Gibbons Law Alert

Gibbons Law Alert Blog

Gov. Murphy’s First Executive Order Prohibits State Government from Asking Applicants about Salary History

Posted in Discrimination / State Legislation

On January 18, 2018

Governor Phil Murphy has signed an executive order which bars state workers from asking job applicants seeking positions with the state about their previous salaries in his first official act after his swearing-in on January 16, 2018. State entities may now only inquire as to an applicant’s past salary history after the entity has made a conditional offer of employment, which includes an explanation of the compensation package being offered to the applicant. The goal of the executive order is to eliminate wage inequalities that result from female employees who accept lower starting salaries and then remain on a lower compensation track, with pay disparities compounding over time. Significantly, at the signing ceremony, the Governor stated that he would sign a bill that extended these same provisions to private sector employers which the legislative sponsors vowed to move quickly to his desk. In fact, legislation has already been introduced that prohibits an employer from inquiring about the salary history of an applicant. Assembly Bill 1094 was introduced on January 9, 2018 by Assemblywoman Joanne Downey (D-11) and referred to the Assembly Labor Committee. Senate Bill 559 was introduced by Senator Nia Gill (D-34) on January 9, 2018 and referred to the Senate Labor Committee. The legislation, described by legislative sponsors as an effort to promote...

Governor Murphy Takes the Oath of Office, Executive Action on Pay Equity

by David J. Pascrell and Michael D. DeLoreto

Posted in State Government

On January 16, 2018

Phil Murphy was sworn in as New Jersey’s 56th Governor on January 16, 2018. Also assuming office was New Jersey’s second Lt. Governor, Sheila Oliver. In his Inaugural Address, Governor Murphy’s theme was one of inclusiveness and making New Jersey fairer and stronger for all residents. He spoke of restoring confidence in state government, leading through progressive policies based on common sense, and enacting a State Budget that was both fiscally and morally responsible. He specifically challenged the Legislature to send him legislation to restore funding for women’s healthcare and Planned Parenthood; raise the minimum wage to $15 per hour; provide equal pay for women; require employers to provide earned sick leave; expand voting rights; and enact new gun safety laws. The Governor noted that each of these bills would be met with a signing ceremony upon its passage. The Governor also took action and signed an Executive Order barring state workers from asking job applicants seeking positions with the state about their previous salaries. At the signing ceremony, the Governor publicly stated he would sign a bill that extended these same provisions to private sector employers. As Governor Murphy takes office, he has already nominated most of his Cabinet and named his Senior Staff. The Senate is expected to take up the Cabinet nominations quickly...

DOL Adopts Primary Beneficiary Test to Determine Intern Status Under Wage Hour Law

by Gibbons P.C.

Posted in Wage and Hour

On January 16, 2018

On January 5, 2018, the Department of Labor (DOL) withdrew its six-factor test, established by a 2010 DOL guidance, used to determine whether interns and students are considered employees and, thus, covered by the Fair Labor Standard Act (FLSA), and, in its place, adopted a seven-factor test – listed in Fact Sheet 71 – applied by the Second Circuit in Glatt v. Fox Searchlight Pictures, Inc. The abandoned six-factor test, issued under the Obama Administration, required that all of the criteria be met in order to find that an intern is not an employee under the FLSA. In 2015, the Second Circuit disregarded the DOL test in the Glatt ruling. In deciding against the unpaid interns at Fox Searchlight, the Second Circuit held that the six-factor test was too rigid. Subsequently, the Second Circuit ruled that in determining whether interns are classified as employees under the FLSA, the “economic reality” between the intern and the employer should be evaluated to determine which party is the “primary beneficiary” of the relationship. The Second Circuit applied a non-exhaustive list of seven factors to use in the “primary beneficiary” test, but cautioned that “[a]pplying these considerations requires weighing and balancing all of the circumstances” and “[n]o one factor is dispositive.” Importantly, the new DOL guidance announcing the adoption...

TC Heartland Changed Controlling Law for Waiver of the Right to Object to Venue Under Rule 12

by Gibbons P.C.

