Author: Gibbons P.C.

Gibbons to Present Live CLE Seminar: “Keys to Negotiating Better Software and Software-as-a-Service Agreements”

From April 16-18, Peter J. Frazza, a Director in Gibbons’s Business & Commercial Litigation Group, will lead a seminar in Las Vegas analyzing the negotiation of software licenses and software-as-a-service agreements, addressing artificial intelligence, the Internet of Things (IoT), and data protection and privacy issues specific to software transactions. Mr. Frazza will leverage his 40+ years of experience handling complex lawsuits and contract negotiations on behalf of licensees and users, in order to provide a substantive, insightful overview and practical action steps to optimize your negotiation strategies in an ever-changing technology environment. This seminar is ideal for: Chief Information Officers Chief Technology Officers Chief Financial Officers Contract Negotiators In-House Counsel IT/IS/MIS Managers Contract Managers Contract Administrators Purchasing/Procurement Agents Consultants CLE INFORMATION New Jersey: Gibbons P.C. is an accredited MCLE provider in the State of New Jersey. This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 18.0 hours of total CLE credit. Of these, 0 qualify as total hours of credit for Ethics and Professionalism, including 0 hours in diversity, inclusion, and elimination of bias, and 0 qualify as hours of credit toward certification in civil trial law, criminal trial law, workers compensation law, municipal court law, and/or matrimonial law. New York: Gibbons P.C. has been...

A Dangerous Game of Hide the Ball: District Court Grants Sanctions and Reopens Discovery for Failure to Disclose Photographs and Videos of Accident Scene

A recent decision from the District of New Jersey reminded attorneys and litigants of the importance of complying with discovery obligations under Federal Rule of Civil Procedure 26. Indeed, the court imposed sanctions, just short of dismissal, on the plaintiff and his counsel for failure to produce nearly 100 photographs and videos of the accident scene at the center of the litigation. In Reilly v. The Home Depot U.S.A., Inc., a product liability action, the defendants sought dismissal of the complaint as a discovery sanction for the plaintiff’s late production of 81 photos and three videos that the plaintiff’s counsel took in July 2020 of the house where the plaintiff fell and the ladder that was the subject of the lawsuit. Throughout discovery, the plaintiff did not produce the photos and videos and he did not include any reference to them in a privilege log. Moreover, the plaintiff implicitly represented in discovery responses that no such additional photos or videos even existed. The defendants did not learn of the photos and videos until the plaintiff’s counsel took the deposition of a fact witness and presented the witness with a photo – one that was not produced in discovery – of the interior of the home where the accident occurred, and the witness testified that the...

U.S. Supreme Court Significantly Limits Scope of Federal Government’s Jurisdiction Under the Clean Water Act

On Thursday, May 25, 2023, the U.S. Supreme Court handed down a decision in Sackett v. EPA, a closely watched case concerning the jurisdictional reach of the federal government’s ability to regulate sources of pollution under the Clean Water Act (CWA). Specifically, the Court addressed the test for determining whether wetlands are “waters of the United States” within the scope of the CWA. The CWA prohibits the discharge of pollutants into “navigable waters,” which the CWA defines as “the waters of the United States.” The definition has been the subject of numerous cases and interpretations, most recently in the 2006 Supreme Court decision in Rapanos v. United States, which created multiple tests for what constituted “waters of the United States.” The majority in Sackett has created a single, much narrower test. The background of Sackett v. EPA dates back to 2007, when plaintiffs Michael and Chantell Sackett began backfilling their property with dirt and rock, about 300 feet from Priest Lake. The Sacketts received a notice from the U.S. Environmental Protection Agency (EPA), which instructed the Sacketts to stop work because of the presence of wetlands protected by the CWA, which bars the discharge of pollutants, including rocks and sand, into “waters of the United States.” The EPA reasoned that the wetlands on the Sacketts’...

Governor Murphy Announces First-in-the-Nation Environmental Justice Rules

On Monday, April 17,  2023, New Jersey Governor Phil Murphy announced the adoption of the New Jersey Department of Environmental Protection’s (DEP) Environmental Justice Rules (EJ Rules) implementing New Jersey’s landmark Environmental Justice (EJ) Law signed in 2020. The EJ Law and implementing rules are the first in the nation aimed at reducing pollution in historically overburdened communities that have been subjected to a disproportionately high number of environmental and public health stressors. In his announcement, Governor Murphy stated, “As we enter Earth Week 2023, the final adoption of DEP’s EJ Rules will further the promise of environmental justice by prioritizing meaningful community engagement, reducing public health risks through the use of innovative pollution controls, and limiting adverse impacts that new pollution-generating facilities can have in already vulnerable communities.” DEP Commissioner Shawn M. LaTourette added that, “With the adoption of the nation’s first EJ Rules, New Jersey is on a course to more equitably protect public health and the environment we share.” Under the new rules, which are effective immediately, state environmental officials considering permit requests of eight specific types of facilities must include impacts to residents of affected communities in their decision-making process. The eight types of facilities that must comply with the new EJ Rules are: gas-fired power plants, cogeneration facilities, and other...

