Category: General Litigation

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

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

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

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

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”

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

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

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.

FOI-led: Supreme Court Restricts Public Access to Confidential Business Information

In Food Marketing Institute v. Argus Leader Media, the United States Supreme Court expanded the meaning of “confidential” information exempt from disclosure under Exemption 4 of the Freedom of Information Act (FOIA). In doing so, the Court reversed the decision of the Court of Appeals for the Eighth Circuit and definitively rejected the “competitive harm” requirement adopted by the D.C. Circuit in National Parks & Conservation Assn. v. Morton. Respondent Argus Leader Media filed a FOIA request with the United States Department of Agriculture (USDA), seeking the names and addresses of all retail stores that participate in a federal food stamp program known as SNAP. Argus Leader also sought each store’s annual redemption data from 2005 to 2010. The USDA declined to disclose store-level SNAP data based on Exemption 4 of FOIA, which precludes disclosure of “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Argus Leader sued the USDA. The district court ordered disclosure based upon the failure to satisfy the “competitive harm” test, which requires a party to establish confidentiality by proving that disclosure is “likely … to cause substantial harm to [its] competitive position.” The Eighth Circuit affirmed the judgment. In a 6-3 decision delivered by Justice Gorsuch, the Court rejected the competitive harm test and...

Sharing Communication with Public Relations Firm Destroys Privilege

The Southern District of New York recently held that sharing attorney-client privileged communications with a public relations firm destroys that privilege. Universal Standard brought a trademark infringement and unfair competition suit against Target. During the course of discovery, documents were produced consisting of emails between Universal Standard, its outside counsel, and BrandLink, a public relations firm. When Universal Standard sought to claw back the documents because they were privileged, Target refused. The court considered whether the fact that emails between Universal Standard and its counsel were also shared with BrandLink should result in a waiver, or whether the communications fall under one of several possible exceptions to the general rule that “disclosure to a third party by the party of a communication with his attorney eliminates whatever privilege the communication may have originally possessed.” First, the court considered whether BrandLink was “essential to allow communications between the attorney and the client, such as an interpreter or accountant.” This exception applies where the third party enables counsel to understand aspects of the client’s own communications that could not otherwise be appreciated, but not where the communications are merely important to the attorney’s ability to represent the client. Here, the emails involved discussions regarding a public relations strategy surrounding the filing of the lawsuit and whether to issue...

NJ Supreme Court Narrowly Construes Shareholder’s Right to Inspection of Corporate Records

In R.A. Feuer v. Merck & Co., Inc., the New Jersey Supreme Court affirmed the Appellate Division’s narrow construction of the scope of a shareholder’s right to inspect a corporation’s records under N.J.S.A. 14A:5-28 and the common law. In the underlying case, a Merck & Co, Inc. shareholder sought documents in order to elicit evidence that Merck acted wrongfully in its acquisition of another pharmaceutical firm. Merck appointed a “Working Group” to respond to the shareholder’s demand, which rejected the shareholder’s request for documents relating to the acquisition. Following this rejection, the shareholder sought twelve broad categories of corporate documents, including documents pertaining to the Working Group’s activities, communications, and formation; documents provided to the board regarding the target pharmaceutical firm and two of its drugs; and the board’s consideration of the shareholder’s demands and the Working Group’s recommendation. Merck disclosed pertinent minutes of the board and of the Working Group, but denied the remainder of the shareholder’s demand. The shareholder sued Merck, alleging entitlement to the documents under N.J.S.A. 14A:5-28(4), which permits a shareholder to compel the corporation to produce its “books and records of account, minutes, and record of shareholders,” and the common law. The trial court denied the shareholder’s request and the Appellate Division affirmed. In a per curiam decision, the New...