Gibbons Law Alert

Gibbons Law Alert Blog

“Operation Swill”: New Jersey ABC and Division of Criminal Justice Raid 29 Bars and Restaurants That Allegedly Served Cheap Alcohol as “Premium” Brands

by Brett S. Theisen, Mark B. Conlan and Howard D. Geneslaw

On May 24, 2013

On May 23, 2013, New Jersey’s Attorney General Jeffrey Chiesa and Division of Alcoholic Beverage Control (“ABC”) Director Michael Halfacre announced the details of “Operation Swill,” a year-long investigation involving more than 100 investigators throughout New Jersey. Operation Swill reached its climax one day earlier when ABC and Division of Criminal Justice personnel executed raids on 29 establishments throughout New Jersey suspected of substituting premium alcoholic beverage brands with “well brand spirits,” i.e., non-premium brands. N.J.A.C. § 13:2-23.19 prohibits a licensee from substituting another brand other than ordered by a customer unless agreed to by the customer. Approximately 1,000 bottles were seized during the raids, which will be held for further testing by the ABC and manufacturers.

New Jersey’s Prompt Payment Act Does Not Apply to Contracts for the Upkeep and Maintenance of Land

by Gibbons P.C.

Posted in Construction / Construction Litigation

On May 24, 2013

New Jersey’s Prompt Payment Act (“PPA”) can be a valuable tool available to contractors, subcontractors, sub-subcontractors, and product suppliers that are owed money on New Jersey construction projects, as aggrieved parties can recover interest on unpaid amounts at prime plus one (1%) percent in the event payment is not made within the time period provided by the PPA and attorneys’ fees. N.J.S.A. § 2A:30A-2. In TBI Unlimited, LLC v. Clearcut Lawn Decisions, LLC, the United States District Court for the District of New Jersey considered the scope of the PPA, which is only the subject of a handful of written opinions.

Show Your Work: Google Ordered to Produce Search Terms and Custodians Used When Responding to Apple’s Subpoena

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On May 23, 2013

In a recent order in Apple Inc. v. Samsung Electronics Co. Ltd., et al., United States Magistrate Judge Paul S. Grewal reinforced the importance of cooperation and transparency in the discovery process, especially when it involves electronically stored information. The order granted Apple’s motion to compel Google, a non-party, to produce the search terms and list of custodians Google used when responding to Apple’s subpoena. Judge Grewal’s order is significant because it underscores that a responding party, whether or not a party to the litigation, should be prepared to disclose the methodology it used to identify and collect electronically stored information in response to a discovery request.

Third Circuit Deems NLRB “Recess Appointments” Unconstitutional

by Gibbons P.C.

Posted in Labor

On May 22, 2013

On May 16, 2013, in NLRB v. New Vista Nursing & Rehab., a divided panel of the Court of Appeals for the Third Circuit joined the D.C. Circuit in holding that the Recess Appointment Clause of the Constitution allows the President to make “recess appointments” (that is, without the advice and consent of the Senate) only when the Senate is on a formal intersession recess, as opposed to an intra-session break. Both the Third Circuit’s decision and the D.C. Circuit’s recent decision in Canning v. NLRB (as elaborated upon in Nat’l Ass’n of Mfrs. v. NLRB) arise from actions taken by the National Labor Relations Board (the “Board” or the “NLRB”) some of whose members had been appointed during an intra-session break. To summarize: (1) at least three Board members must participate in a Board decision; (2) according to these courts, the Board has not had three validly-appointed Members since August 27, 2011; and (3) although the NLRB has had four sitting Members between April 5, 2010 and August 27, 2011, it has issued some three-Member decisions during this time wherein one decision-maker, Craig Becker, was arguably unconstitutionally-appointed, rendering those decisions invalid. Potentially hundreds of decisions by the Board over the past three years are at risk of being declared invalid.

NJIPLA to Honor Chief IP Counsel of Johnson & Johnson with Jefferson Medal

by Gibbons P.C.

