Gibbons Law Alert Blog

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

David J. Freeman, a Director in the Gibbons Environmental Department, will serve as Program Co-Chair for “Superfund/Brownfield Update 2020: 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 2 from 9:00 a.m. to 2:30 p.m. The program will feature presentations by representatives of the U.S. Environmental Protection Agency, the New York State Department of Environmental Conservation, the New York Attorney General’s Office, and private bar and expert consultants regarding recent developments in the federal Superfund and New York State Brownfield programs. There will also be panels discussing the proposed new ASTM standards for the conduct of Phase I environmental site assessments and the operation of New York State’s land banks. The keynote speaker will be Julie Tighe, President of the New York League of Conservation Voters and New York League of Conservation Voters Education Fund. Her timely topic will be “How the 2020 Election Will Affect the Environmental Agenda at the Federal and State Levels.” A full description of the program, and instructions on how to register, can be found here.

The Destruction of a “Startling Amount of Discovery”: District Court Imposes Severe, Case-Ending Sanctions Pursuant to Rule 37(e)(2)

The United States District Court for the Eastern District of Washington recently entered a default judgment order of terminating sanctions against defendants pursuant to Rule 37(e)(2), as a result of defendants’ wholesale destruction of a “startling amount of discovery” as part of defendants’ adoption of a document disposition program during the course of the litigation. The district court found that the defendants “purposefully destroyed” relevant electronically stored information (ESI) “to avoid their litigation obligations.” This decision highlights the importance of extreme caution in the adoption of a document disposition or information governance program, which necessarily eliminates typically large quantities of ESI, during the time period when the duty to preserve relevant ESI has been triggered. In Moreno v. Correctional Healthcare Companies, Inc., plaintiffs filed constitutional claims against defendants–providers of healthcare services to inmates–after plaintiffs’ eighteen-year-old son died while in defendants’ custody. In January 2018, prior to filing the lawsuit, plaintiffs sent a letter to defendants notifying defendants of their plan to file a lawsuit and advising defendants to “preserve all paper and electronic records that may be relevant to our clients’ claims” including “all e-mails and other electronic and paper records regardless of where they are maintained.” Plaintiffs filed the lawsuit in October 2018 and, in December 2018, served discovery requests on defendants, seeking certain categories...

IRS Allows Use of Pass-Through Business Alternative Taxes to Bypass 2017 Tax Act’s Limitation on SALT Deductions – Effectively Blessing New Jersey Statutory Work-Around

On Monday, November 9th, the IRS issued Notice 2020-75 stating that it intended to issue proposed regulations to clarify that state and local income taxes imposed on and paid by a partnership or an S corporation would be deductible by such entity regardless of whether the liability for such taxes is the result of an election by the entity or whether the partners or S shareholders receive a partial or full state or local deduction, exclusion, credit, or other tax benefit that is based on their share of the amount of such taxes paid by the entity. Taxpayers will not need to take such tax payments into account in applying the 2017 Tax Act’s $10,000 cap on state and local taxes. Notice 2020-75, effective immediately, appears to directly support the efficacy of New Jersey’s work-around (S-3246/A-4807) adopted early in 2020 to address the federal 2017 Tax Act’s $10,000 cap on state and local taxes (SALT). Because that cap applies predominantly to real property taxes and sales taxes in addition to income taxes, business taxpayers who can use the work-around and remove business income taxes from the $10,000 cap will effectively be allowed to deduct an additional amount of other SALT taxes under the cap. The New Jersey law, commonly called the Pass-Through Business Alternative Income Tax,...

Federal Court Sanctions Defense Attorney Under § 1927 for Unreasonably Vexatious Conduct During Discovery

A Minnesota federal court recently issued a stern warning to attorneys and litigants who ignore court orders and fail to make any effort to engage in meet and confers during the discovery process. In Management Registry, Inc. v. A.W. Companies, et al., the District Court for the District of Minnesota ordered a defense attorney to pay $25,000 in attorney’s fees, pursuant to 28 U.S.C. § 1927, in addition to other forms of sanctions for the attorney’s “pervasive discovery misconduct.” This case arose from plaintiff’s claims against defendants “after a corporation acquisition went wrong.” The litigation has a tortured procedural history during which the parties fought for almost two years over various discovery disputes, a number of which involved the format of production of certain documents. The parties had participated in a telephonic conference in late 2018, during which time the court ordered defendants to produce ESI in the same manner that plaintiff was required to produce ESI. Following that conference, a number of issues arose with respect to defendants’ production, and counsel for the defendants (at that time) agreed to make a supplemental production to resolve the technical issues. Defendants then obtained new counsel, and the new counsel proceeded to file a motion to compel without: (1) first reviewing the status of documents that had...

Gibbons Attains National and Regional Rankings in 2021 Best Law Firms

Gibbons is proud to announce that 35 of the firm’s practice areas have achieved national and metropolitan recognition in the 2021 edition of U.S. News – Best Lawyers® “Best Law Firms.” The firm also earned numerous national rankings this year, placing in the second two national tiers in the categories of: Construction Law Employment Law – Management Land Use & Zoning Law Litigation – First Amendment Real Estate Law We also earned our highest number of National Tier 1 rankings ever, in the categories of: Environmental Law Litigation – Construction Mass Tort Litigation/Class Actions – Defendants “Gibbons continues to evolve and adapt our legal services to anticipate the future needs of our clients,” said Patrick C. Dunican Jr., Chairman and Managing Director of Gibbons. “The recognition of our practice areas on both the national and regional levels reaffirms that excellent client service and legal work are firm-wide commitments.” The firm’s regional practice area rankings include: New Jersey Regional Rankings Appellate Practice Banking and Finance Law Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law Bet-the-Company Litigation Commercial Litigation Construction Law Corporate Law Corporate Compliance Law Criminal Defense – White Collar Employee Benefits (ERISA) Law Employment Law – Management Environmental Law First Amendment Law Government Relations Practice Health Care Law Insurance Law Land Use & Zoning Law...

