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Gibbons Law Alert Blog

Gibbons to Co-Sponsor and Present “U.S. Economic Update” in New York on December 4

On November 13, 2025

You are invited to join Gibbons and co-sponsors J.P. Morgan and the German American Chamber of Commerce (GACC) for a high-level event addressing today’s most pressing economic challenges for business executives. U.S. Economic Update Thursday, December 4, 2025 J.P. Morgan 383 Madison Ave., 13th Floor New York, NY 10179 Meera Pandit, Global Market Strategist at J.P. Morgan, will open the program with an immersive analysis of the U.S. economic outlook. Afterward, Eric Udowychenko, a Director in the Gibbons Corporate Group, will moderate an insightful and engaging panel of legal, accounting, logistics, and FX-rate rate professionals who will explore the impact of American tariff and trade policies on international business, the implications of the One Big Beautiful Bill, and developing trends in logistics and supply chain management. An audience Q&A session will follow the panel. For more information or to register, please see the GACC website.

Rite Aid Bankruptcy Judge Issues Opinion on Important Post-Petition Landlord Lease Issues

by Mark B. Conlan and John S. Mairo

Posted in Bankruptcy

On November 11, 2025

Overview In a significant ruling for commercial landlords, dated November 3, 2025, the United States Bankruptcy Court for the District of New Jersey denied three motions filed by HVP2 LLC, the landlord of a rejected Rite Aid lease in Troy, New York (New Rite Aid, LLC, Case No. 25-14861 (MBK)). The motions sought administrative rent, adequate protection payments, late fees, attorney fees, and conversion of the case to Chapter 7. Judge Michael B. Kaplan found that the debtor had satisfied its obligations and properly surrendered the premises, denying all of the landlord’s motions. Key Takeaways for Landlords Stub Rent Paid, But Timing Not Grounds for Late Fees: The court confirmed that “stub rent” (rent due between the petition date and first post-petition payment) qualifies as an administrative expense but emphasized that the Bankruptcy Code does not require payment by a specific date; however, it must be addressed prior to plan confirmation. Relatedly, late fees for May 2025 “stub rent” were denied since the Code imposes no deadline and plan confirmation had not occurred. Common Area Maintenance (CAM) Charges Dismissed as Untimely: HVP2 raised CAM charges only in a supplemental filing, which the court refused to consider. Even if timely, the pleadings lacked sufficient support to justify payment. Lease Surrender Deemed Proper: Despite HVP2’s claim that...

Taxing Patents – Axing Innovation

by Estelle J. Tsevdos, Ph.D.

Posted in USPTO

On November 7, 2025

In July 2025, The Wall Street Journal reported that it had received information indicating that the Department of Commerce was considering taxing U.S. patents. This is an unexpected and novel idea that has never been undertaken in the United States. Since then, commentators have expressed their opinion that this proposal would be detrimental to the innovation seen in the U.S. The present article summarizes those opinions. As some background to this proposal, U.S. patent owners currently are obligated to pay maintenance fees on their patents in order to keep those patents active. On an annual basis, the United States Patent and Trademark Office (USPTO) collects about $4.5 billion in these maintenance fees, as well as other fees collected by the USPTO for filing a patent application, prosecuting that patent application, and issuing a patent. Additional USPTO fees associated with patent office procedures include Post-Grant Reviews (PGR) and Inter Parties Review (IPR) related fees. Thus, the USPTO does accumulate many dollars for the use of its role in furthering innovation through the U.S. patent system. This revenue is responsible for the USPTO being one of the government’s self-funded agencies. In fact, one of the arguments being levied against this proposed new tax is that the USPTO would then be funded well above what is needed for the USPTO to be self-funded. Commerce...

