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Articles by Drinker Biddle
New Report Reveals a Majority of NJ Nursing Homes Fail to Meet Minimum Staffing Requirements
In 2020, the New Jersey Legislature passed a law setting minimum staffing requirements for nursing homes in the state. These new requirements were intended to ensure a higher standard of care for nursing home residents and prevent cases of neglect caused by insufficient nursing staff. However, a new report reveals that a majority of NJ nursing homes (Long-Term Care/“Sub-Acute Rehabilitation” Facilities) failed to meet the minimum staffing requirements under the new law.
What Counts as an Internal Complaint in a Sexual Harassment Case?
In a sexual harassment lawsuit, a key legal question is whether the employee complained to the company about the harassment. But what, exactly, counts as an internal complaint under the law? The answer, discussed in detail below, depends on who the harasser is and what internal complaint policies the employer has in place.
EARTH SHATTERING CHANGE?: FTC Proposes Huge (and Potentially Crippling) New Document Retention Requirements on Marketers–Here’s How to Get Involved to Limit the Damage
Editors note: For my thoughts as to why this is unconstitutional click here. Massive massive massive news out of the FTC. The FTC considering a new NPRM–that’s a new rule applicable to marketers governed by the TSR–that would impose HUGE new document retention protocols on folks (including a COMPLETE makeover of your internal DNC list folks!) But its not too late to get involved.
Navigating the Data Privacy Landscape for Autonomous and Connected Vehicles: Defining Data Privacy Principles
This is the third part in a series of advisories on data privacy best practices for autonomous and connected vehicles. To read previous advisories in this series, please visit: Best Practices and Documenting Data Collection. In 2014, leading automakers adopted the Consumer Privacy Protection Principles for vehicle technology and services. These Principles were reviewed again in 2018.
U.S. Department of Education Seeks Disability Rights Commentary
Legal Disclaimer You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only.
An Outlier No More?: New Jersey Supreme Court Considers Overturning “New Business Rule”
On April 26, 2022 the Supreme Court of New Jersey heard arguments about whether New Jersey should retain the judicially created “new business rule”. Since 1936 the rule has held that in the context of calculating damages “prospective profits of a new business are considered too remote and speculative to meet the legal standard of reasonable certainty.” RSB Lab. Servs., Inc. v. BSI, Corp.
The SECURE Act and its Impact on Retirement and Estate Planning | Lexology
On December 20, 2019, President Trump signed into law landmark legislation titled “Setting Every Community Up for Retirement Enhancement” Act (“SECURE Act”).1 While the SECURE Act is intended to simplify the retirement system and allow individuals to increase retirement savings, there are several critical changes that will affect many estate planning clients.
President Trump Announces Reduction of Section 301 Tariff Rates and Suspension of Planned List 4B Tariffs
You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only.
White House Rescinds Section 232 Steel and Aluminum Tariff Exemptions for Argentina and Brazil
You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only.
Dental Practice Impermissibly Discloses PHI on Yelp | JD Supra
Updated: May 25, 2018: JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.
USTR Announces Product Exclusion Process for Section 301 List 4A and Forthcoming Exclusions for List 3
You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only.
Florida Federal Court Rejects ATDS Allegations, Grants Motion to Dismiss | Lexology
In a text message case, the U.S. District Court for the Southern District of Florida recently granted Atlantic Coast Enterprise, LLC’s (“Ace”) motion to dismiss upon finding that the plaintiff had failed to plausibly allege Ace’s use of an automatic telephone dialing system (“ATDS”). See Turizo v. Jiffy Lube International, Inc., et al., No. 19-61140, 2019 WL 4737696 (S.D. Fla. Sept. 27, 2019) (available here).
As Courts Grapple With The Severability of The Federal Debt-Collection Exemption, SCOTUS Is Asked to Resolve The Issue | JD Supra
Updated: May 25, 2018: JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.
World Trade Organization Approves U.S. Tariffs on European Union Goods to Counteract Civil Aviation Subsidies
Thursday, October 3, 2019 The World Trade Organization (WTO) has approved U.S. duties on $7.5 billion in products from the European Union (EU) after ruling that the EU had unfairly subsidized the production of large civil aircraft, such as those produced by Airbus.
