Gibbons Law Alert

Gibbons Law Alert Blog

On November 7, 2016

A recent New Jersey Appellate Division case concerning spoliation of evidence in the context of a contribution action under the New Jersey Spill Compensation and Control Act (“Spill Act”) counsels caution on the part of redevelopers of contaminated sites. The case makes clear that owners of contaminated sites must endeavor to preserve physical evidence related to the contamination as soon as litigation becomes “probable” if they hope to rely on that evidence in a future contribution action.

Following the Expiration of the Permit Extension Act, Keep in Mind the Impact of Statewide Non-Residential Development Fees

by Cameron W. MacLeod

Posted in Development/Redevelopment

On November 4, 2016

With an improving economy, developers who have weathered the storms of economic recession and have projects approved prior to July 17, 2008, the effective date of the Statewide Non-Residential Development Fee Act, N.J.S.A. 40:55D-8.1 et seq. (the “Act”), may finally be in a position to construct many of these projects. However, with changes in the market and demand for certain types of commercial space outpacing those approved in the 1990s and early 2000s, approvals that have been tolled since 2007 by the Permit Extension Act (N.J.S.A. 40:55D-136.1 et seq.) may need to be altered to accommodate new marketplace demands. In seeking amendments of those approvals, developers should be aware of, and consider the potential application of, the affordable housing development fee to those projects.

FEMA Amendments to Base Floor Elevation Requirements, When Minor, Do Not Necessarily Give Rise to Hardship Showing for Height Variance Says NJ App Div

by Gibbons P.C.

Posted in Development/Redevelopment

On November 1, 2016

In its recent decision in Richmond URF, LLC v. Zoning Board of Adjustment of the City of Jersey City, the Appellate Division held that a minor alteration in base floor elevation requirements in the wake of FEMA’s amendments to the regulations after SuperStorm Sandy does not necessarily give rise to showing a hardship in support of a height variance under N.J.S.A. 40:55D-70(d)(6).

SNDAs: Often Encountered, Rarely Discussed

by Gibbons P.C.

Posted in Real Estate / Transactional Real Estate and Leasing

On October 31, 2016

Subordination, non-disturbance and attornment agreements (SNDAs) are often encountered by transactional real estate lawyers, but infrequently discussed. An SNDA is an agreement among a tenant, the landlord’s mortgage lender and, usually, the landlord. An SNDA provides that a tenant’s lease will be subordinated to a mortgage on the landlord’s property, and the mortgage lender will agree that if the mortgage goes into default and the lender forecloses its mortgage, the lease will continue (i.e., it will not be disturbed).

Are New Jersey’s Business Loan, Incentive, and Grant Programs Right for You?

by Paul J. St. Onge and Michael D. DeLoreto

Posted in Business Incentives / Economic Development

On October 26, 2016

Ronald Reagan famously said that the nine most terrifying words in the English language are, “I’m from the government and I’m here to help.” But for businesses starting up, expanding, or relocating into New Jersey, state government can be helpful, if you know where to start. We regularly counsel clients on government incentives, loans, and business assistance offered through the nationally-recognized New Jersey Economic Development Authority (NJEDA) and other State agencies. The NJEDA’s programs assist businesses of all sizes access loans/loan guarantees, as well as business and tax incentives. A few of the many programs offered are listed below. Loan Programs The NJEDA offers several loan programs that support small and mid-sized companies acquiring fixed assets, obtaining working capital, and refinancing debt: The Premier Lender Program provides loan and line of credit participations/guarantees in varying amounts. The NJEDA has a group of preferred lenders, and rates are generally at or below traditional loans. In return for the NJEDA’s assistance, the business has to agree to add one new full-time employee for every $65,000 of NJEDA exposure. The Small Business Fund provides up to $500,000 for small businesses, minority or woman owned businesses, and nonprofits that have been in business for at least one to three years. The Direct Loan Program provides up to $2 million...

