Gibbons Law Alert Blog

Sez Who? Appellate Division Questions Expert’s Qualifications to Testify in Spill Act Case

New Jersey’s Spill Compensation and Control Act (“Spill Act”) makes dischargers of hazardous substances, as well as persons “in any way responsible” for the discharged hazardous substances, liable in contribution to a person who remediates the discharge. Since the statute’s enactment in 1976, courts have often been called on to define limits on the category of parties who can be held responsible, especially the vague sub-category of persons “in any way responsible.” In its recent unpublished decision in Dorrell v. Woodruff Energy, Inc., the Appellate Division held that a supplier could not be held liable as a person “in any way responsible” simply for delivering fuel to the site in question. Reviewing the evidence presented in the trial court about another defendant’s potential liability, the court provided important guidance for both plaintiffs and defendants on the appropriate role of expert witnesses in Spill Act cases. The plaintiff, Sandra Dorrell, owned a store in Alloway Township. When she sought to sell the property, she discovered petroleum contamination in the soil and groundwater. She filed suit in 2011 to seek contribution from the parties she considered responsible for the contamination: Woodruff Energy, Inc. (“Woodruff”), Gulf Oil Limited Partnership (“Gulf”), and Chevron U.S.A. Inc. (“Chevron”), Gulf’s successor. The case had been to the Appellate Division once already, resulting...

American Rescue Plan Act of 2021 Includes Significant Mental Health Investment

Providers of mental health services may be eligible for funding, loans, and grants as detailed below. On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021. One key component of the $1.9 trillion initiative is an investment of more than $3.5 billion toward behavioral and mental health services. This funding covers a variety of providers and mental health consumers. Section 2701 Funding for Block Grants for Community Mental Health Services $1.5 billion for carrying out certain aspects of the Public Health Service Act (“PHS Act”), as they relate to mental health: 42 U.S.C. 300x et seq. – block grants for states providing community mental health services for adults with serious mental illnesses and children with serious emotional disturbances 42 U.S.C. § 290aa-4(c) – behavioral and mental health statistics Section 3052 Funding for Block Grants for Prevention and Treatment of Substance Abuse $1.5 billion for carrying out certain aspects of the PHS Act, as they relate to mental health Block grants for states Section 2703 Funding for Mental and Behavioral Health Training for Healthcare Professionals, Paraprofessionals, and Public Safety Officers $80 million to award grants to health professional schools, academic health centers, state and local governments, and other appropriate public and private nonprofit entities, to plan, operate, or participate in trainings and...

More Help Available for Venues Impacted by COVID-19 (Shuttered Venue)

Relief may soon be available to artistic venues impacted by the COVID-19 pandemic. Under the Shuttered Venue Operators Grant (SVOG) program, venues affected by the pandemic may be eligible for grants equal to 45 percent of their gross earned revenue, with $10 million being the maximum amount available for a single grant award. The SVOG program was created in December 2020 as part of the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act, P.L. 116-260. The program was initially funded with $15 billion and will receive an additional $1.25 billion under the American Rescue Plan Act, H.R. 1319. Eligible entities covered under the program include: Live venue operators or promoters Theatrical producers Live performing arts organization operators Relevant museum operators, zoos, and aquariums that meet specific criteria Motion picture theater operators Talent representatives Each business entity owned by an eligible entity that also meets the eligibility requirements Qualified entities must also have been in operation as of February 28, 2020, and have applied for or received a loan under the Paycheck Protection Program on or after December 27, 2020. Grant funds may be used for expenses, which include: Payroll costs Rent payments Utility payments Scheduled mortgage payments (not including prepayment of principal) Scheduled debt payments (not including prepayment of principal) on any indebtedness...