Part 24 of “The Restricting Covenant” Series: Choice of Law and Covenants Not to Compete
Tuesday, September 17, 2019 There are many notable east coast-west coast rivalries. In sports (Celtics versus Lakers basketball), in leisure (Atlantic versus Pacific beaches), or in food (Shake Shack versus In-N-Out Burger), to name a few. With respect to restrictive covenants, the conflict between Delaware, which is generally considered a “pro-enforcement” jurisdiction, and California, which is generally considered an “anti-enforcement” jurisdiction, definitely stands out in the crowd.
Applications for Customs Duty Exemptions under the Miscellaneous Tariff Bill Are Due Soon
Tuesday, August 27, 2019 On August 27, the US International Trade Commission (USITC) published amended rules and procedures for the preparation and filing of Miscellaneous Tariff Bill (MTB) petitions and public comments. The new rules take effect on September 26, 2019, signaling the imminent opening of the 60-day filing period for the next round of MTB petitions—anticipated to begin on or after October 15, 2019.
Update on List 4 Products Subject to Section 301 Tariffs and the U.S.-China Trade Negotiations
August 23, 2019 FDIC Approves Amendments to the Volcker Rule by: Kevin M. Foley and Guy C. Dempsey, Jr. Update on List 4 Products Subject to Section 301 Tariffs and the U.S... by: Customs & International Trade Group State Updates Website on Employer Reporting for New Jersey Health... by: Tzvia Feiertag and Rina Fujii Beltway Buzz, August 23, 2019 by: James M. Barrett SEC Announced Charges for Regulation FD Violations by: Mark J. Reyes and Mark D. Wood Alexa: What is venue? by: Andrew H.
The SECURE Act and Guaranteed Retirement Income in Plans | Lexology
By now you have probably seen a number of articles about the SECURE Act (Setting Every Community Up for Retirement Enhancement Act of 2019) and its safe harbor for guaranteed retirement income in 401(k) plans. Some have favored the safe harbor, while others have criticized it. In either case, the authors appear to contemplate that participants will be buying individual annuities at retail prices.
USTR Finalizes Fourth List of Products from China that are Subject to Additional Duties
You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only.
President Trump Announces Additional Section 301 Tariffs on Imports from China
You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only.
Landmark Chicago “Fair Workweek” Ordinance Entitles Employees to Pay for Schedule Changes and Lost Work Hours
Friday, July 26, 2019 On July 23, 2019, the Chicago City Council passed the controversial Chicago Fair Workweek Ordinance (the Ordinance). Once Chicago Mayor Lori Lightfoot, a vocal proponent of the Ordinance, signs it into law, the Ordinance is scheduled to take effect for the majority of covered employers on July 1, 2020.
U.S. Trade Representative Initiates Section 301 Investigation of French Digital Services Tax
You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only.
Growing Pains: The Story Behind Florida’s Daubert Arc - Part 3 | Lexology
You can find the first two parts of this story here and here. In 2013, spurred by the decisions in Marsh and Hood, the Florida Legislature amended F.S. 90.702 to mirror Federal Rule of Evidence 702.
Growing Pains: The Story Behind Florida’s Daubert Arc - Part 2 | Lexology
You can find the first part of this story here. The Aftermath of Marsh When the Marsh case was decided in 2007 its broad interpretation of the “pure opinion exception” and narrow vision of the role of Frye took Florida expert evidence admissibility law well out of the mainstream. Florida law was starkly at odds with the reliability concerns addressed by Daubert and its progeny and counterparts.
USTR Launches Exclusion Request Portal for Third Tranche of Section 301
You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only.
Part 23 of “The Restricting Covenant” Series: Legislative Limitations
Tuesday, June 4, 2019 This latest installment of The Restricting Covenant series highlights the significant changes coming to Washington State regarding non-compete agreements (it’s a game changer), as well as similar legislation (passed and proposed) in other states including Massachusetts and New Jersey. Employers surely will feel the ripple effect of Washington’s new sweeping law on non-competes.
The Administration Will Impose Additional Duties on Imports from Mexico Starting on June 10, 2019
You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only.
USTR Issues Draft Exclusion Request Forms for China Section 301 List Three Tariffs
You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only.
President Trump Prohibits Most Trade and Transactions with Huawei of China and Sets the Stage for Similar Actions against other Chinese IT and Telecom Companies
Thursday, May 16, 2019 On May 15, 2019, President Trump issued an Executive Order (EO), “Securing the Information and Communications Technology and Services Supply Chain.” The EO directs the U.S. Department of Commerce to lead an interagency effort to develop and implement regulations that will prohibit a wide range of transactions with entities that are determined to be “controlled by, or subject to” the jurisdiction of “a foreign adversary.” These terms are not defined in the EO but it is...
