Tech News Legal Q&A

As a member of the New Jersey Technology Council (NJTC), the Giordano Firm contributes a Legal Q&A column to the TechNews magazine. The Q&A covers topics across various legal areas that may be of interest to this audience. Our goal is to provide sound legal advice and effective strategies to resolve business issues. Each month, this page will include additional information relevant to the question asked in the TechNews Legal Q&A.

Click here to see the latest issue of TechNews.

Are lenders really insulated from environmental liability merely because the lender is a "secured party" and not an "owner or operator" under the New Jersey Spill Act?
Click here to see the January Q&A on Environmental Liability.

Generally speaking, the New Jersey "Spill Act" (N.J.S.A. 58:10-23.11), et. seq., provides a "safe harbor" provision for lenders or holders of security interests. Spill Act liability will not be imposed on lenders where... Read More

Marc Policastro is a member of the firm's Environmental Practice Area.

Our company has hired an independent contractor to create a logo, content and code for our website and other related works. We own these works, correct?
Click here to see the December Q&A on Copyright.

In the absence of a work for hire agreement, it is unclear whether or not your company would own these works. Pursuant to the 1976 Copyright Act (the “Act”), a copyright is established in its creator once a work is created in a fixed medium. Original literary, dramatic, musical and artistic works are all... Read More

Melissa V. Skrocki is a member of the firm's Intellectual Property and Technology Practice Area.

When is the time to consider a 2012 municipal property tax appeal?
Click here to see the October Q&A on 2012 Municipal Property Tax Appeal.

While the deadline for filing an appeal of your 2012 municipal property tax assessment is generally April 1, 2012 (unless your municipality has undergone a municipalwide reassessment, the deadline is then generally May 1, 2012), now is the time to start evaluating your property assessment status to consider whether a municipal property tax appeal of your property could be beneficial. Read More

John A. Giunco and Vincent M. DeSimone are members of the firm's Real Estate, Land Use & Development Practice Area.

Is Medicare Part B impacted by the current debt crisis?
Click here to see the September Q&A on Medicare Part B

A portion of Part B is funded from general revenues, not from the Medicare Trust Fund, which potentially subjects it to a resolution of the debt ceiling crisis as well as the budget deficit. In addition, Part B payments deal with payments to physicians, which payments are subject under current law, to a reduction of approximately 30% on January 1, 2012...Read More

Frank R. Ciesla is a member of the firm's Healthcare Law Practice Area.

Under the new LSRP law in New Jersey, if you hire a Licensed Site Remediation Professional (LSRP) but contract with the consultant to “act in their capacity as a non-LSRP”, will that insulate you from mandatory reporting obligations under the new law?
Click here to see the August Q&A on Mandatory Reporting Obligations Under The New LSRP Law.

Maybe, and maybe not. Under New Jersey’s Spill Compensation and Control Act (“Spill Act”), N.J.S.A 58:10- 23.11, owners and operators have an obligation to make both telephonic and written notice to NJDEP where there has been a confirmed discharge of hazardous substances in...Read More

Marc D. Policastro is a member of the firm's Environmental Law Practice Area.

What do employers need to know about the new US DOL smart phone app?
Click here to see the July Q&A on the new US DOL smart phone app.

The U.S. Department of Labor ("DOL") recently launched its first smart phone app, which acts as an electronic time-sheet, allowing employees to track their work hours and pay. Employees can input an hourly rate and hours worked, and the app will calculate the wages due, including overtime....Read More

Sarah J. Somerset is a member of the firm's Labor & Employment Practice Area.

When is a competitor’s interference with your business relationships, your customer(s), or your client accounts "unfair" and actionable?
Click here to see the June Q&A on alternative attorney fees.

In the commercial marketplace it is generally accepted that business competition is healthy, unrestricted and subject to free reign. However, all means of competition are not viewed as equitable, and at times constitute “unfair competition”. Certain unfair competition that...Read More

Timothy D. Lyons is a member of the firm's Litigation Practice Area.

Do parties responsible for environmental cleanups in New Jersey have a method to seek a "variance" or "exception" from strict application of a regulation?
Click here to see the May Q&A on Responsibility For Environmental Cleanups.

Yes. Under new rules proposed by NJDEP, parties responsible for cleanups in New Jersey may avail themselves of the so-called "Waiver Rule." This is the State's intention to provide for a relaxation of standards when "strict compliance with a regulatory provision can, in limited circumstances, lead to unreasonable, unfair and unintended results, which...Read More

Marc D. Policastro is a member of the firm's Environmental Law Practice Area.

Can an employer ban its employees from making any comments about it on social networking sites (Facebook, MySpace, Etc)?

Click here to see the April Q&A on workers commenting about their jobs on social media sites.

