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Murphy Wins Governor’s Race, Democrats Pick Up Seats in the Legislature

On November 8, 2017

On Tuesday, November 7th, New Jersey voters elected Democrat Phil Murphy as the next Governor of New Jersey. Mr. Murphy defeated the State’s Republican Lieutenant Governor, Kim Guadagno, by a margin of 56% to 42%. All 120 seats in the State Legislature were also on the ballot, and the Democrats retained their majority in both houses. Democrats will pick up one Senate seat and two Assembly seats, bringing their control to 25 seats in the Senate, and 54 seats in the Assembly. Lastly, voters approved two ballot questions related to borrowing for library improvements and the dedication of funds for environmental cleanups. Governor’s Race Phil Murphy was the favored candidate from the start of the general election, having outpolled Lieutenant Governor Guadagno by as much as 20 percent in some surveys. This campaign marked Governor-Elect Murphy’s first time running for public office. He is a former Goldman Sachs executive, and the former Finance Chair of the Democratic National Committee. Mr. Murphy also served as Ambassador to Germany during President Obama’s first term. The Murphy campaign focused on three main issues: growing the economy, economic fairness, and investing in New Jersey. Governor-Elect Murphy’s platform included raising new tax revenues through closing corporate loopholes, increasing the income tax on millionaires, and legalizing and taxing marijuana. He also...

New York City Salary History Law Takes Effect

by Elizabeth Cowit

Posted in Wage and Hour

On November 8, 2017

As discussed in our “New York Employer’s Mid-Year Review” blog post, Local Law 67 (“salary history law”) took effect on October 31, 2017, and prohibits all New York City employers, employment agencies, and their employees and agents (collectively “employers”) from inquiring about an applicant’s salary history (including current or prior wages, benefits, and other compensation) during the hiring process, and from relying on an applicant’s salary history when determining his or her compensation package. As discussed in detail in the above-referenced blog post, the law does not prohibit a candidate from voluntarily (and without prompting) disclosing his or her salary history, and, in that situation, employers may consider and verify salary history in setting compensation. The law also includes specific exemptions and provides for the same remedies as other claims brought under the New York City Human Rights Law. The New York City Commission on Human Rights, which has enforcement responsibilities for the salary history law, recently issued Frequently Asked Questions (“FAQs”), which clarify the scope of the law’s coverage, what employers are permitted and not permitted to do in connection with salary inquiries, the definition of compensation, and best practices. Some key points set forth in the FAQs, include, among others: The law covers most applicants for jobs in NYC, regardless of employer size....

Class Certification of TCCWNA Claims Dealt a Serious Blow by NJ Supreme Court in Dugan v. TGI Fridays and Bozzi v. Restaurant Partners, LLC

by Michael R. McDonald

Posted in Class Action Defense

On October 31, 2017

On October 4, 2017, the Supreme Court of New Jersey dealt a subtle but serious blow to “no injury” TCCWNA class actions. In consolidated appeals, Dugan v. TGI Fridays and Bozzi v. Restaurant Partners, LLC, the plaintiffs had argued that the defendant restaurant operators violated the plaintiffs’ clearly established rights by failing to list prices for beverages on their menus, that the restaurants were required to plainly mark the prices, and that when the restaurants’ employees presented menus to customers (class members), they “offered” contracts that violated the New Jersey Consumer Fraud Act (“CFA”) and the Truth-in Consumer Contract, Warranty and Notice Act (“TCCWNA”). However, the Court concluded that class certification was not appropriate because individual, rather than common, issues would predominate in proving TCCWNA’s “aggrieved consumer” and “clearly established legal right” requirements. The fundamental take-away from the Supreme Court’s analysis of TCCWNA’s “aggrieved consumer” requirement is that simply demonstrating that a consumer contract offends TCCWNA does not establish liability under the Act, because “[b]y its very terms, TCCWNA . . . does not apply when a defendant fails to provide the consumer with a required writing.” Rather, “at a minimum, a claimant must prove that he or she was presented with a menu” (i.e., the allegedly offending writing). Using the word “critical” three times,...

Third Circuit Affirms that Short Breaks, Treated as Flex Time, are Compensable

by Gibbons P.C.