U.S.-China Trade Talks Fail; Customs and Border Protection Clarifies Treatment of Entries of Section 301 Products Currently in Transit
You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only.
New Antidumping and Countervailing Duty Petitions on Quartz Surface Products from India and Turkey | Lexology
Cambria Company LLC (“petitioner”), on May 8, 2019, filed antidumping (AD) and countervailing duty (CVD) petitions on imports of certain quartz surface products from India and Turkey. The U.S. AD law imposes special tariffs to counteract imports that are sold in the United States at less than “normal value.” The U.S. CVD law imposes special tariffs to counteract imports that are sold in the United States with the benefit of foreign government subsidies.
Duty Increase and Exclusion Process for List 3 and Imposition of New Duties under List 4 are Administration’s Next Steps for China Section 301 Tariffs
Wednesday, May 8, 2019 The Office of the United States Trade Representative (“USTR”), in response to new developments in negotiations with China and directions from President Trump, is preparing to impose additional duties on Chinese imports under Section 301 and will announce an exclusion process for the $200 billion in Chinese imports covered under the September 21, 2018 Federal Register notice (“List 3”).
Supreme Court Gives Employers Another Tool to Fend Off Class Actions | Lexology
Earlier this week, the U.S. Supreme Court held that an arbitration agreement cannot be read as permitting class arbitration unless the agreement clearly and explicitly so provides; it is not enough that the agreement is susceptible to the interpretation that it permits class arbitration. This holding gives employers another tool to fend off class actions and compel alleged class claims to individual arbitration.
Part 22 of “The Restricting Covenant” Series: No-Poaching Agreements
Thursday, April 11, 2019 Not too many topics related to restrictive covenants gain buzzworthy status. However, when state and federal governmental agencies and class action attorneys start filing lawsuits nationwide, and Fortune 500 companies in various industries start settling and agreeing to change the way they do business, well, that usually generates some buzz and attention.
2Q19: What Do Judges and Plaintiffs’ Attorneys Focus on in ERISA Litigation?
Second Quarter 2019 By Fred Reish Fred Reish examines recent court cases that contain valuable lessons for plan sponsors. Fred Reish is an ERISA attorney whose practice focuses on fiduciary responsibility, retirement income, and plan operational issues. He has been recognized as one of the “legends” of the retirement industry by both PLANADVISER magazine and PLANSPONSOR magazine.
Employee Handbooks - Part 1: Anti-Harassment Policies and Training in the #MeToo Era | Lexology
Late last month, we previewed our upcoming series of blog posts discussing Employee Handbooks – What’s New and Why Does it Matter? If you happened to read that post, then you know we introduced the topics for parts one through six of our handbook series. We will now embark on part one of our journey to the land of employee handbooks. This journey will have several other stops along the way, but for now our topic is anti-harassment policies and training in the #MeToo era.
Employee termination law in New Jersey | Lexology
Global, USA
February 11 2019 Use the Lexology Navigator tool to compare the answers in this article with those for 20+ other jurisdictions. Discipline and termination State procedures Are there state-specific laws on the procedures employers must follow with regard to discipline and grievance procedures? New Jersey has no state-specific laws regarding discipline and grievance procedures. At-will or notice At-will status and/or notice period? New Jersey is an employment at-will state.
Part 21 of “The Restricting Covenant” Series: The Economic Loss Doctrine and Non-Competes
Thursday, February 7, 2019 In this article I discuss a lesser known judicially created doctrine that is equal parts confusing in application and sweeping in scope for litigants involved in restrictive covenant disputes – the Economic Loss Doctrine (ELD). Origins of the ELD The ELD is a judicially created rule of state law that originated in product liability and breach of warranty cases (see, e.g., Seely v. White Motor Co. (Cal. 1965) and East River S.S. Corp. v. Transamerica Delaval, Inc. (U.S. Sup.
Three Reasons NOT to do a Full Trademark Search | Lexology
What? A trademark lawyer suggesting that you needn’t always conduct a full-scale trademark search before you file a new trademark application? Isn’t that tantamount to driving without a seat belt? Hear us out. Longstanding brands. Say you’ve been using a brand name or logo nationally for a long time, and just never got around to registering it. Nobody’s ever objected, and you have no evidence that anyone else is using a similar brand.
Philadelphia Fair WorkWeek Legislation Passed
You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only.
