Gibbons Law Alert

Gibbons Law Alert

Gibbons Law Alert

Category: General Litigation

Beyond Force Majeure: Government Quarantine Orders May Themselves Excuse Contract Non-Performance

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Posted in General Litigation

On April 27, 2020

The coronavirus pandemic is reverberating throughout commercial sectors, and countless contract obligations are going unperformed—shipments are not being made or accepted, payments are being missed, and contract milestone dates are lapsing every week that the pandemic and business shutdown continues. Those typically rare force majeure provisions are now being scrutinized. (For more on those topics, see previous entries in our COVID-19 “The Coronavirus Pandemic and Your Business: How We Can Help” client alert series, including “Litigation Issues That May Arise.”) And, in New Jersey, the precise language of such a clause is key, as courts in this state have held that they should be “narrowly interpreted as contemplating only events or things of the same general nature or class as those specifically enumerated.” Seitz v. Mark-O-Lite Sign Contractors, Inc., 210 N.J. Super. 646 (N.J. Sup. Ct. Law Div. 1986). With only some force majeure clauses including explicit references to pandemics, or broadly-worded “catch-alls,” the success of a force majeure defense is not necessarily certain. But before (or in addition to) attempting to invoke that force majeure provision, consider whether a court would ultimately determine that contractual non-performance is due to an “Act of God” or rather is being caused by the governmental orders quarantining segments of the population and/or shutting down whole swaths of the...

Does the SHIELD Act Cover Your Business and Are You Ready?

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Posted in General Litigation

On March 26, 2020

As we have previously written, the privacy and security requirements of the New York Stop Hacks and Improve Electronic Data Security Act (“SHIELD Act”) are effective as of March 21, 2020. The SHIELD Act implements broad new data security requirements for all businesses that have the private information of New York residents, and reaches beyond New York’s own borders to compel companies – including companies that do not do business in New York – to take affirmative steps to protect the personal and private information of New York residents that the company may be collecting or storing. Initially, the SHIELD Act expands the definition of “private information” that must be safeguarded to include any information that can be used to identify a person, in combination with a social security number, a driver’s license number, a financial account number, or biometric information. Separate and apart from these “data elements,” the definition of “private information” also now includes “a user name or e-mail address in combination with a password or security question and answer that would permit access to an online account.” Second, the SHIELD Act applies to any company that possesses the private information of even a single New York resident – even if the company does not conduct business in New York. All companies must...

Successful Crisis Management During a Pandemic

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Posted in General Litigation

On March 19, 2020

We are living in a moment that can only be described as a crisis on multiple fronts. While the coronavirus (COVID-19) pandemic is a situation like none other, our experience advising clients through past crisis situations provides guidance on how to handle critical decisions in an uncertain and unsettling environment in a time of chaos and panic. Past experience has taught us that a crisis situation can either become a distant bad memory or turn into a disaster. Failure to handle crisis management and key decisions effectively now and in the near future can lead to devastating consequences. There are common themes and basic strategies to any crisis which bear repeating. Keep in mind that decisions are made in real time. They are also made with imperfect information, and initial decisions are magnified one hundred fold. Don’t compound the problem. The first rule of crisis management is, “do not do anything to make it worse.” In responding to the coronavirus, that means, first and foremost, to stay healthy. You and your leadership, team, and employees cannot help anyone and get back to normal if they are sick, so do not take risks with anyone’s health. Remember that credibility is key. Be honest and direct, and don’t speculate in order to tell someone what you think...

