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Gibbons Law Alert Blog

New York State Bar Association Endorses Amendment and Extension of State Brownfield Cleanup Act

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Posted in Development/Redevelopment

On November 4, 2021

The Executive Committee of the New York State Bar Association (NYSBA) has unanimously endorsed proposed legislation to amend and extend the New York State Brownfield Cleanup Act. The proposed bill would accomplish a number of important goals, including the following: Extend, from December 31, 2022 to December 31, 2032, the deadline for sites to be accepted into the Brownfield Cleanup Program (BCP) and qualify for tax credits. Additional time would also be provided for sites to obtain their Certificates of Completion (COCs), claim site preparation tax credits, and obtain tangible property credits after issuance of COCs. Expand the ability for sites in Potential Environmental Justice Areas and Brownfield Opportunity Areas to qualify for enhanced tax credits. Increase the incentives for renewable energy projects on BCP sites. Expand the effectiveness of the BCP in addressing soil vapor issues, including clarification of the types of soil vapor-related expenditures that qualify for tax credits. Authorize application fees for the BCP in order to provide dedicated funding for administering the Program to the New York State Department of Environmental Conservation (NYSDEC) and New York State Department of Health. Make a number of technical amendments that will improve efficiency in implementation of the Program. Links to a copy of the proposed bill, a section-by-section analysis, and an explanatory report in...

Establishing “Intent to Deprive” Under Rule 37(e): District Court Imposes Adverse Inference Instruction Based on Timing of Spoliation

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Posted in General Litigation

On October 28, 2021

This blog has previously discussed the challenges a litigant faces in moving for the so-called “severe sanctions” pursuant to amended Rule 37(e). With the 2015 amendment to Rule 37(e), a moving party seeking severe spoliation sanctions must establish that the opposing party “acted with the intent to deprive” the requesting party of the electronically-stored information (ESI) in the litigation at issue. In the absence of an explicit admission that a responding party deleted ESI with the subjective intent to deprive the requesting party of the same, a requesting party often faces an uphill battle establishing the “intent to deprive” requirement. A recent decision from the District Court for the District of Arizona provides an example of the type of circumstantial evidence – including the timing of the spoliation at issue – a moving party can rely on to potentially support the imposition of severe sanctions. In Federal Trade Commission v. Noland, the Federal Trade Commission (FTC) was investigating defendant Noland and his business, Success By Health (“SBH”), for allegedly “operat[ing] as an illegal pyramid scheme” and making false statements to SBH’s affiliates. In May 2019, Noland inadvertently discovered the FTC’s investigation and, when the FTC realized Noland found out about the investigation, the FTC advised SBH and Noland to preserve relevant documents. The day after...

“Is That All There Is?” The Western District of Kentucky Gives a Fresh Look to the Standard Supporting ESI Search Sufficiency Challenges

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Posted in General Litigation

On September 28, 2021

A long-established precept of ESI production challenges is, if you’re complaining that they “must have more than that,” you’d best be able to support that position if your goal is to force your adversary to redo its search. Maker’s Mark Distiller, Inc. v. Spalding Grp., Inc., et al., No. 3:19-CV-00014-GNS-LLK (W.D. Ky. Apr. 20, 2021) brings this point home in full force. In that decision, which involved a Lanham Act trade dress dispute, United States Magistrate Judge Lanny King addressed plaintiff Maker’s Mark’s complaint that defendant Spalding’s ESI production was so paltry and otherwise deficient that Spalding should be compelled to implement a new ESI search. Ultimately, the court was having none of it. This decision is a reminder of the importance of communication between counsel before and after the Rule 26 conference, as well as the need to establish a compelling factual record of discovery deficiencies before seeking judicial relief.

OSHA Issues Updated COVID-19 Guidance

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Posted in Policies and Handbooks

On September 14, 2021

The United States Department of Labor’s Occupational Safety and Health Administration (OSHA) recently updated its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (“Guidance”), to bring it in line with the most recent recommendations published by the Centers for Disease Control and Prevention (“CDC”) on July 27, 2021, which were updated in view of the Delta variant. The updated Guidance is designed to help employers (outside of healthcare) protect workers who are “unvaccinated” or otherwise at risk, and differentiates, in certain respects, as to recommendations for unvaccinated and vaccinated employees, with vaccinated employees not subject to the same level of precautionary measures as their unvaccinated peers. The Guidance recommends that employers engage with their employees – and, where applicable, employee representative associations – to determine how to implement multilayered interventions to protect unvaccinated and otherwise at-risk employees, and to mitigate the spread of COVID-19 at the workplace. The recommended interventions are summarized, in part, below: Facilitating Vaccinations: Employers should grant employees paid time off to obtain the COVID-19 vaccine and to recover from any side effects. Employers should also consider working with local public health authorities to provide vaccinations in the workplace and should adopt policies that require employees to either get vaccinated or undergo regularly scheduled Covid testing in addition...

Hoisted on Their Own Petard: Production of Inaccessible Data That Later Becomes Unavailable Will Not Support a Suppression Claim Based on Spoliation Against the Recipient

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Posted in General Litigation

On September 1, 2021

The trial of Elizabeth Holmes, the founder and former Chief Executive Officer of Theranos, Inc., has finally commenced after numerous well-publicized delays. A little more than a month ago, the District Court for the Northern District of California denied Holmes’s motion to suppress evidence prior to her criminal fraud trial, finding that it was the “deliberate actions” of third parties (Theranos) that resulted in the loss of evidence contained on a database, not the prosecutors’ actions. Indeed, Theranos “knowingly and without comment produced an inaccessible” and encrypted copy of a database, and then dismantled the database hardware, rendering it permanently “unusable” only days after its production. In U.S. v. Holmes, the defendant filed a motion to suppress evidence, pursuant to Rule 12(b)(3)(C), of customer complaints and testing results, as well as findings from a 2016 report. Theranos used a bespoke database called the Laboratory Information System (LIS) that “housed, among other things, all patient test results and all quality control data at Theranos.” In 2015, federal government agencies (the “Government”) began investigating Theranos and, in April and June 2018, “served grand jury subpoenas on Theranos for information specifically from the LIS database and requested a copy of the database itself, along with the necessary software to access and search it.” One day after the grand...