The Ins and Outs of the 100 Percent COBRA Subsidy Under the American Rescue Plan Act

As a result of the COVID-19 pandemic, employees who have been involuntarily terminated or had their hours reduced and lost their group health plan coverage face a major hardship – being able to afford the premiums for COBRA continuation coverage. The newly enacted American Rescue Plan Act of 2021 (the “Act”) addresses this hardship through a 100 percent subsidy for premiums for COBRA coverage for the six-month period from April 1, 2021 through September 30, 2021. Individuals and Coverages Eligible for the Subsidy Employees who have involuntarily been terminated or had their hours reduced, and who are currently in their 18-month COBRA continuation coverage period, are eligible for the subsidy. Their qualified beneficiaries, spouses, and dependents who were covered under the employer’s plan and lost coverage due to the employee’s involuntary termination or reduction in hours are also eligible. Domestic partners and their children, regardless of whether the employer’s plan provides COBRA-like coverage for them, are not qualified beneficiaries and therefore are ineligible for the subsidy. Eligible individuals are currently in their 18-month continuation coverage period if their involuntary termination or reduction in hours occurred on or after November 1, 2019. Individuals are eligible for the subsidy regardless of whether they previously elected COBRA and continue to be on COBRA, previously elected COBRA but discontinued...

Restaurants Receive Additional Support Under the American Rescue Plan of 2021

President Biden recently signed the $1.9 trillion American Rescue Plan Act of 2021, H.R. 1319 (the “Act”) into law on March 11, 2021. The Act will send aid to millions of Americans still recovering from the global COVID-19 pandemic. Of particular interest to the restaurant industry, the Act provides the industry with additional assistance through the $28.6 billion Restaurant Revitalization Fund (the “Fund”). Section 5003 (Support for Restaurants), Title IV (Committee on Small Business and Entrepreneurship) provides support to restaurants as follows: Fund: A total of $28.6 billion is appropriated for a new program at the Small Business Administration (SBA) offering assistance to restaurants and other food and drink establishments. Of this amount, $5 billion is set aside for businesses with less than $500,000 in 2019 annual revenue. Restaurant Revitalization Grants: Grants are available for up to $10 million per entity (and affiliates), with a limitation of $5 million per physical location up to 20 locations. Revitalization grants are calculated by subtracting 2020 revenue from 2019 revenue. During the first 21 days post enactment of the Act, priority will be given to applications from restaurants owned and operated by women, veterans, or socially and economically disadvantaged individuals. Revitalization grants may be used for a wide variety of expenses, including payroll, mortgage, rent, utilities, supplies, food...

American Rescue Plan of 2021 Expands Paycheck Protection Program to Additional Nonprofit Entities

President Biden recently signed the $1.9 trillion American Rescue Plan Act of 2021, H.R. 1319 (the “Act”) into law on March 11, 2021. The Act will send aid to millions of Americans still recovering from the global COVID-19 pandemic. The Act modifies certain provisions of the Paycheck Protection Program (“PPP Program”) in a number of ways, including, but not limited to, expanding the eligibility of certain nonprofits to participate in the PPP Program. Section 5001 (Modifications to Paycheck Protection Program) of the Act amends the PPP Program as follows: 1. Section 5001(a)(1) of the Act expands the eligibility of nonprofits to include a new category termed “additional covered nonprofit entity” – which are nonprofits listed in Section 501(c) of the Internal Revenue Code other than 501(c)(3)s, 501(c)(4)s, 501(c)(6)s, or 501(c)(19)s – to receive an initial PPP Program, provided that: The organization does not receive more than 15 percent of receipts from lobbying activities; The lobbying activities do not comprise more than 15 percent of activities; The cost of lobbying activities of the organization did not exceed $1 million during the most recent tax year that ended prior to February 15, 2020; and The organization employs not more than 300 employees. In addition: Larger nonprofits are now eligible for the PPP Program by striking the application...

Motion for Sanctions Sunk: The Southern District of Florida Refuses to Impose Rule 37(e) Sanctions Where Carnival Was Not on Notice of Potential Relevance of CCTV Footage From Passenger’s Slip and Fall

In Easterwood v. Carnival Corporation, the plaintiff filed suit against the defendant, Carnival Corporation, for personal injuries she sustained after she slipped and fell while onboard the defendant’s cruise ship. The plaintiff filed a motion for sanctions, arguing that the defendant spoliated critical evidence – closed-circuit television (CCTV) footage of another passenger on the defendant’s cruise ship who had fallen an hour before in the same spot as the plaintiff did. The plaintiff requested that an adverse inference be drawn against the defendant. The defendant submitted the declaration of a company representative stating that, because the other passenger’s incident involved a minor injury, the defendant did not preserve the CCTV footage of the incident, as it had no reason to anticipate litigation would ensue from that incident and such footage was automatically overwritten after 14 days. In determining whether to impose spoliation sanctions pursuant to Rule 37(e), the Southern District Court of Florida analyzed whether the CCTV footage (1) constitutes electronically stored information (ESI); (2) should have been preserved in anticipation of litigation; (3) was lost because the defendant failed to take reasonable steps to preserve it; and (4) cannot be restored or replaced through additional discovery. While we have previously blogged on the question of whether a court may impose sanctions pursuant to the...