Sufferers of PTSD Gain Access to Medicinal Marijuana

by Gibbons P.C.

Posted in Healthcare

On October 14, 2016

On September 14, 2016, New Jersey amended its medicinal marijuana law to add post-traumatic stress disorder (‘PTSD’) as a qualifying condition, permitting PTSD sufferers to gain access to this unconventional therapy for the first time. Some background — In 2009, New Jersey became the 14th state to allow access to medicinal marijuana. Over the past seven years, 11 additional states have expanded their laws to allow access to medical marijuana. In New Jersey, the original law provided access to medical marijuana for the following conditions: Amyotrophic lateral sclerosis; Multiple sclerosis; Terminal cancer; Muscular dystrophy; Inflammatory bowel disease, including Crohn’s disease; Terminal illness, if the physician has determined a prognosis of less than 12 months of life; Seizure disorder, including epilepsy; Intractable skeletal muscular spasticity; Glaucoma; Positive status for human immunodeficiency virus; Acquired immune deficiency syndrome; and Cancer. Under the amended law signed by Governor Christie, a patient with PTSD would be eligible for medicinal marijuana if she has been unsuccessful alleviating her symptoms with conventional medical therapy. Additionally, the patient would have to obtain certification of her condition from a physician with whom she has a “bona fide physician-patient relationship.” Several other recent developments on this issue merit a brief review. In August 2016, the Department of Health (“DOH”) asked for public input on additional...

Robot Associates and the Future of Law

by Gibbons P.C.

Posted in Technology Developments and Issues

On October 12, 2016

In the last 10 years, robotic surgical systems have revolutionized the way doctors approach minimally invasive surgery, especially laparoscopic and arthroscopic procedures. AI-enabled systems can also provide doctors with suggestions based on symptoms, learning from medical diagnoses and the outcomes of the symptoms. As with medicine, the field of law will be revolutionized in the coming years by the application of AI-enabled systems and networks to the practice of law.

Washington Redskins Must Wait Their Turn for High Court

by Paolo A. Strino

Posted in Trademarks

On October 11, 2016

On October 3, 2016, the U.S. Supreme Court announced that it would not take up an appeal by the Washington Redskins regarding the constitutionality of a Lanham Act provision that prevents registration of trademarks that disparage “persons, living or dead, institutions, beliefs, or national symbols.” See 15 U.S.C. §1052(a).

Regulations Proposed by NY Department of Financial Services are a Significant Development for Regulated Entities … and Everyone Else

by John T. Wolak

Posted in Privacy and Data Security / Technology Developments and Issues

On October 6, 2016

On September 13, 2016, New York Governor Andrew M. Cuomo announced new first-in-the-nation proposed regulations to protect against the ever growing threat of cyber-attacks in the financial services industry. The proposed regulations, to be enforced by the New York State Department of Financial Services, would apply only to an entity regulated by the NY Department of Financial Services – from a multi-national bank to a “mom-and-pop” operation. However, the regulations are important for all companies to review and consider, regardless of their location or scope of operations, because the proposal represents an important step in the ongoing national dialogue about reasonable and necessary cybersecurity standards for all businesses.

Third Circuit Sets Framework for Numerosity Inquiry and Lists Factors to Consider When Determining “Whether Joinder would be Impracticable” Under Rule 23(a)(1)

by Gibbons P.C.

Posted in Class Action Defense

On October 4, 2016

One of the prerequisites for class certification under Rule 23(a) is that “the class is so numerous that joinder of all members is impracticable,” which is commonly referred to as the “numerosity” requirement. Notably, Rule 23(a)(1) is “conspicuously devoid of any numerical minimum required for class certification.” For the first time, the Third Circuit has “provide[d] a framework for district courts to apply when conducting their numerosity analyses” in a recent precedential opinion. Defendants opposing class certification must be aware of this framework, particularly since numerosity is an often overlooked prerequisite yet may provide ample grounds for defeating certification in certain actions.