Posted in Intellectual Property

On May 22, 2013

Robert E. Rudnick, a Director in the Gibbons Intellectual Property Department and the President of the New Jersey Intellectual Property Law Association, is pleased to announce that the 2013 NJIPLA Jefferson Medal Dinner will take place on Friday, June 7, 2013, at the Hilton Short Hills, NJ. For 63 years the NJIPLA Jefferson Medal has been presented to someone who has made outstanding contributions to the field of intellectual property. In the past, the Jefferson Medal has been presented to judges, leaders of the Intellectual Property Bar and Patent & Trademark Office officials. The 2013 medalist is Philip S. Johnson, the Chief Intellectual Property Counsel of Johnson & Johnson. This year’s dinner will honor Mr. Johnson’s accomplishments in the realm of intellectual property.

New Jersey Appellate Division Takes “Hands-Off” Approach to Contractual Breaches of the Duty of Good Faith and Fair Dealing

by Gibbons P.C.

Posted in General Litigation

On May 21, 2013

In Sun Pharmaceutical Industries v. Core Tech Solutions, New Jersey’s Appellate Division affirmed a Trial Court order dismissing plaintiff’s claims that defendants had breached their contractual duty of good faith and fair dealing. The decision is notable because it sheds light on the definition of “good faith” in the context of a preliminary agreement, an area where there is little New Jersey precedent.

Judge Scheindlin Weighs Comity Concerns and Orders Production of Documents from Bank of China Despite Violation of Chinese Laws

by Jeffrey L. Nagel

Posted in E-Discovery: Legal Decisions and Court Rules

On May 17, 2013

In Aerospatiale v. District Court of Iowa the United States Supreme Court admonished lower courts that international comity compels them to “take care to demonstrate due respect for any special problem confronted by the foreign litigant on account of its nationality or the location of its operations, and for any sovereign interest expressed by a foreign state.” As previously noted, some prominent groups such as the ABA and The Sedona Conference® recently have developed principles and standards to help courts heed that advice.

Declaratory Judgment Jurisdiction Considerations in Patent Cases: The District of New Jersey Speaks

by Gibbons P.C.

Posted in Patent

On May 16, 2013

IP practitioners should read and heed Judge Martini’s recent decision in Medidata Solutions, Inc. v. DATATRAK Int’l, Inc., 2-12-cv-04748 (D.N.J. May 13, 2013, Docket 33), which addresses considerations for declaratory judgment jurisdiction in a patent dispute. The case involved two patents owned by DATATRAK, the “parent” ‘087 patent, and the “child” ‘294 patent, which issued from a continuation application.

The Seed Giant Stands Tall: The Supreme Court Rules in Favor of Monsanto

by Estelle J. Tsevdos, Ph.D.

Posted in Patent

On May 14, 2013

This Spring has been fruitful for seed giant, Monsanto. We reported earlier that Monsanto and rival DuPont entered into technology licensing agreements, ending nearly four years of patent and antitrust litigation. On Monday, May 13, Monsanto’s cornucopia arrived, with the Supreme Court ruling unanimously in its favor. This case revolved around the question of whether the doctrine of patent exhaustion allowed a farmer who bought patented seeds to, without permission, reproduce the seeds through planting and harvesting. The seeds in question were glyphosate herbicide-resistant soybean seeds, covered under two patents issued to Monsanto.

‘Required’ Union Poster Unlawful According to D.C. Circuit

by Gibbons P.C.

Posted in Labor

On May 13, 2013

On May 7, 2013, in Nat’l Ass’n of Mfrs. v. NLRB, the United States Court of Appeals for the District of Columbia decided that a rule implemented by the National Labor Relations Board (“Board” or “NLRB”) requiring most private sector employers to post a notice about workers’ rights to unionize was invalid. As previously reported, the Board issued the rule almost two years ago, and has repeatedly postponed its effective date pending the outcome of legal challenges to the rule by business groups.