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Gibbons Law Alert

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DNJ Court Grants Motion to Dismiss Based on Covenant Not to Sue

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Posted in Patent / Pharmaceuticals

On December 5, 2022

In Teva Branded Pharmaceutical Products R&D, Inc. v. Cipla Ltd., the United States District Court for the District of New Jersey recently granted the plaintiff, Teva Branded Pharmaceutical Products R&D, Inc.’s (“Teva”), motion to dismiss certain claims and counterclaims for lack of subject matter jurisdiction based on a covenant not to sue between Teva and defendant Cipla Ltd. (“Cipla”). The consolidated case is a Hatch-Waxman litigation involving several patents covering Teva’s Qvar® inhaler product. Originally, there were seven patents in dispute between the parties, but after Teva granted covenants not to sue for three of the patents to defendants Cipla and Aurobindo, the court entered stipulations and orders dismissing the parties’ claims and defenses as to those three patents. Thereafter, Teva provided defendants Cipla and Aurobindo each a covenant not to sue as to United States Patent No. 10,086,156 (“the ’156 patent”), another one of the original seven patents in dispute. Following the covenants not to sue, Teva and Aurobindo stipulated to the dismissal of the claims and counterclaims regarding the ’156 patent, but Teva and Cipla could not come to an agreement regarding the language for an order dismissing their respective claims and counterclaims. Consequently, Teva filed a motion to dismiss the claims and counterclaims relating to the ’156 patent. The court granted Teva’s...

2022 Elections Result in Close Races but Less Turnover Than Expected

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Posted in Elections

On November 10, 2022

With mid-term elections serving as a referendum on the party-in-power, Democrats braced for losses and Republicans sought to catch a “red wave” both in New Jersey and nationwide. Although votes are still being counted in some races, both sides can claim victory, as Republicans were able to pick up some seats and Democrats were able to blunt significant Republican gains. New Jersey’s congressional delegation will remain a Democratic majority, as only one of the hotly contested races resulted in an incumbent Democrat’s loss. In New Jersey’s 7th Congressional District, Republican Tom Kean, Jr. and Democrat Tom Malinowski faced off in a rematch of the 2020 election to represent Central Jersey residents. Mr. Malinowski defeated Mr. Kean then by less than 1 percent, but redistricting made the 7th District more Republican. With a more favorable map, Mr. Kean was able to defeat Congressman Malinowski by about 4 percentage points. In the 3rd Congressional District, Democratic incumbent Andy Kim won nearly 55 percent of the vote against Republican challenger Bob Healey. It was unclear if the newly redrawn district would present a challenge for the sitting congressman; however, by midnight, the election returns demonstrated that Mr. Kim was safely re-elected. Other congressional races, such as the contests in the 5th and 11th Districts, were also viewed as...

District of New Jersey Analyzes Article III Standing Requirement in the Class Action Context Under the Supreme Court’s Decision in TransUnion

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Posted in Class Action Defense

On November 10, 2022

In a post-TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) victory for the class action defense bar, the District of New Jersey has further clarified the standing requirement for showing concrete harm. In Schultz v. Midland Credit Management., Inc., the Honorable Madeline Cox Arleo, U.S.D.J. granted defendant Midland Credit Management, Inc.’s (“Midland”) motion for summary judgment because the plaintiffs failed to establish concrete harm and thus lacked standing. In Schultz, the plaintiffs filed a putative class action against Midland alleging that the collection agency issued collection letters with false Internal Revenue Service (IRS) reporting language in violation of the Fair Debt Collection Practices Act (FDCPA). Midland sent letters to the plaintiffs stating: “We will report forgiveness of debt as required by IRS regulations. Reporting is not required every time a debt is canceled or settled, and might not be required in your case.” Pursuant to the Department of Treasury and IRS regulations, Midland only needed to report discharges of indebtedness greater than $600. As the plaintiffs’ debts were below the $600 threshold, the plaintiffs argued that the IRS reporting language was false, deceptive, and misleading in violation of the FDCPA because the language implied that “there could be ‘negative consequences with the [IRS]’ and ‘deliberately fail[ed] to disclose that such reporting is required under...

