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On November 23, 2016, the U.S. Court of Appeals for the Ninth Circuit issued a unanimous ruling that the Surface Transportation Board has exclusive jurisdiction over “railroad repair work done at the direction of a federally regulated rail carrier but performed by a contractor rather than the carrier itself.”  The case is Oregon Scenic Coast Railway, LLC v. State of Oregon Department of State Lands. Continue reading

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On November 29, the California Contractors State License Board (CSLB) issued an Industry Bulletin via email announcing that Cindi A. Christenson, the CSLB’s current Registrar of Contractors, will be retiring effective May 1, 2017.  Christenson, the CSLB’s first female Registrar, was appointed to this position on January 1, 2015.  Prior to her appointment as the Registrar, Christenson served for six years as CLSB’s Chief Deputy Registrar. A nationwide executive search for Christenson’s replacement is in process.

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Today, our colleagues Julia Judish, Rebecca Carr Rizzo and John Scalia published their alert discussing a U.S. District Court’s very recent issuance of a nationwide preliminary injunction preventing the Department of Labor from implementing and enforcing its new overtime regulations. Those regulations, which would have more than doubled the minimum salary level required to exempt executive, administrative, professional, and salaried computer professional employees from eligibility for overtime, would otherwise have been effective December 1. They note that although a preliminary injunction is a temporary court order, in light of the timing of the preliminary injunction and the upcoming change of Presidential administration, the ruling may foreclose the overtime regulations from ever taking effect. The alert is titled Preliminary Injunction Creates Uncertain Fate For Overtime Regulations.

Additional Source: U.S. Department of Labor More Than Doubles Minimum Salary Levels for FLSA Overtime Exemptions; Court Issues Nationwide Preliminary Injunction of DOL’s Overtime Rules Effective Dec 1

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Our colleague Michel Cataldo recently published an interesting client alert on theDSC_2332 Ohio Supreme Court’s recent ruling in Crutchfield Corp. v. Testa that the physical presence requirement articulated by the U.S. Supreme Court in Quill Corp. v. North Dakota does not limit Ohio’s ability to subject out-of-state online sellers to the Ohio Commercial Activity Tax. The alert is titled Ohio Supreme Court Finds Quill Does Not Apply to the Commercial Activity Tax.

Photo:  David Amsler, Porqui, Taken December 30, 2015

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In Federal Court Rules New Overtime Requirements Won’t Go Into Effect on December 1, our colleague Scott Flick discusses the U.S. District Court for the Eastern District of Texas’ ruling in a civil action challenging the Department of Labor’s (DOL) new overtime regulations. The civil action that was brought by the State of Nevada and 20 other states and recently consolidated with a related civil action brought by the Plano Chamber of Congress and over 50 other business organizations. Today, in response to a motion filed by states, the District Court granted a nationwide preliminary injunction, preventing the new salary threshold (and scheduled increases to it in future years) from going into effect until the District Court has had an opportunity to rule on the legality of the rule change. Effective December 1, the Final Rule would have, among other things, increased the minimum salary level for exempt employees from $455 per week ($23,660 annually) to $921 per week ($47,892 annually). In its ruling, the District Court made it clear that the DOL will have a hard time defending the rule change.

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Today, our colleagues Jennifer Trock, Kenneth Quinn, Graham Keithley, andplane Chris Leuchten published an informative client alert on the Department of Transportation’s interim final rule increasing the maximum aviation-related civil penalty amounts to adjust for  inflation. The rule became effective on August 10, 2016. The alert is titled Civil Penalties Up For Some Aviation Violations.

Photo:  Steven Conry, Plane Landing Over Simpson Bay, Taken July 19, 2009 – Creative Commons

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On November 18, the U.S. Court of Appeals for the Ninth Circuit issued three unanimous decisions affirming the U.S. District Court for the District of Hawaii’s rulings that three local county ordinances—enacted by the counties of Maui, Kauai and Hawaii—are preempted by the laws of the State of Hawaii or the federal Plant Protection Act (PPA), 7 U.S.C. § 7756(b). The ordinances purported to regulate pesticides and genetically engineered plants or even banning the cultivation and testing of genetically-engineered plants. The published opinions are Atay, et al., v. County of Maui, et al., and Syngenta Seeds, Inc., et al., v. County of Kauai. The unpublished opinion is Hawai’i Papaya Industry Assoc., et al., v. County of Hawaii.

The Maui County ordinance was the result of a citizens’ initiative, and the Kauai ordinance was enacted in the regular course of county business. In the Syngenta Seeds case, the Ninth Circuit ruled that the “field preemption” test devised by the Hawaii Supreme Court required the rejection of Kauai County ordinance. In the Atay case, the Ninth Circuit concluded that the provisions of the Maui County ordinance were preempted by both the PPA and impliedly by the laws of the State of Hawaii.

In the third case, the Ninth Circuit held that a recently-enacted ordinance of the County of Hawaii which bans the “open air testing of genetically engineered organisms of any kind” and “open air cultivation, propagation, development or testing of genetically engineered crops of plants” was preempted by federal and state law.

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On November 16, the U.S. Court of Appeals for the Ninth Circuit decided the case of State of Missouri ex rel. Chris Koster, et al., v. Harris, in which it largely affirmed the lower court’s decision that the States of Missouri, Nebraska, Oklahoma, Alabama, Kentucky and Iowa lack standing to challenge the California laws and policies that mandate that no eggs can be sold in California that are the produced in states that do not adhere to California’s conditions under which chickens must be kept. One lesson to draw from this is that it’s very difficult to persuade the courts that the Commerce Clause always limits what the state legislatures can do. Continue reading

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On November 17, the U.S. Court of Appeals for the Sixth Circuit decided the case of Sherwood, et al. v. Tennessee Valley Authority.  The Court of Appeals reversed the lower court’s ruling that a complaint filed by many property owners that the Tennessee Valley Authority (TVA) violated the National Environmental Policy Act, 42 U.S.C. §§ 4321 to 4370m–12 (2012) (NEPA) was now moot because TVA had filed assurances with the lower court that the policy had been suspended. Continue reading

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Our colleagues Jay Silberg, