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Gibbons Law Alert Blog

On November 18, 2024

David J. Freeman will serve as Program Co-Chair for “Superfund/Brownfield Update 2024: Federal and State Environmental Law and Policy.” The program is sponsored by the Section of Environmental & Energy Law of the New York State Bar Association and will be presented as a webinar on December 5 from 9:00 a.m. to 3:00 p.m. The program will feature presentations by representatives of the U.S. Environmental Protection Agency, New York State Department of Environmental Conservation (NYSDEC), and New York Attorney General’s Office, as well as private bar and expert consultants, regarding recent developments in the federal Superfund and New York State brownfield programs. There will also be a panel discussing the incentives and processes for the siting of renewable energy facilities on brownfield sites in New York State. The keynote speaker will be Patrick Foster, NYSDEC’s Deputy Commissioner for Environmental Remediation and Materials Management, who oversees the Divisions of Environmental Remediation (including all cleanups under New York State laws), Materials Management, and Mineral Resources, as well as NYSDEC’s Office of Sustainability. A full description of the program, and instructions as to how to register, can be found here.

District of Delaware Court Dismisses, with Prejudice, Claims Withdrawn Pursuant to Case Narrowing Order

by Christopher H. Strate and Christine A. Gaddis

Posted in Pharmaceuticals

On November 18, 2024

In Exeltis USA Inc. v. Lupin Ltd., the United States District Court for the District of Delaware recently ruled, over the plaintiffs’ objection, that claims dismissed by the plaintiffs in response to the District Court’s case narrowing order were dismissed with prejudice. Exeltis is a Hatch-Waxman litigation involving patents covering Exeltis’s SLYND® product. During the case, the court entered a case narrowing order that required the plaintiffs to reduce the number of asserted claims and the defendants to reduce the number of invalidity defenses. The parties complied with the order, and the plaintiffs then won at trial. Following trial, the plaintiffs argued that the claims dismissed pursuant to the court’s case narrowing order should be without prejudice based on “fundamental fairness.” The court disagreed, finding that fundamental fairness was best supported by the certainty that came with a dismissal with prejudice. This ruling appears to have created a split within the District of Delaware. In Ferring Pharms. Inc. v. Fresenius Kabi USA, LLC, 645 F. Supp. 3d 335 (D. Del. 2022), another Delaware Court held that claims withdrawn pursuant to the court’s case narrowing order were dismissed without prejudice. In light of the court’s ruling in Exeltis, plaintiffs in Hatch-Waxman cases in the District of Delaware should be aware of the risk that the court...

On Notice: FTC Releases Final Changes to Hart-Scott-Rodino Premerger Notification Form

by Kevin R. Reich

Posted in Antitrust

On November 14, 2024

After leaving practitioners and their clients waiting for months with bated breath, the Federal Trade Commission (FTC) recently released its final changes to the Hart-Scott-Rodino (HSR) premerger notification form. The consensus seems to be that the proverbial bark that accompanied the amendments when they were initially published in June 2023 may have been worse than the bite taken by the final rule announced on October 10. Under the HSR Act, transacting parties whose contemplated mergers exceed certain size and dollar thresholds must submit a notification form to the FTC and to the Antitrust Division of the Department of Justice at least 30 days before closing so that those regulators can review the competitive effects of a deal before it is consummated. Most deals proceed to close after the 30-day waiting period with no regulatory action taken, but a small subset garner a “second request” for additional information, and a few of those wind up in litigation with regulators seeking to enjoin the deal because of its potential to harm competition in the relevant market. Proposed amendments to the form – the most far-reaching updates in more than four decades – created a stir when they were published two summers ago. As proposed, the changes worked a significant overhaul, with businesses concerned about what was perceived to...

Motion Granted to Amend Joint Claim Construction and Prehearing Statement

by Charles H. Chevalier and Christine A. Gaddis

Posted in Patent

On October 30, 2024

In Fennec v. Cipla, the United States District Court for the District of New Jersey recently granted Fennec Pharmaceuticals Inc.’s (“Fennec”) motion to amend the Joint Claim Construction and Prehearing Statement to add constructions of two disputed terms that were consistent with the relevant patent’s express language. Fennec is a Hatch-Waxman litigation involving several patents covering Fennec’s Pedmark® product. Pursuant to Local Patent Rule 4.3, the parties are required to file a Joint Claim Construction and Prehearing Statement (“JCCPS”) that contains “[e]ach party’s proposed construction of each disputed term” and is filed within 30 days after the exchange of preliminary claim constructions and 45 days before the parties opening claim construction briefs are due. Amendments to the JCCPS require a motion demonstrating good cause under Local Patent Rule 3.7. One month after the parties submitted the JCCPS, Fennec informed defendants Cipla Limited and Cipla USA, Inc. (collectively, “Cipla”) that Fennec wanted to amend the proposed construction of certain claim terms to mirror the definitions of those terms in the patent. The parties met and conferred regarding the issue, and after reaching an impasse, Fennec filed its motion for leave to amend. The court granted Fennec’s motion, finding that it was timely, supported by good cause, and Cipla would not be unduly prejudiced. The court found...

