Gibbons Law Alert

Third Circuit Clarifies Focus of Preliminary Injunction Standard

On July 31, 2017

Describing its precedent as “confus[ing]” and “inconsistent,” the Third Circuit recently clarified the test for deciding whether to issue a preliminary injunction. Since the 1970’s, courts in the Third Circuit have decided preliminary injunction applications based upon the following factors: (1) the likelihood of success on the merits; (2) whether the movant will be irreparably harmed in the absence of relief; (3) the possibility of harm to others from grant or denial of the relief; and (4) the public interest. However, courts differed as to how these four factors should be applied. In Reilly v. City of Harrisburg, the Third Circuit shed light on how these factors are to be weighed and, at least in part, who bears the burden on each. The Third Circuit held that a movant seeking a preliminary injunction bears the burden of “meet[ing] the threshold for the first two ‘most critical’ factors.” To satisfy the first prong, the movant “must demonstrate that it can win on the merits” by showing that its chances of success are “significantly better than negligible but not necessarily more likely than not.” To satisfy the second prong, however, the movant must show “that it is more likely than not to suffer irreparable harm in the absence of preliminary relief.” After a movant makes these showings,...

New York Employers Mid-Year Review

by Elizabeth Cowit

Posted in Family Leave / Labor / Policies and Handbooks / Wage and Hour

On July 31, 2017

In 2017, employers in New York encountered several important statutory changes affecting recruitment of applicants and retention of independent contractors. More legal change will come in 2018, warranting a mid-year review of current employment and hiring practices, as well as preparation for next year’s developments. Employers should take the time now to audit current practices and prepare for the imminent future. Pay Equity On May 4, 2017, Local Law 67 was enacted to prohibit all employers in New York City from inquiring about an applicant’s salary history (including current or prior wages, benefits, and other compensation), and from relying on an applicant’s salary history when determining his or her compensation package during the hiring process, including contract negotiations. The law applies to both public and private employers and employment agencies, and to their employees and agents (collectively, “employers”). Employers may, however, engage in communications with an applicant about his or her expectations as to salary, benefits, and compensation, including any deferred compensation or unvested equity which the applicant may forfeit as a result of leaving his or her current employer. In addition, if the candidate voluntarily (and without any prompting by the prospective employer), discloses his or her salary history to the prospective employer, the employer may consider salary history in determining compensation for the applicant,...

Do You Like What You’re Reading? Rate Our Blog: The ABA Journal’s “Web 100” Award

by Gibbons P.C.

Posted in Labor

On July 24, 2017

Thank you for visiting the Gibbons Employment Law Alert blog! Content on our site, authored by members of the Gibbons Employment & Labor Law Department, discusses employment and human resources issues and news within the legal and business industries. How are we doing? To review our blog and nominate the Gibbons Employment Law Alert for this year’s ABA Journal’s “Web 100” award, please visit abajournal.com/blawgs/web100 and share why you are a “fan” of our site (Please note: the voting process closes on Sunday, July 30). Thank you in advance for your support.

Germany Moves to Amend Privacy Laws in Anticipation of the EU’s General Data Protection Regulation

by Jeffrey L. Nagel

Posted in General Litigation

On July 17, 2017

With the EU’s General Data Protection Regulation (GDPR) scheduled to go into effect in May of 2018 – an ambitious effort to harmonize a patchwork of EU privacy laws and create a uniform privacy regime that restricts the collection, processing and use of individual information – Germany has become the first member state to amend its own privacy laws in anticipation of the coming changes. In May 2017, the German Federal Council (‘Bundesrat’) passed an act intended to bring the current German data protection laws in line with the requirements of the GDPR. On July 5, 2017, the new German Federal Data Protection Act (‘Bundesdatenschutzgesetz’), referred to as the German Data Protection Act, was countersigned by the German Federal President and published in the Federal Law Gazette. The Act utilizes some of the framework and concepts of the GDPR to enhance Germany’s existing data protection rules, while at the same time modifies existing German privacy rules to allow for certain data to be used more freely in cases of national security and employment. Under the new German law, employee data can be processed if “necessary” to establish or carry out the employment relationship (for example, to enforce a collective bargaining agreement). Although this is not a substantive change from existing law, some clarifications have been made...