Posted in Wage and Hour

On October 27, 2017

On October 13, 2017, the Third Circuit held in Secretary United States Department of Labor v. American Future Systems, Inc., that under the Fair Labor Standards Act (FLSA), an employer was required to compensate employees for all breaks of twenty minutes or less that the employer treated as flex time for the employees. Facts and Analysis Defendant American Future Systems, d/b/a Progressive Business Publications (“Progressive”) employed sales representatives to sell its business publications. The sales representatives were paid on an hourly basis, but only when logged onto their computers. In 2009, Progressive eliminated its policy that permitted employees to take two 15 minute paid breaks per day and replaced it with a “flexible time” policy. The flexible time policy allowed sales representatives to “log-off the computer system at any time of the day, for any reason, and for any length of time, at which point, if they so choose, they may leave the office.” Employees were required to log off their computers if they were “not on an active sales call, recording the results of a call, engaged in training or administrative activities, or engaged in other activities that Progressive considers to be work-related.” If sales representatives were logged out of their computers for over 90 seconds, they were not compensated for this flexible time....

Seventh Circuit Upholds Forum Selection Clauses in Employee Benefits Plans

by Richard S. Zackin

Posted in Employee Benefits

On October 17, 2017

In Mathias v. Caterpillar, Inc., the United States Court of Appeals for the Seventh Circuit upheld a forum selection clause requiring a participant in a benefits plan governed by the Employee Retirement Income Security Act (“ERISA”) to bring suit in the Central District of Illinois. The plaintiff had brought suit in federal court in Pennsylvania, invoking ERISA’s venue provision, which, inter alia, allows suit to be brought in any district in which the defendant is found. The Court, however, ruled that ERISA’s venue provision was subject to the benefits plan’s forum selection clause. The decision is of obvious significance to employers who would prefer to avoid being subject to ERISA-based suits in multiple jurisdictions. Background Mathias, who had been employed at a Caterpillar facility in York, Pennsylvania, began receiving health insurance benefits in 1997 under the company’s long term disability plan. When he chose to retire in 2012 retroactive to 2009 his change in status mandated an increase in his insurance premiums, which Caterpillar mistakenly failed to implement. In 2013, the company realized its mistake and notified Mathias that he owed more than $9,500 in past-due premiums. When Mathias did not pay that amount, Caterpillar terminated his benefits. Mathias sued Caterpillar and the relevant health plans in federal court in the Eastern District of Pennsylvania....

Casino Reinvestment Development Authority Releases Proposed Land Development Rules for Atlantic City Tourism District

by Cameron W. MacLeod

Posted in Development/Redevelopment

On October 9, 2017

The Casino Reinvestment Development Authority (“CRDA”) recently released for public comment its proposed land use regulations for the Tourism District within Atlantic City. CRDA oversees all land use planning within the Tourism District, which spans from the beaches and boardwalk of Atlantic City north to the Convention Center, and stretches from the Absecon Inlet south to Ventnor City. These rules are proposed to establish new procedural and substantive standards for applications for development being proposed within the Tourism District. The next public hearing on the proposed regulations is scheduled for October 10, 2017 at the Atlantic City Convention Center at 6:00 PM. Written comments may be submitted by November 17, 2017 to CRDA.

NJ Municipality’s Implied Acceptance of a Private Lane as a Public Road Requires Actions Consistent with Ownership or Evidencing Intent to Treat the Lane as Dedicated to Public Use

by Howard D. Geneslaw

Posted in Development/Redevelopment

On October 3, 2017

The New Jersey Appellate Division recently affirmed the Chancery Division’s determination that a municipality only impliedly accepts a private lane as a public road if it takes actions consistent with ownership or that otherwise evidence an intent to treat the land as dedicated to public use. In Holloway v. McManus, et al., an unpublished decision, an applicant sought to subdivide his property, which had access solely by way of a 25 foot wide unimproved dirt and gravel lane running across the McManus defendants’ land, into 13 residential lots. In connection with this application, the applicant requested the Township of Jackson provide permanent access to the property by declaring the unimproved lane a public road. The unimproved lane was depicted on a number of public documents, including: (i) a 1974 survey, which showed the path as a 10 to 12 foot “sand road”; (ii) the Township’s tax maps, which indicated the lane was a 25 foot “utility access easement”; and (iii) a 2002 subdivision map, submitted to the Township by another non-party development, which showed the path as a 25 foot “dirt and gravel utility access easement to be dedicated to [the] Township,” which was referenced in the legal description of the McManus defendants’ deed to their property. Nearby landowners, including the McManus defendants, objected to...

