Commercial Litigation Alert Blog

Redacted Use of Force Report in Which the Subject of the Force Is a Minor Must Be Disclosed, Appellate Division Holds

Redacted Use of Force Report in Which the Subject of the Force Is a Minor Must Be Disclosed, Appellate Division Holds

A recent Appellate Division decision provides for increased transparency into the activities of law enforcement, ruling that a use of force report (“UFR”) involving a minor should not have been withheld under New Jersey’s Open Public Records Act of 2001 (“OPRA”). A UFR is a one-page report required by a New Jersey Attorney General directive to be filed in all circumstances in which law enforcement personnel use physical, mechanical, or deadly force against a civilian. In January 2018, a Trentonian reporter received a tip that Ewing Township law enforcement used excessive force against a minor. The reporter filed a public records request for any UFRs generated as a result of the encounter. Ewing denied the request, citing OPRA, which provides that “records of law enforcement agencies, pertaining to juveniles charged as delinquent or found to be part of a juvenile-family crisis, shall be strictly safeguarded from public inspection.” The Trentonian sued Ewing and its municipal clerk for release of the UFR, arguing that the UFR should be released in redacted form, removing the identifying information about the minor but leaving the information about the police officer’s use of force. The trial court upheld Ewing’s denial of access, finding that the...

Does the SHIELD Act Cover Your Business and Are You Ready?

Does the SHIELD Act Cover Your Business and Are You Ready?

As we have previously written, the privacy and security requirements of the New York Stop Hacks and Improve Electronic Data Security Act (“SHIELD Act”) are effective as of March 21, 2020. The SHIELD Act implements broad new data security requirements for all businesses that have the private information of New York residents, and reaches beyond New York’s own borders to compel companies – including companies that do not do business in New York – to take affirmative steps to protect the personal and private information of New York residents that the company may be collecting or storing. Initially, the SHIELD Act expands the definition of “private information” that must be safeguarded to include any information that can be used to identify a person, in combination with a social security number, a driver’s license number, a financial account number, or biometric information. Separate and apart from these “data elements,” the definition of “private information” also now includes “a user name or e-mail address in combination with a password or security question and answer that would permit access to an online account.” Second, the SHIELD Act applies to any company that possesses the private information of even a single New York resident...

Guidance for Consumer Product Manufacturers, Distributors, and Sellers

Guidance for Consumer Product Manufacturers, Distributors, and Sellers

Wide-ranging issues are arising in the aftermath of the COVID-19 crisis and will continue to impact our clients in a growing number of ways. The Gibbons Consumer Class Action Defense Team is here to help and can work with you to address these critical concerns. Communication with consumers is critically important for consumer product manufacturers, distributors, and sellers, whether in the form of product labeling, advertising, or direct communications through telephone, text, and email. These communications are fraught with class action hazards that should be addressed in advance. Particularly in our present environment, product statements or advertising that, for example, promote the ability to stave off infection, increase the body’s immune system functions, or disinfect surfaces, may become subject to challenge in class action lawsuits by entrepreneurial class action attorneys. Sellers that contact their customers using text messaging platforms or dialing systems need to be particularly wary given the proliferation of TCPA class actions which cause great harm to small and large business alike. Also, companies seeking to recoup losses may over-aggressively promote their own products in a manner that is illegal and anti-competitive. Franchisors and franchisees may be faced with economic circumstances that make their current arrangements impractical. If...

