Gibbons Law Alert -

Gibbons Law Alert Blog

Expanded NYC Lead-Based Paint Laws Now in Effect

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.

Recent Construction Law Decision Holds That Contract Payment Terms Control Over New Jersey’s Prompt Payment Act

by Lisa Lombardo and Julia E. Browning

Posted in Construction

On August 21, 2024

In JJD Electric, LLC v. SunPower Corporation, Systems, et al., the District Court of New Jersey dismissed multiple counts of plaintiff JJD Electric’s amended complaint, holding that the terms of the plaintiff’s subcontract control over its ancillary theories of liability. However, the court allowed the plaintiff’s fraudulent misrepresentation and unjust enrichment claims to proceed insofar as they challenged the very validity of the subcontract, as the Magistrate Judge held previously in granting the plaintiff leave to file the amended complaint. Defendant SunPower subcontracted JJD Electric to provide electrical contracting services in connection with the installation of power equipment at various project locations. JJD Electric asserted claims against SunPower for breach of contract, fraudulent misrepresentation, and unjust enrichment, as well as a claim under New Jersey’s Prompt Payment Act (PPA), seeking approximately $2 million for the alleged unpaid balance of work performed and another approximately $4 million for alleged delay damages. Importantly, as to the PPA claim, the court recognized the scarcity of case law addressing the elements of an action under subsection (b) of the PPA dealing with timing of payments between prime contractors and subcontractors. Based on the plain language of the PPA and guidance from other courts, the court adopted the following elements: The subcontractor has performed contractual work for the prime contractor....

Litigation Update: The Latest on Efforts to Block FTC’s Non-Compete Ban

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

Posted in Restrictive Covenants

On August 1, 2024

As we recently reported on April 23, 2024, the Federal Trade Commission (FTC) issued a final rule banning virtually all future and most existing non-compete clauses. The rule was immediately challenged by a global tax services firm and the United States Chamber of Commerce in the Northern District of Texas, and, soon thereafter, others within the business community took action by filing suit in additional federal courts. This post provides an update on the various ongoing legal challenges unfolding across the country. Ryan LLC v. Federal Trade Commission (N.D. Tex. 2024) On April 24, 2024, Ryan LLC, along with a group of intervenors led by the Chamber of Commerce, challenged the non-compete rule arguing that the rule exceeds the FTC’s statutory authority under the Administrative Procedures Act. On May 10, 2024, the Chamber of Commerce filed a motion to stay the September 4, 2024, effective date of the rule and for a preliminary injunction preventing enforcement of the rule, which would have the effect of halting the rule from going into effect until the underlying lawsuit is resolved. The Northern District of Texas court granted the motion, finding that the plaintiffs were likely to prevail on the merits. But the court’s decision came with an important caveat: The court’s order granting the preliminary injunction and halting...

New Jersey Supreme Court Confirms the Enforceability of Class Action Waivers

by Caroline E. Oks

Posted in Class Action Defense

On July 25, 2024

The New Jersey Supreme Court issued a unanimous opinion on July 10, 2024, holding that class action waivers in consumer contracts are not per se contrary to public policy. While such waivers may be unenforceable if they are unconscionable or violate other tenets of state contract law, the opinion confirms that there is no blanket prohibition on them – a positive development for businesses in New Jersey. Pace v. Hamilton Cove concerned a putative class action filed by residential tenants of Hamilton Cove Apartments, a luxury apartment complex in a high crime area. In its advertisements, brochures, and oral statements to prospective tenants during tours, Hamilton Cove Apartments promised that the complex would have “elevated, 24/7 security,” with security personnel stationed round-the-clock near each building’s entrance. The plaintiffs alleged that the promises were knowingly false when made, and that they relied on those representations in deciding to sign the lease. The lease contained a “Class Action Waiver” Addendum, by which the lessee “expressly waive[d] any right and/or ability to bring, represent, join, or otherwise maintain a Class Action.” The defendants moved to dismiss the plaintiffs’ Consumer Fraud Act (CFA) claim, arguing in pertinent part that a class action was not necessary to vindicate the plaintiffs’ interests and, in any event, that the leases contained class...

Third Circuit Clarifies Standard for Assessing Preliminary Injunctions

by Andrew J. Marino and William P. Deni, Jr.

Posted in General Litigation

On July 24, 2024

On July 15, the Third Circuit issued a precedential opinion in Delaware State Sportsmen’s Association v. Delaware Department of Safety & Homeland Security that has the potential to alter the standard district courts apply when evaluating motions for preliminary injunctions. In a lawsuit challenging Delaware’s ban on assault weapons and extended magazines, the court held that the group challenging the law had not met the requirements for issuing a preliminary injunction, emphasizing that injunctions “were and still are extraordinary relief” reserved for “exceptional cases.” It noted that injunctions, often “granted hurriedly and on the basis of very limited evidence,” themselves can inflict harm. And it concluded that “[a]ffidavits drafted by lawyers are poor substitutes for discovery, live testimony, and cross-examination.” Finally, the Third Circuit highlighted that “forecasting the merits [of a lawsuit] risks prejudging them,” as preliminary relief can “freez[e] first impressions in place.” With these principles in mind, the court reiterated that preliminary injunctions “should be granted only in limited circumstances” – to preserve the parties’ relative positions until a trial on the merits can be held, thereby ensuring that the court “can still grant an adequate remedy” or “render a meaningful judgment.” The court contrasted this purpose with issuing a preliminary injunction “just to prevent harm,” which is not an injunction’s “paramount purpose,” and...