Gibbons Is NJ’s Top Lawyer-Lobbying Firm for 13th Straight Year

For the thirteenth year in a row, Gibbons P.C. has been ranked the #1 lawyer-lobbying firm in New Jersey, according to the New Jersey Election Law Enforcement Commission (NJ ELEC), which has just released its report on 2020 lobbying expenditures in the state. Gibbons has also ranked sixth in the state among all lobbying firms. “These rankings reflect our lawyer-lobbyists’ significant influence in Trenton and their growing presence in Washington, DC,” says Patrick C. Dunican, Jr., Chairman and Managing Director of Gibbons. “They are able to participate in the state and federal legislative and regulatory processes in constructive ways that help our clients seize the business opportunities and navigate the challenges that can result from those processes.” In 2020, the Gibbons Government & Regulatory Affairs Department reported a 20 percent increase in number of clients and ten percent increase in revenues over the prior year. Based just steps from the New Jersey State House in Trenton and supported by additional resources from the firm’s Newark and Red Bank offices, the Department offers a broad range of services and experience in state legislative affairs, regulatory affairs and departmental actions, administrative law, business incentives, government procurement and contracting, and political and campaign finance compliance. In addition, the firm’s Washington, DC office provides Gibbons lawyer-lobbyists a base from...

Don’t Sleep on Service of Process: The Middle District of Pennsylvania Denies Motion to Remand Because Plaintiffs Could Not Justify Out-of-State Service via Certified Mail

A recent decision from the United States District Court for the Middle District of Pennsylvania emphasizes the importance of meticulous adherence to the rules governing service of process. In Fox v. Chipotle, the plaintiffs’ failure to properly serve an out-of-state corporation via certified mail – where the plaintiffs’ service of process did not utilize the restricted delivery option offered by the United States Postal Service – resulted in the denial of the plaintiffs’ motion to remand and the associated loss of any tactical advantage the plaintiffs may have believed to exist in litigating their class action in state court instead of federal court. The plaintiff filed a class action complaint against Chipotle in the Court of Common Pleas of Allegheny County of Pennsylvania asserting violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa. Cons. Stat. § 201-1, based on claims that Chipotle was “shortchanging” customers who made cash payments. Chipotle is a Delaware corporation with a principal place of business in California, and the plaintiffs’ motion to remand focused on the sufficiency of the plaintiffs’ attempts to serve Chipotle as an out-of-state defendant via certified mail, pursuant to Pennsylvania Rule of Civil Procedure 403. In particular, the plaintiffs claimed to have served Chipotle by certified mail at its corporate headquarters in...

Third Circuit Affirms That CFA and PLA Claims Can Coexist Independently

We recently blogged about a New Jersey Supreme Court decision in which the court held that claims under New Jersey’s Consumer Fraud Act (CFA) may be brought in the same action as claims under the Products Liability Act (PLA). In a follow-up to that case, the Third Circuit in Sun Chemical Corporation v. Fike Corporation and Suppression Systems, Inc. applied the New Jersey Supreme Court’s guidance on the interplay between the CFA and PLA. The Third Circuit affirmed in part and reversed in part a District Court judgment, finding that some of the claims were “absorbed by the PLA” and some could be brought independently pursuant to the CFA. Sun sued defendant Fike under the CFA for alleged misrepresentations related to Sun’s purchase of an explosion-suppression system. Sun alleged that Fike “misrepresented various aspects of the suppression system in its pre-purchase conversations” and that Fike was therefore liable for injuries and property damages suffered by Sun from an explosion that occurred at Sun’s facility. The District Court of New Jersey determined that Sun’s CFA claims were precluded and absorbed by the PLA because “Sun was seeking damages because various features of the suppression system failed and that failure caused personal injury to Sun’s employees.” The CFA, the District Court reasoned, could not be used to...