Wrap Up of United States Supreme Court’s 2016-17 Term

by Christopher Walsh

Posted in General Litigation

On July 13, 2017

With the close of the United States Supreme Court’s 2016-17 term, we offer this wrap up of the term’s most important business and commercial cases (excluding patent cases): Kindred Nursing Ctrs, L.P. v. Clark: The Supreme Court continued its full-throated support of arbitration agreements, again rejecting a state supreme court’s effort to apply an ostensibly arbitration-neutral rule of law to invalidate an arbitration agreement. In Kindred, the Kentucky Supreme Court held that an arbitration agreement signed by an attorney-in-fact under a broad power of attorney was invalid because the power of attorney did not expressly give the attorney-in-fact the right to waive the principal’s right to a jury trial. According to the Kentucky Supreme Court, to grant an attorney-in-fact the authority to waive a “fundamental constitutional right,” a power of attorney must grant that authority expressly and unambiguously. Because the right to access the courts and the right to a jury trial are such “fundamental constitutional rights” and because the power of attorney did not expressly and unambiguously waive them, the attorney-in-fact was not authorized to agree to arbitrate the principal’s claims, and no enforceable arbitration agreement was created. The Supreme Court found that the Kentucky Supreme Court’s facially arbitration-neutral rule—that the authority to waive “fundamental constitutional rights” must be expressed unambiguously in a power...

Don’t Ask For Too Much: Court Strikes Balance in Addressing Dispute Over Discoverability of Social Media

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On July 11, 2017

In a recent case, Magistrate Judge Mark L. Carman of the United States District Court for the District of Wyoming reminds practitioners that requests for social media data still must be relevant and proportional to the dispute. In this auto accident case, the Court found a balance between the need for defendants to determine whether a plaintiff is lying or exaggerating and the possibility that allowing defendants too much leeway in seeking social media could dissuade injured plaintiffs from pursuing legitimate claims for fear of humiliation and embarrassment. Plaintiff alleged she sustained physical injuries, traumatic brain injury, posttraumatic stress disorder, anxiety, and depression. In an extraordinarily broad discovery request, defendant requested that plaintiff produce “an electronic copy of your Facebook account history.” Plaintiff downloaded and produced information from her Facebook accounts gathered by using several keyword search terms. However, plaintiff refused to produce her entire Facebook archive, and defendant moved to compel. The Court explained that “[s]ocial media presents some unique challenges to courts” in determining the proper scope of discovery. In particular, Judge Carman explained: “People have always shared thoughts and feelings, but typically not in such a permanent and easily retrievable format. No court would have allowed unlimited depositions of every friend, social acquaintance, co-employee or relative of a plaintiff to inquire as...

N.J. Appellate Division Affirms Default Approval of Substantially Complete Application for Redevelopment Project

by Jennifer P. Smith

Posted in Development/Redevelopment

On July 7, 2017

The New Jersey Appellate Division recently affirmed a trial court’s grant of an automatic site plan approval for an 87-unit multi-family residential project with possible commercial space on the ground floor in Jersey City. The decision simultaneously sheds light on what it means for an application to be “complete” and when the Municipal Land Use Law’s proverbial 95-day stopwatch for the grant or denial of preliminary approval begins ticking. In Bright and Varick Urban Renewal Co. LLC v. Jersey City Planning Bd., after the City designated the subject property as an area in need of redevelopment and adopted a redevelopment plan, the designated redeveloper filed an application seeking site plan approval for the project. The City’s Principle Planner informed the redeveloper that it needed to submit an additional 12 outstanding items before the application would be considered. The redeveloper submitted 11 of the 12 outstanding items, and stated it would provide the twelfth item upon request. Thereafter, the Principle Planner confirmed in writing that the application was “substantially complete,” and requested the redeveloper make minor changes to its plans without mentioning the twelfth outstanding item. Two months later, the City had concerns about the density of the project, tabled the application for another approximately two months, and then ultimately denied the application due to the...

