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Gibbons Law Alert Blog

On December 9, 2024

On November 14, 2024, the New Jersey Appellate Division issued a decision in Beazer East, Inc. v. Morris Kearny Associates Urban Renewal, LLC, reversing the lower court which had ordered Defendant Morris Kearny Associates Urban Renewal, LLC (“Morris”) to give access to its site in Kearny (“Site”) to Plaintiff Beazer East Inc. (“Beazer”) in order for Beazer to remediate contaminated groundwater at the Site pursuant to the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.1 to -23.24, and the Hazardous Discharge Site Remediation Act, N.J.S.A. 58:10B-1 to -31. Beazer had sought access to a portion of the Site to install two groundwater-monitoring wells. Morris denied the request, claiming that Beazer’s installation of the wells would interfere with Morris’ contractual obligation to construct site improvements and warehouses on its property in furtherance of a commercial redevelopment project. After subsequent negotiations to obtain access were unsuccessful, Beazer filed a summary action seeking access to the Site under the New Jersey Access Statute, N.J.S.A. 58:10B-16, which allows a remediating party to obtain a court order on an expedited basis permitting “reasonable access” to a property if “after good faith efforts, the person undertaking the remediation and the property owner fail to reach an agreement concerning access.” N.J.S.A. 58:10B-16(a)(1). In support of its order to show cause seeking...

Two Major Updates for New Jersey Alcoholic Beverage License Holders on Outdoor Dining Rules and New Mandatory Signage for Businesses

by Michael D. DeLoreto, Jennifer P. Smith and Alexandra Hayes

Posted in State Government

On November 26, 2024

Just in time for the Thanksgiving holiday, New Jersey has taken action on two items that impact the operations of alcoholic beverage licensees. The first action codifies the COVID-era outdoor dining and beverage service rules in statute, while the second requires certain alcoholic beverage licensees to post signs that bring awareness to the risks of human trafficking. Renewal of Outdoor Dining and Beverage Service Permits Governor Murphy signed S3608/A4866 into law on November 25, 2024, making permanent the COVID-era outdoor dining permissions for restaurants and certain alcoholic beverage retailers and manufacturers. Under the new law, the holder of a temporary expansion permit issued by the New Jersey Division of Alcoholic Beverage Control (the “Division”) may have its temporary permit converted to an annual permit, which is renewable with the approval of local officials. Owners and operators of these businesses are permitted to use certain outdoor spaces as an extension of their business premises for the purpose of conducting sales of food and beverages, including alcoholic beverages if licensed. This includes the continued use of fixtures such as covered and uncovered patios and decks, tents, canopies, umbrellas, tables, and chairs for outdoor dining. The enactment of S3608/A-4866 brings to a close four years of temporary outdoor dining rules. Governor Murphy originally signed legislation to expand outdoor dining...

Massachusetts Supreme Court Takes a Closer Look at Wiretap Laws, Potentially Narrowing Privacy Actions

by John T. Wolak and Ravipal Singh

Posted in General Litigation

On November 25, 2024

The Massachusetts Supreme Judicial Court recently issued an important ruling in Vita v. New England Baptist Hospital et al., addressing whether tracking a user’s activities on a website and sharing that data with third parties constitutes intercepting communications in violation of the state’s 1968 Wiretap Act (the “Act”). In dismissing the plaintiff’s statutory claims, the court emphasized that it is the responsibility of the legislature – and not the court – to address gaps in statutory protections related to privacy and modern tracking technologies, highlighting that as technology and any corresponding digital privacy concerns evolve, legislative frameworks must be modified to adapt accordingly. Plaintiff Kathleen Vita claimed that New England Baptist Hospital and Beth Israel Deaconess Medical Center violated the Act by “intercepting” communications without her consent or knowledge through the use of tracking tools on their websites. Specifically, the plaintiff alleged that the hospitals used third-party software to record her activity when she browsed the hospitals’ websites to obtain information about doctors, search for information about medical symptoms and other healthcare-related issues, and obtain and review medical records. The plaintiff alleged that the hospitals then shared this data with third parties that processed the data for targeted advertising campaigns tailored to the individual user’s data. The court concluded that although the web tracking practices raised...

Without Further Ado: Third Circuit Limits Discovery on Motions to Compel Arbitration

by Bassam F. Gergi

Posted in Class Action

On November 21, 2024

More than a decade after its seminal decision in Guidotti v. Legal Helpers Debt Resolution, L.L.C., the Third Circuit Court of Appeals has clarified that a plaintiff’s claims may be sent straight to arbitration, without any discovery, if there is no challenge to an arbitration agreement’s existence or validity. In Guidotti, the Third Circuit held that unless “it is apparent, based on ‘the face of a complaint, and documents relied upon in the complaint,’” that the “party’s claims ‘are subject to an enforceable arbitration clause,’” then a plaintiff should be given a chance to take “discovery on the question of arbitrability” before a motion to compel arbitration is decided under the summary-judgment standard of Rule 56 of the Federal Rules of Civil Procedure. Because most plaintiffs who file in court craft their complaints to try to avoid arbitration, the practical result of the Guidotti decision was that many cases went to discovery before a ruling on a defendant’s motion to compel – even when discovery was unlikely to impact the outcome. The Third Circuit’s recent published decision in Young v. Experian Information Solutions, Inc. limits the need for such pre-arbitration discovery. In Young, the plaintiff filed a putative class action complaint against Experian in the United States District Court for the District Court of New Jersey...

David J. Freeman to Co-Chair N.Y. State Bar Superfund and Brownfields Update Webinar

by Gibbons Environmental Group

Posted in Development/Redevelopment / Environmental & Green Issues

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...