Gibbons Law Alert

Gibbons Law Alert Blog

USDOL New Persuader Rule Permanently Enjoined

Posted in Labor

On November 23, 2016

We are pleased to report that a federal court in Nat’l Fed’n of Indep. Bus. v. Perez issued a nationwide injunction permanently enjoining the United States Department of Labor’s new persuader rule last week. The decision is a major victory for the business community because the new rule placed employers’ abilities to freely seek labor counsel in jeopardy by expanding their obligations to publicly disclose arrangements into which they entered with the labor consultants, including their attorneys.

New Jersey Federal Court Relies on Spokeo to Dismiss FACTA Class Action For Failure to Allege Concrete Harm

by Gibbons P.C.

Posted in Class Action Defense

On November 22, 2016

The U.S. District Court for the District of New Jersey recently relied on the U.S. Supreme Court’s opinion in Spokeo v. Robins to grant a Rule 12(b)(1) motion to dismiss a statutory violation-based class action complaint for failure to allege a concrete injury. In Kamal v. J. Crew Group Inc., et al. the Court concluded that the plaintiff lacked standing to sue under the Fair and Accurate Credit Transactions Act (“FACTA”) because, as in Spokeo, the claims were based on a purely statutory injury, i.e., the plaintiff did not allege a “concrete and particularized” injury.

11th Circuit’s Stay Suggests that the FTC’s Final Order Against LabMD May Itself be “Unfair” and “Unreasonable”

by John T. Wolak

Posted in Appellate / General Litigation

On November 16, 2016

As reported on this blog on September 27, 2016, the FTC issued a Final Order holding that LabMD’s data security practices were “unreasonable” and constituted an “unfair” business practice in violation of Section 5 of the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. §45(a) and (n). The findings were a clear signal of the FTC’s expanding efforts to regulate data security and to incentivize companies handling sensitive data to implement and maintain strong data security practices. On Thursday, November 10, 2016, the 11th Circuit stayed enforcement of the FTC’s Final Order pending a full hearing and final decision on LabMD’s appeal, and called into question the validity of the FTC’s conclusions as to what may constitute an actionable “privacy harm” following a data security breach.

Believe It or Not: Computer Fraud Coverage May Not Cover Fraud Involving a Computer

by John T. Wolak

Posted in Insurance

On November 14, 2016

Is a commercial policyholder able to get insurance under the terms of its computer fraud coverage (typically offered as part of a crime policy) for a fraud based upon information transmitted by email? Not according to the Fifth Circuit’s recent decision in Apache Corporation v. Great American Insurance Company, which vacated the trial court’s judgment and left the policyholder with a $2.4 million uninsured loss. While the opinion is unpublished and therefore should have limited precedential value, it highlights the importance of reviewing your company’s coverage profile in an effort to close potential gaps in insurance coverage for security breaches and other losses involving computer use.

NYC Council Passes “Freelance Isn’t Free” Act

by Elizabeth Cowit

Posted in Wage and Hour

On November 14, 2016

On October 27, 2016, The New York City Council unanimously passed a local law, the Freelance Isn’t Free Act, aimed to enhance protections for freelancers and purportedly to prevent wage theft. Under the law, freelancers include individuals (and organizations having no more than one person) retained as an independent contractor to provide services in exchange for payment. The law, however, excludes from coverage sales representatives (as defined in section 191 of the New York Labor Law), persons engaged in the practice of law under the contract at issue (and who are members in good standing of a bar and not under any restrictions with respect to the practice of law), and licensed medical professionals. The law does not apply to the United States government, New York City, and New York State (and their respective offices, departments, agencies, authorities, etc.) any local government, municipality, or county, along with any foreign government.

N.J.’s Proposed Changes to Low Income Housing Tax Credit Qualified Allocation Plan Limit Projects per Developer and Encourage Development in Smart Growth Areas

by Cameron W. MacLeod

Posted in Development/Redevelopment / Economic Development

On November 14, 2016

The N.J. Housing and Mortgage Finance Agency (“HMFA”) recently proposed changes to the Low Income Housing Tax Credit (“LIHTC”) Qualified Allocation Plan (“QAP”). State housing credit agencies, like HMFA, are required to create plans which outline the selection criteria for awarding tax credits for the development of low- and moderate-income housing. The proposed amendments update the QAP to reflect procedural changes to the way in which affordable housing is constructed, but also include some substantive changes to both the allocation of tax credits among developers and the scoring system for awarding tax credits.

Recent New Jersey Case Serves as Warning to Redevelopers of Contaminated Sites

by Gibbons P.C.

Posted in Development/Redevelopment / Environmental and Green Issues

On November 7, 2016

A recent New Jersey Appellate Division case concerning spoliation of evidence in the context of a contribution action under the New Jersey Spill Compensation and Control Act (“Spill Act”) counsels caution on the part of redevelopers of contaminated sites. The case makes clear that owners of contaminated sites must endeavor to preserve physical evidence related to the contamination as soon as litigation becomes “probable” if they hope to rely on that evidence in a future contribution action.

Following the Expiration of the Permit Extension Act, Keep in Mind the Impact of Statewide Non-Residential Development Fees

by Cameron W. MacLeod

Posted in Development/Redevelopment

On November 4, 2016

With an improving economy, developers who have weathered the storms of economic recession and have projects approved prior to July 17, 2008, the effective date of the Statewide Non-Residential Development Fee Act, N.J.S.A. 40:55D-8.1 et seq. (the “Act”), may finally be in a position to construct many of these projects. However, with changes in the market and demand for certain types of commercial space outpacing those approved in the 1990s and early 2000s, approvals that have been tolled since 2007 by the Permit Extension Act (N.J.S.A. 40:55D-136.1 et seq.) may need to be altered to accommodate new marketplace demands. In seeking amendments of those approvals, developers should be aware of, and consider the potential application of, the affordable housing development fee to those projects.

FEMA Amendments to Base Floor Elevation Requirements, When Minor, Do Not Necessarily Give Rise to Hardship Showing for Height Variance Says NJ App Div

by Gibbons P.C.

Posted in Development/Redevelopment

On November 1, 2016

In its recent decision in Richmond URF, LLC v. Zoning Board of Adjustment of the City of Jersey City, the Appellate Division held that a minor alteration in base floor elevation requirements in the wake of FEMA’s amendments to the regulations after SuperStorm Sandy does not necessarily give rise to showing a hardship in support of a height variance under N.J.S.A. 40:55D-70(d)(6).

SNDAs: Often Encountered, Rarely Discussed

by Gibbons P.C.

Posted in Real Estate / Transactional Real Estate and Leasing

On October 31, 2016

Subordination, non-disturbance and attornment agreements (SNDAs) are often encountered by transactional real estate lawyers, but infrequently discussed. An SNDA is an agreement among a tenant, the landlord’s mortgage lender and, usually, the landlord. An SNDA provides that a tenant’s lease will be subordinated to a mortgage on the landlord’s property, and the mortgage lender will agree that if the mortgage goes into default and the lender forecloses its mortgage, the lease will continue (i.e., it will not be disturbed).