Gibbons Law Alert

Gibbons Law Alert Blog

Governor Christie Vetoes Offshore Wind Bill

Posted in Development/Redevelopment / Environmental and Green Issues

On May 9, 2016

Recently, Governor Christie vetoed legislation designed to allow additional applications for offshore wind projects seeking approval from state regulators. The now-defunct bill, S988, sponsored by Senators Bob Smith (D-Middlesex) and Jim Whelan (D-Atlantic), sought to allow the New Jersey Board of Public Utilities (“BPU”) to open a 30-day period for the submission of offshore wind project applications. More specifically, the bill would have allowed BPU to accept and approve “a qualified wind energy project that is located in territorial waters offshore of [a] municipality in which casino gaming is authorized,” i.e. a wind project offshore from Atlantic City.

Defend Trade Secrets Act of 2015 Passes House, Heads to President Obama’s Desk

by Thomas J. Bean

Posted in E-Commerce / Privacy and Data Security

On May 9, 2016

On April 27, 2016, the Defend Trade Secrets Act (“DTSA”) passed the House of Representatives with a 410-2 vote. The two no votes were from Rep. Justin Amash (R-MI) and Rep. Thomas Massey (R-KY). Earlier this month, on April 4, the Senate passed the DTSA by a unanimous vote of 87-0. Now, the DTSA heads to President Obama’s desk for his signature.

Fourth Circuit Confirms that Data Breach Claims are Covered Under Traditional CGL Policies

by John T. Wolak

Posted in Insurance

On May 5, 2016

Policyholders may still enforce an insurer’s duty to defend under a Commercial General Liability (“CGL”) policy for claims arising out of a data security breach, according to a recent Fourth Circuit decision. While the decision was issued in an unpublished opinion (a mere 18 days after oral argument), the decision represents a significant victory for policyholders seeking insurance coverage for claims arising out of data breaches resulting in the disclosure of personal information.

Appellate Division Grants Leave to Appeal to Affordable Housing Decision, While Trial Courts Continue Towards Trial and Compliance Hearings

by Cameron W. MacLeod

Posted in Development/Redevelopment

On May 5, 2016

On April 11, 2016, the Appellate Division issued an order granting a motion by the Township of Barnegat for leave to appeal a decision by the Hon. Mark A. Troncone, J.S.C., designated Mt. Laurel judge for Ocean County, and also granted a number of motions for other municipalities from outside of Ocean County to appear as amici curiae in the case. The order returns the question of methodology – a hotly contested issue – to the Appellate Division. The counties comprising Region 4 (Mercer, Monmouth, and Ocean counties) of the Council on Affordable Housing (“COAH”) were set to be among the first to hold trials regarding the methodology for determining the municipal fair share housing obligations of municipalities. The grant of leave to appeal in the Ocean County case will necessarily delay any trial in that vicinage until the resolution of the appeal. This post briefly reviews the trial court’s decision, and the potential impact the decision to grant leave to appeal may have on pending declaratory judgment cases.

IRS’ Aggressive Position Challenging the Treatment of a License Agreement as a Sale of a Capital Asset Rejected on Summary Judgment

by Peter J. Ulrich

Posted in Patent

On May 4, 2016

We previously reported that the Internal Revenue Service (the “IRS”) took an aggressive position in challenging the treatment of a license agreement as a sale of a capital asset in the Tax Court case Mylan Inc. & Subsidiaries v. Commissioner of Internal Revenue (Docket Nos. 16145-14 and 27086-14). Recently, Tax Court Judge Laro denied the IRS’s Motion for Summary Judgment in Mylan’s challenge of the IRS’s determination that Mylan’s 2008 amendment to the contract with Forest Labs was not a sale of its interest in rights to a certain drug product but merely an extension of the parties’ 2006 license agreement, giving rise to ordinary income to Mylan.