The Coronavirus Pandemic and Your Business: How We Can Help – Litigation Issues That May Arise

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Posted in General Litigation

On March 18, 2020

A wide variety of issues are arising and are likely to arise in connection with, and in the aftermath of, the COVID-19 crisis. The Gibbons Commercial & Criminal Litigation Department is here to help, and can work with you to address these critical concerns. Breach of contract disputes stemming from the coronavirus situation are likely to be widespread. They are surfacing already and will continue to surface throughout commercial contexts and for numerous reasons, including the ever-changing landscape of market forces that are at play right now. One notable – and particularly relevant – contractual concept, force majeure, is going to be front and center. Force majeure provisions may excuse otherwise impermissible actions in certain extraordinary situations beyond the control of the party failing to perform. It is, therefore, critically important that contracts are reviewed both for the presence of (and particular language surrounding) such provisions and for any necessary notice requirements. Additionally, employment contracts are likely in jeopardy, which will inevitably lead to wrongful termination claims. Relatedly, you may need to enforce restrictive covenants – or fight their enforcement – in the aftermath of the crisis. Also likely to arise are supply chain disputes. People and companies will need goods and materials that are not going to be available, and businesses will have contracts...

Seven Gibbons Employment & Labor Law Department Attorneys Selected to 2020 New Jersey Super Lawyers and Rising Stars

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Posted in General Litigation

On March 16, 2020

Seven Gibbons Employment & Labor Law Department attorneys were featured in New Jersey Super Lawyers and New Jersey Super Lawyers Rising Stars, with five Department attorneys on the 2020 Super Lawyers list and two on the 2020 Rising Stars list. These attorneys were listed in a wide range of categories, including Employment & Labor and Employment Litigation – Defense. Highlights of this year’s New Jersey Super Lawyers list include the top-tier rankings earned by two Department attorneys. Top 10 Attorneys in New Jersey Christine A. Amalfe, Chair, Employment & Labor Law Department Top 100 Attorneys in New Jersey Christine A. Amalfe, Chair, Employment & Labor Law Department Susan L. Nardone, Director, Employment & Labor Law Department Top 50 Female Attorneys in New Jersey Christine A. Amalfe, Chair, Employment & Labor Law Department Susan L. Nardone, Director, Employment & Labor Law Department The Gibbons attorneys listed in the 2020 issue of New Jersey Super Lawyers are Christine A. Amalfe, Kelly Ann Bird, Susan L. Nardone, Kristin D. Sostowski, and Richard S. Zackin. James J. La Rocca and Joseph E. Santanasto were selected to the 2020 New Jersey Super Lawyers Rising Stars list. For the full release, please see here.

27 Gibbons Commercial & Criminal Litigation Department Attorneys Selected to 2020 New Jersey Super Lawyers and Rising Stars

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Posted in Antitrust / Class Action Defense / Construction Litigation / General Litigation / Insurance

On March 16, 2020

Attorneys from the Gibbons Commercial & Criminal Litigation Department were featured in New Jersey Super Lawyers and New Jersey Super Lawyers Rising Stars, with 18 Department attorneys on the 2020 Super Lawyers list and nine on the 2020 Rising Stars list. These attorneys were listed in a wide range of categories, including Antitrust, Business Litigation, Class Action, Communications, Construction Litigation, Criminal Defense, Criminal Defense: White Collar, Insurance Coverage, and Media/Advertising. Highlights of this year’s New Jersey Super Lawyers list include the top-tier rankings earned by two Department attorneys: Top 10 Attorneys in New Jersey Lawrence S. Lustberg, Co-Chair, Commercial & Criminal Litigation Department Top 100 Attorneys in New Jersey Michael R. Griffinger, Director, Commercial & Criminal Litigation Department Lawrence S. Lustberg, Co-Chair, Commercial & Criminal Litigation Department The Gibbons attorneys listed in the 2020 issue of New Jersey Super Lawyers are: Frederick W. Alworth Guy V. Amoresano Robert C. Brady Thomas J. Cafferty Patrick C. Dunican Jr. Michael R. Griffinger Jennifer A. Hradil Bruce A. Levy Lawrence S. Lustberg Robert J. MacPherson Michael R. McDonald Brian J. McMahon Mary Frances Palisano Damian V. Santomauro Peter J. Torcicollo Thomas R. Valen Christopher Walsh John T. Wolak Those listed in the 2020 New Jersey Super Lawyers Rising Stars section are: Anne M. Collart Leigh A. DeCotiis Sylvia-Rebecca...

