Commercial Litigation Alert Blog

Governor Murphy Signs Executive Order Number 122 to Cease All Non-Essential Construction Projects and Impose Additional Mitigation Requirements

Governor Murphy Signs Executive Order Number 122 to Cease All Non-Essential Construction Projects and Impose Additional Mitigation Requirements

On April 8, 2020, New Jersey Governor Phil Murphy signed Executive Order Number 122 (2020) (“EO 122”), which marks the twenty-first consecutive Order issued in response to the COVID-19 pandemic. EO 122 requires all non-essential construction projects to cease and imposes additional mitigation requirements on essential retail businesses, construction projects, and industries to reduce the rate of community spread of COVID-19 in New Jersey. EO 122 took effect beginning at 8:00 p.m. on Friday, April 10, 2020 (the “Effective Date”), and remains in effect until revoked or modified by the Governor. “Essential” vs. “Non-Essential” Construction Projects and Requirements for Manufacturing and Warehousing Businesses and Essential Construction EO 122 requires the physical operations of all “non-essential” construction projects to cease as of the Effective Date but, subject to certain requirements discussed below, allows “essential construction projects” to continue. “Essential construction projects” is defined broadly to include the following 14 categories of projects: Healthcare projects at hospitals, other healthcare facilities, and pharmaceutical manufacturing facilities Transportation projects involving roads, bridges, airports, seaports, and mass transit facilities or physical infrastructure Utility projects Residential affordable housing projects Schools projects from kindergarten through higher education Projects already started involving individual single-family homes or apartments already occupied,...

New Jersey Department of Community Affairs Temporarily Relaxes Construction Code Provisions Relating to Minor Work, Inspections, and Certificate Requirements

New Jersey Department of Community Affairs Temporarily Relaxes Construction Code Provisions Relating to Minor Work, Inspections, and Certificate Requirements

In response to the COVID-19 pandemic, Governor Phil Murphy issued Executive Order No. 107 (“EO 107”) on March 21, 2020, mandating that all non-essential brick-and-mortar retail businesses close to the public as long as EO 107 remains in effect. EO 107 does not require closure of construction projects. Not only does EO 107 identify “construction workers” as an example of employees who need to be physically present at their work sites in order to perform their duties, but also, shortly after issuing EO 107, Governor Murphy sent a tweet confirming that work at construction sites may continue. On the same date that Governor Murphy issued EO 107, he issued Executive Order No. 108 (“EO 108”), which provides that local officials may not enact or enforce rules or regulations that conflict with EO 107. Although work at construction sites continues in New Jersey, there are myriad ways in which construction projects can be adversely impacted by the COVID-19 virus. One potential impact concerns ongoing inspections of construction work performed by local construction code officials pursuant to the Uniform Construction Code (UCC), N.J.A.C. 5:23. Construction code officials routinely inspect ongoing projects at various points during construction and issue Certificates of Occupancy for...

District of New Jersey Further Clarifies TCPA’s Reach For Text-Marketing Campaigns

District of New Jersey Further Clarifies TCPA’s Reach For Text-Marketing Campaigns

In a recent decision, Chief Judge Freda L. Wolfson of the District of New Jersey further clarified the reach of the Telephone Consumer Protection Act (TCPA) as it relates to certain text marketing campaigns by businesses. In Eisenband v. Pine Belt Automotive d/b/a Pine Belt Nissan, Eisenband filed a putative class action lawsuit against an automotive dealership, Pine Belt, claiming that Pine Belt had violated the TCPA by using an Automated Telephone Dialing System (ATDS), otherwise known as an autodialer, to send a text message to his cell phone. Eisenband had telephoned Pine Belt in 2017 requesting information about the cost of leasing a specific vehicle and instructed Pine Belt to call him back on his cell phone with the requested pricing information. Pine Belt’s sales representative obtained the cost estimate data and returned the call, as requested, but Eisenband decided not to enter into a lease for the vehicle. A few days later, Pine Belt sent Eisenband a promotional text message concerning lease options on other vehicles, which prompted him, about one week later, to file a class action lawsuit seeking statutory damages of up to $1,500 per text message, for himself and for every person in the putative...

ADA Website Liability and COVID-19

ADA Website Liability and COVID-19

Perhaps the last thing that many companies are focused on in the midst of the COVID-19 crisis is the extent to which their websites are compliant with accepted accessibility standards and the threat of ADA website accessibility class actions or individual claims. Unfortunately, however, it appears that ever-enterprising plaintiffs’ attorneys are taking advantage of this crisis to press these already ubiquitous claims even further. Over the past several years, thousands of federal lawsuits, styled as both class and individual actions, have been filed against companies in many industries seeking injunctive and compensatory relief for website-related violations of the Americans with Disabilities Act (ADA). The Department of Justice, which enforces the ADA, has taken the position that the “Web Content Accessibility Guidelines” developed by the World Wide Web Consortium provide a minimum standard, and most courts have agreed. These cases seek injunctive and compensatory relief for violations of the ADA and analogous state and local anti-discrimination laws, specifically alleging that websites are not compliant with the ADA and accessibility guidelines particularly for vision-impaired users. These cases have developed into a lucrative cottage industry for certain plaintiffs’ attorneys, as they are easy to prosecute, difficult to defend, and often result in expedited...

SEC Offers Disclosure Guidance and Extensions of Certain Reporting and Disclosure Deadlines

SEC Offers Disclosure Guidance and Extensions of Certain Reporting and Disclosure Deadlines

Recognizing the struggle businesses currently face and will continue to face in satisfying their disclosure obligations amid the uncertainty surrounding this unprecedented crisis, the SEC’s Division of Corporate Finance on March 25 issued disclosure guidance specific to the coronavirus pandemic. In its guidance, the Division acknowledges that it “may be difficult to assess or predict with precision, the broad effects of COVID-19 on industries or individual companies” and that “the actual impact will depend on many factors beyond a company’s control and knowledge.” That said, the Division goes on to encourage “timely reporting,” noting that SEC disclosure requirements apply to a “broad range of evolving business risks” that may not be specifically identified, including the “known or reasonably likely effects of and the types of risks presented by COVID-19.” The Division encourages “tailored” disclosure of “material information about the impact of COVID-19 to investors and market participants … that allow investors to evaluate the current and expected impact of COVID-19 through the eyes of management,” and proactive revision and update of those disclosures as facts and circumstances change. The Division identifies in its guidance a non-exhaustive list of specific issues relevant to assessing and disclosing the evolving impact of COVID-19,...

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...