Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

Gibbons to Co-Sponsor and Present “U.S. Economic Update” in New York on December 4

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Posted in Corporate

On November 13, 2025

You are invited to join Gibbons and co-sponsors J.P. Morgan and the German American Chamber of Commerce (GACC) for a high-level event addressing today’s most pressing economic challenges for business executives. U.S. Economic Update Thursday, December 4, 2025 J.P. Morgan 383 Madison Ave., 13th Floor New York, NY 10179 Meera Pandit, Global Market Strategist at J.P. Morgan, will open the program with an immersive analysis of the U.S. economic outlook. Afterward, Eric Udowychenko, a Director in the Gibbons Corporate Group, will moderate an insightful and engaging panel of legal, accounting, logistics, and FX-rate rate professionals who will explore the impact of American tariff and trade policies on international business, the implications of the One Big Beautiful Bill, and developing trends in logistics and supply chain management. An audience Q&A session will follow the panel. For more information or to register, please see the GACC website.

Flawed Theory: District Court Refuses to Dismiss Video Privacy Claim Challenging Use of Meta Pixel Web Tracking Technology

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Posted in Class Action

On March 27, 2025

In Lee v. Springer Nature America, Inc., Judge Lewis J. Liman in the Southern District of New York held that a longtime subscriber to Scientific American plausibly alleged, on behalf of a putative class, that the website violated the Video Privacy Protection Act of 1988 (VPPA) based on its use of website tracking technology. The plaintiff, a 10-year subscriber, filed a complaint alleging that Scientific American unlawfully installed a code known as “Meta Pixel” on its website. The Meta Pixel supposedly transmitted information to Meta (formerly known as Facebook) about the subscriber’s use of the site (including Facebook ID, URLs accessed, and titles of videos viewed) in exchange for Meta providing advertising capabilities to Scientific American. Scientific American moved to dismiss the complaint on two grounds: first, that the plaintiff lacked standing because he had not suffered an injury, and second, that the plaintiff did not plead the elements required to state a claim under the VPPA. Judge Liman rejected both arguments. Citing the Second Circuit’s recent decision in Salazar v. National Basketball Association, Judge Liman held that the plaintiff’s allegations that he was a subscriber to Scientific American, that Scientific American disclosed to Meta the plaintiff’s personal information (Facebook ID, URLs accessed, and titles of videos viewed), and that Meta used this information without...

Dog Doesn’t Hunt: After Plaintiff Drops Federal Claim, U.S. Supreme Court Says Dog Food Case Must Be Remanded to State Court

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Posted in General Litigation

On February 4, 2025

The United States Supreme Court clarified this month in Royal Canin U.S.A., Inc. v. Wullschleger that when a plaintiff amends her complaint, following removal from state to federal court, to “cut[] out all her federal-law claims, federal-question jurisdiction dissolves” and the case must be remanded “to the state court where it started.” In Royal Canin, Anastasia Wullschleger purchased “a brand of dog food available only with a veterinarian’s prescription” and “sold at a premium price,” thinking that the dog food “contained medication not found in off-the-shelf products.” When Ms. Wullschleger learned that, despite its trappings, the dog food was just “ordinary dog food,” she brought suit in Missouri state court, filing a complaint that included asserted violations of the Federal Food, Drug, and Cosmetic Act (FDCA), as well as factually intertwined state-law claims. The defendant dog food company removed Ms. Wullschleger’s complaint from state to federal court based on federal-question jurisdiction resulting from the FDCA. In response, Ms. Wullschleger amended her complaint to remove any reference to the FDCA, and she asked the federal court to remand the case back to state court, arguing that there was no longer federal jurisdiction over the “amended, all-state-law complaint.” The district court denied Ms. Wullschleger’s petition. It reasoned that federal jurisdiction could not be unilaterally eliminated by a plaintiff’s...

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

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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...

Yes, Prejudice May Be Included in a Court’s Analysis of a Waiver of Arbitration

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Posted in Appellate

On September 5, 2024

In a recent published opinion, Marmo & Sons General Contracting, LLC v. Biagi Farms, LLC, the Appellate Division affirmed the trial court’s finding that a party had waived its contractual right to compel arbitration. At issue was the non-moving party’s assertion that the U.S. Supreme Court’s 2022 decision in Morgan v. Sundance, Inc. forbade considerations of prejudice in the seven-factor waiver analysis originally set forth in 2013 by the New Jersey Supreme Court in Cole v. Jersey City Medical Center.