Gibbons Chairman and Managing Director & CCL Department Member Featured on ROI-NJ’s Third Annual “Influencers Power List

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Posted in General Litigation

On March 3, 2020

ROI-NJ, a weekly newspaper covering business in New Jersey, has named Patrick C. Dunican Jr., Chairman and Managing Director of Gibbons P.C. and a member of the firm’s Commercial & Criminal Litigation Department, to its third annual “Influencers Power List” of the professionals with the greatest influence on business in the state. The list ranks New Jersey’s top 30 influencers by number, then features a select group of influential professionals in various fields. Gibbons attorneys have been featured on this list every year it has been published. The firm also has more attorneys on the 2020 list than does any other law firm in New Jersey. Mr. Dunican is one of 19 people on the “Lawyers” list. The publication notes: Oversees what many feel is the state’s most powerful firm. Client list is a who’s who of business and political leaders. Dunican’s deft handling makes him one of the most respected leaders in the sector. Mr. Dunican has been featured on this list every year it has been published. He is also consistently ranked on the PolitickerNJ “Power List” of the 100 most prominent and connected people in New Jersey politics and has been named for ten consecutive years among the NJBIZ “Power 100” list of the most powerful people in New Jersey business. To...

NJBIZ Lists Patrick Dunican and Jennifer Phillips Smith Among Its 2020 “Power 100”

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Posted in General Litigation / Real Estate

On February 21, 2020

For the tenth consecutive year, NJBIZ has featured attorneys from Gibbons P.C. on its annual “Power 100” list of the most influential people in New Jersey business. Patrick C. Dunican Jr., the firm’s Chairman and Managing Director, is one of a select few people to be named to this list every year it has been published, while Jennifer Phillips Smith, a Director in the firm’s Real Property Department, makes her debut on the 2020 list. This year, NJBIZ notes of Mr. Dunican: The influence of Gibbons PC, one of the state’s biggest law firms, grew this year with the addition of an office in Red Bank. The 94-year-old Newark firm, which has a Trenton outpost that opened in 2002, expanded to Red Bank because it’s a linchpin of Monmouth County and home to some of its most significant clients—nearly half of the county’s top 10 employers are Gibbons clients. Patrick Dunican has been at the helm since 2004 and his business influence extends internationally: he was recognized in August for promoting business ties between New Jersey and Ireland by Donegal County Council with the 2019 Tip O’Neill Irish Diaspora Award. From 2017 to 2018, exports from the Garden State to Ireland increased 14.3 percent. Of Ms. Phillips Smith, NJBIZ notes: As a director at Gibbons...

States Step Up Data Privacy and Security Regulation

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Posted in General Litigation / Privacy and Data Security

On November 5, 2019

State legislatures from California and New York have taken action to respond to rising privacy concerns by enacting legislation to protect consumers and their personal information, and the New Jersey legislature is actively working to pass similar legislation to enhance the privacy and security obligations applicable to personal information obtained from New Jersey consumers. This legislation typically requires businesses to inform residents of certain rights regarding the collection or sale of their personal information and to provide notice to residents if a security incident at the company involves their personal information. As deadlines quickly approach for the enforcement of these laws, it is important for businesses to take action now and revisit privacy, security, and storage practices, as well as the associated policies for maintaining appropriate data privacy and security throughout the organization. The California Consumer Privacy Act (CCPA), which takes effect January 1, 2020, accords significant new privacy rights to consumers and imposes corresponding new requirements on businesses. In general, the CCPA mandates businesses to implement procedures to provide notice to consumers at or before the collection of personal information, to respond to consumers’ requests for the production or deletion of their collected information or to opt-out from its sale, and to create privacy policies detailing their processes for selling or distributing consumer data....

Gibbons Hosts “Keys to Negotiating Better Software & Software-as-a-Service Agreements” Seminar – October 16-18, 2019

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

On August 16, 2019

From October 16-18, Peter J. Frazza, a Director in the Gibbons Commercial & Criminal Litigation Department, 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/31AYf0h.

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