David J. Freeman and Matthew J. Sinkman to Chair Panels at Upcoming Superfund/Brownfield Program Update 2022

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Posted in Development/Redevelopment / Environmental and Green Issues

On November 8, 2022

David J. Freeman and Matthew J. Sinkman of the Gibbons Environmental Group will serve as Panel Chairs at the upcoming annual Superfund/Brownfield Program Update 2022, presented by the Environmental & Energy Law Section of the New York State Bar Association. The program will take place virtually on December 7, 2022. Mr. Freeman, Co-Chair of the conference, will moderate a panel regarding developments in the federal Superfund program over the past year. Mr. Sinkman will moderate a panel regarding renewable energy issues and the New York State Brownfield Cleanup Program (BCP). An outstanding faculty of government officials, attorneys, and consultants will participate on these panels as well as panels regarding statutory amendments to the BCP and proposed changes to BCP regulations, affordable housing issues, and a case law update. Julie Tighe, President of the New York League of Conservation Voters (NYLCV) and NYLCV Education Fund, will be the Keynote Speaker and discuss the results of the 2022 elections and what they mean for New York’s environmental agenda. You can register for this timely program by clicking here.

Citing Need for Claim Construction, DNJ Court Denies Defendant’s Motion for Judgment on Pleadings

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Posted in Patent / Pharmaceuticals

On October 31, 2022

In Tolmar Therapeutics, Inc. v. Foresee Pharmaceuticals Co., Ltd., the United States District Court for the District of New Jersey recently denied the defendant’s motion for judgment on the pleadings, reasoning that the motion could not be decided without claim construction. The plaintiff alleges that the defendant’s product CAMCEVI® infringes the plaintiff’s patent, which also covers the plaintiff’s Eligard® product. Both products are approved prostate cancer medications. Claim 1 of the patent-in-suit is directed to a controlled release composition that includes a polymer with an alkane diradical that comprises “about 4 to about 8 carbons.” The defendant moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) arguing (1) that the term “about 4 to about 8 carbons” in the patent-in-suit meant that the defendant’s use of 12 carbons (see, e.g., ECF No. 39 at 1) in its product could not literally infringe; and (2) that the plaintiff could not rely on the doctrine of equivalents, because the use of the term “about” in the claims limited the applicability of the doctrine of equivalents and because of the disclosure-dedication rule. In denying the defendant’s motion, United States District Judge Evelyn Padin reasoned that both the plaintiff’s literal infringement and doctrine of equivalents theories required the court to construe the term “about 4...

New York City Pay Transparency: What Employers Need to Know

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Posted in Discrimination / Policies and Handbooks

On October 26, 2022

Effective November 1, 2022, covered employers in New York City must comply with new legislation concerning pay transparency. Specifically, the New York City Pay Transparency Law (“Pay Transparency Law” or “Law”) amends the New York City Human Rights Law (NYCHRL) by requiring employers to include minimum and maximum base salaries and wages for a position when advertising or posting a job, promotion, or transfer opportunity. We discuss the new law and guidance issued by the New York City Commission on Human Rights (“Commission”) below. New York City joins a number of other jurisdictions that have passed some form of a pay transparency law, including California, Colorado, Connecticut, Maryland, Nevada, Rhode Island, and Washington. Who Are “Covered Employers?” The Pay Transparency Law applies to all New York City employers with at least four employees (which includes owners and individual employers). For counting purposes, all four employees need not work in New York City or in the same location. Instead, a particular workplace is covered so long as one of the employees works in the city. Employment agencies are also covered by the Law regardless of size, but the Law excepts temporary help firms seeking applicants to join their pool of available workers. What the Pay Transparency Law Requires Any advertisement for a job, promotion, or transfer...

NJDEP Posts Guidance for Prospective Purchasers of Contaminated Sites to Obtain Adjustments to Direct Oversight Requirements

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Posted in Environmental and Green Issues

On October 21, 2022

On September 9, 2022, the New Jersey Department of Environmental Protection (NJDEP) issued its Pre-Purchase Administrative Consent Order Guidance through the NJDEP’s Contaminated Site Remediation & Redevelopment Program. The guidance document explains how prospective purchasers of contaminated sites subject to Direct Oversight can obtain a Pre-Purchase Administrative Consent Order (ACO), allowing for adjustments to Direct Oversight requirements. Under the Site Remediation Reform Act, if the person responsible for conducting remediation of a contaminated site fails to complete the investigation and remediation within mandatory timeframes, the NJDEP automatically places the site into Direct Oversight. The Direct Oversight requirements are a more prescriptive remediation process for the person responsible for conducting remediation. Some of the Direct Oversight requirements include: NJDEP selection of the remedial action for the site; NJDEP approval of each document submitted by a licensed site remediation professional; establishment of a remediation funding source in the amount needed to complete remediation; performance of a remedial action feasibility study for NJDEP approval; and compliance with an NJDEP-approved public participation plan. Once a potential buyer of a site closes on a contaminated property subject to Direct Oversight, the potential buyer becomes a person “in any way responsible” for remediating the site pursuant to the Spill Compensation and Control Act (“Spill Act”). By entering into a Pre-Purchase ACO,...

