Category: General Litigation

DOJ Updates Corporate Compliance Program Evaluation Guidelines to Invite the Practice of Continuous and Evolving Improvements Through Data Analysis

DOJ Updates Corporate Compliance Program Evaluation Guidelines to Invite the Practice of Continuous and Evolving Improvements Through Data Analysis

The Department of Justice (DOJ) recently updated its Evaluation of Corporate Compliance Programs guidelines, which federal prosecutors consider when making decisions to prosecute corporate compliance violations, impose monetary penalties, and require future compliance commitments. The guidelines highlight what prosecutors should deem relevant in evaluating a corporate compliance program, both at the time of the offense(s) and at the time of the charging decision and resolution. In turn, the guidelines serve as a roadmap for corporate compliance and control personnel in designing a corporate compliance program, allocating resources to the program, evaluating the efficacy of the program in practice, and redesigning the program as needed on a regular basis. The updates make clear that the DOJ is interested in the continuous evaluation and evolution of corporate compliance programs, and that prosecutors will now be examining whether and how a compliance program incorporates data analytics. As before, the guidelines instruct federal prosecutors to ask three questions, though now slightly revised as follows: Is the compliance program well designed? Is the program adequately resourced and empowered to function effectively? Does the program work in practice? A welcome addition to the guidelines is a stated recognition that the circumstances of the company, e.g., size,...

Internal Investigations and Compliance in a Post-Pandemic Environment: Risks and Opportunities

Internal Investigations and Compliance in a Post-Pandemic Environment: Risks and Opportunities

The COVID-19 pandemic has presented not only novel challenges, but also opportunities for companies hoping to enhance or regain productivity while preventing wrongdoing and maintaining robust compliance functions. As workplaces reopen, historical challenges will persist and new risks will emerge. To be best positioned during this transition phase and beyond, companies should embrace the opportunity to evaluate their existing compliance processes and make the adjustments now that are necessary to adapt to a risk landscape that will likely never again be the same. Empower Legal, Compliance, and Investigative Resources Responsible companies will not be receptive to attempts to excuse misconduct due to the pandemic, nor will regulators. After all, there will be no “pandemic defense” to wrongdoing, and hindsight tends to be unforgiving—particularly through the lens of regulators looking at current events months or years from now. And as businesses emerge from state stay-at-home orders, an increased focus on productivity threatens to exacerbate the already heightened risk environment. It is critical that compliance, legal, and internal and external investigative resources be empowered to mitigate these risks effectively. Some immediate mitigation actions to be considered include: Conducting mandatory training on the enhanced risk environment and compliance best practices. Assessing existing policies...

Is Everything Negotiable? Anticipating Legal Issues for the “Reopening”

Is Everything Negotiable? Anticipating Legal Issues for the “Reopening”

In the early 1980s, a book entitled You Can Negotiate Anything spent nine months on the New York Times bestseller list. The book may have a resurgence in the coming months, as one thing is for certain right now: After the state’s reopening, every contract, lease, and agreement is likely to be subject to negotiation. While much attention has been focused on force majeure provisions in contracts and potential bankruptcy filings, the practical effect of survival of the fittest will dictate necessary legal needs. Certainly there will be a time lag for the courts to be clogged with new cases. The retail, leisure travel, and entertainment sectors, while arguably most impacted by the recent closures and restrictions, will surely not be the only areas where businesses and individuals by necessity will renegotiate virtually every existing agreement. As New Jersey deals with the enormity of the COVID-19 pandemic, legal issues are emerging that were previously never contemplated. In an instant, the world has changed, and all negotiated contracts are potentially at risk. The question becomes: How do businesses protect their futures? To start, anticipate legal issues. Documents and Agreements Likely to Be Subject to Renegotiation It is prudent to develop a...

Beyond Force Majeure: Government Quarantine Orders May Themselves Excuse Contract Non-Performance

Beyond Force Majeure: Government Quarantine Orders May Themselves Excuse Contract Non-Performance

The coronavirus pandemic is reverberating throughout commercial sectors, and countless contract obligations are going unperformed—shipments are not being made or accepted, payments are being missed, and contract milestone dates are lapsing every week that the pandemic and business shutdown continues. Those typically rare force majeure provisions are now being scrutinized. (For more on those topics, see previous entries in our COVID-19 “The Coronavirus Pandemic and Your Business: How We Can Help” client alert series, including “Litigation Issues That May Arise.”) And, in New Jersey, the precise language of such a clause is key, as courts in this state have held that they should be “narrowly interpreted as contemplating only events or things of the same general nature or class as those specifically enumerated.” Seitz v. Mark-O-Lite Sign Contractors, Inc., 210 N.J. Super. 646 (N.J. Sup. Ct. Law Div. 1986). With only some force majeure clauses including explicit references to pandemics, or broadly-worded “catch-alls,” the success of a force majeure defense is not necessarily certain. But before (or in addition to) attempting to invoke that force majeure provision, consider whether a court would ultimately determine that contractual non-performance is due to an “Act of God” or rather is being caused by...

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...

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...

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...

Gibbons Chairman and Managing Director & CCL Department Member Featured on ROI-NJ’s Third Annual “Influencers Power List

Gibbons Chairman and Managing Director & CCL Department Member Featured on ROI-NJ’s Third Annual “Influencers Power List

ROI-NJ, a weekly newspaper covering business in New Jersey, has named Patrick C. Dunican Jr., Chairman and Managing Director of Gibbons P.C. and a member of the firm’s Commercial & Criminal Litigation Department, to its third annual “Influencers Power List” of the professionals with the greatest influence on business in the state. The list ranks New Jersey’s top 30 influencers by number, then features a select group of influential professionals in various fields. Gibbons attorneys have been featured on this list every year it has been published. The firm also has more attorneys on the 2020 list than does any other law firm in New Jersey. Mr. Dunican is one of 19 people on the “Lawyers” list. The publication notes: Oversees what many feel is the state’s most powerful firm. Client list is a who’s who of business and political leaders. Dunican’s deft handling makes him one of the most respected leaders in the sector. Mr. Dunican has been featured on this list every year it has been published. He is also consistently ranked on the PolitickerNJ “Power List” of the 100 most prominent and connected people in New Jersey politics and has been named for ten consecutive years among...

NJBIZ Lists Patrick Dunican and Jennifer Phillips Smith  Among Its 2020 “Power 100”

NJBIZ Lists Patrick Dunican and Jennifer Phillips Smith Among Its 2020 “Power 100”

For the tenth consecutive year, NJBIZ has featured attorneys from Gibbons P.C. on its annual “Power 100” list of the most influential people in New Jersey business. Patrick C. Dunican Jr., the firm’s Chairman and Managing Director, is one of a select few people to be named to this list every year it has been published, while Jennifer Phillips Smith, a Director in the firm’s Real Property Department, makes her debut on the 2020 list. This year, NJBIZ notes of Mr. Dunican: The influence of Gibbons PC, one of the state’s biggest law firms, grew this year with the addition of an office in Red Bank. The 94-year-old Newark firm, which has a Trenton outpost that opened in 2002, expanded to Red Bank because it’s a linchpin of Monmouth County and home to some of its most significant clients—nearly half of the county’s top 10 employers are Gibbons clients. Patrick Dunican has been at the helm since 2004 and his business influence extends internationally: he was recognized in August for promoting business ties between New Jersey and Ireland by Donegal County Council with the 2019 Tip O’Neill Irish Diaspora Award. From 2017 to 2018, exports from the Garden State to...