Category: General Litigation

Gibbons Hosts “Keys to Negotiating Better Software & Software-as-a-Service Agreements” Seminar – October 16-18, 2019

Gibbons Hosts “Keys to Negotiating Better Software & Software-as-a-Service Agreements” Seminar – October 16-18, 2019

From October 16-18, Peter J. Frazza, a Director in the Gibbons Commercial & Criminal Litigation Department, will lead a seminar in Las Vegas analyzing the negotiation of software licenses and software-as-a-service agreements, including data protection and privacy issues companies face that are specific to software transactions, artificial intelligence, and the Internet of Things (IoT). Mr. Frazza has over 30 years of experience handling complex lawsuits and contract negotiations on behalf of licensees and users in software licensing and software-as-a-service matters. For additional seminar details or to register, visit https://conta.cc/31AYf0h.

FOI-led: Supreme Court Restricts Public Access to Confidential Business Information

FOI-led: Supreme Court Restricts Public Access to Confidential Business Information

In Food Marketing Institute v. Argus Leader Media, the United States Supreme Court expanded the meaning of “confidential” information exempt from disclosure under Exemption 4 of the Freedom of Information Act (FOIA). In doing so, the Court reversed the decision of the Court of Appeals for the Eighth Circuit and definitively rejected the “competitive harm” requirement adopted by the D.C. Circuit in National Parks & Conservation Assn. v. Morton. Respondent Argus Leader Media filed a FOIA request with the United States Department of Agriculture (USDA), seeking the names and addresses of all retail stores that participate in a federal food stamp program known as SNAP. Argus Leader also sought each store’s annual redemption data from 2005 to 2010. The USDA declined to disclose store-level SNAP data based on Exemption 4 of FOIA, which precludes disclosure of “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Argus Leader sued the USDA. The district court ordered disclosure based upon the failure to satisfy the “competitive harm” test, which requires a party to establish confidentiality by proving that disclosure is “likely … to cause substantial harm to [its] competitive position.” The Eighth Circuit affirmed the judgment. In...

Sharing Communication with Public Relations Firm Destroys Privilege

Sharing Communication with Public Relations Firm Destroys Privilege

The Southern District of New York recently held that sharing attorney-client privileged communications with a public relations firm destroys that privilege. Universal Standard brought a trademark infringement and unfair competition suit against Target. During the course of discovery, documents were produced consisting of emails between Universal Standard, its outside counsel, and BrandLink, a public relations firm. When Universal Standard sought to claw back the documents because they were privileged, Target refused. The court considered whether the fact that emails between Universal Standard and its counsel were also shared with BrandLink should result in a waiver, or whether the communications fall under one of several possible exceptions to the general rule that “disclosure to a third party by the party of a communication with his attorney eliminates whatever privilege the communication may have originally possessed.” First, the court considered whether BrandLink was “essential to allow communications between the attorney and the client, such as an interpreter or accountant.” This exception applies where the third party enables counsel to understand aspects of the client’s own communications that could not otherwise be appreciated, but not where the communications are merely important to the attorney’s ability to represent the client. Here, the emails involved discussions...

NJ Supreme Court Narrowly Construes Shareholder’s Right to Inspection of Corporate Records

NJ Supreme Court Narrowly Construes Shareholder’s Right to Inspection of Corporate Records

In R.A. Feuer v. Merck & Co., Inc., the New Jersey Supreme Court affirmed the Appellate Division’s narrow construction of the scope of a shareholder’s right to inspect a corporation’s records under N.J.S.A. 14A:5-28 and the common law. In the underlying case, a Merck & Co, Inc. shareholder sought documents in order to elicit evidence that Merck acted wrongfully in its acquisition of another pharmaceutical firm. Merck appointed a “Working Group” to respond to the shareholder’s demand, which rejected the shareholder’s request for documents relating to the acquisition. Following this rejection, the shareholder sought twelve broad categories of corporate documents, including documents pertaining to the Working Group’s activities, communications, and formation; documents provided to the board regarding the target pharmaceutical firm and two of its drugs; and the board’s consideration of the shareholder’s demands and the Working Group’s recommendation. Merck disclosed pertinent minutes of the board and of the Working Group, but denied the remainder of the shareholder’s demand. The shareholder sued Merck, alleging entitlement to the documents under N.J.S.A. 14A:5-28(4), which permits a shareholder to compel the corporation to produce its “books and records of account, minutes, and record of shareholders,” and the common law. The trial court denied...