NLRB Reaffirms Test Set Forth in Republic Aviation With Respect to Employees’ Right to Display Union Insignia Under the NLRA

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Posted in Labor

On October 17, 2022

Recently, in Tesla, Inc., the National Labor Relations Board (NLRB) held that Tesla had violated the National Labor Relations Act (NLRA) by banning workers from wearing pro-union attire, and reaffirmed the long-standing precedent established by the Supreme Court in Republic Aviation Corp. and its progeny, holding that when an employer attempts to impose any restriction on a worker’s right to display union insignia, the employer must prove “special circumstances” justifying the restriction. By way of background, Tesla manufactures electric vehicles at a facility in Fremont, California, where they are assembled by production associates in General Assembly (“GA”). Tesla’s team-wear policy requires its production associates to wear black cotton shirts with the company logo or plain black T-shirts, along with black cotton pants. In the spring of 2017, there was a union organizing campaign, during which the associates began to wear black shirts with pro-union insignia as opposed to team wear. Shortly after the workers had started wearing the pro-union apparel, Tesla began to strictly enforce its team-wear policy, which it had not done previously and which prohibited workers from wearing the black pro-union shirts rather than the required team-wear shirts. Pro-union insignia, however, was not banned completely, as the associates were permitted to wear union stickers on their team-wear shirts. The union’s organizing campaign ultimately...

An Anti-SLAPP Bill That Packs a Powerful Punch

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Posted in General Litigation

On October 14, 2022

Strategic lawsuits against public participation (SLAPP) are lawsuits intended to intimidate or punish those engaged in constitutionally protected activity by, essentially, suing them into submission or silence through the prospect of costly and time-consuming litigation. Thirty-two states have enacted some form of anti-SLAPP legislation designed to weed out these cases and, in most instances, provide for dismissal of such actions early in the process. New Jersey is not one of those states. That may soon change. State Senate Bill S2802, the Uniform Public Expression Protection Act (the “Act”), and its Assembly counterpart, A4393, were introduced in June 2022 and provide an expedited process for dismissal of SLAPP actions. The legislation is modeled after the Uniform Public Expression Protection Act (UPEPA) drafted by the National Conference of Commissioners on Uniform State Laws and approved and recommended by it in 2020 for enactment in all states. The Act would apply to a civil cause of action against a person based on the person’s (1) communications during a legislative, executive, judicial, administrative, or other governmental proceeding; (2) communications on an issue under consideration or review by such a body; or (3) engagement in any other activity that is protected by the First Amendment freedoms guaranteed by the United State Constitution or New Jersey Constitution and that relates to...

The New Jersey Cannabis Regulatory Commission Issues Much-Needed Interim Guidance on Managing Employees Working While Under the Influence of Cannabis Products

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Posted in Discrimination

On October 13, 2022

The enactment of the New Jersey Cannabis Regulatory Enforcement, Assistance, and Marketplace Modernization Act (CREAMMA), signed into law in February 2021, legalized the recreational use of marijuana for adults ages 21 and older in New Jersey. However, the right to marijuana use is not unfettered, and an employer’s right to maintain a drug-free workplace is often easier said than done where cannabis is concerned. Under CREAMMA, an employer cannot discharge or take any other adverse action against an employee because the employee uses cannabis items outside of the workplace. An employer may, however, require an employee to undergo a drug test: Upon reasonable suspicion of an employee’s use of a cannabis item while performing his or her work responsibilities, or Upon finding any observable signs of intoxication related to use of a cannabis item, or Following a work-related accident subject to investigation by an employer In this regard, CREAMMA directs the Cannabis Regulatory Commission (CRC), the entity tasked with crafting and enforcing rules and regulations governing the sale and use of cannabis in New Jersey, to prescribe regulations for issuing a Workplace Impairment Recognition Expert (WIRE) certification to full- or part-time employees or others contracted to provide services on behalf of an employer. Through education and training, a WIRE becomes certified in detecting and identifying...

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