Supreme Court Rules That Statute of Repose Trumps Class Action Tolling

by Jason R. Halpin

Posted in Class Action Defense

On July 7, 2017

The Supreme Court has given a boost to companies defending against securities claims, ruling in California Public Employees’ Retirement System v. ANZ Securities that a statute of repose cannot be extended by the doctrine that the filing of a class action tolls the statute of limitations for the claims of absent class members. The case emanated from a prior class action that had alleged, in connection with certain offerings by Lehman Brothers Holdings Inc., violations of Section 11 of the Securities Act of 1933, which relates to misrepresentations and omissions made in a securities registration statement. Section 13 of the Act provides that any such claim must be brought within “three years after the security was bona fide offered to the public.” CalPERS, which was an absent class member in the original class action, filed its own class action complaint more than three years after the transactions at issue and then opted out of the original class action. Affirming the decisions of the Southern District of New York and the Second Circuit, the Supreme Court held that the three-year limit in Section 13 is a statute of repose, and that such a limit cannot be extended by any court-made tolling doctrine. CalPERS argued that the statute was tolled under American Pipe & Construction Co. v. Utah during...

Update: U.S. Supreme Court Announces New Test for Defining “the Parcel” in a Regulatory Taking

by Cameron W. MacLeod

Posted in Development/Redevelopment

On June 30, 2017

On March 22, 2017, we blogged about the importance of the United States Supreme Court’s looming decision in Murr v. Wisconsin – a regulatory takings case that was poised to resolve a key question long left unanswered by the Court’s takings jurisprudence: how do you define the relevant parcel in determining a regulation’s impact on “the parcel as a whole?” On June 23, 2017, the Court issued its ruling, and in a 5-3 decision answered definitively that it depends. Sometimes a regulation may go so far as to effect a “taking” of one’s property. In determining when a regulation has gone so far, the Court has previously instructed that reviewing courts must consider the regulation’s interference with property rights “in the parcel as a whole.” But the precise boundaries of “the parcel” are not always clear and, in many cases, may prove to be dispositive of whether there was a taking at all. The Court described the problem in Keystone Bituminous Coal Assn. v. DeBenedictis, explaining that because the regulatory takings analysis requires a comparison between the value taken from the property to the value which remains, “one of the critical questions is determining how to define the unit of property whose value is to furnish the denominator.” In Murr, the Court was presented with a number...

New York Bar Association Revises Social Media Ethics Guidelines

by Gibbons P.C.

Posted in Litigation Preparedness and Strategies

On June 23, 2017

On May 11, 2017, the Commercial and Federal Litigation Section of the New York State Bar Association issued its third iteration of Social Media Ethics Guidelines. As the authors of the Guidelines aptly recognize: “As use of social media by lawyers and clients continues to grow and as social media networks proliferate and become more sophisticated, so too do the ethics issues facing lawyers.” This recent update adds principles regarding professional competence and attorney use of social media, and addresses ethical considerations regarding maintaining client confidences, handling potential conflicts of interests related to social media, following clients’ social media, and communicating with judges via social media. Issued in 2014 and updated in June 2015, the Guidelines aim to provide “guiding principles” as opposed to “best practices” for the modern lawyer’s evolving use of social media. The authors acknowledge the guidelines’ inherent inability to define universal principles in the face of varying ethics codes, which “may differ due to different social mores, the priorities of different demographic populations, and the historical approaches to ethics rules and opinions in different localities.” The Guidelines are based upon the New York Rules of Professional Conduct and New York bar associates’ interpretation of those rules. The Guidelines do, however, cite ethics opinions where there is a difference of opinion or...