Gibbons has represented a wide range of public and independent educational institutions, taking a multidisciplinary approach to provide advice, counsel, and litigation services that span numerous practice areas in order to address the many unique regulations governing academic institutions, as well as their particular requirements for financing, building, hiring, firing, licensing and protecting intellectual property, contracting with vendors, and undertaking various other key operations. We have worked with more than half of the four-year colleges and universities in New Jersey, as well as several other higher education institutions in the region, and we also represent related governmental entities.
By way of example, our attorneys have played a role in drafting and reviewing statewide education regulations and legislation, served as independent counsel and monitor in settlements between a university and the Attorney General’s Office, and litigated against third-party vendors to protect the rights of universities. Gibbons also provides counseling and training related to Title IX, conducts and assists in complex investigations, and litigates employee and student complaints filed with the Department of Education, Office for Civil Rights, Equal Employment Opportunity Commission, and state civil rights agencies, as well as in state and federal courts. In addition, the Higher Education Team provides advice on crisis management and works with crisis communications firms to ensure that the reputations of our university clients are preserved at all times when conflicts arise.
The Higher Education Team
The multidisciplinary team that works with institutions of higher education comprises attorneys from the following Gibbons practice areas:
- Employment & Labor Law
- Commercial & Criminal Litigation
- Construction Law & Litigation
- Financial Restructuring & Creditors’ Rights
- Government Affairs
- Intellectual Property
- Internal & Audit Committee Investigations
- Privacy & Data Security
- Public Finance
- Real Property & Environmental
These attorneys are recognized in the leading industry client- and peer-review publications. For example, the Employment & Labor Law Department is ranked in one of the top bands of firms for that practice area in the Chambers USA Guide to America’s Leading Lawyers for Business, which notes that it is “[r]enowned for the depth of its experience in employment litigation and compliance counseling.” The firm’s Real Estate Law, Land Use & Zoning Law, Environmental Law, Construction Law & Litigation, and Employment Law – Management practices have all earned national rankings in Best Lawyers®, as well as regional rankings in New Jersey and New York, along with several other practice areas within the Higher Education Team. Best Lawyers has also listed various team members among its top ranked attorneys, and numerous team attorneys are listed in the most recent editions of Super Lawyers (New Jersey and New York), Chambers, or both, including the chair of the Employment & Labor Law Department, who was selected among the “Top 50 Female Attorneys” and overall “Top 10 Attorneys” in New Jersey by New Jersey Super Lawyers.
Areas of Focus
Employment & Labor
The attorneys in the Gibbons Employment & Labor Law Department are well versed in handling the many employee issues facing colleges and universities, including compliance with state and federal employment laws and regulations, policy drafting and updates, employee and manager training, contract negotiations, termination of employment and reductions in force, labor relations and contract negotiations, and benefits. The Employment & Labor Law Department provides the full range of employment and labor litigation, counseling, and training services, including anti-harassment and EEO training programs designed specifically for university faculty, administration, and staff. The firm has defended several New Jersey colleges and universities against discrimination, retaliation, and whistle-blowing claims, including the defense of allegations of pay discrimination due to race, age, and gender; wrongful termination; and failure to provide reasonable accommodations. Gibbons attorneys have also conducted investigations with regard to employee- and student-related claims.
Gibbons attorneys conduct comprehensive investigations to ensure compliance with the full range of federal and state laws applicable to higher education clients, including investigations into employee and student complaints and conduct issues. The team handles privileged and non-privileged investigations for major regional universities that address alleged workplace misconduct under codes of conduct and/or under the institutions’ anti-discrimination and retaliation policies. We have also conducted investigations relating to student complaints under Title IX and other related laws and policies, and we regularly provide legal advice and counsel to internal investigators.
Gibbons attorneys help higher education clients achieve campus-wide compliance with a vast range of laws and regulations governing academic institutions – particularly Title IX – and recommend improvements to processes and procedures as necessary. Through proactive counseling and advice, Gibbons assists clients in meeting the lengthy and complex requirements of Title IX and similar mandates against gender discrimination to provide equality of opportunity in instruction, activities, participation, scholarships, and other benefits, as well as to prevent or address campus violence and sexual harassment and assault. In addition, we have prepared custom training programs for institutions’ academic and athletic staff members, focusing in particular on their responsibilities under Title IX, and, when necessary, the team defends educational institutions in Title IX litigation. Gibbons has worked with higher education clients to investigate and defend against alleged Title IX violations and student claims filed with the U.S. Department of Education, Office of Civil Rights.
Bonding and Public Finance
Gibbons has a long history serving as bond counsel to a variety of public authorities, including the New Jersey Educational Facilities Authority, in connection with numerous financing transactions for educational institutions throughout the state. In this area, our attorneys represent authorities and other issuers in a broad range of transactions, including forward delivery transactions, variable and fixed rate obligations, demand bonds, pooled bonds, lease revenue bonds, credit enhanced (insured or letter of credit supported) obligations, and current and advanced refundings. We also evaluate derivatives and securitization aspects in connection with these financings. The firm’s representation in the public finance arena has helped educational institutions to refinance outstanding bonds, as well as to expand and improve facilities.
Financial Restructuring & Creditors’ Rights
The firm’s attorneys have represented various colleges with regard to financial restructuring and creditors’ rights concerns. In 1976, Gibbons had a plan of reorganization confirmed for Bloomfield College, the first college to successfully reorganize under the Bankruptcy Act. Since then, the firm has counseled colleges in a variety of related areas. We have also served as the receiver to a foreign medical school, assisting in collecting assets for the Receivership estate, conducting an investigation into the finances of the school and its principal, and following a rigorous statutorily-prescribed process for claims against the Receivership estate, including notices to all known potential creditors.