Third Circuit Enforces Delegation Provision in Arbitration Agreement

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Posted in Alternative Dispute Resolution

On August 23, 2021

A “delegation provision” in an arbitration agreement authorizes the arbitrator to decide issues concerning the arbitrator’s own jurisdiction over disputes before him or her. Absent a delegation provision, such jurisdictional issues are for courts to decide when adjudicating motions to compel arbitration. In its recent decision in Carrone v. United Health Care Group Inc., the United States Court of Appeals for the Third Circuit clarified the circumstances under which courts may entertain challenges to arbitration agreements with delegation provisions. Background Michele Carrone filed suit in federal district court in New Jersey charging her employer and coworkers with discrimination. The defendants moved to compel arbitration. The parties’ arbitration agreement incorporated by reference the Employment Dispute Resolution Rules of the American Arbitration Association (AAA). Rule 6(a) of those rules sets forth a “delegation” provision, to wit: “The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement”; and, further: “The arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part.” Carrone opposed the motion to compel arbitration on the grounds that “(1) the arbitration agreement’s amendment provision rendered the agreement illusory, (2) the arbitration agreement as a...

Robles v. Domino’s: The Saga Continues – On Remand, District Court Grants Partial Summary Judgment to Plaintiff, Solidifying the Scope of ADA Website Liability in the Ninth Circuit

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Posted in General Litigation

On August 16, 2021

Robles v. Domino’s Pizza LLC is a seminal case in the development of ADA website accessibility claims, particularly in the Ninth Circuit. The case has been the subject of a long awaited opinion in the Ninth Circuit, and an unsuccessful petition for certiorari. On June 23, 2021, after five years of litigation, on remand from the Ninth Circuit’s decision, the Central District of California granted the plaintiff’s motion for summary judgment, holding that Domino’s violated the ADA because its website was not fully accessible to visually impaired individuals. The court thus ordered Domino’s to bring its website into compliance with industry standards for website accessibility, known as the WCAG 2.0 guidelines, and to pay the plaintiff $4,000 in penalties. The plaintiff, a visually impaired individual who was unable to order a pizza from the defendant’s website in 2015, sued Domino’s claiming violations of the ADA. In granting summary judgment on remand, the district court reiterated the Ninth Circuit’s finding that websites and mobile apps are not “places of public accommodation.” However, where websites or apps like those controlled and maintained by Domino’s “facilitate access to the goods and services of a place of public accomodation,” such as a Domino’s franchise, the ADA applies. This holding rejected Domino’s argument that the ADA did not apply to...

New Jersey Appellate Division Finds Parties’ Agreement for Arbitrator to Participate in Settlement Discussions and Continue as Arbitrator Need Not Be in Writing

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Posted in Appellate

On August 10, 2021

In Pami Realty, LLC v. Locations XIX Inc., the New Jersey Appellate Division, in a to-be-published opinion, reversed a trial court’s determination that an agreement between litigants that an arbitrator could participate in settlement discussions and then continue as arbitrator must be in writing. After commencing litigation over a construction contract dispute, the parties agreed to participate in arbitration proceedings to resolve their dispute. On the second day of arbitration, the parties discussed settlement. When the settlement negotiations were unsuccessful, the arbitration resumed for a final day of testimony. Six weeks after the submission of post-hearing briefs, the arbitrator reported that he had finished his opinion and would be finding in favor of the defendant. Plaintiff’s counsel responded that the arbitrator “had no authority to act as a mediator in this matter and then re-assume the role of arbitrator,” and his “decision to act as mediator created a conflict of interest that neither party waived through the arbitration agreement.” After the arbitrator issued an award in favor of the defendant, the defendant moved to confirm the award. The plaintiff filed a cross motion to vacate the award, again arguing that the arbitrator had “exceeded his powers when he resumed the role of arbitrator after acting as a mediator mid-arbitration.” In a one-page statement of reasons,...

Colorado Is the Latest State to Enact a Data Privacy Law: Here’s What You Need to Know

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Posted in General Litigation

On August 9, 2021

Colorado has become the third state to enact a comprehensive data privacy statute imposing compliance obligations on legal entities that collect or process the personal data of its residents. The Colorado Privacy Act (CPA) is based on and enforces many of the same key concepts as do other data privacy statutes and regulations. As such, companies that are implementing or updating compliance programs for the European Union’s General Data Protection Regulation (GDPR), California Consumer Privacy Act (CCPA), California Privacy Rights Act (CPRA), and Virginia Consumer Data Protection Act (CDPA) will be familiar with the main provisions of the CPA and likely will have an easier time achieving compliance. There are, however, some important distinctions that companies must consider as part of any ongoing compliance efforts in anticipation of the CPA’s effective date of July 1, 2023. As a threshold matter, the CPA applies to legal entities that (i) conduct business in Colorado or produce or deliver commercial products or services that are “intentionally targeted to residents of Colorado,” and (ii) either (a) control or process personal data of more than 100,000 consumers per year or (b) earn revenue (or receive a discount on goods or services) from the sale of personal data and control or process personal data of more than 25,000 consumers. Notably, the CPA...

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