Gibbons Law Alert

Gibbons Law Alert Blog

NJ Legislative Budget Committees Receive Fiscal Updates

Posted in State Legislative and Budget Matters

On April 7, 2017

The Legislature received testimony regarding State revenues earlier this week. In separate appearances before the Assembly Budget Committee and the Senate Budget and Appropriations Committee, the State Treasurer and the Office of Legislative Services (OLS) testified regarding the revenue picture for the current fiscal year (FY 2017), and the anticipated revenues for the upcoming fiscal year (FY 2018). The OLS reported to the Committees that incoming revenues for FY 2017 are currently forecasted to be $228 million less than expected. However, the 2016 financial market rally and estimated tax payments by high-income earners suggest that FY 2017 revenues could push closer to the originally forecasted amounts. A more accurate revenue forecast will be available in May, after the April tax filing deadline passes. For FY 2018, both the Executive Branch and the OLS have similar projections for growth in the upcoming fiscal year. The Executive Branch anticipating growth that is only 0.6 percent higher than the OLS. While a small percentage amount, this still results in a difference of $212.9 million between the Executive Branch and OLS revenue estimates. The OLS Tax and Revenue Outlook can be accessed here. The State Treasurer’s testimony to the Assembly and Senate Budget Committees can be found here. In all, the State of New Jersey faces another tight fiscal...

U.S. Supreme Court Requires Schools to Provide a Special Needs Student More Than a “De Minimis” Education

by Mary Frances Palisano

Posted in General Litigation

On April 5, 2017

On March 22, 2017, the United States Supreme Court handed down a unanimous ruling in Endrew F., et al. v. Douglas County School District RE-1. In a decision that will have far-reaching implications in the area of special education, the Court held that the Individuals with Disabilities Education Act (“IDEA”) “requires that students with disabilities be provided with an educational program that is reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” In 1982, the Supreme Court determined in Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley that the IDEA requires that every child be provided with a free and appropriate public education (“FAPE”). The Rowley Court did not, however, adopt a standard for determining whether a child is receiving a sufficient educational benefit to satisfy this mandate. Rather, the Court stated that a child has received a FAPE if the Individual Education Plan (“IEP”) provides an education program “that is reasonably calculated to enable the child to receive educational benefits,” and otherwise limited its analysis to the facts of the Rowley case. Endrew F., an autistic child, was enrolled in a public school and educated pursuant to an IEP. In 4th grade, Endrew’s parents expressed displeasure with his progress and challenged the...

Another TCCWNA “Website” Terms & Conditions Class Action Dismissed

by Joshua S. Levy

Posted in Class Action Defense

On April 3, 2017

Over the last year – and as we have previously reported – online retailers have repeatedly been targeted by threatened or filed class actions, premised on their website terms and conditions purportedly containing unlawful terms that violate the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”). Many of these cases have been dismissed by trial courts on state law grounds and, in federal court actions, for failure to demonstrate “injury in fact,” a fundamental requirement for Article III standing. Continuing this trend, the District of New Jersey recently dismissed yet another website terms and conditions class action grounded in the TCCWNA, Hite v. Lush Internet Inc. In Hite – as in so many of these lawsuits – “Plaintiff visited Defendant’s website . . . and purchased one of Defendant’s cosmetic products.” Yet, she “[d]id not allege she has any claim about the product that she purchased, such as fraud, product liability or tort.” Instead, “[h]er quarrel [was] with the provisions of the terms of use of the website” in that she “generally allege[d] that the exculpatory clauses contained in the Terms of Use violate . . . the TCCWNA because they unlawfully disclaim all tort liability.” Chief Judge Simandle dismissed the case, however, holding that “Plaintiff has not alleged an injury sufficient to confer standing...