New Jersey Follows Federal Circuit in Finding Jurisdiction Over Hatch-Waxman Defendants

by Charles H. Chevalier

Posted in Patent / Pharmaceuticals

On May 2, 2016

We recently reported on the Federal Circuit’s holdings in Acorda Therapeutics, Inc. v. Mylan Pharm. Inc. and AstraZeneca AB v. Mylan Pharm., Inc., where it held that Mylan was subject to jurisdiction in Delaware because “Mylan’s ANDA filings constitute formal acts that reliably indicate plans to engage in marketing of the proposed generic drugs.” Earlier this month, the first decision from the District of New Jersey District applying the Federal Circuits ruling was rendered. In Helsinn Healthcare S.A., et al. v. Hospira, Inc., No. 15-2077 (MLC), 2016 U.S. Dist. LEXIS 45826 (D.N.J. April 5, 2016), Judge Mary L. Cooper held that sufficient minimum contacts is to find specific jurisdiction is established by the fact that Hospira filed an ANDA seeking to market a generic version of Helsinn’s Aloxi® product that if approved, the marketing of will take place in New Jersey.

Supreme Court Accepts Use of Representative Sample To Prove Classwide Liability

by Gibbons P.C.

Posted in Class Action Defense / Labor

On May 2, 2016

In Tyson Foods, Inc. v. Bouaphakeo, the Supreme Court of the United States definitively answered the question of whether statistical “representative evidence” may be used in class actions to establish that “questions of law or fact common to class members predominate over any questions affecting only individual members” pursuant to Rule 23(b)(3). According to the Court’s much-anticipated opinion, the answer is yes: “Its permissibility turns not on the form a proceeding takes – be it a class or individual action – but on the degree to which the evidence is reliable in proving or disproving the elements of the relevant cause of action.”

Attention Corporate Policyholders: Comply With All the Notice Requirements of Your Insurance Policies When Reporting a Claim or Risk Losing All Available Coverage

by John T. Wolak

Posted in Insurance

On April 25, 2016

A recent decision by the New Jersey Supreme Court serves as a strident warning to commercial insureds to make prompt notice of claims under claims-made policies. In Templo Fuente de Vida Corp. v. National Union Fire Insurance Company of Pittsburgh, P.A., the claims-made D&O policy at issue required written notice of a claim “as soon as practicable … and … during the Policy Period.” The insured was served with an underlying complaint on February 21, 2006. It retained defense counsel and filed an answer, but did not provide notice of the claim to its insurer until August 26, 2006 — a delay of six months, yet still within the policy period. The insurer denied coverage for various reasons, including that notice was not provided “as soon as practicable.”

Remedial Investigation Deadline Looms for New Jersey Contaminated Sites

by Gibbons P.C.

Posted in Development/Redevelopment / Environmental and Green Issues

On April 21, 2016

In less than three weeks, the statutory deadline to complete a site-wide remedial investigation (“RI”) for many contaminated sites in New Jersey will pass. Any site for which an RI has not been completed will be subject to direct oversight of the New Jersey Department of Environmental Protection (“NJDEP”), which would come with additional costs, less control over the remediation, and other burdens for responsible parties. Accordingly, responsible parties and their Licensed Site Remediation Professionals (“LSRPs”) should do everything in their power to complete an RI by the statutory deadline: May 7, 2016.

Proposed Definition of “Underutilized” for Brownfield Cleanup Act Amendments Draws Many Comments

by David J. Freeman

Posted in Development/Redevelopment

On April 12, 2016

Numerous organizations and individuals have submitted comments on the proposed definition of “underutilized” published by the New York State Department of Environmental Conservation (NYSDEC) on March 9, 2016, pursuant to the 2015 Brownfield Cleanup Act Amendments. The Amendments require NYSDEC to propose a definition for “underutilized,” one of the few remaining ways for New York City sites to qualify for tangible property tax credits under the State’s Brownfield Cleanup Program (BCP). As such, this definition is seen by many as crucial to the continued viability of the BCP as a cleanup mechanism for brownfield properties in New York City.