Expanded NYC Lead-Based Paint Laws Now in Effect

by Andrew T. Alessandro

Posted in Environmental & Green Issues

On October 11, 2024

Labor Day weekend is in the rear view mirror, which means that several recently enacted lead-based paint (LBP) laws for residential properties in New York City have taken effect. In total, these NYC Local Laws significantly expand the requirements imposed by the city on landlords of residential properties constructed before 1980. Landlords of residential properties in NYC should pay close attention to these changes, which are discussed in detail below. XRF Testing Requirement Expanded to Building Common Areas (Local Law 111 of 2023) Under Local Law 31 of 2020, owners are required to hire an independent Environmental Protection Agency-certified inspector or risk assessor to conduct an x-ray fluorescence (XRF) test for the presence of LBP in a dwelling unit of a building built prior to 1960, as well as those constructed before 1978 where the owner has actual knowledge of the presence of LBP. Local Law 111 of 2023 expands this requirement to painted areas within the common areas of a residential rental building. Under NYC law, “common area” is defined as “a portion of a multiple dwelling that is not within a dwelling unit and is regularly used by occupants for access to and egress from any dwelling unit within such multiple dwelling.” This definition includes stairwells and hallways. The existence of LBP in any...

Just Poor Form? How the New OPRA Request Form Creates Confusion for Custodians and Requestors Alike

by Thomas J. Cafferty, Nomi I. Lowy and Lauren James-Weir

Posted in General Litigation

On October 8, 2024

Recent amendments to the Open Public Records Act, N.J.S.A. 47:1A-1, et seq. (OPRA), became effective on September 3, 2024. One of those amendments, which may be of particular interest to litigators, prohibits certain OPRA requests by attorneys who are representing parties in legal proceedings. The parameters of the prohibition, however, are not so clear. The provision, contained in Section 5(g) of OPRA, prohibits a “party to a legal proceeding,” which includes “a party subject to a court order, any attorney representing that party, and any person acting as an agent for or on behalf of that party,” from requesting a government record if that record “is the subject of a court order, including a pending discovery request.” OPRA expressly states that a custodian is not required to complete such a request. What is unclear is whether this provision prohibits only requests for government records that are the subject of a court order (one example of which is a court order addressing a pending discovery request) or whether it prohibits requests for government records that are either the subject of a court order or the subject of a pending discovery request. Further confusing the issue is the fact that Section 5(g) requires a requestor to certify whether the government record is being sought in connection with a...

New York City Department of Buildings Releases Proposed Rules Package for Local Law 97, the GHG Emissions Law

by Raymond Pomeroy II

Posted in Environmental & Green Issues / Transactional Real Estate and Leasing

On October 7, 2024

As part of its ongoing efforts to implement Local Law 97 of 2019, the New York City Department of Buildings (DOB) recently released a package of four new proposed rules; the full text of these proposed rules can be found at Rule 1, Rule 2, Rule 3, and Rule 4. Local Law 97 establishes strict GHG emissions caps for “Covered Buildings,” which essentially include all buildings over 25,000 square feet, subject to some exceptions. These GHG emissions caps went into effect on January 1, 2024, and become more stringent over time in five-year increments referred to as compliance periods. Beginning in May 2025, and each May thereafter, building owners are required to submit an annual GHG emissions report for their building. If the actual GHG emissions from the building exceed the GHG emissions cap established by the Law, the building owner will receive a penalty for non-compliance. The initial compliance period is 2024-2029, when, according to DOB estimates, approximately 10-15 percent of Covered Buildings in the city will exceed the Law’s GHG emissions caps. The second compliance period is 2030-2034, when the GHG emissions caps will be reduced by approximately 50 percent and the number of buildings facing Local Law 97 penalties will rise significantly. GHG emissions caps are reduced again in 2035 and 2040, until...

Yes, Prejudice May Be Included in a Court’s Analysis of a Waiver of Arbitration

by Bryan Hahm

Posted in Appellate

On September 5, 2024

In a recent published opinion, Marmo & Sons General Contracting, LLC v. Biagi Farms, LLC, the Appellate Division affirmed the trial court’s finding that a party had waived its contractual right to compel arbitration. At issue was the non-moving party’s assertion that the U.S. Supreme Court’s 2022 decision in Morgan v. Sundance, Inc. forbade considerations of prejudice in the seven-factor waiver analysis originally set forth in 2013 by the New Jersey Supreme Court in Cole v. Jersey City Medical Center.

ChatBot or Not: California Federal Courts Limit CIPA Applicability

by Caroline E. Oks

Posted in Class Action Defense

On September 3, 2024

The Northern District of California recently issued a decision further constraining plaintiffs’ ability to assert claims under the California Invasion of Privacy Act (CIPA). In Ambriz v. Google, LLC, the plaintiff filed a putative class action alleging that Google violated CIPA § 631(a) because its Cloud Contact Center AI software-as-a-service, a virtual customer service tool, wiretapped, eavesdropped on, and recorded his call to Verizon’s customer service center.

Litigation Update: Northern District of Texas Judge Blocks FTC’s Non-Compete Ban

by Christine A. Amalfe, Christopher Walsh and Zachary L. Miller

Posted in Restrictive Covenants

On August 30, 2024

As we recently reported, on July 3, 2024, the Northern District of Texas issued a preliminary injunction in Ryan LLC v. Federal Trade Commission, staying the effective date of the Federal Trade Commission’s (FTC) rule banning non-competes (the “Rule”) and enjoining the FTC from enforcing the Rule. That injunction, however, was only applicable to the plaintiffs and intervenors in the case and did not address the FTC’s broader enforcement of the Rule.