2023 Is Shaping Up to Be a Big Year for the Clean Water Act and Its “Waters of the United States”

In January, the Biden Administration promulgated the federal government’s latest rule defining “waters of the United States” (WOTUS Rule). The WOTUS Rule, which defines the waters that are subject to federal permitting and oversight under the Clean Water Act (CWA) by the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE), went into effect on March 20, 2023. As with past attempts to define “waters of the United States,” the new WOTUS Rule is already triggering legal challenges. Since the enactment of the CWA in 1972, 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.” 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.” The Biden Administration’s WOTUS Rule replaces the Trump Administration’s Navigable Waters Protection Rule (NWPR), which was promulgated in 2020 but subsequently vacated by two federal district courts. The NWPR followed the Trump Administration’s 2019 repeal of a 2015 Obama Administration rule (the 2015 Clean Water Rule) that had taken a categorical approach to defining “waters of the United States.” The Biden Administration’s WOTUS Rule seeks to return to...

Fifth Circuit Affirms District Court’s Grant of a Motion to Strike Class Allegations

The Fifth Circuit Court of Appeals recently affirmed the grant of a pre-discovery motion to strike class allegations. In Elson v. Black, 14 women from seven states sought to bring a putative class action against the defendant companies, alleging that the defendants falsely advertised its FasciaBlaster product. Specifically, the plaintiffs alleged that the FasciaBlaster had been falsely advertised as a product that would eliminate cellulite, help with weight loss, and relieve pain. The district court, in a three-sentence opinion, struck the class allegations, finding that the class failed to establish commonality. The next day, the district court dismissed the remainder of the plaintiffs’ claims in their entirety. While the Fifth Circuit Court of Appeals found the district court opinion to be “inappropriately brief,” it agreed that the class could not be certified, nor could the plaintiffs establish their claims of fraud. However, the appellate court reversed and remanded the district court’s ruling dismissing two plaintiffs’ express warranty claims, finding that the court failed to apply the law of a specific jurisdiction. The appellate court held that the class could not be certified under Rule 23(a)’s commonality requirement and Rule 23(b)(3)’s predominance requirement. First, the plaintiffs’ claims were governed by different states’ laws, and the plaintiffs were unable to meet their burden establishing that “such differences...

New Policy From DOJ Offers Predictability and Incentives to Self-Report Misconduct

Representatives of the United States Attorney’s Office (USAO) announced on February 22, 2023, the immediate implementation of a new Voluntary Self-Disclosure Policy. This new policy was created in response to a September 2022 memorandum from the Deputy Attorney General, which requested that each component of the Department of Justice (DOJ) review its policies on corporate voluntary self-disclosure and revise or create a formal written policy that incentivizes such self-disclosure. The stated intention of the new policy is to provide transparency and predictability to companies and the defense bar concerning the benefits, and potential outcomes, in cases where companies voluntarily self-disclose misconduct, fully cooperate with the government, and remediate the misconduct in a timely and appropriate manner. In general, the policy requires that: (1) the disclosure of misconduct is made voluntarily (not to include instances where there is a pre-existing obligation to disclose, e.g., by regulation or contract); (2) the disclosure be made prior to an imminent threat of disclosure, prior to the misconduct being publicly disclosed, and within a reasonably prompt time after the company becomes aware of the misconduct; and (3) the disclosure includes all relevant facts concerning the misconduct that are known to the company. The incentives created by this new policy are significant and include the following: Absent the presence of aggravating...

EPA Amending Standards for Phase 1 Environmental Site Assessments

The United States Environmental Protection Agency (USEPA) is set to amend the All Appropriate Inquiries Rule (AAI Rule), the standard for evaluating a property’s environmental conditions prior to purchase, which may impact a purchaser’s potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for any contamination discovered at the property. Those affected by this amendment include both public and private parties who are purchasing potentially contaminated properties and wish to establish a limitation on CERCLA liability as bona fide prospective purchasers, contiguous property owners, or innocent landowners. In addition, any entity conducting a site characterization or assessment on a property with funding from a brownfields grant awarded under CERCLA Section 104(k)(2)(B)(ii) may be affected by this action. The AAI Rule first went into effect in 2006 and has been subject to amendments since that time. The current amendments will become effective on February 13, 2023, and will reference a new standard – “ASTM E1527-21” – that may be used to satisfy the requirements for conducting all appropriate inquiries under CERCLA. Significant changes within the new standard include, but are not limited to: Revised and new definitions to make requirements clearer than the prior 2013 standard Requirements for more specific information related to the subject property’s use, as well as historical research related...

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”

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...

NJDEP Posts Guidance for Prospective Purchasers of Contaminated Sites to Obtain Adjustments to Direct Oversight Requirements

On September 9, 2022, the New Jersey Department of Environmental Protection (NJDEP) issued its Pre-Purchase Administrative Consent Order Guidance through the NJDEP’s Contaminated Site Remediation & Redevelopment Program. The guidance document explains how prospective purchasers of contaminated sites subject to Direct Oversight can obtain a Pre-Purchase Administrative Consent Order (ACO), allowing for adjustments to Direct Oversight requirements. Under the Site Remediation Reform Act, if the person responsible for conducting remediation of a contaminated site fails to complete the investigation and remediation within mandatory timeframes, the NJDEP automatically places the site into Direct Oversight. The Direct Oversight requirements are a more prescriptive remediation process for the person responsible for conducting remediation. Some of the Direct Oversight requirements include: NJDEP selection of the remedial action for the site; NJDEP approval of each document submitted by a licensed site remediation professional; establishment of a remediation funding source in the amount needed to complete remediation; performance of a remedial action feasibility study for NJDEP approval; and compliance with an NJDEP-approved public participation plan. Once a potential buyer of a site closes on a contaminated property subject to Direct Oversight, the potential buyer becomes a person “in any way responsible” for remediating the site pursuant to the Spill Compensation and Control Act (“Spill Act”). By entering into a Pre-Purchase ACO,...