Gibbons Ranked Best Law Firm and Best Lobbying Firm in Inaugural NJBIZ Reader Rankings

by Gibbons P.C.

Posted in Federal Lobbying / Firm News

On September 26, 2017

Gibbons P.C. has been selected as the best law firm and the best lobbying firm in New Jersey in the inaugural NJBIZ Reader Ranking Awards. The Reader Rankings were compiled through an online survey seeking the best of the best in a wide range of categories and subcategories. According to NJBIZ, “The publication of the 2017 Reader Rankings by NJBIZ is our way of recognizing the regard our readers have for the businesses in their communities. What makes the companies listed here distinct is the devotion they inspire among our region’s business leaders.” Gibbons has been recognized by numerous organizations and publications for the firm’s work on behalf of clients, including being named among the New Jersey Law Journal’s Litigation Departments of the Year, earning the top overall honors in 2014, as well as recognition for the practice areas of class actions (2017), products liability (2016), and commercial litigation (2013). The Gibbons Government Affairs Department has ranked as the #1 lawyer-lobbying firm in New Jersey for nine consecutive years, according to the New Jersey Election Law Enforcement Commission In addition, the firm and Gibbons attorneys are also consistently recognized in annual client-review publications such as the Chambers USA Guide to America’s Leading Lawyers for Business, Best Lawyers®, and Super Lawyers.

All in the Family: N.J. Appellate Division Holds That Status of Pre-1983 Purchaser as “Innocent Party” Applied to Current Owner Despite Property Transfers Among Family Members Via Trusts

by Gibbons P.C.

Posted in Environmental and Green Issues

On September 22, 2017

Reversing the denial of an application for an “innocent party” grant, the New Jersey Appellate Division recently held in an unpublished opinion, Cedar Knolls 2006, LLC v. New Jersey Department of Environmental Protection, that property transfers among family members, even through the use of trusts, are not “changes of ownership.” Thus, a corporation that acquired a parcel of land in 2006 was eligible to seek an “innocent party” grant that is available only to pre-1983 transferees because the property had remained within the same family since its original acquisition in 1977. The property at issue was originally acquired in 1977 by Robert Higginson, well before the December 31, 1983 cutoff for eligibility as an “innocent party” under New Jersey law. Upon his death 16 years later, he bequeathed the property to his wife through two 50% shares placed into separate trusts. His wife then assigned her shares in the property to two new trusts. The interests of those trusts in the property were subsequently transferred to their son, who created a new entity, Cedar Knolls 2006, LLC, to which he transferred the two 50% shares, making Cedar Knolls the sole owner of the property. Nine years later, Cedar Knolls applied for an innocent party grant to cover the costs of remediating the property. NJDEP denied the...

What are “Acts of Infringement” and Where is “A Regular and Established Place of Business” for a Hatch-Waxman Defendant: The District of Delaware Weighs in on the Patent Venue Rule

by Christine A. Gaddis

Posted in Patent / Pharmaceuticals

On September 20, 2017

We previously reported on the Supreme Court’s decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, in which the Supreme Court created a new patent venue rule. The patent venue statute, 28 U.S.C. § 1400(b), provides that patent infringement suits “may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” In TC Heartland, the Supreme Court held that “[a]s applied to domestic corporations, ‘reside[nce] in § 1400(b) refers only to the State of incorporation.” A Delaware District Court recently considered the provision of the patent venue statute not addressed by TC Heartland – where venue is proper if a “defendant has committed acts of infringement and has a regular and established place of business” in the context of a defendant’s motion to dismiss for improper venue. In Bristol-Myers Squibb Co. v. Mylan Pharmaceuticals Inc., a patent infringement matter brought under the Hatch-Waxman statute and filed before the TC Heartland decision, the parties did not dispute that, in light of TC Heartland, the defendant, a West Virginia corporation, could not be said to “reside” in Delaware. Thus, venue would be proper in Delaware only if the defendant committed act of infringement in Delaware and had a...