Gibbons to Hold Its 15th Annual E-Discovery Conference
Gibbons P.C. will hold its 15th Annual E-Discovery Conference on Thursday, November 16, 2023 from 8:30 a.m. – 3:30 p.m., at The Wilshire Grand Hotel in West Orange, New Jersey.
Author: Gibbons P.C.
District Court Affirms United States Copyright Office’s Denial of Copyright Registration for AI-Generated Visual Art
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
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...
“Say Cheese!” CVS Passport Photo Practices Subject to BIPA Suit
In May 2022, a group of plaintiffs brought a putative class action against CVS Pharmacy, Inc. (CVS) alleging the company violated several provisions of the Illinois Biometric Information Privacy Act (BIPA) through its practices for taking passport photos. On May 4, 2023, in Daichendt and Odell v. CVS Pharmacy, Inc., the United States District Court for the Northern District of Illinois denied CVS’s motion to dismiss, holding the plaintiffs sufficiently stated a claim under Section 15(b) of BIPA. Section 15(b) of BIPA prohibits private entities from collecting “or otherwise obtain[ing] a person’s or a customer’s biometric identifier or biometric information, unless it first”: (1) provides notice of collection; (2) provides notice of the specific purpose of collection; and (3) obtains affirmative written consent. Here, the plaintiffs alleged that CVS required them to “enter[] their names, email addresses, and phone numbers into a computer terminal inside defendant’s stores prior to scanning their biometric identifiers.” Thereafter, CVS’s system would “check” and “verify” an individual’s facial features (i.e., whether the individual is smiling) to comply with government requirements. Against this backdrop, the plaintiffs argued this system violated Section 15(b) because it “collected and stored their personal contact data (‘real-world identifying information’), such as their names and email addresses,” thus allowing CVS the ability to identify the plaintiffs “when...
Are You Hallucinating? Attorneys Sanctioned for the “Unprecedented” Act of Submitting Nonexistent Case Law Provided by ChatGPT
On June 22, 2023, District Court Judge P. Kevin Castel of the United States District Court for the Southern District of New York sanctioned a law firm after it submitted fabricated judicial citations and opinions provided by the popular artificial intelligence (AI) engine, ChatGPT. After plaintiff’s counsel filed an affirmation with the court, which was drafted by one attorney but signed by another at the same firm, defense counsel advised that he had “‘been unable to locate most of the case law cited in [the Affirmation], and the few cases which the undersigned has been able to locate do not stand for the propositions for which they are cited.’” The court “conducted its own search for the cited cases but was unable to locate multiple authorities cited in the Affirmation [].” Accordingly, Judge Castel issued an order to show cause for sanctions, emphasizing the “unprecedented circumstance” presented to the court. The court required a hearing as to whether sanctions ought to be imposed. Following submissions, it made several findings and ultimately imposed sanctions on plaintiffs’ counsel. First, Judge Castel found that the attorney who signed the Affirmation “violated Rule 11 in not reading a single case cited in his … Affirmation [] and taking no other steps on his own to check whether any aspect of...
Unintentional Consequences? The District Court of Maryland Holds Evidence Failed Rule 37(e)’s “Intent to Deprive” Requirement
A recent opinion from the District Court of Maryland highlights the challenges litigants face proving intent to deprive under Rule 37(e)(2) when seeking sanctions for spoliation of electronically stored information (ESI). In Gov’t Emps. Health Ass’n v. Actelion Pharm. LTD., et al., Magistrate Judge Mark Coulson set forth the requirements to prove entitlement to remedial measures or sanctions under Rule 37(e)(1) and (2) and then applied these requirements to decide the ESI spoliation claims before the court. This blog has written extensively on what is required to trigger Rule 37(e) and resulting sanctions. In June 2017, defendant Actelion (“defendant”) was purchased by Johnson & Johnson (“J&J”). Following the acquisition, Actelion migrated its data to J&J, which managed the data of both companies. On November 19, 2018, the plaintiff filed this antitrust litigation against Actelion alleging the plaintiff was forced to pay higher prices for one of Actelion’s drugs because of the unavailability of a cheaper generic version caused by the defendant’s blocking of competition. Soon after, J&J issued a legal hold to preserve relevant information for the antitrust litigation. The defendant’s custodians included in the legal hold were determined by the defendant’s then in-house counsel (“Thompson”). Absent from the legal hold were five former defendant employees (“at-issue custodians”) with documents relevant to the antitrust litigation....