With the rise in popularity of Facebook and other social networking sites, employers have begun issuing policies that seek to hold employees accountable for statements they make regarding their employer on social networking sites. This has drawn the attention of the National Labor Relations Board ("NLRB"), an independent federal agency which has begun to investigate employer practices in this area...Read More

Ari G. Burd ia a members of the firm's Health Care Law Practice Group.

Should I be concerned about my employees looking at my patients’ medical records for reasons not related to their job duties?

Click here to see the March Q&A on On Employees Reading Medical Records Outside Of Their Need.

Yes, and you should take disciplinary action immediately if you discover an inappropriate access by one of your employees. According to news reports, employees of University Medical Center in Tucson were fired when the hospital discovered they had inappropriately accessed the medical records of Representative Gabrielle Giffords and other victims of the Tucson shooting. Under the...Read More

Sharlene A. Hunt ia a members of the firm's Health Care Law Practice Group.

Where a developer seeks to have a municipality approve a particular use that is not expressly permitted under the zoning-ordinance and the proposed use is not “inherently beneficial”, does the developer then have the burden of proving an “enhanced quality of proof” standard?
Click here to see the February Q&A on A On “Enhanced Quality Of Proof” Standard.

Yes. Developers, or any land use applicant, must prove both the “positive criteria” and “negative criteria” to convince a zoning board of adjustment that the requested use variance should be granted, even where the local zoning regulations exclude the use under the local zoning scheme. Significantly...Read More

Marc D. Policastro is a member of the firm's Environmental Law Practice Area.

With the current financial stresses of the marketplace, what alternatives do business clients have to the “hourly rate” billing model for legal fees?
Click here to see the January Q&A on alternative attorney fees.

Businesses are continually challenged to manage their legal fees. Law firms have become more agreeable to customizing fee arrangements from the "hourly rate" model. Examples of alternative models include: (1) flat fee/ task billing; (2) contingency or blended rates; or (3) modified hourly billing. ....Read More

Timothy D. Lyons is a member of the firm's Litigation Practice Area.

Has privatization of New Jersey’s remediation program afforded developers and re-developers free reign to formulate remediation strategies without any checks and balances in place?
Click here to see the December Q&A on the privatization of New Jersey’s remediation program.

No. The adoption of the Site Remediation Reform Act has, necessarily, placed significant responsibility on environmental consultants, attorneys and other professionals to develop and implement effective cleanup strategies in the face of increased environmental regulation. Under the current...Read More

Marc D. Policastro is a member of the firm's Environmental Law Practice Area.

In New Jersey, where a commercial site has known or suspected contamination, is it always necessary to test indoor air quality?
Click here to see the November Q&A on indoor air quality tests.

No. Developers in New Jersey are resigned to the fact that development in this region will frequently require careful maneuvering through the State’s maze of environmental regulations. New Jersey has some of the most strict cleanup standards in the nation. From the State’s perspective, vapor intrusion has been pushed to the forefront of remediation checklists. Nonetheless, an approach has...Read More

Marc D. Policastro is a member of the firm's Environmental Law Practice Area.

Does New Jersey provide businesses and individuals with incentives to purchase and use solar energy systems?
Click here to see the October's Q&A on renewable energy incentives in New Jersey.

Yes. New Jersey is currently the second biggest producer of solar energy in the U.S., behind California - due, in part, to its liberal encouragement of the purchase and use of solar energy systems...Read More

Jacob Birnbaum is a member of the firm's Corporate & Business Practice Area.

How will the recently passed Patient Protection and Affordable Care Act (“PPACA”) affect the cost of our healthcare premiums going forward?
Click here to see the September's Q&A on the effect of the Patient Protection and Affordable Care Act.

The PPACA increases the obligation’s to provide benefits, under your policies, such as no annual limit on the benefit The Administration projects premium increases of 1%. the insurance carriers project higher premium increases. The premium increases, which will include both the increases of the costs of healthcare benefits provided prior to the PPACA...Read More

Frank R. Ciesla is chair of the firm's Healthcare Practice Area.

Can a public employer search an employees's text messages?
Click here to see the August's Q&A on a public employers right to search an employee's text messages.

On June 17, 2010, in City of Ontario v. Quon, No. 08-1332, the U.S. Supreme Court unanimously ruled that a California city’s search of a employee’s text messages on a City owned pager. was reasonable and done for legitimate reasons, and didn’t violate the employee’s Constitutional rights....Read More

Jay S. Becker is chair of the firm's Labor and Employment Practice Area.

My product contains a pesticide. Do I have to register it as a pesticide with the Environmental Protection Agency (“EPA”) under the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”)?

Click here to see the July Q&A on registration of products contaning a pesticide.

