Gibbons Law Alert

Gibbons Law Alert Blog

Third Circuit Rules that Car Manufacturers’ Wholesale Price Increases Designed to Recover Warranty Costs to Dealers is Consistent with New Jersey Franchise Protection Act

On May 4, 2012

The Third Circuit’s to-be-published opinion in Liberty Lincoln-Mercury, Inc. v. Ford Motor Company, confirms that the New Jersey Franchise Protection Act, N.J.S.A. § 56:10-1 to § 56:10-31, permits motor vehicle franchisors to use permissible cost-recovery systems to recoup the increased cost of reimbursing New Jersey motor vehicle dealers under the Act, but also clarifies that such a cost-recovery system must allow individual dealers to retain the ability to mitigate the increased costs imposed.

The EEOC Holds that Title VII Protects Transgender Employees

by Gibbons P.C.

Posted in Discrimination

On May 2, 2012

In a decision reversing nearly three decades of prior rulings, the Equal Employment Opportunity Commission (“EEOC”) has ruled that a “complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII.” In doing so, the EEOC – the agency of the United States Government charged with the enforcement of federal anti-discrimination laws – has expanded upon the definition of discrimination “because of sex” expressly bringing transgender individuals within its purview.

IPXI: Set to Debut This Summer

by Gibbons P.C.

Posted in Copyright

On May 1, 2012

We previously reported on the Intellectual Property Exchange International (“IPXI”), the “world’s first financial exchange focused on IP rights,” as well as its recent developments and sponsorships. The IPXI seems on course to commence operations this summer, or early fall. The article, published last week in IP Law360, provides an in depth look at this new market for monetizing IP assets, as well as some considerations for those contemplating the IPXI for their IP portfolios.

New Jersey Appellate Division Holds That the Entire Controversy Doctrine Does Not Reach Tangentially-Related Claims Pending in Another Court, Despite Common Facts

by Kevin W. Weber

Posted in General Litigation

On April 30, 2012

In Alpha Beauty Distributors, Inc. v. Winn-Dixie Stores, Inc. the New Jersey Appellate Division reversed a trial court’s dismissal of an action under the Entire Controversy Doctrine, finding that the dismissed action was not part of the same “core controversy” as a related federal-court proceeding. Plaintiff Alpha Beauty Distributors is owned by Bebert Azran. After purchasing Alpha from Noel and Reid Kleinman, Azran discovered fraud and breaches of fiduciary duty, and sued the Kleinmans in Federal District Court on behalf of himself and Alpha . The federal action centered on allegations that the Kleinmans had damaged Alpha and Azran “through a course of self-dealing and conversion of corporate assets.” Among other things, the federal complaint alleged that the Kleinman’s had given certain of Alpha’s customers improper credits, but it did not encompass any claims against such customers for the improper credits.

“Quickie” Election Procedures Take Effect Today

by Gibbons P.C.

Posted in Labor

On April 30, 2012

On December 22, 2011, the National Labor Relations Board (the “Board” or the “NLRB”) issued another “union-friendly” rule that could speed up the union election process, leaving employers with limited time to respond to a union organizing drive. A pending lawsuit challenging the legality of the new rule is outstanding. Notwithstanding, the rule applies to all newly-filed election petitions effective today as the court has not postponed the rule’s effective date despite the ongoing litigation. The court will rule on the legitimacy of the rule by May 15 (before an election could take place under the new rule).

The New EEOC Guidance Regarding Criminal Background Checks

by Susan L. Nardone

Posted in Discrimination

On April 26, 2012

On Wednesday, April 25, 2012, the Equal Employment Opportunity Community issued its long awaited Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act, updating and clarifying its prior guidance on the subject. The good news? Employers may continue to use criminal background checks as a screening tool for applicants and employees. However, employers are specifically discouraged from asking about a criminal record on the application and are encouraged to conduct an individualized assessment of the applicant/employee when job exclusion occurs because of a criminal record. Employers should review their policies to ensure compliance with the EEOC’s latest recommendations.

Intellectual Property and the U.S. Economy

by Gibbons P.C.

Posted in Patent / Trademarks

On April 26, 2012

The U.S. Commerce Department recently released a comprehensive report, entitled “Intellectual Property and the U.S. Economy: Industries in Focus,” which identified 75 industries as IP intensive. The Report found that IP at such industries supported at least 40 million jobs in 2011. As of 2010, IP comprised more than $5 trillion dollars, or 34.8 percent of, U.S. gross domestic product (GDP) and accounted for 27.1 million American jobs. Between 2010 and 2011, the U.S. economic recovery resulted in a 1.6% increase in direct employment in IP-intensive industries, faster than the 1.0% growth in non-IP-intensive industries.

Failure to Strictly Comply With the Express Terms of the Notice Provisions in a Claims-Made Insurance Policy Will Forfeit Available Coverage

by Gibbons P.C.

Posted in Insurance

On April 26, 2012

The Third Circuit’s recent decision in Atlantic Health System Inc. v. National Union Fire Insurance Company of Pittsburgh confirms the importance of strictly following the notice requirements of a claims-made policy and the relevance of the parties’ course of prior and subsequent performance on the ultimate interpretation of allegedly ambiguous policy terms and conditions. In this case, the failure to strictly comply with the notice requirements resulted in AHS retaining liability for more than $2 million of defense costs and settlement payments.

Patent Litigators: Be Careful What You Plead

by Gibbons P.C.

Posted in Patent

On April 25, 2012

Last month, in a sua sponte Memorandum Order in Technology Licensing Corp. v. Pelco, Inc., 11-cv-8544 (N.D. Ill. Mar. 5, 2012), Senior U.S. District Court Judge Milton I. Shadur recently took defendant to task for its answer and counterclaim. In paragraphs 3, 5 and 6 of its answer defendant pled the boilerplate language that it was without knowledge or information sufficient to form a belief about the truth of the allegations of paragraph [ ] and therefore denies those allegations.” Judge Shadur rebuked defendant for this latter clause, stating it was “oxymoronic” that a party could assert in good faith that it did not have enough information to form a belief about an allegation, and then proceed to deny it.

Consent to Class Arbitration: What is the Meaning of “Silence?”

by Michael R. McDonald and Gibbons P.C.

Posted in Class Action Defense

On April 24, 2012

In Stolt-Nielsen S.A. v. Animal Feeds International Corp., the United States Supreme Court held that “a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” As the parties in Stolt-Nielsen stipulated that their arbitration “agreement was ‘silent’ in the sense that they had not reached any agreement on the issue of class arbitration,” the Court ruled that the arbitrator could not infer the parties’ consent to class arbitration solely from the fact of their agreement to arbitrate, or failure to preclude it.