Gibbons Law Alert

Gibbons Law Alert Blog

E-Commerce in New Jersey Threatened by Rise of TCCWNA Class Actions

by Michael R. McDonald and Joshua S. Levy

On September 7, 2016

Owners and operators of e-commerce websites should be aware of an eruption in threatened and filed class actions against online retailers under the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”). The TCCWNA was enacted decades ago, as the New Jersey Supreme Court has explained, to “prohibit[] businesses from offering or using provisions in consumer contracts, warranties, notices and signs that violate any clearly established right of a consumer.” Yet, as laudable as this goal may be, with the potential for class-wide statutory penalty damages, the brevity and breadth of the statute has led to a tidal wave of litigation now targeting terms and conditions within e-commerce websites—an application of the law that could not have even been conceived of when the TCCWNA was passed in 1981.

Why and How – Basics of Government Affairs (Part 1 of 2)

by Gibbons P.C.

Posted in Regulatory Counseling and Departmental Action

On September 6, 2016

“Don’t you know someone in the Governor’s Office?” “You know the Senate President, right?” “That woman we met at that Chamber of Commerce event last month, she is the Chief of Staff to the Assembly Speaker, right?” After a lobbyist hears these words, most times the next sentence goes something like this: “We are having a problem with … and our CEO asked me to see what we can do in order to …” Then the client relates to us the sad tale of a difficult piece of legislation, or regulation, or land use development that will negatively impact the client’s core business. The CEO then asks you to fix the problem and save the day. And more times than not, the final nail in the coffin necessary to sink the client’s business interest in this bill, regulation, or development is being acted upon by the government … in a matter of days. In these types of cases, it is simply too late. Too late to begin to think about a government affairs strategy. The cake has already been baked. These scenarios happen, unfortunately, more frequently than one would think, even among sophisticated businessmen and-women across a myriad of industries. It cannot be overstated that if your company is a serious player in your industry,...

EEOC Issues New Enforcement Guidance on Retaliation

by Gibbons P.C.

Posted in Discrimination

On September 1, 2016

According to the Equal Employment Opportunity Commission (“EEOC”), retaliation has become the most frequently alleged basis of discrimination of all charges received by the EEOC. In light of this, and after allowing for public comment on the EEOC’s proposed enforcement guidance issued earlier this year, on August 29, 2016, the EEOC issued its new Enforcement Guidance on Retaliation and Related Issues. This replaces the EEOC’s Compliance Manual Section 8: Retaliation, which was issued in 1998. The enforcement guidance sets forth the EEOC’s position on retaliation and addresses retaliation under each of the statutes enforced by the EEOC by providing a number of illustrative examples. Helpful to employers, the enforcement guidance concludes by providing employers “promising practices” to reduce the risk of violations. A general outline of the enforcement guidance follows.

Ninth Circuit Holds Class Action Waivers Illegal Under the NLRA

by Richard S. Zackin

Posted in Alternative Dispute Resolution

On August 30, 2016

On August 22, 2016, in Morris v. Ernst & Young, LLP, the Ninth Circuit Court of Appeals joined the Seventh Circuit Court of Appeals in holding that class action waiver provisions in arbitration agreements governing employment disputes are illegal under the National Labor Relations Act (NLRA or the Act) because these waivers interfere with the right of employees to engage in concerted activity protected by Section 7 of the Act (Section 7). The holdings of these courts are in indirect conflict with an opinion of the Fifth Circuit Court of Appeals, which upheld the validity of such waivers in the face of a challenge under Section 7. Employers in jurisdictions whose courts have not yet decided this issue, and who employ such waivers in their arbitration agreements or otherwise, should be prepared for attacks on their arbitration agreements by employees seeking to bring class or collective actions or by the National Labor Relations Board (NLRB).

Doomed CFA and TCCWNA Claims for Proposed Health Club Class Action Lead District Court to Question CAFA Jurisdiction

by Gibbons P.C.

Posted in Class Action Defense

On August 25, 2016

The District of New Jersey’s recent decision in Truglio v. Planet Fitness, Inc. provides valuable lessons on pleading claims under the New Jersey Consumer Fraud Act (“CFA”), Truth-in-Consumer Contract, Warranty, and Notice Act (“TCCWNA”), and Health Club Services Act (“HCSA”). Not only does the district court’s opinion reinforce the requirement of an ascertainable loss to sustain a CFA claim, but it also confirms that omissions are not actionable under the TCCWNA. Moreover, the district court’s conclusion that the plaintiff in this putative class action did not plead an ascertainable loss directly called into question the subject matter jurisdiction of the court: is there $5 million in controversy under the Class Action Fairness Act (“CAFA”) if the plaintiff has not alleged an ascertainable loss? Read below for more on this case, and stay tuned for additional developments after supplemental briefing on the CAFA issue.