Seventh Circuit Affirms Dismissal of Data Privacy Class Action on Article III Standing Grounds

by Michael R. McDonald and Joshua S. Levy

Posted in Class Action Defense

On March 31, 2017

Since the United States Supreme Court decided Spokeo, Inc. v. Robins in May 2016, lower courts have struggled to consistently determine whether a plaintiff has standing to sue in federal court, which, as the Spokeo court explained, “requires a concrete injury even in the context of a statutory violation.” That is, even when Congress has made something unlawful and authorized an award of statutory damages for the unlawful act, the mere violation of that law is not itself sufficient to confer standing to sue under Article III of the U.S. Constitution. But precisely what is required to demonstrate sufficient “injury” under Article III remains unclear after Spokeo, especially in the data-breach and data-privacy contexts. In Gubala v. Time Warner Cable, Inc., however, a unanimous Seventh Circuit decision, authored by Judge Posner, held that the defendant’s possible failure to comply with a requirement contained in the Cable Communications Policy Act (requiring the destruction of personally identifiable information (“PII”) if the information is no longer necessary for the purpose for which it was collected) did not afford the plaintiff Article III standing to sue for violation of the statute where his personal information was not released or disseminated in any way. The plaintiff in Gubala had subscribed to Time Warner cable services in 2004, which required him to...

The Metadata Minefield – New Jersey’s Amended Rules of Professional Conduct Provide Ethical Guidance

by Phillip J. Duffy

Posted in Policies and Handbooks

On March 28, 2017

Every electronic document contains metadata – hidden, electronically stored information (ESI) which reveals details surrounding its creation, typically including the document’s creator and the date and time the document was created and edited, among other things. Much of this metadata may be innocuous, but some – for example, the identity of every individual who opened or edited a document, or even tracked changes – may reveal privileged and confidential attorney client communications or work product that was not meant to be visible to or seen by the other side. This, in turn, generates issues of concern for lawyers entrusted with preventing disclosure of such confidential information and for those who receive it. Following the recommendations of its Commission on Ethics 20/20, the American Bar Association (ABA) recently amended the Model Rules of Professional Conduct (MRPC) to address these issues and provide guidance to lawyers in both situations. In the wake of the ABA amendments, the New Jersey Supreme Court examined these issues, soliciting input from, among others, the Special Committee on Attorney Ethics and Admissions (Special Ethics Committee) and the Working Group on Ethical Issues Involving Metadata in Electronic Documents (Working Group), and rendering Administrative Determinations on the Reports and Recommendations of both groups. The New Jersey Supreme Court largely adopted the groups’ recommendations (which...

Privilege Claims and the Common Interest Doctrine

by Gibbons P.C.

Posted in Patent

On March 24, 2017

In a recent decision, in the District of Massachusetts, Magistrate Judge M. Page Kelley addressed the validity of privilege claims regarding third party communications under the common interest doctrine. In this case, plaintiffs Crane Security Technologies, Inc. and Visual Physics, LLC, a wholly-owned subsidiary of Crane Technologies, Inc. (collectively, “Crane”) alleged that defendant Rolling Optics, AB (“RO”) infringed the Crane patents that “relate generally to optical systems that project synthetic images that ‘move’ and that include image icons formed as voids or recesses” therefore, “useful as [an] anti-counterfeiting feature[] on currency.” Crane is the exclusive licensee to the patents-in-suit from third party, Nanoventions (“NV”). The relationship between the parties began in 2002 when Crane entered into a confidentiality agreement with NV because Crane was interested in using NV’s optical system as a security device on currency. Over the course of the next several years, Crane and NV entered into numerous additional agreements, culminating in Crane’s “purchase[] [of] the intellectual property from NV in 2008.” During discovery, RO challenged approximately 600 entries on Crane’s privilege log regarding certain communications between Crane and third parties pertaining to the Crane’s transactions with NV, including: (1) communications between Crane and NV dated before the 2004 license agreement, while NV was prosecuting the patents-in-suit; (2) communications between Crane and NV...

Clarifying How New Jersey Counts Prospective Need and Evaluating Competing Proposals for Builder’s Remedies

by Cameron W. MacLeod

Posted in Development/Redevelopment

On March 24, 2017

Determining the municipal fair share housing obligation has been the subject of litigation for the better part of 18 years, since the last valid set of regulations for the New Jersey Council on Affordable Housing expired in 1999. As we have previously blogged, the Supreme Court’s recent decision in In re Declaratory Judgment Actions Filed by Various Municipalities, County of Ocean, – N.J. – (2017) established that the constitutional obligation to provide realistic opportunities for the construction of affordable housing is cumulative, leaving only the question of how to calculate the need during two periods: one from 1999 to 2015, and one from 2015 to 2025. The Appellate Division recently released for publication an edited version of Judge Wolfson’s trial court opinion in In the Matter of the Application of the Township of South Brunswick for a Judgment of Compliance and Repose and Temporary Immunity from Mount Laurel Lawsuits, in an effort to provide further clarity on how to calculate prospective need during the period from 2015 to 2025. The opinion addresses two fundamental questions: (1) how shall a municipality calculate its constitutional fair share housing obligation, and (2) how to evaluate competing claims for so-called “builder’s remedy” relief from intervening developers. The decision addresses how municipalities should determine their fair share housing obligation, and which methodology...