Third Circuit Offers Reminder that Pansy Does Not Govern Sealing of Documents

Third Circuit Offers Reminder that Pansy Does Not Govern Sealing of Documents

The Third Circuit has clarified the standard for sealing documents filed with a court, emphasizing in In re Avandia that litigants who wish to prevent public access to such documents face a more exacting standard than litigants pursuing a protective order under Fed. R. Civ. P. 26. In connection with its motion for summary judgment as to consumer protection claims filed by two health plans, GlaxoSmithKline (GSK) filed certain documents under seal and sought to maintain the confidentiality of those documents after the plans appealed the District Court’s order granting summary judgment to GSK. The District Court granted GSK’s sealing motions in significant part, and the plans appealed. The Third Circuit held that, in ordering the documents to remain sealed, the District Court incorrectly applied the standard, articulated in Pansy v. Stroudsburg, for preserving the confidentiality of discovery materials under Rule 26. In so doing, the Third Circuit opined, the District Court failed to recognize the “strong presumption” of public access that applies to documents filed on the court’s public docket. The Third Circuit held that the District Court should have applied the more exacting common-law right-of-access standard to the motions for continued confidentiality. That standard “begins with a thumb...

Third Circuit Permits Extra-Strong Restrictive Covenants for Extra-Good Employees

Third Circuit Permits Extra-Strong Restrictive Covenants for Extra-Good Employees

In a recent “precedential” opinion, the Third Circuit, applying New Jersey law, approved an employer’s use of an additional, extra-stringent restrictive covenant for its high-performing salespeople, subject to careful blue lining by the court to ensure that the covenant does not create an unreasonable burden for the employees. ADP, LLC, the well-known provider of payroll and other human resources services, required its new sales employees, as a condition of employment, to sign a Sales Representative Agreement and a Non-Disclosure Agreement. Together, the two agreements essentially prohibited the employee, for one year after the termination of employment, from soliciting ADP customers “with which the Employee was involved or exposed” while employed at ADP. Once employed, ADP’s sales staff could earn stock awards by meeting certain sales targets. But to receive an award, the employee had to sign a third agreement, a Restrictive Covenant Agreement, which imposed still more post-employment restrictions on the employee. Among other things, the Restrictive Covenant Agreement essentially prohibited the employee for two years after termination from soliciting all current and prospective ADP customers, whether or not the employee was “involved or exposed” to the customer while employed by ADP. The Restrictive Covenant Agreement also contained a geographic...

Third Circuit Considers Whether Employer May Access Employee’s Password-Protected Information from Work Computer

Third Circuit Considers Whether Employer May Access Employee’s Password-Protected Information from Work Computer

In a recent “Not Precedential” opinion, a divided Third Circuit panel engaged in an instructive and interesting debate about whether, under New Jersey law, an employer may access and monitor a former employee’s password-protected accounts using information the employee left on his work computer. The case involved a group of employees who left an employer en masse to join a competing enterprise. One of the departing employees failed to log out of his Facebook account before he returned his computer to the employer. The employer was thus able to—and did—monitor for more than a month the employee’s password-protected Facebook activity, which included Facebook Messenger exchanges among the other former employees in which the employees admitted to improperly sending the employer’s confidential information to their new employer. When the employer sought a preliminary injunction against the former employees, the employees claimed that the old employer had unclean hands—and thus was not entitled to an injunction—because of its post-termination monitoring of the employee’s password-protected Facebook activity and other password-protected accounts. The district court rejected the unclean hands defense and entered an injunction. On appeal the majority held that the employer’s monitoring of the employee’s accounts was not sufficiently related to the employees’...