Feds Must Consider All Reasonable Alternatives in Endangered Species Analysis

by Gibbons P.C.

Posted in Development/Redevelopment / Environmental and Green Issues

On August 25, 2016

Recently, the D.C. Circuit threw out the United States Fish & Wildlife Service’s (“FWS”) approval of a conservation plan to reduce the impacts of a proposed wind turbine farm on endangered Indiana bats. In Union Neighbors United Inc. v. Jewell, et al., Docket No. 15-5147, the Court of Appeals held that FWS failed to consider all reasonable alternatives to Buckeye Wind LLC’s (“Buckeye”) plan to limit bat injuries and deaths resulting from encounters with the proposed turbines as required by the National Environmental Policy Act (“NEPA”).

Massachusetts Passes Toughest Pay Equity Legislation in the Nation

by Gibbons P.C.

Posted in Wage and Hour

On August 25, 2016

Earlier this month, Massachusetts became the latest state to pass expansive pay equity legislation to combat the gender wage gap, surpassing even the rigorous new requirements passed by New York and California in late 2015. Notably, Massachusetts is the first state to ban employers from requesting salary history as part of the interview or employment application process. The legislation, which passed unanimously and was signed into law by Governor Charlie Baker, will go into effect on January 1, 2018. To prepare for its implementation, employers with employees in Massachusetts should begin to adjust their hiring process and compensation policies, and consider conducting a self-evaluation of their pay practices to take advantage of Massachusetts’ law’s affirmative defense.

TCCWNA Back Before the New Jersey Supreme Court

by Michael R. McDonald and Joshua S. Levy

Posted in Class Action Defense

On August 23, 2016

This year the federal courts in New Jersey have seen a dramatic uptick in the filing of class action lawsuits seeking statutory damages under the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”), particularly cases targeting merchants selling or promoting goods or services via the internet. These cases are premised on the notion that the “terms and conditions” or “terms of use” on a company’s website constitute a contract and thus subject companies to potentially massive class-wide penalty damages should the terms of use contain language which violates the TCCWNA. As motions to dismiss are pending in many of these cases, the federal courts in New Jersey may soon provide further clarity on a number of important questions, including: (1) whether online website users are “aggrieved consumers” as required under the statute; (2) whether plaintiffs bringing bare TCCWNA claims have Article III standing given the U.S. Supreme Court’s recent Spokeo decision; and (3) whether the statute reaches contractual provisions wholly unrelated to a consumer’s transaction.

New York DEC Finalizes Definition of “Underutilized” Under Brownfield Cleanup Act Amendments

by David J. Freeman

Posted in Development/Redevelopment

On August 22, 2016

On July 29, 2016, the New York State Department of Environmental Conservation (“DEC”) announced that it had finalized the definition of “underutilized” for purposes of the 2015 Brownfield Cleanup Act Amendments and eligibility for redevelopment tax credits. The final rule closely tracks DEC’s March 9, 2016 proposed definition, which attracted numerous comments, mostly adverse, from members of the public and the regulated community.

Innovation Brewing in the New Jersey Legislature

by Michael D. DeLoreto

Posted in Economic Development

On August 18, 2016

Every summer, New Jersey legislators travel to the annual conferences of the National Conference of State Legislators (“NCSL”), the Council of State Governments (“CSG”), and the American Legislative Exchange Council (“ALEC”) to educate themselves about policy innovations occurring throughout the United States. While we wait to learn about their experiences, right now is a good opportunity to focus on innovative legislation currently before the New Jersey Legislature. As of August 15, 2016, 7,068 bills have been introduced in the New Jersey Legislature, 4,379 in the Assembly and 2,689 in the Senate, and only 87 have been signed into law. The following list of bills currently in committee represent examples by legislators looking to encourage innovation in New Jersey: S158 (Madden)/A3631 (Quijano) would promote investment in New Jersey by broadening the types of New Jersey emerging technology businesses that are eligible to receive investments under the New Jersey Angel Investor Tax Credit Act; A3187 (Munoz)/ S948 (Singer) would create a program within the New Jersey Economic Development Authority that would create a pathway to the commercial market for technology developed at a New Jersey college or university. Under this legislation, New Jersey would stimulate the economy while recapturing the state’s investment in higher education; and S348 (Kean) would utilize funds from the Workforce Development Partnership Fund,...