Gibbons Law Alert

Gibbons Law Alert Blog

NJ Legislators Look to Prohibit Asking Applicants about Salary History

Posted in Discrimination / Employment Agreements / Regulatory Counseling and Departmental Action

On October 3, 2016

The New Jersey Legislature is poised to take up another thorny issue for employers, salary history. Described by legislative sponsors as an effort to promote pay equity, the legislation would amend the New Jersey Law Against Discrimination to bar employers from asking job applicants about their salary history, or relying on it to determine salary at any stage in the hiring process. Two separate pieces of legislation have been introduced that prohibit an employer from inquiring about the salary history of an applicant. Assembly Bill 4119 was introduced on September 15, 2016 and referred to the Assembly Labor Committee. Senate Bill 2536 was introduced on September 15, 2016 and referred to the Senate Labor Committee.

Eighth Circuit Relies on Spokeo to Hold That Retention of Personal Information, Without More, Does Not Satisfy Article III’s Injury-in-Fact Requirement

by Caroline E. Oks

Posted in Class Action Defense

On October 3, 2016

The United States Supreme Court decision in Spokeo v. Robins, in which the Court considered whether a claim of statutory damages was sufficient to confer Article III standing, left much to be desired in terms of guidance for lower courts and litigants. Nonetheless, the Eighth Circuit’s recent refusal to revive a putative class action over Charter Communications Inc.’s allegedly indefinite retention of consumer data illuminated a way for defendants to trim claims of bare statutory violations, while clarifying how Spokeo should be applied.

Applying Federal Common Law, Third Circuit Approves Assignment, Without Consideration, of Antitrust Claims from Direct Purchaser to Indirect Purchaser

by Christopher Walsh

Posted in Antitrust

On September 29, 2016

In a recent precedential opinion in a case of first impression, the Third Circuit held that a written, express assignment of federal antitrust claims is valid even though no consideration is exchanged between the assignee and assignor. In doing so, the Third Circuit revived a putative class action by an indirect purchaser whose complaint had been dismissed by the District of Delaware for lack of standing under Illinois Brick.

The FTC Confirms That Mere Disclosure of Health Information is a “Substantial Injury” Justifying Sanctions for “Unreasonable” Data Security Practices

by John T. Wolak and Kate E. Janukowicz

Posted in General Litigation

On September 27, 2016

The Federal Trade Commission (“FTC” or “the Commission”) recently confirmed that disclosure of sensitive consumer data as a result of inappropriate data security practices may be deemed an “unfair act or practice” in violation of the Federal Trade Commission Act (“FTC Act”). This decision is important because the FTC reached this conclusion with no evidence of actual economic or physical harm, or any actual health and safety risks as a result of the disclosure. The Commission’s decision is also notable because it emphasizes the FTC’s expanding reach in the regulation of data security.

In Suit Alleging Misleading Employment Rates, Third Circuit Rejects Class Certification Premised Upon Invalid Damages Theory

by Gibbons P.C.

Posted in Class Action Defense

On September 26, 2016

The Third Circuit recently affirmed a decision from the District Court of New Jersey denying class certification in an action alleging that Widener University School of Law defrauded its students by publishing and marketing misleading statistics about graduates’ employment rates. In its precedential opinion adjudicating plaintiffs’ interlocutory appeal pursuant to Fed. R. Civ. P. 23(f), the Third Circuit concluded that although the District Court misconstrued plaintiffs’ damages theory, the error was harmless because the Court would have nonetheless concluded that plaintiffs failed to satisfy the predominance requirement. This opinion, authored by Circuit Judge Chagares, is an example of defendants defeating class certification when plaintiffs cannot proffer a valid method of proving class-wide damages, as required by the U.S. Supreme Court in Comcast v. Behrend several years ago.

Data Breach Victims Grounded: Third Circuit Affirms Dismissal of Putative Class Action Based on Economic-Loss Doctrine and Absence of Explicit Contractual Obligations

by Gibbons P.C.

Posted in General Litigation

On September 21, 2016

The Third Circuit’s recent decision affirming the district court’s dismissal of a proposed class action in its entirety highlights the difficulties faced by Plaintiffs pursuing data-security class actions in situations where the claims are not based upon explicit contractual language. This is an important decision for defense counsel to keep in mind in considering options to get rid of a class action before it takes off.

Nordic Naturals Vindicated Again with Third Circuit Affirming Class Action Dismissal and Granting Sanctions for Frivolous Appeal under FRAP 38

by Michael R. McDonald

Posted in Class Action Defense

On September 19, 2016

On September 14, 2016, in a precedential opinion, the Third Circuit upheld the dismissal of a serial, pro se attorney’s class action lawsuit against international dietary supplement manufacturer Nordic Naturals, Inc., which asserted label-related claims under the N.J. Consumer Fraud Act. Notably, the Third Circuit also entered a separate order, which granted Nordic’s motion for sanctions under Federal Rule Appellate Procedure 38 for Plaintiff’s frivolous appeal.

Construction Underway on Jersey City Luxury Tower at 90 Columbus

by Gibbons P.C.

Posted in Development/Redevelopment

On September 15, 2016

Construction is underway on 90 Columbus, the final tower of Ironstate Development and Panepinto Properties Inc.’s multi-phase Columbus Drive development project in Jersey City, New Jersey. The project is designed to embrace modern urbanism and connect the city’s financial district and waterfront with the vibrant Grove Street historic area. The 50-story, 539-unit, luxury apartment tower at 90 Columbus is the fourth tower in the iconic development, following the already-completed residential buildings at 50 and 70 Columbus, the over 900-space parking garage, and the 152-room Marriott Residence Inn at 80 Columbus, which is currently under construction and expected to open this winter. Ground broke on 90 Columbus earlier in 2016, and completion is expected in October 2018.

Court Compels Arbitration of Lawsuit Filed by Employees Discharged After Discovery of Personal Text Messages About a Coworker on a Company-Issued iPad

by Gibbons P.C.

Posted in Class Action Defense / General Litigation / Policies and Handbooks / Technology Developments and Issues

On September 12, 2016

A recent decision from the District of New Jersey granting a motion to compel arbitration not only reinforces the strong federal policy in favor of arbitration, but also highlights issues pertaining to company-issued devices and employees’ personal use of these devices. While employed by Anheuser-Busch, Victor Nascimento received a company-issued iPad. Nascimento and other employees exchanged text messages about a coworker over their personal cell phones outside of the work day, but the messages were received on Nascimento’s company-issued iPad because the iTunes account on his iPad was linked to his personal cell phone.

New Jersey District Court Enforces Comprehensive Arbitration Clause Between Car Dealer and Consumer

by Caroline E. Oks

Posted in Class Action Defense

On September 8, 2016

Notwithstanding a recent trend of seemingly anti-arbitration decisions in the state courts, a New Jersey District Court recently dismissed a consumer fraud complaint that it found to be duplicative of a prior arbitration award. In 2009, the plaintiff purchased a vehicle, and then leased an additional car from the same dealer in 2010. Despite signing agreements to arbitrate with the dealer, the plaintiff filed a complaint in state court against the dealer, Metro Honda, which was dismissed on the ground that the arbitration agreements were enforceable and required her to arbitrate her dispute. Plaintiff filed a demand for arbitration, citing a variety of consumer fraud statutes. An arbitration award was entered denying all of the plaintiff’s claims, and she neither appealed nor moved to vacate or modify the award.