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On February 14, the Supreme Judicial Court of Massachusetts reviewed the application of the state’s “anti-SLAPP” law to challenges made against a blogged critique of Cardno Chemrisk, LLC (Chemrisk) and British Oetroleum (BP) in the case of Cardno Chemrisk, LLC v. Cherri Foytlin & Another, confirming that it protects pamphleteers/bloggers. Continue reading

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On February 9, the Oregon Supreme Court affirmed the decisions of the Oregon Environmental Quality Commission (OEQC) and the Oregon Court of Appeals that Oil Re-Refining Company (ORRCO) was strictly liable for “simple” violations of the Oregon State Resource Conservation and Recovery Act (RCRA) rules. The case is Oregon Re-Refining Company v. Environmental Quality Commission of the Department of Environmental Quality for the State of Oregon.

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On February 13, a sharply divided U.S. Court of Appeals for the Fifth Circuit , by a vote of 8 to 6, rejected a petition seeking

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The Dusky Gopher Frog, once known as the Mississippi Gopher Frog, has an average length of about three inches and a stocky body with colors on its back that range from black to brown or gray and is covered with dark spots and warts. (Western Carolina University photo/ John A. Tupy)

an en banc rehearing of the court’s initial decision in the case of Markel Interests, LLC, et al., v. U.S. Fish and Wildlife Service, et al. In its June 5, 2016 decision, the Fifth Circuit held that 1500 acres of private land located in Louisiana is subject to the requirements of the Endangered Species Act (ESA) with respect to the dusky gopher frog, which was determined to be an endangered species in 2001, but whose “critical habitat” was not designated until 2012. At the present time, the species is located only in Mississippi, but the U.S. Fish and Wildlife Service (Service) designated not only several thousand acres of Mississippi land as its critical habitat, but land in Louisiana as well, reasoning that the presence of five ephemeral ponds on the Louisiana land could support the species’ reproduction. Apart from the presence of these ponds, all parties appear to agree that the Louisiana land is otherwise uninhabitable.

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In a case argued on February 1, 2017 and decided on February 13, the U.S. Court of Appeals for the Sixth Circuit held that Maxxim Rebuild Co., LLC’s small manufacturing facility located in Sidney, Kentucky is not a “coal mine” subject to the federal Mine Safety and Health Administration’s (MSHA) jurisdiction. Following workplace safety inspections of this facility, MSHA issued several notices of violation to Maxxim: (a) the absence of a written hazardous chemicals communication plan; (b) a dirty bathroom; (c) an accumulation of oil, fuel and dust on a Caterpillar 988 loader; and (d) citations in connection with a heater and boiler at the facility. Each citation referenced a pertinent MSHA rule which Maxxim challenged before an Administrative Law Judge, who ruled that the shop was “a coal or other mine” under the Section 802(h) of the Federal Mine Safety and Health Act, 30 U.S.C. §§ 801 et seq. (the Act). The Commissioner later upheld this ruling. The case is Maxxim Rebuild Co., LLC, v. Federal Mine Safety and Health Comm’n.

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In “Buy American, Hire American”—From Rhetoric to Regulation, our colleagues Glenn Sweatt, Nancy Fischer, Steve Becker and Matthew Rabinowitz discuss what may be on the horizon for among others, U.S. Government contracts, under the Buy American Act, and other similar protectionist regulations. These laws and regulations require U.S. Government contractors to exclusively use, or give a preference to, U.S. suppliers. Recent statements and Presidential Memorandum from the Trump Administration provide a hint that changes in regulations, exemptions and enforcement may be on the horizon, which will certainly impact U.S. Government construction contracts.

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In White Paper Sets Out UK Government’s Brexit Strategy, Pillsbury partners Tim Wright and Sam Pearse discuss the United Kingdom Government’s recent publication of a White Paper titled The United Kingdom’s exit from and new partnership with the European Union that sets out its Principles and Objectives for exiting the EU. Though the White Paper is silent on construction industry generally, even this sector will likely be impacted in a number of ways including through controls on migrant workers as well as new customs arrangements and tariffs – assuming a hard Brexit. Public Procurement laws in the UK are also likely to change; environmental and health and safety laws may also change once the UK leaves the EU.

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In Review of UK Employment Law: Key Issues to Monitor in 2017, Pillsbury attorney Caron Gosling discusses a number ofuk-300x187
developments in 2016 that will have a significant impact on United Kingdom employment law and looks at what employers in the UK may expect in the coming year.

Photo:  Moyan Brenn, UK umbrella in London, Piccadilly Circus, Taken Oct. 12, 2014 – Creative Commons

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Today, Pillsbury partner Tim Wright published his client alert encouraging retailers to be vigilant in preventing human rights abuses in their supply chains whilst complying with their legal obligations. Tim’s alert is in response to the UK’s Parliamentary Joint Committee on Human Rights investigating human rights and businesses to determine whether retailers can ensure that human rights abuses do not occur in their supply chains and is particularly concerned about the use of child labour. Although the joint select committee heard from witnesses from the fashion industry, their work does have a wider remit. The Alert is titled Human Rights and Global Supply Chains.

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On January 31, the U.S. Court of Appeals for the Eighth Circuit held that, under the terms of a commercial general liability insurance policy, natural gas condensate, a valuable commercial product, once released, is a pollutant that triggers the policy’s “pollutant exclusion.” The case is Hiland Partners GP Holdings, LLC, et al., v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA. The Eighth Circuit confirmed that the District Court did not err by concluding that National Union Fire Insurance Company of Pittsburgh, PA (National Union) did not have a duty to defend or indemnify Hiland Partners GP Holdings, LLC, Hiland Partners, LP, and Hiland Operating,  LLC (collectively, Hiland) because the allegations in B&B Heavy Haul, LLC’s (B&B) employee Lenny Chapman’s complaint fell within the policy’s pollution exclusion and the exception to the exclusion did not apply because Hiland failed to offer evidence that it reported the pollution to National Union within 21 days of discovering it.

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On January 30, the U.S. Court of Appeals for the Seventh Circuit held that the extraterritorial effects of Indiana’s Vapor Pens and E-Liquid Act, Ind. Code §§ 7.1-7-1-1 et seq., violated the dormant Commerce Clause of the U.S. Constitution. In 2015 the State of Indiana en-acted the Act “to regulate the manufacture and distribution of vapor pens and the liquids used in so-called e-cigarettes.”). The Seventh Circuit reasoned:

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