Gibbons Law Alert

Gibbons Law Alert Blog

Legislative Fixes to Keep Pharmaceutical Companies in NJ

On June 24, 2016

In recent years, New Jersey has — at times — been deemed a “Judicial Hell Hole” by the American Tort Reform Association. The expense of defending thousands of mass tort products liability cases in New Jersey, as well as other costs of doing business in New Jersey, have resulted in some pharmaceutical companies relocating out of state. To halt the trend of businesses leaving New Jersey, the legislature could consider the following three actions to incentivize New Jersey companies to remain in-state. Provide an absolute defense to pharmaceutical companies sued for a failure to warn claim if the warning was approved by the Food and Drug Administration (“FDA”). Michigan has adopted, MCL 600.2946(5), which, subject to two exceptions, establishes an absolute defense for drug manufacturers and sellers in a products liability action, where the drugs complied with FDA standards and labeling. In New Jersey, a bill similar to MCL has been introduced. While N.J.S. 2A:58C-4 of the New Jersey Products Liability Act (“NJPLA”) provides for a rebuttable presumption of adequacy with respect to a drug label where the drug is approved by the FDA, an absolute defense in these circumstances would be more appropriate. The pharmaceutical industry is among the most heavily regulated industries in the United States. The unique approval process required by law before...

Supreme Court in Spokeo Holds Plaintiffs Must Allege More Than a Bare Procedural Violation to Stand Up for Their Rights

by Caroline E. Oks

Posted in Class Action Defense

On June 23, 2016

After much anticipation, the United States Supreme Court issued its decision in Spokeo v. Robins, a case that many believed would finally establish a definitive ruling as to whether a federal statute which awards statutory damages to those impacted is sufficient to confer Article III standing. The question is particularly relevant in the class action context where class members could be awarded statutory damages in the absence of any actual damages. Unfortunately, although the Court considered the scope of the injury-in-fact requirement, the 6-2 decision still leaves the standing question open to interpretation by courts and by both plaintiffs and defendants.

U.S. Supreme Court Clarifies Statute of Limitations for Constructive Discharge Claims

by Kristin D. Sostowski

Posted in Discrimination

On June 22, 2016

On May 23, 2016, the U.S. Supreme Court, in Green v. Brennan, held that the statute of limitations for a constructive discharge claim begins to run when the employee gives notice of his or her resignation, not at the time of the employer’s last allegedly discriminatory act giving rise to the resignation. The “constructive discharge” doctrine refers to a situation in which an employer discriminates against an employee to the point that the employee’s working conditions become so intolerable that a reasonable person in the employee’s position would feel compelled to resign.

N.J. Supreme Court Invalidates Agreements to Shorten the LAD’s Statute of Limitations

by Richard S. Zackin

Posted in Discrimination

On June 20, 2016

On June 15, 2016, the New Jersey Supreme Court, in Rodriguez v. Raymours Furniture Company, Inc., held that an agreement by an employee to bring claims against his employer within six months of the allegedly wrongful employment action was unenforceable insofar as the agreement applied to claims brought under the New Jersey Law Against Discrimination (“the LAD”). In 1993, the Court had held that New Jersey’s general two-year statute of limitations for personal injury actions provides the appropriate limitations period for LAD claims. In Raymours, the Court ruled that the employer’s attempt to reduce this limitations period to six months undermined the LAD’s specific enforcement scheme for the elimination of discrimination and thus, for public policy reasons, could not be judicially sanctioned. In addition, the Court found that the particular agreement at issue, set forth as part of the boilerplate in the employer’s standard employment application form, constituted an unenforceable contract of adhesion.

New Jersey Moves Forward with Attempts to Regulate E-Cigarettes

by Gibbons P.C.

Posted in Healthcare

On June 16, 2016

On May 16, the New Jersey Senate Health, Human Services and Senior Citizens Committee heard more than three hours of testimony from a variety of groups on a bill — S.298, introduced by Senator Joe Vitale — that would prohibit the sale of flavored electronic cigarettes. New Jersey banned the sale of flavored traditional cigarettes in 2008 because of concerns regarding their attractiveness to children. The sponsor believes that the same concerns apply to electronic cigarettes today, making this legislation necessary to create uniformity in the state’s public health laws, all of which are designed to keep children from starting a smoking habit. Opponents contend that this bill would reduce adults’ access to a product that has enabled many tobacco-addicted people to quit smoking. According to NCSL, 48 states and two territories currently prohibit sales of electronic cigarette products to minors. (Michigan and Pennsylvania still permit the sale of electronic cigarette products to minors.) In 2010, New Jersey was one of the first states to include electronic cigarettes among other tobacco items that would not be sold to minors when it expanded the New Jersey Smoke-Free Air Act. S.298 was released from committee by a vote of 6-2 and now awaits action by the Senate Budget and Appropriations Committee. Several other bills that would impact...

