Gibbons Law Alert Blog

Gibbons New York-Based Director and E-Discovery Task Force Co-Chair Mark S. Sidoti to Co-Present on ADA Website Accessibility Compliance

With the Department of Justice not yet issuing regulatory action on website accessibility pertaining to the Americans with Disabilities Act (ADA), e-commerce and other businesses need to interpret and apply conflicting guidance to be prepared to deal with the seemingly inevitable demand letter or lawsuit. On May 24, Gibbons Director and E-Discovery Task Force Co-Chair Mark S. Sidoti will co-present the live, interactive Strafford webinar, “ADA Compliance and Website Accessibility: Circuit Split, Online Accessibility ACT, W3C Guidance.” This CLE program will provide corporate counsel with the necessary tools to mitigate liability for websites or mobile apps that do not comply with the ADA. Mr. Sidoti and his fellow panelists will discuss the conflicting legal authority in various jurisdictions, how this authority affects this type of litigation, and current trends in this area of the law. Additionally, they will address best practices for mitigating risks of an ADA website claim as well as navigating liability and damages when a claim has been filed. Mr. Sidoti, also Director of Commercial & Criminal Litigation at Gibbons based in the firm’s New York office, has extensive experience counseling clients regarding website access and compliance requirements under the ADA and other disability laws, and has represented numerous companies in website litigation. He has written and presented frequently on this topic....

District of New Jersey Denies Motion to Amend Invalidity Contentions, Citing Defendant’s Lack of Diligence and Timeliness in Filing Motion

In Razor USA LLC v. DGL Group, Ltd., the United States District Court for the District of New Jersey recently denied a defendant’s motion to amend its invalidity contentions to include an additional written description argument. The case involves utility and design patents pertaining to a hoverboard. After learning that the design patent issued with drawings had previously been rejected by the Patent and Trademark Office (PTO) (as opposed to those that the PTO later approved), the defendant sought to add an argument that the design patent was invalid pursuant to 35 U.S.C. § 112(a) for the same reasons that the PTO had previously rejected the published drawings. The defendant asserted that it learned about this “new” defense after the plaintiff’s expert stated in a declaration that he had reviewed the prosecution history of the design patent, which prompted the defendant’s own investigation of the prosecution history. In evaluating whether the defendant’s application met the requirements of Local Patent Rule 3.7, the court looked to the defendant’s diligence and the timeliness of the motion. The court concluded that both were lacking. With respect to diligence, the “dominant consideration” in the motion to amend, the court concluded that the defendant had failed to act with the requisite diligence in discovering the information it sought to add...

Keeping the Curtain Closed: Connecticut District Court Denies Discovery on Discovery Where No Basis to Claim Deficiencies Shown

Despite the broad scope of discovery under Federal Rule of Civil Procedure 26, courts are generally reluctant to permit “discovery on discovery,” i.e., discovery requests related to a party’s efforts to search for, locate, preserve, and collect relevant electronically stored information (ESI). In a case brought against Wesleyan University (the “University”) by a student expelled for alleged cheating, the United States District Court for the District of Connecticut recently declined to compel such discovery on discovery, where the plaintiff requested that the defendant identify and “catalog all of the devices on which responsive communications reside.” The discovery request was made well after the Rule 26 conference – discovery had been ongoing for nearly two years – and the plaintiff waited almost a full year after serving the requests to file her motion to compel. In light of these facts and the plaintiff’s failure to establish an “adequate factual basis” for requiring such discovery on discovery, the court denied portions of the plaintiff’s motion to compel. In Doe v. Wesleyan University, the plaintiff, a former student at the University, was expelled for allegedly cheating on her exams by improperly accessing the University’s “computerized learning management system” called “Moodle” during her exams. The University conducted an investigation and held an Honor Board proceeding, and the board decided...

The Russo-Ukrainian War’s Implication on Intellectual Property Rights

Following the 2014 so-called “Ukrainian Revolution of Dignity” and the Russian Federation’s annexation of Crimea, a major escalation of the ongoing Russo-Ukrainian War occurred in 2022, culminating in the Russian invasion of Ukraine on February 24. The invasion triggered Europe’s largest refugee and humanitarian crisis since World War II, causing an unprecedented amount of human suffering and countless civilian casualties.