Posted in Intellectual Property

On January 12, 2018

The Federal Circuit recently decided In re Micron, in which the panel resolved a district court split, holding that TC Heartland v. Kraft Foods changed controlling law for the purposes of Rule 12 waiver. Micron petitioned the Federal Circuit for a writ of mandamus to set aside the district court’s denial of Micron’s post-TC Heartland motion to dismiss or to transfer the case for improper venue. The district court held that Micron had waived its venue objection under Rule 12(g)(2) and (h)(1)(A) by failing to object to venue in its initial motion to dismiss, concluding that TC Heartland was not a change of law that would make waiver inappropriate. The Federal Circuit granted the petition for mandamus, vacated the district court order, and remanded. A defendant objecting to venue may file a motion to dismiss for improper venue under Rule 12(b)(3). The ability to file a Rule 12(b)(3) motion, however, is constrained by Rule 12(h)(1)(A), which says a venue defense under Rule 12 is waived if it is omitted from an earlier filed motion to dismiss under Rule 12, in which the venue defense was “available to the defendant.” The question before the Federal Circuit was “whether the [TC Heartland] venue defense was available to Micron in August 2016.” The panel answered in the negative because...

Committee Assignments for State Senate and General Assembly Announced

by David J. Pascrell and Michael D. DeLoreto

Posted in State Government

On January 11, 2018

Senate President Steve Sweeney and Assembly Speaker Craig Coughlin announced the committee chairpersons and committee members for the 218th Legislative Session. While most committee chairs remained the same, several important committees will see new leaders in both the Assembly and Senate. Assemblywoman Eliana Pintor Marin (D-28) became Chairwoman of the Assembly Budget Committee, succeeding Assemblyman Gary Schaer (D-36) who had chaired the committee for the past several sessions. Assemblyman Gordon Johnson (D-37) returned to his chairmanship of the Assembly Commerce Committee after having relinquished that role last session, and Assemblyman John McKeon (D-27) assumed the Chairmanship of the Assembly Financial Institutions and Insurance Committee. A new committee, the Assembly Science and Technology Committee, was formed and will be chaired by Assemblyman Andrew Zwicker (D-16). Lastly, Assemblywoman Nancy Pinkin (D-18) will chair the Assembly Environment and Solid Waste Committee. Senator Bob Gordon (D-38) took over the chairmanship of the Senate Transportation Committee, a position previously held by Senator Nick Sacco (D-32). By becoming Chair of Senate Transportation, Senator Gordon relinquished his Chairmanship of the Senate Legislative Oversight Committee, which will now be led by Senator Brian Stack (D-33). Senator Nilsa Cruz-Perez (D-5) is the new Chairwoman of the Senate Economic Growth Committee, which was previously chaired by Senator Raymond Lesniak who retired from the Senate. Senator...

Recent Federal Circuit Decision Illustrates Challenges in Proving Obviousness

by Gibbons P.C.

Posted in Patent / USPTO

On January 11, 2018

This non-precedential decision is of interest not for any new exposition of patent law but merely as a convenient marker to demonstrate how far the pendulum has swung away from the recent loose standards allowing disparate references to be combined to support an obvious rejection of a patent claim. In the district court below, a bench trial on a Hatch-Waxman infringement suit brought against defendants Dr. Reddy’s and Teva by Genzyme and Sanofi resulted in a decision for the plaintiffs. The court held that the defendants had failed to prove that the sole claim in issue (claim 19) was invalid for obviousness and as infringement was not disputed the verdict of infringement was entered. The technology in the case related to a method for mobilizing and harvesting stem cells in a subject by first treating the subject with G-CSF and then with plerixafor thereby increasing the number of stem cells available for harvesting from the blood for use in treating leukemia by transplantation. The defendants had relied on a combination of references to effectuate an obviousness defense. In a first combination, a paper by Hendrix et al. was cited to show that plerixafor produced increased white blood cells (WBCs) in the circulation. The authors suggested that the action of this agent may cause “release of...