Part 20 of “The Restricting Covenant” Series: Radius, The Raven, and Restrictive Covenants
Wednesday, December 5, 2018 Read Part 19 You’re probably reading the title of this article and saying, “He’s gone bonkers! What does ‘radius’ and Edgar Allan Poe’s poem ‘The Raven’ have to do with restrictive covenants?” This article is for all you inner mathematicians and geometry aficionados. More to the point, it is for those who draft, interpret and litigate non-compete agreements that contain geographic restrictions.
Part 19 of “The Restricting Covenant” Series: Clickwrap Covenants Not to Compete
Thursday, November 15, 2018 Read Part 18 If you are one of the billions of smartphone users worldwide, I bet you recently downloaded a mobile app and clicked “I agree” to the app’s terms of use or service. Did you actually read all (any) of the terms before you agreed?
Part 18 of “The Restricting Covenant” Series: Court Reporters and Covenants Not to Compete
Most litigators will attest that court reporters and transcribers are essential to the litigation process because they provide a verbatim record of depositions and other court proceedings. Court reporters are extremely patient, courteous, and obviously great listeners. Often times, we lawyers tend to have our “favorites” – you know, the court reporters who you work with repeatedly because they pick up your preferences and other linguistic quirks.
Part 17 of “The Restricting Covenant” Series: Realtors, Real Estate Agents, and Restrictive Covenants
At least once a month I receive a postcard in the mail from a local, regional or national realtor about homes sold recently in my neighborhood. These glossy postcards typically feature a specific real estate agent with his or her photo, name and telephone number. What these postcards don’t tell you, however, is whether the agent is subject to a non-compete agreement.
Eighth Circuit Rules No Standing For TCPA Plaintiffs Due to Lack of Traceability
We have previously written—both in this blog and in articles—about district courts dismissing TCPA claims after finding that the alleged injuries were not “traceable to” (i.e., caused by) the purported TCPA violations. Last week, the Eighth Circuit in St. Louis Heart Center, Inc. v. Nomax, Inc., — F.3d —, 2018 WL 3719694 (8th Cir. Aug. 6, 2018), held that plaintiff and a putative class lacked Article III standing to allege that fax advertisements did not contain a proper opt-out notice.
Part 16 of “The Restricting Covenant” Series: Civil Contempt and Covenants Not to Compete
Make no bones about it, non-compete disputes can be litigious, contentious, and downright nasty. Someone breached another’s trust or loyalty; or stole something valuable from someone else; or didn’t uphold his or her end of the bargain. Battle lines are drawn. Nevertheless, there are codes of civility, professionalism, and rules of law that must be followed.
Part 15 of “The Restricting Covenant” Series: Non-Competes, Trade Secrets and Corporate Espionage
Highly valuable trade secrets, corporate espionage, elaborate schemes to evade detection, and national defense implications. Have I piqued your curiosity? I hope so. In this fifteenth article of The Restricting Covenant series, I discuss two cases that involve individuals and business enterprises charged by the federal government with stealing valuable trade secrets from U.S.-based companies. The stakes are extremely high on all sides. Two words: Syntactic foam.
Part 14 of “The Restricting Covenant” Series: Non-Competes and the Janitor Analogy
Let me begin by explaining that this article does not focus on the janitorial profession and whether non-competes in that profession are enforceable. That’s a topic for another day. Instead, this fourteenth article in The Restricting Covenant series discusses a concept that some courts and litigants refer to as the “janitor analogy” or the “janitor test,” when analyzing or illustrating the overbroad scope of a non-compete provision.
Part 13 of “The Restricting Covenant” Series: The NLRB, NRLA and Non-Competes
The acronyms “NLRB” or “NLRA” rarely appear in articles about enforcement of private sector non-compete agreements. Until recently. Dun dun dun! (Que the “dramatic gopher video” on YouTube). In this thirteenth article of “The Restricting Covenant” series, I discuss two cases in which the National Labor Relations Board (“NLRB”) determined that an employer’s enforcement of non-compete and non-solicitation agreements violated Section 8(a) of the National Labor Relations Act (“NLRA”).
Arizona to Fintech Companies: Come Play in Our Sandbox!
Arizona has become the first state in the United States to enact a law to create a “Fintech Sandbox” – a safe zone for fintech startups to test new applications and financial services otherwise subject to state money transmitter, banking, and similar licensing requirements without having to obtain a state license.
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