Preparing for and Addressing Potential Impacts of COVID-19 on the Construction Industry

Preparing for and Addressing Potential Impacts of COVID-19 on the Construction Industry

As the number of COVID-19 cases increases exponentially in the United States, the impact on the construction industry will inevitably continue to rise. Although projects in many states continue to progress at this time, some jurisdictions have taken drastic measures. For example, the Pennsylvania Department of Transportation recently suspended all construction projects until further notice in response to COVID-19. Similarly, all construction projects in Boston were ordered to stop for at least 14 days. In addition to shutdowns that may possibly be imposed by potential government action in response to the virus, ancillary issues could adversely impact parties to a construction project and the labor, goods, services, and materials used on projects. Such issues may include disruptions to construction supply chains in the U.S. and abroad, employees becoming ill and under quarantine, a workforce adjusting to changes resulting from school closings and other evolving societal changes flowing from COVID-19, and a rapidly changing and uncertain economic situation. While the current situation is essentially unprecedented, there are some actions parties in the construction industry can take to help prepare for, and address, potential impacts to their business and ongoing projects. Review Construction Contracts: Whether it is a standard form construction contract...

The Consequences of What We Say: Minimizing Potential Liability Under the Securities Laws

The Consequences of What We Say: Minimizing Potential Liability Under the Securities Laws

The business challenges posed by the coronavirus are unique and unprecedented. The pervasive uncertainty, market turmoil, and near constant stream of new information inevitably draws our focus to near-term concerns and demands, and action that must be taken quickly to address them. However, it is in these exact times of crisis and uncertainty that companies cannot afford to lose sight of the very real consequences hastily made statements and disclosures may have in terms of liability under the securities laws. Securities class actions and shareholder derivative actions follow negative market activity like night follows day. And the coronavirus pandemic has created, perhaps more than any crisis before it, a perceived need for companies to provide customers, clients, shareholders, and the general public immediate, real-time updates about plans for navigating the pandemic and its impact on operations. Every person reading this post likely has an inbox brimming with emails regarding coronavirus plans and impact from every company with which they have ever transacted any kind of business. When the dust settles, however, it is these very communications—along with any SEC filings, earnings guidance, investor calls, and other public-facing statements regarding business operations issued during this time period—that will be combed for...

NJ Assembly Initiates (Then Withdraws) Proposal to Ensure COVID-19 Coverage

NJ Assembly Initiates (Then Withdraws) Proposal to Ensure COVID-19 Coverage

Last week, legislation was introduced in the New Jersey Assembly that would require property insurers to cover business interruption losses arising from the COVID-19 pandemic suffered by small businesses (i.e., businesses with less than 100 full-time employees who work 25 or more hours per week). The bill would require coverage for any loss of business or business interruption “due to global virus transmission or pandemic” that is suffered for the duration of the State of Emergency declared by Governor Murphy on March 9, 2020. It appears that such coverage must be provided regardless of existing policy requirements (e.g., direct “physical loss” or “damage”) or potentially applicable exclusions (e.g., the “Virus or Bacteria” exclusion in many policy forms). After an initial favorable vote by the NJ Assembly Homeland Security and State Preparedness Committee, the bill was reportedly withdrawn by its sponsors, but may be amended and reintroduced in the short-term. The bill as initially drafted would provide significant relief to policyholders with small- to medium-sized businesses that may be the hardest hit in what is rapidly developing into a global economic crisis. This would certainly be welcome relief. However, that proposed relief comes with a potential backend cost to all policyholders...

Successful Crisis Management During a Pandemic

Successful Crisis Management During a Pandemic

We are living in a moment that can only be described as a crisis on multiple fronts. While the coronavirus (COVID-19) pandemic is a situation like none other, our experience advising clients through past crisis situations provides guidance on how to handle critical decisions in an uncertain and unsettling environment in a time of chaos and panic. Past experience has taught us that a crisis situation can either become a distant bad memory or turn into a disaster. Failure to handle crisis management and key decisions effectively now and in the near future can lead to devastating consequences. There are common themes and basic strategies to any crisis which bear repeating. Keep in mind that decisions are made in real time. They are also made with imperfect information, and initial decisions are magnified one hundred fold. Don’t compound the problem. The first rule of crisis management is, “do not do anything to make it worse.” In responding to the coronavirus, that means, first and foremost, to stay healthy. You and your leadership, team, and employees cannot help anyone and get back to normal if they are sick, so do not take risks with anyone’s health. Remember that credibility is key....