Recent Decision from New York State Supreme Court Brings State-Mandated Greenhouse Gas Emission Reduction Challenges Into Focus

by Raymond Pomeroy II and Frederick A. McDonald, III

Posted in Environmental and Green Issues

On October 30, 2025

In Citizens Action of New York et al. v. Department of Environmental Conservation, a state Supreme Court in Albany County, New York, granted the petitioner’s request for a mandatory injunction and directed the New York State Department of Environmental Conservation (DEC) to issue regulations under the Climate Leadership and Community Protection Act (CLCPA). The case was nominally about the discretion of a state agency to delay promulgation of rules when those rules are required by an act of the legislature. Of greater significance though is the nature of the required rulemaking and the arguments advanced by DEC to defend its position that the rulemaking is “infeasible.” The case highlights a growing problem in New York State with respect to the development of renewable energy sources and transmission capacity. These problems are particularly relevant to building owners in New York City faced with compliance obligations under Local Law 97 (LL97). In 2019, the New York State Legislature passed the CLCPA to address climate change and reduce the emissions of greenhouse gases (GHG). The CLCPA requires New York to achieve a 40 percent reduction in GHG emissions by 2030 and an 85 percent reduction by 2050, measured against the 1990 emissions levels. Crucial to reaching those reductions was the inclusion of specific goals for 6 gigawatts of...

Pending Patent Legislation: What to Expect if It Passes

by Estelle J. Tsevdos, Ph.D.

Posted in Pharmaceuticals

On October 9, 2025

In 2025, Congress is occupied with serious legislative issues, among which are some pending patent issues. Time will tell if these pending pieces of patent legislation, some of which have been pending for a year or more, will see the light of day in the current Congressional Session. However, it is worth at least taking a look at these proposed pieces of legislation to determine and understand how the patent laws may be affected by their potential passage. There are at least four pieces of proposed patent legislation that are pending: The ETHICS Act (Eliminating Thickets to Increase Competition Act)[1] This legislation was introduced with bipartisan support from Senators Peter Welch (D-VT), Josh Hawley (R-MO), and Amy Klobuchar (D-MN) and basically limits the number of drug patents that can be asserted by the patent holder of the drug patents. This Act would apply to Abbreviated New Drug Application (ANDA) or 505(b)(2) or biosimilar drug applications (BLA) litigation. The Act states that a person who brings a patent infringement action under 35 U.S.C. section 271 (e), described in subparagraph (B) (generic or biosimilar), can only assert one patent per PATENT GROUP. A PATENT GROUP is defined as meaning two or more commonly owned patents or patent applications subject to a terminal disclaimer. If passed, this Act...

Third Circuit Aligns With the Supreme Court’s Limit on the Scope of the Computer Fraud and Abuse Act

by Andrew F. Beck

Posted in Policies and Handbooks

On September 23, 2025

Does an employee logging into the computer of an employee away from the office, at the request of said employee, to access a document and email it to the employee away from the office constitute criminal behavior under the Computer Fraud and Abuse Act, 18 U.S.C. §1030 (CFAA), a federal statute that imposes criminal penalties and provides for a civil cause of action against individuals who obtain information from a computer by intentionally accessing the computer without authorization or by exceeding authorized access? Also at issue is whether passwords constitute trade secrets under federal and applicable state trade secrets law. In its recent opinion in NRA Grp., LLC v. Durenleau, the Court of Appeals for the Third Circuit adopted the United States Supreme Court’s holding in Van Buren v. United States regarding the scope of the CFAA’s “exceeds authorized access” clause. In Durenleau, the Third Circuit held that while these types of actions by employees may violate an employer’s workplace computer-use policy, infractions of this nature do not rise to the level of federal crimes under the CFAA. Background In January 2021, while employed with the debt-collection firm, National Recovery Agency (NRA), Nicole Durenleau, NRA’s Senior Manager of Compliance Services, was out sick due to COVID-19. While out of the office, an urgent request was...

Equipment Failure: Eastern District of Pennsylvania Denies Certification to TCPA Class Involving Unsolicited Faxes Because TCPA Applies Only to Standalone Fax Machines

by Wendy Llewellyn-Langford

Posted in Class Action Defense

On July 28, 2025

In Fischbein v. IQVIA, Inc., a case involving alleged violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b)(1)(C), a federal district court in the Eastern District of Pennsylvania denied plaintiff Richard E. Fischbein, M.D.’s motion for class certification after he failed to meet his burden on both ascertainability and predominance requirements. Fischbein’s class action suit alleged that the defendant, IQVIA, Inc., a research organization in the health information industry, sent unsolicited fax advertisements to Fischbein and more than 25,000 other healthcare professionals that invited them to share information about their patients and treatment practices in exchange for points that could be redeemed for rewards. IQVIA argued that the proposed class was not ascertainable, because there was no reliable and administratively feasible mechanism to determine whether putative class members received the faxes at issue on traditional, standalone fax machines or through online fax services. Fischbein, however, argued that the TCPA applies to all faxes, no matter how received. The court held that the plain language of the TCPA – which prohibits the use of “‘any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement’” – clearly distinguished between the type of equipment used to send the unsolicited advertisement and the type of equipment that receives...

Sixth Circuit Vacates Certification of a Sprawling Multistate Class of GM Vehicle Owners Alleging Transmission Defects

by Michael R. McDonald

Posted in Class Action

On July 16, 2025

In Speerly v. GM, LLC , the Sixth Circuit en banc reversed a district court’s order certifying a class and multiple subclasses to assert various state law claims alleging defects in GM’s Hydra-Matic 8-Speed Transmission in vehicle models sold between 2015 and 2019 — in all, 26 state-wide subclasses with a total of 59 state-law claims on behalf of roughly 800,000 individual car buyers. The class had identified two problems with the transmission: (i) the transmission fluid absorbed moisture, changing its viscosity and causing gear shift slippage; and (ii) the transmission control module caused vehicles to lunge forward or “shudder.” Before addressing the substantive elements of each cause of action, the court explained that the district court must “answer merits questions that bear on Rule 23’s demands.” The Rule 23 analysis “will inevitably address issues that overlap with the merits inquiry” because the “element-by-element, claim-by-claim inquiry” required for the commonality and predominance inquiry “implicates the merits of each claim.” Therefore, the Panel noted that the “district court, as a result, must not defer merits questions bearing on commonality and predominance until summary judgment.” Regarding the commonality requirement, the Sixth Circuit explained that under Wal-Mart Stores, Inc. v. Dukes, a common question must resolve an issue that is “central” to the validity of each claim, and...

U.S. Supreme Court Eliminates Heightened Standard for Reverse Discrimination Claims

by Zachary Posess

Posted in Discrimination

On June 18, 2025

On June 5, 2025, the U.S. Supreme Court issued a unanimous decision that places reverse discrimination claims on equal footing with traditional discrimination claims under federal law. Ames v. Ohio Department of Youth Services, 605 U.S. ___ (2025). The plaintiff, a heterosexual woman, claimed her employer denied her a promotion and demoted her on the basis of her sexual orientation. The Sixth Circuit dismissed her claims, finding she had failed to surpass the additional hurdle required in reverse discrimination claims to identify “background circumstances” demonstrating the Ohio Department of Youth Services was the “unusual employer” that discriminates against members of a majority group. The Supreme Court rejected the “background circumstances” test, which had been adopted by five lower Circuits, and held that majority-group members cannot be subject to a heightened burden of proof because the text of Title VII makes no such distinction. Now, federal judges and agencies can no longer assume that historically disadvantaged groups are more likely to be subject to discrimination in the workplace. Justice Ketanji Brown Jackson wrote: “By establishing the same protections for every ‘individual’—without regard to that individual’s membership in a minority or majority group—Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.” The full decision is available here. Moving forward, we expect that...

DNJ Court Denies Motion to Amend Invalidity and Non-Infringement Contentions Citing Lack of Diligence

by Charles H. Chevalier and Christine A. Gaddis

Posted in Pharmaceuticals

On June 13, 2025

In IBSA Institut Biochimique SA v. Accord Healthcare, Inc., the United States District Court for the District of New Jersey recently denied Accord Healthcare, Inc.’s (“Accord”) motion seeking leave to amend its Invalidity and Non-Infringement Contentions, finding that Accord did not establish the diligence required to support its motion. The case is a Hatch-Waxman litigation involving several patents covering IBSA’s Tirosint® product, which is used for the treatment of hypothyroidism. Motions to amend contentions require a showing of good cause under Local Patent Rule 3.7. In considering Accord’s motion, the court noted that diligence is the “key factor” that it considers when deciding a motion to amend contentions. And, courts must consider both whether the party seeking to amend was diligent in moving to amend upon discovery of new prior art and whether the party was diligent in discovering the basis for the proposed amendment. With respect to Accord’s motion to amend its invalidity contentions, the court did not dispute that Accord was diligent in moving to amend upon the discovery of new prior art. But, the court did find that Accord was not diligent in discovering the bases for its proposed amendments, which were based on references that were publicly available and readily accessible to Accord for a significant amount of time before Accord...