Gibbons Law Alert

Gibbons Law Alert Blog

On February 4, 2016

David J. Freeman, a Director in the Gibbons Real Property & Environmental Department, was recently profiled in the Fall/Winter 2015 edition of The New York Environmental Lawyer for his achievements as a longstanding member of the Environmental Law Section of the New York State Bar Association. A member of the Section for more than 30 years, Mr. Freeman serves as Co-Chair of both the Committee on Hazardous Waste/Site Remediation and the Section’s Brownfields Task Force. The Task Force played an important role in the passage of the State’s Brownfield Cleanup Act in 2003 and the amendments enacted in 2008 and 2015, and in monitoring and commenting on the implementation of the Act by the Department of Environmental Conservation. Mr. Freeman received the Section’s Distinguished Service Award in 2001.

“Bound by the Terms of His Bargain”: Third Circuit Underscores the Difficulty of Vacating Arbitration Awards

by Joshua S. Levy

Posted in General Litigation

On February 4, 2016

In a recent precedential decision, Whitehead v. The Pullman Grp., LLC, the Third Circuit reminded litigants that it’s as tough as ever to vacate an arbitration award – and cast further doubt on the viability of the “manifest disregard of the law” standard here. Appellant Pullman entered into a contract with two singer-songwriters in May 2002, which gave him the exclusive option to purchase their song catalog following a 180-day due diligence period.

Third Circuit in Chesapeake Appalachia: Incorporating AAA Rules Not Enough to Satisfy the Onerous Burden of Overcoming Presumption in Favor of Judicial Resolution of Class Arbitrability

by Michael R. McDonald

Posted in Class Action Defense

On February 3, 2016

In Chesapeake Appalachia, L.L.C. v. Scout Petroleum, L.L.C., the Third Circuit picked up where it left off after Opalinski v. Robert Half International Inc. In Opalinski, the Circuit held, for the first time, that “the availability of class arbitration constitutes a ‘question of arbitrability’ to be decided by the courts—and not the arbitrators—unless the parties’ arbitration agreement ‘clearly and unmistakably’ provides otherwise.”

EEOC to Collect Wage and Hour Data Based on Race, Ethnicity, and Gender in Effort to Aid Enforcement of Laws Requiring Pay Equity

by Gibbons P.C.

Posted in Wage and Hour

On February 3, 2016

The United States Equal Employment Opportunity Commission (“EEOC”) has proposed a change to the EEO-1 Report, the standard form used to collect workforce profiles from certain private industry employers and federal contractors. In its current iteration, the form annually requires employers to categorize their workforces based on gender, race, ethnicity, and job category, using data collected from one pay period occurring in July, August, or September of the reporting year. The amended form would require further categorization of employees based on W-2 earnings and hours worked.

Federal DOL Issues Joint Employer Guidance to Interpret FLSA and MSPA

by Gibbons P.C.

Posted in Family Leave / Wage and Hour

On February 2, 2016

The U.S. Department of Labor (“DOL”), Wage and Hour Division (“WHD”) recently issued an Administrator’s Interpretation (“Interpretation”) on joint employer liability under the Fair Labor Standards, Act, 29 U.S.C. § 1801 et seq. and the Migrant Seasonal Agricultural Worker Protection Act, 29 U.S.C. § 201 et seq., that provides additional guidance to employers but also may demonstrate the DOL’s increased efforts to focus on joint employer liability for wage and hour compliance. According to the WHD, the workplace increasingly involves use of outsourcing, shared employees, integrated employers, and other forms of co-dependent business models. The WHD seeks to ensure compliance with wage and hour laws for entities that rely upon such alternative workforces. While the Interpretation is not binding upon the courts and constitutes guidance for employers, it lists factors extrapolated from court decisions, other DOL guidance, and related sources that should be considered where an employer utilizes alternative labor sources or has sister or related entities that share common operations or are interdependent.

