Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

The Federal Speak Out Act and Implications for Employers

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Posted in Employment Agreements

On January 10, 2023

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

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Posted in Corporate / Renewable Energy

On October 6, 2022

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...

New Jersey Appellate Division Finds No Ascertainable Loss Where a Plaintiff Never Used a Product and Made Hypothetical Allegations of Loss

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Posted in Class Action Defense

On July 18, 2022

On May 31, 2022, the Appellate Division in Hoffman v. Pure Radiance, Inc. affirmed the trial court’s order granting summary judgment for a defendant and dismissing the plaintiff’s Consumer Fraud Act (CFA) claims because the plaintiff could not show that he suffered an ascertainable loss where he never used the product and his allegations were not supported by facts. In this putative class action, serial plaintiff Harold Hoffman sued defendant Pure Radiance, Inc., alleging that it falsely marketed a hair growth product. Specifically, Pure Radiance advertised that its product Re-Nourish could help an individual regrow “a thick, full head of hair, even after years of balding” and was “the world’s first and only hair loss solution that revives dead hair follicles” to regrow hair “in just 30 days.” The advertisement also showed a before-and-after picture of a man’s head, with the before picture showing a balding head and the after picture showing a full head of hair. Based on this advertisement, Hoffman purchased the product and then, after researching the product but before ever trying it himself, filed a proposed class action alleging, among other things, that the ad contained material misrepresentations and that he suffered an ascertainable loss by reason of his purchase of the product for $108.90. Significantly, Hoffman did not receive the...

Parties’ Obligations Under the Federal Rules “Reign” Supreme and Render Language in ESI Protocol Unnecessary

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Posted in E-Discovery / General Litigation

On June 28, 2022

In Raine Group v. Reign Capital, the Southern District of New York highlighted parties’ affirmative obligations under Federal Rules of Civil Procedure 26 and 34 when conducting ESI searches and determining the identities of custodians and locations of relevant documents or information. In particular, the court emphasized that an agreement regarding keyword search terms should work in “tandem” with the responding party’s independent and inherent obligations to search for and produce documents that are “reasonably accessible, relevant, and responsive within the meaning of Rule 34.” The court also made clear that parties have a fair degree of autonomy in determining what is “reasonable” under Rules 26 and 34. In this trademark infringement case, the plaintiff, a merchant bank with more than 100 employees, objected to certain provisions proposed by the defendant, a two-person real estate firm, in the parties’ ESI protocol and proposed search terms. After the parties’ failure to reach a resolution, the court intervened. The court ruled that the defendant’s proposed language regarding the parties’ search obligations in the ESI protocol was unnecessary, given the scope of Fed. R. Civ. P. 26 and 34, and because the provisions were overbroad. Specifically, the defendant’s proposal including the following provisions: “The parties also acknowledge that, apart from this ESI protocol, each party has an independent...

Increasing Patent Damage Awards with Pre-Judgment Interest

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Posted in Licensing / Patent

On June 23, 2022

In VLSI Technology LLC v. Intel Corporation, the United States District Court for the Western District of Texas recently awarded pre-judgment and post-judgment interest on a jury’s damage award in a patent infringement case. An issue examined by the court was whether the patentee was entitled to pre-judgment interest during periods in which the patentee did not own the patent. The defendant argued that since the patentee only acquired the patent rights in December 2018 and was not formed as an entity until 2016, pre-judgment interest from 2013 would be a windfall. The court dismissed this argument and indicated that the patentee “acquired the Asserted Patents and is therefore entitled to all the rights associated with patent ownership, including the rights to collect damages and interest from infringers.” The court then awarded pre-judgment interest beginning on the date of infringement (i.e., 2013) to the date of judgment. In support of this holding, the court cited the Federal Circuit’s decision in Energy Transp. Grp., Inc. v. William Demant Holding A/S, 697 F.3d 1342, 1358 (Fed. Cir. 2012) stating that “award of pre-judgment interest is the rule, not the exception.” The court also noted that there was no exceptional circumstances such as an undue delay in filing the lawsuit that would warrant denying pre-judgment interest in this...

Gibbons Recognized as a Leading Firm in 2022 ‘Chambers USA Guide’

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Posted in Firm News

On June 7, 2022

The 2022 edition of the Chambers USA Guide to America’s Leading Lawyers for Business features the highest numbers of Gibbons P.C. practices and attorneys ever ranked in the publication in one year. The 2022 guide recognized 12 Gibbons practice areas, with 27 firm attorneys earning individual rankings. Three attorneys and one practice were selected for the first time this year. One of the legal industry’s leading client- and peer-review resources, Chambers annually rates the nation’s leading business lawyers and law firms through both comprehensive interviews with top companies, attorneys, and business executives, and extensive supplementary research. For the full list of Gibbons practice areas and attorneys highlighted in the 2022 guide, please click here.

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

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Posted in E-Discovery

On May 4, 2022

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....

NAIOP-NJ’s Public Policy Symposium

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Posted in Development/Redevelopment / Land Use / Real Estate

On March 18, 2022

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”

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Posted in E-Discovery / General Litigation / Intellectual Property / Privacy and Data Security

On March 14, 2022

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.

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