unchartered waters as the effects of COVID-19 impact our health, our business dealings, our government, our net worth, and our daily lives. And none of us knows what might happen from day to day or how long this crisis might last. In our transactional real estate practice, we are already dealing with multiple situations impacted by this new reality. We share the information and observations that follow to offer useful insights to our clients. Existing Contracts The overarching word that captures many of the issues spawned by the virus is “deadline.” Whether it is a closing date, the end of a due diligence period, the date by which a contingency such as the receipt of approvals or financing must be obtained, or the date of final delivery of a construction project, deadlines that were negotiated and commercially reasonable when agreed upon may no longer be possible to achieve. Government offices are shut down, and many professionals, consultants, and tradespeople are staying home. Deliveries of supplies are interrupted. In some counties, it is not possible to run title searches or record instruments such as deeds or mortgages due to the closing of recording offices (although e-recording is available in some locales). We believe defaults – and many of...

ADA Website Liability and COVID-19

by Mark S. Sidoti

Posted in Technology Developments and Issues

On April 1, 2020

Perhaps the last thing that many companies are focused on in the midst of the COVID-19 crisis is the extent to which their websites are compliant with accepted accessibility standards and the threat of ADA website accessibility class actions or individual claims. Unfortunately, however, it appears that ever-enterprising plaintiffs’ attorneys are taking advantage of this crisis to press these already ubiquitous claims even further. Over the past several years, thousands of federal lawsuits, styled as both class and individual actions, have been filed against companies in many industries seeking injunctive and compensatory relief for website-related violations of the Americans with Disabilities Act (ADA). The Department of Justice, which enforces the ADA, has taken the position that the “Web Content Accessibility Guidelines” developed by the World Wide Web Consortium provide a minimum standard, and most courts have agreed. These cases seek injunctive and compensatory relief for violations of the ADA and analogous state and local anti-discrimination laws, specifically alleging that websites are not compliant with the ADA and accessibility guidelines particularly for vision-impaired users. These cases have developed into a lucrative cottage industry for certain plaintiffs’ attorneys, as they are easy to prosecute, difficult to defend, and often result in expedited settlements. Gibbons has defended scores of these claims for its clients across the country. Enter...

SEC Offers Disclosure Guidance and Extensions of Certain Reporting and Disclosure Deadlines

by Samuel I. Portnoy

Posted in Securities

On March 31, 2020

Recognizing the struggle businesses currently face and will continue to face in satisfying their disclosure obligations amid the uncertainty surrounding this unprecedented crisis, the SEC’s Division of Corporate Finance on March 25 issued disclosure guidance specific to the coronavirus pandemic. In its guidance, the Division acknowledges that it “may be difficult to assess or predict with precision, the broad effects of COVID-19 on industries or individual companies” and that “the actual impact will depend on many factors beyond a company’s control and knowledge.” That said, the Division goes on to encourage “timely reporting,” noting that SEC disclosure requirements apply to a “broad range of evolving business risks” that may not be specifically identified, including the “known or reasonably likely effects of and the types of risks presented by COVID-19.” The Division encourages “tailored” disclosure of “material information about the impact of COVID-19 to investors and market participants … that allow investors to evaluate the current and expected impact of COVID-19 through the eyes of management,” and proactive revision and update of those disclosures as facts and circumstances change. The Division identifies in its guidance a non-exhaustive list of specific issues relevant to assessing and disclosing the evolving impact of COVID-19, including: The expected impact of COVID-19 “on future operating results and near-and-long-term financial condition.” Impact...

Is Your Property Historic? You Might Not Think So, But Always Check!

by Gibbons P.C.

Posted in Development/Redevelopment

On March 30, 2020

In a state like New Jersey, land in urban or developed areas is often at a premium, and developers will need to be mindful of whether the property has any historical significance. In addition to the standard approvals required from local planning or zoning boards, one approval that is commonly overlooked is that of the local historic preservation office or commission. These entities are authorized under the Municipal Land Use Law, N.J.S.A. 40:55D-107 et seq., and are now common in municipalities large and small throughout New Jersey. Where a formal commission exists, applications for development are to be referred to the historic preservation commission for review whenever applications involve property in historic districts or on historic sites identified by the official map or master plan. In other municipalities, there may be an application and approval process separate from the typical land development board. Some are required as part of completeness obligations for applications for development, where others are a separate process from the typical application for development. One active historic preservation commission has been the City of Newark’s Landmarks and Historic Preservation Commission (the “Commission”). This article provides a brief primer on when Commission approval is required, and what developers can expect during the application and approval process in the City of Newark (“the City”)....