New Jersey Legislature Reorganizes and Governor Christie Delivers His Final State of the State Address

by Michael D. DeLoreto

Posted in State Government

On January 10, 2018

The 218th Session of the New Jersey Legislature began on January 9, 2018 with the swearing-in of new members, remarks from Senate President Stephen Sweeney (D-3) and newly elected Speaker Craig Coughlin (D-19), and the final State of the State Address from Governor Chris Christie. Senate Reorganization Senate President Stephen Sweeney retained his role as leader of the Senate. Democrats control the chamber by a 25 to 15 margin, a one seat gain from the prior session. The Senate has five new members: Chris Brown (R-2); Troy Singleton (D-7); Vin Gopal (D-11); Declan O’Scanlon (R-13); and Joe Cryan (D-20). Senate President Sweeney outlined his priorities for the 218th Session. The Senate will convene a joint panel on taxation, led by Senator Paul Sarlo (D-36) and Senator Steve Oroho (R-24). The Senate will also focus on equalizing the school funding formula among towns, expanding pre-K education and focusing on higher education affordability. The Senate President called for a new round of higher education investment and for expanding the progress made on vocational employment. Transportation infrastructure will be a focus for the Senate. Specifically, the Senate President spoke of expanding light rail service along the Hudson-Bergen Rail and the creation of the Camden-Glassboro Light Rail. Freight rail is also an area in need of improvement as New...

Wendy Stein Promoted to Director in Intellectual Property Department

by Gibbons P.C.

Posted in Intellectual Property

On January 5, 2018

Gibbons P.C. is pleased to announce that Wendy R. Stein has been named a Director in the Intellectual Property Department in the firm’s New York office, effective January 2, 2018. “We are extremely proud of Wendy and we look forward to working with her in her new role,” said Patrick C. Dunican Jr., Chairman and Managing Director of Gibbons. At Gibbons, Ms. Stein focuses her practice on intellectual property disputes, primarily in the patent and trademark areas. She has extensive experience litigating a broad variety of patent infringement and other matters in the pharmaceutical and life sciences arenas, including matters related to a variety of medications, and SABAs used to treat asthma and/or COPD. Ms. Stein also has substantial experience litigating patent infringement disputes in the non-pharma area, including matters related to GPS devices, gaming, hand-held devices, and packaging. In addition, Ms. Stein has litigated trademark ownership and infringement/counterfeiting disputes involving perfume, apparel, electronics, real estate, and gaming. Ms. Stein has appeared before federal and state courts throughout the United States including New York, New Jersey, Delaware, California, Florida, Texas, District of Columbia, Illinois, and Nebraska, and before the Court of Appeals for the D.C. and Federal Circuits, recently obtaining a Rule 36 affirmance of five separate summary judgments concerning alleged patent infringement, false patent...

Real Estate and Pass-Through Provisions of the New Tax Act

by Andrew J. Camelotto

Posted in Transactional Real Estate and Leasing

On December 29, 2017

The new Tax Act was signed into law on December 22, 2017. Holders and developers of commercial real estate will be impacted by certain provisions of the new Tax Act, such as its treatment of real property depreciation deductions, 1031 like-kind exchanges, and pass-through rates. We direct you to our recent Legislative Tax Alert for a more detailed overview of certain relevant provisions of the new Tax Act. If you have questions or concerns about how the new Tax Act will impact you or your business, please contact Russell B. Bershad, a Director in the Gibbons Real Property Department, or Peter J. Ulrich, a Director in the Gibbons Corporate Department.

Key Business Provisions in the Tax Reform Law

by Peter J. Ulrich

Posted in Federal Legislation

On December 29, 2017

On December 22, 2017, President Donald Trump signed into law H.R. 1 (the “Tax Act”), that enacted sweeping changes to the United States tax code. Below are some of the key sections of the Tax Act impacting businesses. These provisions are effective January 1, 2018, unless otherwise noted. Corporate Tax Rate and Alternative Minimum Tax (“AMT”) Currently, corporations are taxed at rates that range up to 35% and are additionally subject to the AMT. Corporations do not benefit from lower long-term capital gain rates. The Tax Act lowers the corporate tax rate to a flat 21% and eliminates the corporate AMT, both effective beginning in 2018 and on a permanent basis. In connection with the corporate rate cut, the Section 199 domestic manufacturing deduction is repealed going forward. The dividends received deduction is reduced from 80% to 65% and 70% to 50%, depending on ownership percentage. Increased Cost Recovery (Bonus Depreciation) Currently, taxpayers can immediately write off 50% of the cost of “qualified property” (generally, tangible personal property with a recovery period of 20 years or less). This ratio drops to 40% in 2018, 30% in 2019, and phases out after that. The Tax Act initially allows full current expensing for property placed in service after September 27, 2017, reducing the percentage that may be...