I’m Sorry, Motion Denied: Washington District Court Rejects Second Try at Class Action Suit Over Amazon Alexa’s Collection of Voice Data
In June 2022, a group of plaintiffs brought a putative class action against Amazon.com (“Amazon”) alleging the company violated several statutory and common law rights through its use of voice data collected through Alexa, its digital assistant software. After the court granted Amazon’s motion to dismiss, the named plaintiffs moved for leave to file an amended complaint. On March 29, 2023, in James Gray and Scott Horton v. Amazon.com, et. al., the United States District Court for the Western District of Washington denied the motion, concluding the plaintiff’s proposed amended complaint (PAC) failed to allege new material facts. The PAC alleged that Amazon failed to disclose to its consumers that it would use the data collected from the voice recordings made by Alexa devices for the purposes of targeted advertising. Accordingly, the plaintiffs asserted, as they had done previously, that Amazon: (1) breached the implied covenant of good faith and fair dealing; (2) violated Washington’s Consumer Protection Act (CPA) and Personality Rights Act (PRA); and (3) violated common law privacy rights. The court dismissed the plaintiffs’ implied covenant claim because the PAC “merely repeat[ed] the same arguments the Court ha[d] already rejected.” For example, the court previously rejected the plaintiffs’ argument that Amazon’s terms and conditions failed to inform them of Amazon’s use of their...
Delaware District Court Allows for Single Claim to Proceed Against Amazon in Illinois Biometric Information Privacy Act Class Action Suit
The Illinois Biometric Information Privacy Act (BIPA) is designed to protect and regulate the use of both “biometric identifiers” and “biometric information” of Illinois residents. “Biometric identifiers,” for instance, include “a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry.” In contrast, “biometric information” means “any information … based on an individual’s biometric identifier used to identify an individual.” On March 29, 2023, in McGoveran v. Amazon Web Servs., Inc., the United States District Court for the District of Delaware granted in part Amazon Web Services (“Amazon”) and Pindrop Security’s (“Pindrop”) motion to dismiss a proposed class action brought pursuant to BIPA for lack of standing, based on a strict interpretation of the definitions of “biometric identifiers” and “biometric information” and the plaintiffs’ failure to adequately allege that they suffered any concrete, actual, or imminent injury as a result of the defendants’ conduct. In McGoveran, a group of Illinois residents alleged that Amazon and Pindrop violated BIPA by extracting their biometric information for authentication purposes when the plaintiffs called John Hancock to discuss their retirement accounts. At the outset, the court held that the plaintiffs lacked Article III standing to bring a claim under BIPA Section 15(a) and Section 15(c) or to otherwise obtain injunctive relief. Under Section 15(a), a company is...
The Federal Speak Out Act and Implications for Employers
In December 2022, President Biden signed into law the Speak Out Act (the “Act”), which has become effective. As discussed below, the Act prohibits pre-dispute nondisclosure and nondisparagement agreements relating to sexual assault and sexual harassment disputes. In connection with the new law, Congress presented, inter alia, the following findings: Sexual harassment and assault continue to be pervasive in the workplace. 81 percent of women and 43 percent of men experience some type of sexual harassment or assault in their lifetime. One in three women has encountered sexual harassment in the workplace, yet an estimated 87 to 94 percent of those who have experienced harassment never file any type of formal complaint. Many women leave their job or industry or pass up advancement opportunities as a result of sexual harassment. To combat sexual harassment and assault, victims must be able to report and publicly disclose such issues. Nondisclosure and nondisparagement provisions in agreements between employers and employees can allow harassment and assault to continue by silencing victims and those with knowledge of the conduct, while protecting those engaging in such conduct, thus allowing it to continue. Prohibiting nondisclosure and nondisparagement clauses will provide transparency around unlawful conduct, allow victims to come forward, hold perpetuators accountable, and make workplaces safer. Explanation of the Act The Act...
Gibbons’s Frank T. Cannone and Peter J. Ulrich, Along With John Geraghty of Marshall & Stevens, to Lead Panel Discussion at NJBIA’s Acclaimed Annual Conference on New & Emerging Energy Technologies
In accelerating its decarbonization goals, New Jersey has committed to cutting in-state greenhouse gas emissions in half by 2030. New and emerging technologies, including next-generation nuclear, renewable natural gas, biofuels, grid upgrades, microgrids, and more, will be critical to achieving this goal and will be the topics of discussion at the New Jersey Business and Industry Association’s (NJBIA) 2nd Annual Energy Conference on New & Emerging Technologies, taking place Friday, October 14 at the Forsgate Country Club in Monroe Township, and featuring many prominent speakers. Gibbons P.C.’s Frank T. Cannone, Chair of the firm’s Corporate Group and leader of its Renewable Energy practice, and Peter J. Ulrich, a Director in the Corporate Group, will lead a conference panel, along with John Geraghty, Managing Director in the Energy & Infrastructure Practice of Marshall & Stevens Incorporated, on “Financing New Technologies and the Inflation Reduction Act.” Gibbons’s leading Renewable Energy practice, under the Corporate Group, has been successfully completing complex client energy projects for many years. Practice attorneys counsel major energy generation organizations, industrial and commercial users, and other energy-related clients in distributed generation and alternative energy sources, including solar, battery storage, hydroelectric power generation, and wind power generation, as well as the increased use of technology in the renewable energy sector. For more information on the...