A product that contains or is treated with a pesticide must be registered with the EPA if a claim is made that the product controls germs or pathogens. Registration is not required, however, if the product qualifies for the...Read More

Steven M. Dalton is a shareholder in the firm’s Environmental Practice Group. Melissa V. Skrocki is a senior associate in the firm’s Corporate and Business Practice Group.

Is New Jersey taking the necessary steps to promote clean, alternative energy through Legislation?

Click here to see the June Q&A on New Jersey's alternative energy legislation.

As a result of the adoption of the New Jersey Energy Master Plan, which calls for a 20% reduction in current energy consumption by 2020, the New Jersey Legislature is taking the necessary steps to make it less....Read More

John A. Giunco and Vincent M. DeSimone are members of the firm's Real Estate, Land Use & Development Practice Area.

Are lost profits recoverable by a company as a measure of damages for a claim of breach of contract, or a claim for business?
Click here to see the May Q&A on recovering lost profits.

Typically lost profits are recoverable as damages from breach of a verbal or written contract, or from business interference. Lost profits are determined by quantifying the gross revenue lost minus whatever expenses or costs would have been incurred had the breach never occurred. In addition to contractual claims, where a company has a written contract or established contractual relation with a customer or client, which is knowingly....Read More

Timothy D. Lyons is a member of the firm's Litigation Practice Area.

In New Jersey, if groundwater contamination exists above applicable cleanup standards, is it always necessary to fully remediate groundwater to meet applicable cleanup standards?
Click here to see the April Q&A on groundwater cleanup standards".

No. The New Jersey Department of Environmental Protection (“NJDEP”) will permit “exceptions” to strict compliance with the State’s “Groundwater Cleanup Standards”. NJDEP will approve a Classification Exception Area (“CEA”), authorizing an owner or operator to leave groundwater contamination in place, without aggressively remediating the particular constituents at issue. In certain cases, a CEA may also be approved...Read More

Marc D. Policastro is a member of the firm's Environmental Law Practice Area.

Do New Jersey employer's need to reasonably accommodate the use of medical marijuana?
Click here to see the March's Q&A on regulated use of marijuana in the workplace.

On July 1, 2010 the NJ Compassionate Use Medical Marijuana Act takes effect, which allows for the regulated use of marijuana by patients suffering from debilitating medical conditions...Read More

Jay S. Becker is chair of the firm's Labor and Employment Practice Area.

Do any New Jersey State Agencies offer financing programs that are attractive to industries or individuals looking to develop solar renewable energy systems?

Click here to see the February Q&A on solar renewable energy systems.

The New Jersey Board of Public Utilities (“NJBPU”) has approved financing to support the installation of solar photovoltaic systems (“Solar PV Systems”) that produce clean renewable energy....Read More

John A. Giunco and Vincent M. DeSimone are members of the firm's Real Estate, Land Use & Development Practice Area.

If you want to sell a property or business that qualifies as an “industrial establishment” in New Jersey, is it permissible to close the transaction first, and then clean-up the site after closing?

Click here to see the December Q&A on selling a property or business that qualifies as an "industrial establishment".

Yes. Effective November 4, 2009, under New Jersey’s Site Remediation Reform Act (“SRRA”), an owner or operator wanting to “sell first and cleanup later” can do so, provided a “Remediation Certification” is filed with the New Jersey Department of Environmental Protection...Read More

Marc D. Policastro is a member of the firm's Environmental Law Practice Area.

Can I try to boost sales of my product by having my employees or others write positive product reviews online?

Click here to see the November Q&A on employee product reviews.

You should be very careful before you begin this type of practice. It is generally referred to as “astroturfing” and the Federal Trade Commission announced recently that it has issued new guidance that expressly addresses this practice. These types of online product reviews are...Read More

Kurt E. Anderson is chair of the firm's Intellectual Property and Technology Practice Area.

Can a privately-held company benefit from adopting internal controls over financial reporting as required by the Sarbanes-Oxtey Act (“SOX”) even though it is not subject to SOX?

Click here to see the October Q&A on financial reporting required by SOX.

Yes. Section 404 of SOX requires the management of a public company to report on the effectiveness of the company’s internal control procedures over financial reporting in reports filed with the SEC. Examples....Read More

John A. Aiello and John L. Sikora are members of the firm's Corporate and Business Practice Area.

If you own or operate contaminated real estate in New Jersey, is it possible to cleanup the property without the State of New Jersey’s direct oversight, that is, on a private basis?

Click here to see the August Q&A on property cleanup in NJ without direct state oversight.

Yes. On May 7, 2009, a new law was passed in New Jersey known as the “New Jersey Site Remediation Reform Act.” Prior to this new legislation, virtually all remediation cases in New Jersey required some form of direct oversight involving the New Jersey Department of Environmental Protection (“NJDEP”) However under the new.... Read More

Marc D. Policastro is a member of the firm's Environmental Law Practice Area.

