Gibbons Law Alert

On May 13, 2013

Late last month, New York State’s Comptroller, Thomas P. DiNapoli, issued a report reviewing options for modifying the way the state incentivizes and administers cleanups of its thousands of remaining brownfield sites. The Report has special significance in light of Mr. DiNapoli’s expertise in this area: he is a former Chair of the State Assembly’s Environmental Conservation Committee and one of the architects of the state’s Brownfield Cleanup Act, passed in 2003.

Gov. Christie Issues Conditional Veto of Social Networking Privacy Bill

by Gibbons P.C.

Posted in Privacy and Data Security

On May 9, 2013

On Monday, May 5, 2013, New Jersey Governor Chris Christie issued a conditional veto of Assembly Bill No. 2878, the controversial piece of proposed legislation that sought to bar most employers from requiring current or prospective employees to provide user names or passwords to social networking accounts and from inquiring as to whether current or prospective employees even had social networking accounts.

Clash of MDL and AIA?

by Gibbons P.C.

Posted in Patent

On May 9, 2013

We previously reported on the interplay between the Judicial Panel on Multi-District Litigation (“MDL”) under 28 U.S.C. § 1407(a) and the joinder rules under 35 USC § 299 of the America Invents Act (“AIA”). In Unified Messaging Solutions, LLC v. United Online, Inc., et. al., 1-13-cv-00343 (N.D. Il. May 3, 2013) Judge Lefkow recently denied defendants’ motion to sever plaintiff’s infringement claims against them from pretrial consolidation in an MDL case, and rejected their argument that § 299 had been violated.

In Clean Water Act Case, Three Justices Invite Future Challenge to Rule of Deference to Agencies in Interpretation of Their Own Regulations

by Paul M. Hauge

Posted in Environmental and Green Issues

On May 8, 2013

A victory in the Supreme Court is generally welcome news for the U.S. Environmental Protection Agency (EPA). But, the Court’s decision last month in a Clean Water Act case may foreshadow a sweeping change in administrative law that would certainly not please EPA or other agencies: the end of a long-standing rule of judicial deference to agencies in the interpretation of their own regulations.

Supreme Court Rules that FLSA Collective Actions Are Distinct From Rule 23 Class Actions, But Fails to Resolve Circuit Split on Effect of Unaccepted Offers of Judgment

by Gibbons P.C.

Posted in Class Action Defense

On May 8, 2013

On April 16, 2013, the U.S. Supreme Court ruled in Genesis Healthcare Corp. v. Symczyk, that a plaintiff-employee’s Fair Labor Standards Act (“FLSA”) collective action could not proceed because her claims were moot after the defendant offered the plaintiff, per Federal Rule of Civil Procedure 68, full relief for her individual claims. Although the decision is limited to FLSA collective actions, the Court’s rationale has the potential to apply to Rule 23 class actions as well.

Expert Witness Selection: Choosing an Expert Without the Right Experience Can Be Fatal to a Claim

by Gibbons P.C.

Posted in Construction / Construction Litigation

On May 7, 2013

The selection of an expert witness can be critical to the outcome of a construction dispute. A well-qualified and strong expert witness can be essential to a party prevailing on its claim or defense. Conversely, as the recent New Jersey Appellate Division decision in Wellinghorst v. Arnott, highlights, retaining the wrong expert can have significant negative consequences and potentially result in the dismissal of a claim.

May I Come In?: N.J. Supreme Court Approves Warrantless DEP Searches of Residential Property Subject to Freshwater Wetlands Permit

by Paul M. Hauge

Posted in Environmental and Green Issues

On May 6, 2013

In a unanimous decision that was at once sweeping and limited, the New Jersey Supreme Court held that the Department of Environmental Protection (DEP) need not obtain a warrant before entering a residential parcel to ensure compliance with the terms of a wetlands permit. The Court stopped short of a blanket validation of all warrantless searches under the wetlands statute, or of all warrantless searches of residential property subject to any sort of permit, instead grounding its holding in the protections afforded by the process that DEP must follow, and limiting it to searches of properties that are subject to a wetlands permit.

Update of Proposed Rule Changes: A Universal Federal Sanctions Standard for the Failure to Preserve ESI Could be a Reality

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On May 6, 2013

The United States Courts’ Advisory Committee on Civil Rules (“the Committee”) has proposed various amendments to the Federal Rules of Civil Procedure that, if adopted, will profoundly affect the range and scope of sanctions a court may impose for failures to preserve electronically stored information (“ESI”). F.R.C.P. 37(e), which currently addresses sanctions in those instances, is one of several rules slated for amendment.

Performance of Corrective Work Does Not Extend the Deadline to File Mechanics’ Lien Claims in Pennsylvania

by Gibbons P.C.

Posted in Construction / Construction Liens

On May 3, 2013

Mechanics’ liens are powerful remedies for contractors involved in payment disputes with owners of construction projects in Pennsylvania, but the six month deadline under the Mechanics’ Lien Law is strictly construed and contractors who delay filing them may lose their rights. In Neelu Enterprises, Inc. v. Agarwal, the Pennsylvania Superior Court considered the deadline for a contractor to file lien claims “within six months after the completion of his work” set forth in Section 502 of the Pennsylvania’s Mechanics’ Lien Law. Specifically, the two issues in the case were whether the deadline begins to run after a contractor is terminated and whether the deadline can be extended by the subsequent performance of corrective or remedial work.

New Report Considers Options For Tweaking Brownfields Programs in NY

by Gibbons P.C.

Posted in Development/Redevelopment

On May 2, 2013

New York State was among the first to enact programs aimed at remediation and redevelopment of contaminated sites. The goal of such programs is both to promote economic revitalization and to encourage private entities to remediate the state’s contaminated sites. Three such programs, the Voluntary Cleanup Program (“VCP”), the Environmental Restoration Program (ERP), and the Brownfield Cleanup Program (“BCP”), have achieved considerable success, with over 400 sites having been remediated in the past two decades. Nevertheless, policy makers continue to search for ways to make these programs better and more cost efficient. Prompted by the impending expiration of key provisions of the BCP, a report released by the New York State Comptroller’s office in April 2013, provides an assessment of these programs, as well as some options for improvement going forward.