Corporate Counsel Is Not Your Counsel: Communications Between Shareholders and Corporation Counsel Are Not Necessarily Privileged

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Posted in General Litigation

On January 11, 2024

You founded, own, and run your company. So, it is natural to assume that your company’s lawyer is your lawyer, right? While the assumption may be natural, the courts are firm in differentiating an attorney’s responsibilities to a corporation versus an individual shareholder. One who disregards this distinction may find that communications believed to be confidential and privileged are subject to discovery in later litigation. “A lawyer employed or retained to represent an organization represents the organization as distinct from its directors, officers, employees, members, shareholders or other constituents.” NJRPC 1.13(a). Shareholders of a closely held corporation are no exception to this rule and are not entitled to any presumption of privilege distinct from the corporate entity. The New Jersey Appellate Division recently emphasized this point in Royzenshteyn v. Pathak, where two shareholder-owners of a closely held corporation unsuccessfully appealed a trial court order that compelled production of allegedly privileged communications between the plaintiffs and corporate counsel. In Royzenshteyn, the plaintiffs retained corporate counsel for a transaction that transferred majority ownership of their corporation to the defendants. That transaction was completed in 2015. Soon thereafter, the parties’ relationship soured, and, in 2018, the plaintiffs retained new counsel to file a lawsuit that challenged the 2015 transaction. During discovery, the plaintiffs asserted attorney-client privilege over communications...

Of All People…: DC District Court Hits Experienced Litigator Defendant With Terminating Sanctions for Failure to Preserve

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Posted in E-Discovery: Legal Decisions and Court Rules / General Litigation / Litigation Preparedness and Strategies

On October 5, 2023

In yet another cautionary tale displaying how seriously attorneys and clients must take discovery obligations, United States District Court Judge Beryl A. Howell entered a very rarely imposed default judgement against famed former U.S. Attorney and Mayor Rudy Giuliani for failure to preserve discovery in a defamation suit. Judge Howell’s opinion in Freeman, et al. v. Giuliani represents a blunt condemnation of discovery gamesmanship that is part of a growing number of cases that impose the most severe sanctions for failure to comply with preserving electronic evidence. In 2021, plaintiffs Ruby Freeman and Wandrea’ ArShaye Moss brought suit against defendant Giuliani for defamation, intentional infliction of emotional distress, civil conspiracy, and punitive damage claims. In response to the plaintiffs’ first set of discovery requests, Giuliani – an attorney for over 50 years – served an “initial production of 193 documents [that was] largely a single page of communications, blobs of indecipherable data, a sliver of the financial documents.” After the plaintiffs’ repeated inquiries into his preservation efforts and the court’s intervention, Giuliani issued a sworn declaration providing that his only preservation effort was turning off the auto-delete function on a nondescript list of devices and social media and email accounts. Given Giuliani’s admitted “preference to concede plaintiffs’ claims rather than produce discovery in this case,”...

District Court Affirms United States Copyright Office’s Denial of Copyright Registration for AI-Generated Visual Art

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Posted in Class Action Defense / Privacy Class Actions

On October 2, 2023

Pursuant to the Copyright Act of 1976, “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device” are eligible for immediate copyright protection, provided certain requirements are met. Against this backdrop, Stephen Thaler applied for copyright registration with the United States Copyright Office (USCO) of a piece of visual art produced by a generative artificial intelligence system he created – the “Creativity Machine.” The USCO subsequently denied the application, reasoning that Thaler’s work “‘lack[ed] the human authorship necessary to support a copyright claim,’” as “copyright law only extends to works created by human beings.” After Thaler filed suit against the USCO, both parties moved for summary judgment on the sole issue of whether a work generated entirely by an artificial system should be eligible for copyright protection. On August 18, 2023, in Thaler v. Perlmutter the United States District Court for the District of Columbia granted the USCO’s motion for summary judgment, concluding that “human authorship is an essential part of a valid copyright claim.” The court rejected as contrary to the Copyright Act’s plain language Thaler’s contention that because he created the AI system that “autonomously” produced...

Pay Equity Compliance Front and Center in New Jersey Department of Labor’s Proposed Regulations for the Temporary Workers Bill of Rights

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Posted in Employee Benefits

On August 31, 2023

The New Jersey Department of Labor recently issued proposed regulations for the Temporary Workers Bill of Rights (TWBR). The proposed regulations include new definitions and further guidance for employers to comply with TWBR’s pay equity requirements. The proposed regulations are open for public comment until October 20, 2023. By way of background, the TWBR, which became fully effective on August 5, 2023, seeks to protect more than 127,000 temporary workers working in the state and employed through a temporary help service firm in designated occupations, including protective services; food preparation and serving; building and grounds cleaning and maintenance; personal service and care; construction labor, helpers, and trades; installation, maintenance, and repair; production; and transportation and material moving. The TWBR, among other things, implements detailed wage notice requirements to be provided to temporary workers in both English and the temporary worker’s primary language, recordkeeping requirements, advanced notice for changes to temporary worker schedules, pay equity, and anti-retaliation rights with a rebuttable presumption for any disciplinary action taken within 90 days of a temporary worker’s exercise of those rights. The goal of the TWBR is to strengthen employment protections for temporary workers in these designated occupations, and employers need to be mindful of the TWBR’s requirements for compliance purposes. The TWBR’s pay equity component requires temporary workers...

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