CCPA Amendments Expand Private Right of Action and AG’s Enforcement Power

CCPA Amendments Expand Private Right of Action and AG’s Enforcement Power

On February 22, 2019, another proposed amendment to the California Consumer Privacy Act (CCPA) was published. If enacted, this amendment will increase businesses’ potential exposure under the CCPA by, among other things, expanding the scope of private rights of action under the Act and eliminating a cure period prior to a civil enforcement action by the California Attorney General. The CCPA, originally enacted in June 2018 and first amended in September 2018, sets forth an entirely new privacy and security regime for many entities doing business in California. It imposes extensive requirements on the collection, use, and storage of consumer personal information, and applies to many businesses located both in and outside of the state. The deadline for all businesses to comply with the CCPA’s requirements is January 1, 2020, and the California Attorney General may bring an enforcement action six months after the passage of implementing regulations, or July 1, 2020, whichever comes first. The clock is ticking … The CCPA applies to any for-profit entity that (i) does business in California, (ii) collects “personal information” and/or determines the purposes and means of processing “personal information,” and (iii) satisfies at least one of the following threshold criteria: Has annual...

New Jersey Supreme Court Expands Reach of the Consumer Fraud Act to Include Customized Merchandise

New Jersey Supreme Court Expands Reach of the Consumer Fraud Act to Include Customized Merchandise

Relying on the remedial purpose of the Consumer Fraud Act (CFA), the New Jersey Supreme Court recently held that customized merchandise falls within the reach of the CFA. In All the Way Towing, LLC v. Bucks County International, Inc., plaintiffs, an individual and his limited liability towing company, entered into a contract with defendants for the purchase of a medium-duty 4×4 truck to be customized with an autoloader tow unit to meet plaintiffs’ particular needs. After the manufacturer attempted delivery on four occasions of a tow truck with significant problems, plaintiffs believed the situation to be “hopeless,” rejected delivery and demanded return of a $10,000.00 deposit. The manufacturer refused return of the deposit. Plaintiffs then brought suit for, among other things, violation of the CFA. The trial court granted summary judgment to the manufacturer on all claims, holding in pertinent part that a customized “tow truck was not something available ‘to the public for sale’” under the CFA. The Appellate Division reversed, holding that the line of cases that excluded “complex” goods or services from CFA claims was not applicable here because there was no showing that the tow truck at issue was any more “complex” than any other tow...

Delaware Supreme Court Orders Production of Emails in Response to Section 220 Demand and Refuses to Restrict Knock-On Litigation to Delaware

Delaware Supreme Court Orders Production of Emails in Response to Section 220 Demand and Refuses to Restrict Knock-On Litigation to Delaware

In KT4 Partners LLC v. Palantir Technologies Inc., the Delaware Supreme Court required a corporation to produce emails in response to a “books and records” demand under 8 Del. C. §220; it also refused to limit any knock-on litigation on the merits to the Delaware Court of Chancery. KT4 is a stockholder in Palantir and received certain rights under a series of Investor Rights Agreements and a First Refusal and Co-Sale Agreement. After a falling out between KT4 and Palantir’s management, Palantir amended the Investor Rights Agreement in ways detrimental to KT4. KT4 responded with a request to inspect Palantir’s “books and records” pursuant to 8 Del. C. §220, which entitles a stockholder to inspect a corporation’s “books and records” if, and to the extent that, the requested inspection “is for a proper purpose.” Palantir refused to comply, and KT4 filed a §220 action in the Delaware Court of Chancery to compel production of the requested documents. The Court of Chancery ruled that KT4 had a statutory “proper purpose” of investigating three areas of potential corporate wrongdoing: 1) Palantir’s failure to hold stockholder meetings, 2) Palantir’s amendment of the Investor Rights Agreement, and 3) Palantir’s potential breach of the Investor...