EPA Provides Look Into Pending Financial Assurance Regulations

by Gibbons P.C.

Posted in Environmental and Green Issues

On June 13, 2016

Recently, the United States Environmental Protection Agency (“EPA” or “the Agency”) shared some preliminary details regarding its impending proposal of financial assurances regulations for the hardrock mining industry. These regulations, which are still under consideration by the Agency, will likely serve as a harbinger of the financial assurances requirements EPA intends to impose on other industries, and collectively, they have the potential to have a significant financial impact on parties responsible for cleaning up contaminated properties.

In “Spring-Loaded” Options Case, Court Finds Failure to Disclose Board’s “Unclean Heart” Does Not Violate Federal Securities Laws But Allows Common Law Fiduciary Duty Claims to Proceed Against Directors Approving Options

by Christopher Walsh

Posted in Securities

On June 8, 2016

In a far-reaching opinion addressing a host of issues relating to the granting of so-called “spring-loaded” stock options to a corporation’s board of directors, the District of New Jersey dismissed a claim under Section 14(a) of the Exchange Act because federal securities laws do not require the corporation to disclose in its proxy statement that the options were part of a “spring-loading” scheme. But the court allowed common-law breach of fiduciary duty claims to proceed against the directors who served on the board’s compensation committee under the entire-fairness doctrine.

Seventh Circuit Creates Circuit Split, Striking Down Agreement to Arbitrate Employment Claims on an Individual Basis

by Gibbons P.C.

Posted in Alternative Dispute Resolution

On June 8, 2016

On May 26, 2016, the United States Court of Appeals for the Seventh Circuit issued its decision in Lewis v. Epic Systems Corp., becoming the first federal court of appeals to decide that an agreement between an employer and an employee to arbitrate wage-and-hour claims only on an individual basis, as opposed to a class action basis, is unenforceable. The court’s opinion has created a circuit split, as the Second, Fifth, and Eighth Circuits have enforced similar agreements.

No Need to Wait: Supreme Court Permits Judicial Review of Wetlands Jurisdictional Determinations

by Paul M. Hauge

Posted in Environmental and Green Issues

On June 7, 2016

As we reported, four years ago, in Sackett v. EPA, the U.S. Supreme Court held that a recipient of a compliance order from the U.S. Environmental Protection Agency (EPA) for allegedly illegal filling of wetlands could directly challenge the order in court, and did not have to wait until EPA filed a lawsuit to enforce the order before obtaining judicial review of its validity. In a recent opinion the Court extended the rationale of Sackett and again lowered the threshold of judicial reviewability, holding that a landowner can seek judicial review of a mere determination by the U.S. Army Corps of Engineers (Corps) that its property contains wetlands whose filling would require a permit under the Clean Water Act.

Attorney-Client Protections Do Not Extend to Lawyers Providing Government Affairs Counseling in Non-Law Firm Settings

by David J. Pascrell

Posted in State Legislative and Budget Matters

On June 2, 2016

A December 10, 2015, joint decision from the Advisory Committee on Professional Ethics and the Committee on the Unauthorized Practice of Law (‘Committees’) provides clarity to lawyer-lobbyists working in non-law firm settings. Both Committees examined this issue after receiving an inquiry whether an attorney representing clients at a lobbying and government affairs services company that is not a law firm may use the designation “Esq.” after her name on company letterhead. The decision concludes that a lawyer may “associate with non-lawyers in lobbying and government affairs services companies, outside a law firm, provided the company communicates to their customers that they do not provide legal services or offer the protections of a lawyer-client relationship and the lawyers do not hold themselves out as acting in the capacity of lawyers.” The decision also directs attorneys, working in a non-legal setting, to not use the “Esquire” or “Esq.” designation. As part of its analysis, the Committee on the Unauthorized Practice of Law determined that many of the activities associated with lobbying are the practice of law, but also determined that it is in the public interest to allow registered non-lawyers to provide these services as well. They felt that “potential harm was mitigated by the protections” of the regulatory framework under the New Jersey Election Law Enforcement...