Gibbons Law Alert Blog

Second Circuit Holds Monetary Compensation for Survey Participation Not an “Unsolicited Advertisement” Under the TCPA; Disagrees with Third Circuit

The Second Circuit recently held, in Bruce Katz, M.D., P.C. v. Focus Forward, LLC, that an unsolicited faxed invitation offering $150 to participate in a market research survey does not constitute an “unsolicited advertisement” under the Telephone Consumer Protection Act of 1991 (the “TCPA”). The TCPA defines “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission.” The Second Circuit reasoned that the subject fax transmissions “plainly do not advertise the availability of any property, goods, or services” and therefore “cannot reasonably be construed” as unlawful advertisements. The panel did note, however, that its holding may not necessarily extend to all “communications, including faxed surveys, offering the recipient both money and services,” as some such communications could incur liability under the TCPA depending on the specific content of the communication. The Second Circuit’s holding in Katz departed from the reasoning in the Third Circuit’s divided opinion in Fischbein v. Olson Research Group, Inc. The faxes at issue in Fischbein consisted of requests to doctors to participate in market research surveys in exchange for monetary compensation. The Third Circuit held that such faxes are advertisements, reasoning that “an offer of payment in exchange for participation...

A Look at the 220th Legislature and Annual State of the State Address

On January 11, 2022, New Jersey began a new legislative session marked by the Legislature’s reorganization and the Governor’s State of the State Address. Legislative Reorganization Democrats retained control of both houses, albeit with much smaller margins after Republicans managed to win back several seats in the November elections. Democrats now hold a 24 to 16 majority in the Senate and a 46 to 34 majority in the General Assembly. The Senate has new leadership for the first time in twelve years, with Senator Nicholas Scutari of Union County being sworn in as the Senate President and Senator Teresa Ruiz of Essex County becoming the Senate Majority Leader. Senator Sandra Cunningham of Hudson County remains the Senate President Pro Tempore. Senator Steven Oroho of Sussex County is now the Republican Leader, replacing Tom Kean, Jr., who did not run for reelection in order to focus on his campaign for the 7th Congressional District. The Senate also welcomed five new members. Senators Jon Bramnick (R-21), Gordon Johnson (D-37), Jean Stanfield (R-8), and Andrew Zwicker (D-16) all previously served in the General Assembly. Senator Ed Durr (R-3) has not previously held elective office. In the Assembly, Craig Coughlin of Middlesex County and Louis Greenwald of Camden County will continue as Speaker and Majority Leader, respectively, for another...

Pennsylvania Supreme Court Protects Due Process Rights and Rejects “Jurisdiction by Consent”

On December 22, 2021, a unanimous Pennsylvania Supreme Court held in Robert Mallory v. Norfolk Southern Railway Company that a foreign corporation is not subject to personal jurisdiction in the Commonwealth of Pennsylvania solely because of its registration to do business there. The Mallory decision is an affirmation of the due process rights of non-Pennsylvania corporate defendants and significantly impacts who can permissibly be sued in the Commonwealth. Mallory, a resident of the Commonwealth of Virginia, filed suit in Pennsylvania seeking damages under the Federal Employers’ Liability Act against his former employer, Norfolk Southern, a Virginia corporation, for injuries allegedly sustained in the course of the plaintiff’s work in Virginia and Ohio. The sole basis for the exercise of personal jurisdiction was Norfolk Southern’s registration to do business in the Commonwealth of Pennsylvania. Pennsylvania’s business registration statute is unique in that the statute conditions registration upon a corporation’s “consent” to personal jurisdiction in Pennsylvania courts. Before Mallory, Pennsylvania state courts and many of Pennsylvania’s federal courts generally permitted the exercise of personal jurisdiction over foreign corporations based solely on their registering to do business in Pennsylvania. The appeal in Mallory required the Pennsylvania Supreme Court to consider whether Pennsylvania’s broad exercise of personal jurisdiction through its corporate registration statute comports with the demands of due...

Gibbons Congratulates 2022 Class of Directors

Gibbons P.C. is pleased to announce that three attorneys from the firm’s Commercial & Criminal Litigation Group have been named Directors, effective January 1, 2022. All are resident in the firm’s Newark office. “We are incredibly proud of this year’s class of new Directors,” said Patrick C. Dunican Jr., Chairman and Managing Director of Gibbons. “These outstanding, up-and-coming attorneys have proven to be exceptional assets to the firm and its clients, and we are confident that their contributions will be even greater as they take on the increased responsibilities of their new roles.” “Having been their practice group Chair for the past several years, I am well aware that Annie, Charlotte, and Josh possess all of the qualities that define a Gibbons Director,” noted Peter J. Torcicollo, Co-Chair of the firm’s Commercial & Criminal Litigation Group and incoming Managing Director. “With their well-deserved promotions and new, higher profiles, they will be excellent representatives of the firm as they continue to develop in their careers.” The attorneys promoted to Director are: Anne M. Collart Ms. Collart is an experienced and trusted counselor who has represented individual and corporate clients in a variety of criminal and civil matters. Her white collar criminal defense practice includes trial and appellate matters, and she has argued cases in both federal...