Super Bowl Tickets Not the Ticket to Federal Class Action, as Third Circuit Finds No Standing for Uninjured Plaintiffs

by Joshua S. Levy

Posted in Class Action Defense

On January 28, 2016

“[T]he disappointment of wanting to attend a concert or athletic event only to discover that the event has sold out,” does not confer constitutional standing. That was the take away from the Third Circuit Court of Appeals recent precedential decision, Finkelman v. Nat’l Football League. Addressing the always-thorny contours of constitutional standing to bring a federal lawsuit, the Court held, in the face of high Super Bowl ticket prices, that neither non-purchasers of tickets nor purchasers of “scalped” tickets at elevated prices, had standing to sue under Article III. This opinion sets up yet another obvious roadblock in the path of plaintiffs looking to bring claims—whether or not as class actions—when their perceived injuries are either non-existent or so tenuous as to make “difficulties in alleging an injury-in-fact . . . insurmountable.”

No Further Extensions of New Jersey’s Permit Extension Act

by Howard D. Geneslaw and Andrew J. Camelotto

Posted in Development/Redevelopment

On January 26, 2016

The state legislature took no action to further extend New Jersey’s Permit Extension Act (“PEA”) during the recently concluded legislative session, which means that permits and approvals extended by the PEA’s tolling period either have expired or will expire soon. Pursuant to the terms of the act, the expiration date for most approvals covered by the PEA are tolled through June 30, 2016, with certain approvals expiring before that date, making right now the time to evaluate projects approaching construction to determine which existing approvals were extended by the PEA, the exact expiration date of such approvals, and whether further extensions are available under other laws. After such an evaluation, developers and project managers can then determine whether approval rights can be fully vested prior to their expiration date and, if not, whether an extension, amendment, or renewal of the approval is required.

Supreme Court Will Decide Whether State Can Face Liability Under Spill Act

by Paul M. Hauge

Posted in Environmental and Green Issues

On January 20, 2016

The New Jersey Supreme Court has decided to hear the State’s appeal of a September 2015 Appellate Division decision that held the State potentially liable for cleanup costs at the Raritan Bay Slag Site. As we reported last fall, the Appellate Division held in NL Industries, Inc. v. State of New Jersey that the Spill Compensation and Control Act, which imposes liability upon both dischargers of hazardous substances and on parties “in any way responsible” for the hazardous substances, is applicable to the State. Under the Appellate Division’s ruling, the State could bear liability for all or some of the cleanup costs related to a seawall that was constructed using contaminated materials. The suit alleges that the State should be held liable because it owned the land under the seawall, approved its construction, issued a riparian grant to the developer that sought to build it, and issued a permit for it.

The New European Unitary Patent and Unified Patent Court: Are You Opting In?

by Thomas J. Bean

Posted in Patent

On January 7, 2016

The Gibbons Institute of Law, Science & Technology recently hosted a program to explore significant changes underway for the European patent landscape. At this program, Dr. Christoph Cordes, Partner at the German law firm Esche Schümann Commichau, presented an overview of the new European Unitary Patent and Unified Patent Court, and was joined by several panelists in a discussion about the anticipated impact of this new European patent regime.

IRS Takes Aggressive Position in Challenging the Treatment of a License Agreement as a Sale of a Capital Asset

by Peter J. Ulrich

Posted in Patent

On January 6, 2016

Recently, a Memorandum in Support of Motion for Summary Judgment was filed by the Internal Revenue Service (the “IRS”) in the Tax Court case Mylan Inc. & Subsidiaries v. Commissioner of Internal Revenue (Docket Nos. 16145-14 and 27086-14). Mylan’s opposition brief to the IRS’s motion followed shortly thereafter. This case illustrates the importance of exercising care when transferring intellectual property rights if you intend to benefit from capital gains treatment. An improperly structured sale may be recharacterized by the IRS as a license, resulting in a much larger tax liability for the transferor than what was anticipated.