William Hatfield to Participate in Upcoming Strafford Webinar – “Practical Tips and Lessons Learned for Asserting Divisibility in CERCLA Litigation in Federal Court” – November 19

William S. Hatfield, a Director in the Gibbons Environmental Department, will participate in an upcoming panel discussion presented by Strafford. The panel, “Practical Tips and Lessons Learned for Asserting Divisibility in CERCLA Litigation in Federal Court,” will take place virtually on Thursday, November 19 from 1:00 – 2:30 pm ET. The panel will analyze how recent court decisions have addressed divisibility and apportionment in CERCLA litigation. Panelists will also guide environmental counsel and professionals on when and how the divisibility of harm defense is appropriate, offer practical tips, and discuss the legal and technical challenges in establishing divisibility. The discussion will be interactive, allowing for questions and answers, and CLE credits will be offered. For additional information or to register, click here.

NJABC Extends Time Period for COVID-19 Expansion Permit

On October 19, 2020, the New Jersey Division of Alcoholic Beverage Control (“Division”) issued a new special ruling (the “October Special Ruling”) that allows the currently issued COVID-19 Expansion of Premises Permit (“COVID-19 Expansion Permit”) to be extended to March 31, 2021. We previously discussed the Division’s special ruling issued on June 3, 2020 (the “June Special Ruling”) that coincided with Governor Murphy’s Executive Order No. 150, which allowed licensees or permittees with on-premises retail consumption privileges to reopen and serve patrons in “outdoor areas.” The COVID-19 Expansion Permit established through the June Special Ruling allowed licensees and permittees to expand their licensed premises into outdoor areas, either contiguous or non-contiguous to their permanently licensed premises. Applications for an extension of the COVID-19 Expansion Permit will be available later this month and must be submitted no later than November 23, 2020. The June Special Ruling originally set the expiration of the COVID-19 Expansion Permit as November 30, 2020. However, due to the continuing effect of the COVID-19 pandemic on the alcoholic beverage industry, and the continued requirements for indoor capacity limits and social distancing, the Division found it appropriate to allow licensees to apply to renew the COVID-19 Expansion Permits. The Division noted that, to date, it has issued more than 2,300 COVID-19 Expansion Permits....

Governor Murphy Issues Executive Order Creating Mandatory Health and Safety Requirements at Businesses

Governor Murphy’s Executive Order 192, issued on October 28, 2020 (the “Order”), requires every business, nonprofit, and governmental or educational entity in the State “that requires or permits its workforce…to be physically present at a worksite” to follow a uniform set of public health measures to slow the spread of COVID-19. The Order becomes effective at 6:00 a.m. on November 5, 2020. The Order mandates ten specific actions that businesses must take: Enable employees to remain at least six feet apart at all times. When employees cannot maintain this distance, businesses must require employees to wear face masks and shall install physical barriers between workstations wherever possible. Require that employees, customers, visitors, and other people entering the worksite wear cloth or disposable face masks while on the premises, in accordance with Centers for Disease Control and Prevention (CDC) recommendations. The only exceptions to this directive are for individuals under two years of age or where it is impracticable for a person to wear a face mask, such as when the individual is eating or drinking or where a service being provided by the employer cannot be performed on someone wearing a mask. Businesses must make face masks available, at the businesses’ expense, to their employees. Businesses may permit employees to remove face masks when the...

Jordan Asch to Participate in Upcoming NJSBA Panel Discussion – “Resolving Everyday Environmental Problems” – November 5

Jordan M. Asch, an Associate in the Gibbons Environmental Department, will participate in an upcoming panel discussion presented by the New Jersey State Bar Association, in cooperation with its Environmental Law Section. The panel, “Resolving Everyday Environmental Problems,” will take place virtually on Thursday, November 5 from 9:00 – 10:30 am. The discussion will cover some of the complex, and often expensive, environmental issues that small businesses and homeowners may face, including site remediation issues, funding sources, environmental permitting, and the permitting process. Attorneys who represent small business owners that own or lease real property, or that may develop or improve real property, as well as homeowners that may face environmental remediation or permitting issues are encouraged to attend. For additional information or to register, click here.

NJDEP Posts List of Approvals Extended by Permit Extension Act of 2020

The New Jersey Department of Environmental Protection (NJDEP), in its function as the repository for registering approval extensions under the Permit Extension Act of 2020 (“PEA2020”), codified at N.J.S.A. 40:55D-136.7, has posted the list of approvals which were registered by the October 8, 2020 deadline. There are actually two separate lists available from NJDEP, one consisting of permits issued by the NJDEP, and the other consisting of approvals issued by all other agencies. The second list encompasses a broad array of approvals including municipal and county planning board approvals, health department approvals, highway access permits, road opening permits, redevelopment agreements, soil conservation district certification, and a host of others. Both lists provide the name of the permittee, permitting agency, type of permit, and permit number. They are searchable by keyword. It appears that these lists are only inclusive of the approvals that have been granted extensions, and developers and permitted parties should review them carefully to confirm whether their approvals have been included. As reported previously, PEA2020 authorizes the extension of a wide variety of approvals, including, but not limited to, soil conservation district approvals, waterfront development permits, wetlands permits, CAFRA permits and center designations, septic approvals, municipal utility authority approvals, county and municipal planning board approvals, and a host of other municipal, county, regional,...