Gibbons intellectual property attorneys work with higher education clients to protect the schools’ interests with regard to professors’ and researchers’ innovations. Our Intellectual Property Department also advises on the technology, patent, licensing, trademark, copyright, contract, joint development, securities, employment, and related intellectual property issues inherent in higher education and its related intellectual property. In addition, our intellectual property attorneys advise on corporate transactions, such as mergers and acquisitions, with regard to, for example: valuation of assets; expansion of scope of protection by acquisition of complementary companies or assets; identification of complementary IP or targets with IP; and handling the acquisition of the target’s assets.
Privacy & Data Security
The Gibbons Privacy & Data Security Team has provided advice and counseling to institutions of higher education to address the unique security risks presented by those institutions’ decentralized daily operations and the vast amount of data they receive and maintain, including personally identifiable information (PII), protected health information (PHI), payment card industry (PCI) data, employment records, intellectual property, and other confidential information. Our attorneys have also negotiated and closed cloud computing transactions to enhance the operational security and efficiency of our educational institution clients, and we have counseled institutions on software licensing and commercialization. In addition, our data privacy attorneys have assisted institutions with evaluating and purchasing appropriate cyber insurance coverage as a supplemental risk transfer mechanism.
Transactional Real Estate & Real Estate Development
The firm’s Real Property Department has for many years worked with educational institutions to assist with their transactional real estate and development concerns, whether due to the expansion, leasing, acquisition, or disposition of real property, including land, buildings, and various campus structures, such as classrooms, research laboratories and medical facilities, dormitories, and parking lots. In the development area, our representation includes due diligence, variance, zoning, planning, and permitting matters. The firm’s role in redevelopment projects for educational institutions includes negotiating and securing approvals for the redevelopment plan, securing the client’s designation as the redeveloper, negotiating and securing approval of a redevelopment agreement, and obtaining the appropriate permits and approvals. On the transactional side, Gibbons attorneys have assisted in sales and acquisitions of land, joint ventures, and lease negotiations, among other matters. The firm has also handled a variety of condemnation matters for state entities in this area, for the purpose of land acquisitions for school development.
Construction Law & Litigation
The Gibbons Construction Law & Litigation Team works with owners, developers, design professionals, contractors, subcontractors, and material suppliers on a wide range of construction projects, handling contract counseling, public procurement, insurance, and surety issues, among others, as well as all aspects of litigation and dispute resolution. Recent construction projects on which we have worked have involved a multitude of academic and associated specialty facilities (such as laboratories) and related infrastructure projects. These projects have involved, and our Team has experience in, all manners of project deliveries, including traditional design-bid-build, design-build, and public-private partnerships or (“P3”) delivery methods. In addition, our Construction Law & Litigation attorneys collaborate closely with our Real Property and Environmental attorneys on numerous projects to ensure that all potential issues are addressed. We have also been extensively involved in construction litigation and dispute resolution, including a recent, complex AAA arbitration concerning the design and construction of the expansion and renovation of an important specialty academic facility on the campus of a major regional university.
Gibbons litigators assist educational institutions in connection with contract disputes, service agreements, class action defense, False Claim Act matters, and construction disputes, among various other commercial litigation matters. In addition, the Gibbons E-Discovery Task Force designs policies regarding document retention and litigation holds, in order to better protect schools in large litigations. Gibbons attorneys have served as independent counsel and monitor for educational institutions that have been subject to investigations and actions by government authorities. In connection with contract and service agreement disputes, the firm has represented universities in breach of contract and fraud matters arising out of failed systems implementations and non-execution of services.
Government & Regulatory Affairs
The Gibbons Government & Regulatory Affairs Department provides a range of educational institutions with advice and representation in the areas of state and federal legislative lobbying, regulatory issues, and procurement counseling. We have particular experience working on behalf of state institutions of higher learning and in connection with complex state laws and statutes impacting higher education, such as the Higher Education Reorganization Act of 1994, the June 2009 Reorganization Plan (No. 002-2009), and the New Jersey Medical and Health Sciences Education Restructuring Act of 2012. New Jersey is home to world-class educational and research institutions; Gibbons attorneys help them to comprehensively present their concerns to the officials and agencies most likely to address them.
Gibbons has a robust corporate practice that assists educational institutions in a number of transactional matters. For example, our attorneys have played key strategic roles in some of New Jersey’s most high-profile higher education mergers and acquisitions, most recently and notably those that arose from the New Jersey Medical and Health Sciences Education Restructuring Act. Gibbons has reviewed affiliation agreements, employment agreements, real estate contracts, deeds, memoranda of understanding, clinical trial agreements, and numerous other contractual obligations in connection with higher education M&As. More broadly, on behalf of several educational institution clients over the years, we have structured, negotiated, drafted, and implemented many types of commercial and governmental contracts and other agreements.
In addition to our bonding and public finance practice described above, we have a significant commercial finance practice, through which the firm has closed commercial loans of all types in many transactions over many years, representing educational institution borrowers, as well as lenders to such institutions. Gibbons also has a highly regarded and highly sophisticated tax practice that includes handling the tax aspects of our many bonding and finance transactions, as mentioned above, to satisfy issuers to meet the many tax exempt obligation and other specific requirements of their given complex transaction. Our Tax Team also advises clients on the many tax aspects of mergers and acquisitions and other transactions, and we have helped educational institutions with special projects with significant tax aspects, including the formation of single-purpose corporate entities for capital campaigns and similar purposes.