Our employee just returned from military service. Due to the economy we’re not hiring, and we have no available positions. Must we reemploy him?

Click here to see the June/July Q&A on returning military employees.

Most likely yes. Federal law, and in some cases New Jersey law, provide broad employment and reemployment rights to members of the military, including the National Guard and Reserves. If a service member meets the seemingly simple eligibility requirements, employers must provide reemployment notwithstanding hiring.... Read More

Joseph C. DeBlasio is a member of the firm's Labor and Employment Practice Area.

Do The Provisions in the 2009 Stimulus Package Apply to Small Employers in New Jersey?

Click here to see the May Q&A on how the 65%-35% premium subsidy applies to small employers in NJ.

Does the 65%-35% premium subsidy (and other provisions) with respect to the continuation of health benefits under the federal COBRA law as provided under the American Recovery and Reinvestnient Act of 2009 (“ARRA”)(a/k/a the Stimulus Plan of 2009), apply to small employers in New Jersey?.... Read More

Jay S. Becker is chair of the firm's Labor and Employment Practice Area.

Things my Company can do to Cut Costs With Respect to our Trademark Portfolio

Click here to see the April Q&A on Exclusion in Agreements.

Reconsider which law suits and oppositions are key to protecting your most valuable marks. Opposition actions can be an expensive part of your budget If possible, try to find a way to settle using a co-existence agreement for less significant markets.....Read More

Kurt E. Anderson is chair of the firm's Intellectual Property and Technology Practice Area.

Exclusion in Confidentiality and Non-disclosure Agreements

Click here to see the March Q&A on Exclusion in Agreements.

While these agreements are important to protect trade secrets, you also do not want to restrict your ability to conduct business. Merely because a party has told you something does not necessarily render it confidential and therefore limit your disclosure. Accordingly, confidentiality agreements should specifically exclude....Read More

Melissa V. Skrocki is a member of the firm's Corporate and Business Practice Area.

Releasing and Relocating Conservation Restriction Areas

Click here to see the February Q&A on Conservation Restriction Areas.

Conservation restrictions have become commonly used tools in the development approval process for maintaining open space areas. Without careful planning, these restrictions can severely limit future site development and expansion opportunities....Read More

Steven M. Dalton is a member of the firm's Environmental Law Practice Area.

FTC’s Identity Theft Red Flag Regulations

Click here to see the December/ January Q&A on FTC’s identity theft red flag regulations.

Unless you require all patients to pay in full at the time you provide medical treatment, your practice may very well need to comply with the Federal Trade Commission’s identity theft red flag regulations. The FTC....Read More

Sharlene A. Hunt and Beth Christian are members of the firm's Health Care Law Practice Group.

Issuing Securities Pursuant to Rule 701

Click here to see the November Q&A on Issuing Securities Pursuant to Rule 701.

New Rule 701 of the Securities Act of 1933 allows private companies to offer or sell securities to their employees under a safe harbor exemption from the registration requirements of the federal securities laws....Read More

John A. Aiello is chair of the firm's Corporate and Business Practice Area.

Recovery of Attorney Fee's in Litigation

Click here to see the October Q&A on Recovery of Attorney Fee's in Litigation.

New Jersey adheres to the American Rule regarding litigation fees and costs, where "the prevailing litigant is ordinarily not entitled to collect a reasonable attorney’s fee from the loser." The American rule is the antithesis of the English Rule, whose courts have been authorized to award counsel fees to successful parties since as early as 1278...Read More

Michael J. Canning and Matthew N. Fiorovanti are members of the firm's Litigation Practice Group.

"Baseball Arbitration" for Upcoming Lease Extensions

Click here to see the September Q&A on "Baseball Arbitration."

If during lease negotiations, landlord and tenant desire that the rent be set for an extension term at fair market value, but landlord and tenant are concerned they will be unable to agree on what constitutes fair market value at such time...Read More

Laurence I. Rothstein and Monica J. Ceres are members of the firm's Real Estate, Land Use and Development's Leasing Practice Group.

The "Affirmative Negative" Obligation

Click here to see the July/August Q&A on an employer's obligation to pay unused vacation time.

Are employers obligated to pay unused vacation time? An employer must affirmatively state that it is not going to pay out the value of any accrued, yet unused vacation time at the time of employment termination...Read More

Jay S. Becker is chair of the firm's Labor and Employment Practice Area.

Service Level Agreements

Click here to see the June Q&A on Service Level Agreements.

With the purchase of almost any service, the buyer is frequently concerned about ensuring the quality of service. Service Level Agreements (SLAs) are used by buyers to ensure that they receive the quality service the buyer expects...Read More

Kurt E. Anderson is chair of the firm's Intellectual Property and Technology Practice Area.