Gibbons Law Alert

Gibbons Law Alert Blog

New Jersey Adopts 2021 International Building Code and Grace Period for Permit Applications

by Howard D. Geneslaw and Brendan J. Kelly

On January 26, 2023

The New Jersey Department of Community Affairs (DCA) has recently amended the Building Subcode of the Uniform Construction Code (UCC) to incorporate the 2021 Edition of the International Building Code (IBC). Builders, developers, and others currently applying for construction permits should be aware of the provision within the UCC that provides for a grace period from application of the newly adopted regulations until March 6, 2023. On April 18, 2022, DCA posted in the New Jersey Register proposed amendments to the Building Subcode, located within the New Jersey Administrative Code at N.J.A.C. 5:23-3.14, to incorporate the 2021 Edition of the IBC. The model codes for buildings, which include residential and commercial structures, energy, fire protection, mechanical, and fuel gas, are published by the International Code Council, and DCA proposes and adopts the model codes as part of the UCC. Since 1996, DCA has undertaken a review of each subsequent model code edition and has proposed and adopted the new edition of the national model codes. The most recently adopted amendments to the UCC’s Building Subcode incorporate the 2021 edition of the IBC. The Building Subcode amendments were adopted on September 6, 2022. Of particular importance to builders and developers, the UCC contains a grace period provision at N.J.A.C. 5:23-1.6, which provides that for a period...

Appellate Division Rejects Judicial Review Upon Assertion of Good-Cause Defenses to an NJDEP Spill Act Directive Prior to Imposition of Direct Oversight

by Andrew T. Alessandro

Posted in Environmental and Green Issues

On January 19, 2023

On January 9, 2023, the New Jersey Appellate Division issued its decision in In re N.J. Dep’t of Envtl. Prot. Direct Oversight Determination, in which the court addressed whether good-cause defenses asserted by Solvay Specialty Polymers USA, LLC (“Solvay”) to a statewide directive had to be decided by a court before the New Jersey Department of Environmental Protection (NJDEP) could place it under direct supervision. Solvay has owned and operated a manufacturing plant along the Delaware River since 1990 (the “Site”). When Solvay was informed of sampling data establishing the presence of perfluorononanoic acid (PFNA) and perfluorooctanoic acid (PFOA), two specific per- and polyfluoroalkyl substances (PFAS), so-called “forever chemicals,” in the area near the Site, Solvay began investigating and remediating PFNA and PFOA that might be attributable to the Site. In September 2013, at the NJDEP’s request, Solvay entered into the NJDEP’s site remediation program and hired a licensed site remediation professional (LSRP) to oversee its remediation efforts. In March 2019, the NJDEP issued a Statewide PFAS Directive to Solvay and other entities, in which the NJDEP determined that Solvay is responsible for PFNA and PFOA contamination arising from the Site, which has contaminated the Site and surrounding areas, including the state’s natural resources. The Statewide PFAS Directive provided detailed steps to be taken by...

Southern District of Florida Dismisses Patent Infringement Claims for Generalized Allegations and Declaratory Judgment Claims for Lack of Sufficient Immediacy

by Charles H. Chevalier and Christine A. Gaddis

Posted in Patent

On January 17, 2023

In Scilex Pharmaceuticals Inc. v. Aveva Drug Delivery Systems, Inc., Apotex Corp., and Apotex Inc., the United States District Court for the Southern District of Florida recently granted defendant Apotex, Inc.’s (“Apotex”) motion to dismiss various counts of the complaint. The case is a Hatch-Waxman litigation involving patents covering plaintiff Scilex Pharmaceuticals Inc.’s (“Scilex”) topical lidocaine patch ZTlido® and an ANDA that was filed by defendant Aveva Drug Delivery Inc. (“Aveva”). Apotex’s motion was based on three different grounds: (1) Rule 12(b)(2) for lack of personal jurisdiction; (2) Rule 12(b)(6) for the patent infringement counts of the complaint because Apotex was not the party that submitted the ANDA; and (3) Rules 12(b)(6) and 12(b)(1) of the declaratory judgment claims because Apotex did not submit the ANDA and/or because there was no immediacy to the controversy on claims for future infringement. See Reckitt Benkiser Inc. v. Watson Labs., Inc.-Fla., No. 09-60609, 2009 WL 10667836, at *2 (S.D. Fla. Oct. 13, 2009) (“The mere filing of a Paragraph IV certification constitutes an act of patent infringement . . .”). With respect to the first two grounds, the district court granted Apotex’s motion, but granted Scilex leave to amend the complaint with respect to the patent infringement claims. Apotex argued that the claims in the case were based...