Gibbons Announces New Leaders for Commercial & Criminal Litigation Group

Gibbons P.C. is pleased to announce that longtime firm Directors Frederick W. Alworth, Jennifer A. Hradil, and Thomas R. Valen have been named to new leadership positions in the Commercial & Criminal Litigation Group, the firm’s largest and most wide-ranging practice area. Effective February 1, 2022, Mr. Alworth will serve as Chair of the practice, with Ms. Hradil and Mr. Valen as Vice Chairs. In their new positions, these attorneys will oversee the work of the attorneys in their respective practice groups and manage group activities and workload. Their oversight responsibilities include fees and billings, matter management, case staffing, associate training and broader professional development, client relations, and business development. All have served, or are serving, in various other management capacities at the firm.

Jennifer Phillips Smith Named Co-Chair of Gibbons Real Property Group

Gibbons P.C. is pleased to announce that Jennifer Phillips Smith has been named Co-Chair of the firm’s Real Property Group, effective February 1, 2022. She joins Co-Chair Douglas J. Janacek, who has been a leader of the Real Property Group for over a dozen years. Ms. Smith is lead land use attorney on several of New Jersey’s largest, most high-profile development and redevelopment projects, which garner extensive media coverage. Examples include a $2.5 billion redevelopment, which is being called the “largest mixed-use development site in New Jersey’s history,” the transformation of the Asbury Park Waterfront, and the repositioning of a former manufacturing and office site, named “Mixed-Use Deal of the Year” by the leading statewide commercial real estate development association. As Co-Chair of the Real Property Group, she will work with Mr. Janacek in overseeing the work of group attorneys and managing group activities and workload, including fees and billings, matter management, case staffing, associate training and broader professional development, client relations, and business development. In her legal practice, Ms. Smith helps businesses in New Jersey expand and optimize the reach of their markets and operations through the development and redevelopment of real property for their facilities, directing project and case strategies, guiding teams, and serving as primary Gibbons contact broadly responsible for these client...

The Tip of the Iceberg? Recent Developments in Merger Enforcement

Ten months into the Biden Administration, the President’s choice to lead the Antitrust Division of the Department of Justice (DOJ), former Federal Trade Commission (FTC) attorney and antitrust law practitioner Jonathan Kanter, has received Senate confirmation by a vote of 68-29. Time will tell whether Assistant Attorney General Kanter’s reputation in the legal community as an advocate for vigorous antitrust enforcement spills over into his new role, as many expect it will. In the meantime, recent developments on the merger enforcement front signal tighter oversight and will almost certainly impact merger review going forward. The first change implicates the 30-day waiting period that begins to run when parties to a reportable transaction notify the FTC and DOJ of their intended merger, as required by the Hart-Scott-Rodino (HSR) Act. It used to be that parties could request so-called early termination of the waiting period, which on occasion the Government would grant if it was clear the merger did not trigger anti-competitive concerns, thereby obviating the need for further review. But that all changed in February, when the FTC announced it was suspending the practice of early termination, citing the transition to the new Administration and the unprecedented volume of HSR filings for the start of a fiscal year. What was initially termed a temporary suspension has...

Disappearing Act: Court Provides Reminder that Counsel Must Investigate and Understand Client’s Use of Ephemeral Messaging Services to Prevent Sanctions

A decision earlier this year from the Northern District of Indiana illustrates the importance of counsel thoroughly investigating and understanding all data sources their clients may be using to create and store potentially relevant Electronically Stored Information (ESI). With the increased use of messaging applications – including ephemeral ones – counsel must understand the intricacies of each application (and its retention and preservation policies) used by their clients to prevent the destruction of relevant ESI. In this case involving civil rights claims, the defendants sought evidence regarding the plaintiff’s activities and character to disprove claims that the defendants deprived the plaintiff of his honor and reputation – a “protected liberty interest” – without due process. Through one of their requests, the defendants sought all data related to the plaintiff’s Snapchat account. For background, Snapchat is a messaging service where users record photos and videos (called “Snaps”) to send to other users. These Snaps appear on the receiver’s screen only for a limited period of time (generally, seconds). In addition, Snapchat users can send chat messages to other users, create “Stories” that remain visible to all users for 24 hours, and save Snaps indefinitely by storing them in the user’s “Memories.” Data within the user’s “Memories” is saved by Snapchat until a user deletes it, at...