What Parcel? SCOTUS Hears Arguments in Case Poised to Clarify the Court’s Regulatory Takings Jurisprudence

by Cameron W. MacLeod

Posted in Development/Redevelopment / Transactional Real Estate and Leasing

On March 22, 2017

The Supreme Court of the United States entertained arguments on Monday, March 20, 2017 in a case likely to fortify its Fifth Amendment regulatory takings jurisprudence. The case, Murr v. Wisconsin, is on appeal from Wisconsin’s high court and, when decided, should answer a question left open by the Court’s 1978 ruling in Penn Central Transportation Company v. City of New York. In Penn Central, the Court instructed that in determining whether a regulation has gone far enough to constitute a taking of private property, courts should not limit their analysis to the regulation’s effect on some discrete segment or portion of the subject property, but should instead consider the regulation’s interference with property rights “in the parcel as a whole.” The question of how reviewing courts should define that parcel, however, has gone unanswered for decades. Enter the Murr children, whose parents purchased two adjacent tracts of land along the St. Croix River in the early 1960s. The Murr parents built a cabin on the first lot and maintained title to it in the name of their business. The second lot, purchased afterwards, was kept in their name and remained largely undeveloped. In 1976, a county ordinance was passed establishing new minimum lot size requirements for properties in the area. While this ordinance contained an exception for...

The Regulatory Accountability Act of 2017 May Require a Revisit of Recent Precedent

by Christopher H. Strate

Posted in Patent / USPTO

On March 22, 2017

The Regulatory Accountability Act of 2017 is currently pending before the Senate Committee on Homeland Security and Governmental Affairs, which was recently passed by the House of Representatives with a 238-183 vote. If enacted, this bill would repeal the Chevron deference standard (“Chevron standard”), among other reforms, which potentially will require the courts to reconsider and overturn past precedent regarding the patent statute. The Chevron standard frequently appears in litigations involving federal agencies. This standard is rooted in the U.S. Supreme Court case, Chevron U.S.A. Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 104 S. Ct. 2778 (1984), where the Court held that it should defer to agency interpretations of a statute that is “silent or ambiguous with respect to the specific issue.” Under this bill, courts instead would have to review relevant questions of law in these cases de novo. This bill would affect agency guidance from all federal agencies including the U.S. Food and Drug Administration, Environmental Protection Agency, and the agency most relevant to patent practitioners, the United States Patent and Trademark Office (“USPTO”). Although it is difficult to determine the reach of the implications from this bill, if enacted, it is possible that patent practitioners could see the effects. For instance, the 2011 America Invents Act gave the USPTO the...

Gibbons Part of Team Nominated by NAIOP for Mixed-Use Deal of the Year

by Gibbons P.C.

Posted in Development/Redevelopment / Real Estate / Transactional Real Estate and Leasing

On March 20, 2017

NAIOP New Jersey, the commercial real estate development association, has announced the finalists for its Deal of the Year Awards. Gibbons P.C. was part of the team nominated for Mixed-Use Deal of the Year for the project involving the disposition of the Hoffmann-La Roche US headquarters in Nutley and Clifton, New Jersey. Winners in the categories of Industrial Deal of the Year, Office Deal of the Year, and Mixed-Use Deal of the Year will be announced at the 30th Annual Commercial Real Estate Awards Gala on May 11, 2017. Gibbons was part of the team that led the successful sale of the former 116-acre headquarters and research and development campus of Hoffmann-La Roche, which spans the municipalities of Nutley and Clifton, to Prism Capital Partners and a Boston-based investment manager. As part of the transaction, a joint venture between Hackensack University Medical Center and Seton Hall University will lease two of the campus buildings and 16 acres of the property for the new Seton Hall–Hackensack Meridian School of Medicine, the first new private medical school in New Jersey in over 40 years. The new site will also house Seton Hall’s College of Nursing and its School of Health and Medical Sciences, along with a National Health Institute-designated Clinical Research Center that Hackensack Meridian plans to...