Back to the Future, or Forward to the Past? EPA and Army Corps of Engineers Release New Clean Water Act New Rule Revising Definition of “Waters of the United States”

by Gibbons P.C.

Posted in Environmental and Green Issues

On January 13, 2023

Ever since the enactment in 1972 of the modern Clean Water Act (a comprehensive amendment of the 1948 Federal Water Pollution Control Act), courts, agencies, and landowners have struggled to define the statute’s geographic scope, especially with respect to wetlands, which do not fit neatly within familiar notions of “water” or “land.” Landowners often confront this issue because the statute prohibits unpermitted discharges of pollutants (including fill material) into “navigable waters,” but defines that term broadly as “the waters of the United States, including the territorial seas,” which includes some, but not all, areas that scientists would deem to be wetlands. In December, the U.S. Environmental Protection (EPA) and the U.S. Army Corps of Engineers (Corps) released the latest chapter in this five-decade-long saga, in the form of a new 514-page rule defining “waters of the United States” (WOTUS). The rule was officially promulgated via publication in the Federal Register on January 18, and will become effective 60 days later. The new WOTUS rule is the product of a rulemaking process spurred by a January 2021 executive order signed by President Biden that directed all agencies to review regulations and take appropriate action to address those that might conflict with policies of science-based decision-making. (86 Fed. Reg. 7037 (Jan. 25, 2021)). It replaces the Trump...

New Jersey WARN Act Amendments to Go Into Effect

by Richard S. Zackin

Posted in Reductions in Force

On January 11, 2023

Yesterday, Governor Murphy signed into law legislation removing the hold on amendments to the New Jersey WARN Act (officially, the Millville Dallas Airmotive Plant Job Loss Notification Act), enacted by the Legislature in January 2020, but suspended in March of that year. Back then the Legislature decided that, because of the COVID-19 pandemic, these amendments should not take effect until 90 days after Governor Murphy rescinded his Executive Order declaring a State of Emergency. That Executive Order remains in effect, but because of yesterday’s action, the 2020 amendments will now take effect April 10, 2023. These amendments greatly expand the scope of the Act and, consequently, the burden the Act places on employers. The Act now ends the distinction between full-time and part-time employees in two important respects. For the first time, part-time employees will be counted to determine whether an employee has at least 100 employees in New Jersey, thus subjecting an employer to the Act’s obligations. Also for the first time, part-time employees are to be counted when determining whether a sufficient number of employees will be terminated to trigger the Act’s notice obligations. Employers must now give 90-days’ notice of an upcoming “mass layoff,” “termination of operations,” or “transfer of operations.” Previously, only 60-days’ notice was required. The Act’s definition of a...

Governor Murphy Delivers His Fifth State of the State Address

by Courtney A. Johnson

Posted in Elections

On January 11, 2023

For the first time since 2020, Governor Murphy delivered his State of the State address yesterday in person at a joint session of the New Jersey Legislature. Unlike his prior State of the State addresses, which focused on his first-term theme of a “stronger and fairer” New Jersey, this fifth address brought a new refrain – New Jersey as a State of Opportunity. A significant portion of the Governor’s speech focused on the areas where the state is providing opportunities or leading. He identified areas such as economic development, criminal justice reform, reproductive freedom, youth mental health, opioid use recovery, and clean energy as major policy initiatives in this regard. The Governor painted New Jersey as a “business friendly” state, highlighting New Jersey’s job growth over the past two years and the current unemployment rate, which is below the national average. The Governor also touted New Jersey’s growing gross domestic product, asserting that the state’s third quarter 2022 growth was the highest in the northeast region and 10th highest in the nation. Governor Murphy stated that New Jersey is a leader in new and emerging industries, such as wind energy, cannabis, online gaming, and financial technology, while continuing to cultivate legacy industries, such as life sciences, that have long had a presence here. In his...

The Federal Speak Out Act and Implications for Employers

by Christopher Zamlout and Elizabeth Cowit

Posted in Employment Agreements

On January 10, 2023

In December 2022, President Biden signed into law the Speak Out Act (the “Act”), which has become effective. As discussed below, the Act prohibits pre-dispute nondisclosure and nondisparagement agreements relating to sexual assault and sexual harassment disputes. In connection with the new law, Congress presented, inter alia, the following findings: Sexual harassment and assault continue to be pervasive in the workplace. 81 percent of women and 43 percent of men experience some type of sexual harassment or assault in their lifetime. One in three women has encountered sexual harassment in the workplace, yet an estimated 87 to 94 percent of those who have experienced harassment never file any type of formal complaint. Many women leave their job or industry or pass up advancement opportunities as a result of sexual harassment. To combat sexual harassment and assault, victims must be able to report and publicly disclose such issues. Nondisclosure and nondisparagement provisions in agreements between employers and employees can allow harassment and assault to continue by silencing victims and those with knowledge of the conduct, while protecting those engaging in such conduct, thus allowing it to continue. Prohibiting nondisclosure and nondisparagement clauses will provide transparency around unlawful conduct, allow victims to come forward, hold perpetuators accountable, and make workplaces safer. Explanation of the Act The Act...