NAIOP-NJ’s Public Policy Symposium

Gibbons P.C. is proud to serve as Event Sponsor for NAIOP-NJ’s Public Policy Symposium, on March 23, 2022 at the Carpenters Apprentice Training Center in Edison, NJ. We hope that you can join us and the greater NAIOP-NJ membership as we hear from the new Senate and Assembly leadership teams, along with the Mayors of Newark and Paterson, and the development community as they discuss how to keep New Jersey prosperous and growing. To register: NAIOP New Jersey – Public Policy Symposium (1 Credit) (wildapricot.org).

Gibbons P.C. Presents “Keys to Negotiating Better Software and Software-as-a-Service Agreements”

From May 17-19, Peter J. Frazza, a Director in the Gibbons Commercial & Criminal Litigation Group, will lead a seminar in Las Vegas analyzing the negotiation of software licenses and software-as-a-service agreements, including data protection and privacy issues companies face that are specific to software transactions, artificial intelligence, and the Internet of Things (IoT). Mr. Frazza has over 30 years of experience handling complex lawsuits and contract negotiations on behalf of licensees and users in software licensing and software-as-a-service matters. For additional seminar details or to register, visit https://conta.cc/3CFGxws.

Court Denies Motion to Amend Invalidity Contentions, Citing Defendant’s Failure to Show When It Could Have Discovered New Information

In MicroVention, Inc. v. Balt USA, LLC, the United States District Court for the Central District of California recently denied a defendant’s motion to amend its invalidity contentions to add additional written description and enablement arguments, finding a lack of diligence by the defendant. The court, which in patent cases “follows a schedule similar to that imposed by the Northern District of California,” emphasized the diligence that must be shown to warrant a party amending its invalidity contentions. Specifically, the court noted that “‘[t]he critical issue is not when [the party] discovered [the] information, but rather whether [it] could have discovered it earlier had it acted with the requisite diligence.’” (quoting Google, Inc. v. Netlist Inc., 2020 WL 1838693, at *2 (N.D. Cal. May 5, 2010)). As we recently reported, the District of New Jersey “adopted verbatim [its] Local Patent Rules from the Northern District of California.” TFH Publ’n, Inc. v. Doskocil Mfg. Co., 705 F. Supp. 2d 361, 365 (D.N.J. 2010). The court found that one of the defendant’s proposed amendments was based on the claim construction position the plaintiff had taken during the claim construction phase of the case. However, the court recognized that the plaintiff’s claim construction had not changed since the beginning of the case and, on that basis, found that...

Gibbons Is NJ’s Top Lawyer-Lobbying Firm for 14th Straight Year

For the fourteenth year in a row, Gibbons P.C. has been ranked the #1 lawyer-lobbying firm in New Jersey, according to the New Jersey Election Law Enforcement Commission (NJ ELEC), which today released its report on 2021 lobbying expenditures in the state. The firm, whose Government & Regulatory Affairs Group celebrates its 20th anniversary this year, also ranked sixth in the state among all lobbying practices. In 2021, the Gibbons Government & Regulatory Affairs Group increased its revenues over the prior year, even while overall lobbying expenditures in the state fell by over 12 percent. “Our lawyer-lobbyists are equally focused on helping clients achieve their business goals and maintaining excellent working relationships in the executive and legislative branches in both Trenton and Washington, regardless of which party is in power,” said Patrick C. Dunican Jr., Executive Chairperson of Gibbons. Peter J. Torcicollo, the firm’s Managing Director, added, “Our presence, influence, and longstanding relationships allow us to provide creative, strategic solutions to a wide-ranging client base that has, for 20 years, turned to Gibbons as New Jersey’s ‘go to’ lawyer-lobbying firm for tackling the legislative and regulatory issues that impact bottom lines.” Gibbons opened its Trenton office and launched its Government & Regulatory Affairs Group in 2002 to offer public, private, and nonprofit sector clients the...