The Coronavirus Pandemic and Your Business: How We Can Help – Litigation Issues That May Arise

The Coronavirus Pandemic and Your Business: How We Can Help – Litigation Issues That May Arise

A wide variety of issues are arising and are likely to arise in connection with, and in the aftermath of, the COVID-19 crisis. The Gibbons Commercial & Criminal Litigation Department is here to help, and can work with you to address these critical concerns. Breach of contract disputes stemming from the coronavirus situation are likely to be widespread. They are surfacing already and will continue to surface throughout commercial contexts and for numerous reasons, including the ever-changing landscape of market forces that are at play right now. One notable – and particularly relevant – contractual concept, force majeure, is going to be front and center. Force majeure provisions may excuse otherwise impermissible actions in certain extraordinary situations beyond the control of the party failing to perform. It is, therefore, critically important that contracts are reviewed both for the presence of (and particular language surrounding) such provisions and for any necessary notice requirements. Additionally, employment contracts are likely in jeopardy, which will inevitably lead to wrongful termination claims. Relatedly, you may need to enforce restrictive covenants – or fight their enforcement – in the aftermath of the crisis. Also likely to arise are supply chain disputes. People and companies will need...

Insurance Coverage in the Age of COVID-19

Insurance Coverage in the Age of COVID-19

As the coronavirus continues to dominate the news cycle, the actual (and anticipated) impact on business operations and business continuity has hijacked the attention of owners, managers, and C-suite executives at all levels and in all industries. Among the myriad issues to be resolved, one obvious question is the extent to which insurance coverage is available for business losses arising from this public health crisis, including reduction of business income, incurring of extra expenses, disruption of supply chains, event cancellations, and potential liability from stakeholder lawsuits. Some companies may have purchased specialized forms of insurance policies that are designed to provide specific coverage for losses suffered as a result of public health crises. However, the vast majority of companies will need to look to their traditional insurance policies – like property and directors and officers coverage – in order to obtain available insurance, if any, for these business related losses. As an initial matter, coverage for actual loss of business income and extra expense is typically part of a company’s property insurance policy and not separate, standalone coverage. Therefore, coverage for business income and related losses depends on demonstrating that these losses resulted from “physical loss” or “damage” to covered...

27 Gibbons Commercial & Criminal Litigation Department Attorneys Selected to 2020 New Jersey Super Lawyers and Rising Stars

27 Gibbons Commercial & Criminal Litigation Department Attorneys Selected to 2020 New Jersey Super Lawyers and Rising Stars

Attorneys from the Gibbons Commercial & Criminal Litigation Department were featured in New Jersey Super Lawyers and New Jersey Super Lawyers Rising Stars, with 18 Department attorneys on the 2020 Super Lawyers list and nine on the 2020 Rising Stars list. These attorneys were listed in a wide range of categories, including Antitrust, Business Litigation, Class Action, Communications, Construction Litigation, Criminal Defense, Criminal Defense: White Collar, Insurance Coverage, and Media/Advertising. Highlights of this year’s New Jersey Super Lawyers list include the top-tier rankings earned by two Department attorneys: Top 10 Attorneys in New Jersey Lawrence S. Lustberg, Co-Chair, Commercial & Criminal Litigation Department Top 100 Attorneys in New Jersey Michael R. Griffinger, Director, Commercial & Criminal Litigation Department Lawrence S. Lustberg, Co-Chair, Commercial & Criminal Litigation Department The Gibbons attorneys listed in the 2020 issue of New Jersey Super Lawyers are: Frederick W. Alworth Guy V. Amoresano Robert C. Brady Thomas J. Cafferty Patrick C. Dunican Jr. Michael R. Griffinger Jennifer A. Hradil Bruce A. Levy Lawrence S. Lustberg Robert J. MacPherson Michael R. McDonald Brian J. McMahon Mary Frances Palisano Damian V. Santomauro Peter J. Torcicollo Thomas R. Valen Christopher Walsh John T. Wolak Those listed in the 2020...