Proposed Nationwide FTC Ban on Non-Compete Clauses

by Elizabeth Cowit, Leonardo A. Di Stasio and Zachary L. Miller

Posted in General Litigation

On January 6, 2023

On January 5, 2023, the Federal Trade Commission (FTC) announced a proposed rule (“Rule”) that would effectively impose a nationwide ban on all existing and future non-compete clauses between workers and employers. By way of background, a non-compete clause is a type of restrictive covenant that prevents a worker from working for a competitor or starting a competing business, generally within a certain geographical area and time frame after the worker’s employment ends. The FTC’s position, as stated in the Rule’s overview, is that non-compete clauses prevent workers from leaving jobs, lower competition for workers, and reduce wages. According to the FTC, non-compete clauses also stop new businesses from forming, stifle entrepreneurship, and prevent novel innovation that would take place if workers were able to freely share ideas. On the other hand, proponents of non-compete clauses have historically argued, among other things, that they are necessary to protect an employer’s confidential information, trade secrets, and intellectual property and its often considerable investment in the training and development of its employees. Non-compete agreements are currently subject to state law. Key components of the proposed Rule include: Providing that it is an “unfair method of competition” for an employer to enter into a non-compete clause with a worker, attempt to do so, or inform a worker they...

Central District of California Court Grants Motions to Strike Previously Undisclosed Infringement and Invalidity Opinions and Exclude a Belated Rebuttal Expert Report

by Charles H. Chevalier and Christine A. Gaddis

Posted in Patent

On December 20, 2022

In Guangzhou Yucheng Trading Co., Ltd. v. Dbest Products, Inc., a patent infringement action in which the plaintiff, Guangzhou Yucheng Trading Co., Ltd.’s (“GYT”), sought a declaratory judgment that its “stair climber” portable shopping cart product does not infringe U.S. Patent No. 9,233,700 (“the ’700 Patent”), the court recently ruled on three motions relating to GYT’s expert witness, David G. Smith (“Smith”). In two of the motions, the defendant, Dbest Products, Inc. (“Dbest”), moved to exclude certain infringement and invalidity opinions offered by Smith, and in the third motion Dbest moved to exclude Smith’s rebuttal expert report. The court granted all three motions. With respect to infringement, Dbest argued that some of Smith’s opinions should be excluded because the opinions were based on claim construction arguments that were inconsistent with the court’s Claim Construction Order. The court agreed with Dbest and excluded Mr. Smith’s opinions as to four claim terms, because his opinions provided “narrowing constructions” that were inconsistent with the court’s construction of those terms. Id. at *10 (“An expert opinion that is contrary to or ignores a court’s claim construction is irrelevant and unhelpful to the trier of fact, and as such, is inadmissible and must be excluded.” (citations omitted)). The court did note that “experts ‘may introduce evidence as to the plain...

DNJ Court Grants Motion to Dismiss Based on Covenant Not to Sue

by Charles H. Chevalier and Christine A. Gaddis

Posted in Patent / Pharmaceuticals

On December 5, 2022

In Teva Branded Pharmaceutical Products R&D, Inc. v. Cipla Ltd., the United States District Court for the District of New Jersey recently granted the plaintiff, Teva Branded Pharmaceutical Products R&D, Inc.’s (“Teva”), motion to dismiss certain claims and counterclaims for lack of subject matter jurisdiction based on a covenant not to sue between Teva and defendant Cipla Ltd. (“Cipla”). The consolidated case is a Hatch-Waxman litigation involving several patents covering Teva’s Qvar® inhaler product. Originally, there were seven patents in dispute between the parties, but after Teva granted covenants not to sue for three of the patents to defendants Cipla and Aurobindo, the court entered stipulations and orders dismissing the parties’ claims and defenses as to those three patents. Thereafter, Teva provided defendants Cipla and Aurobindo each a covenant not to sue as to United States Patent No. 10,086,156 (“the ’156 patent”), another one of the original seven patents in dispute. Following the covenants not to sue, Teva and Aurobindo stipulated to the dismissal of the claims and counterclaims regarding the ’156 patent, but Teva and Cipla could not come to an agreement regarding the language for an order dismissing their respective claims and counterclaims. Consequently, Teva filed a motion to dismiss the claims and counterclaims relating to the ’156 patent. The court granted Teva’s...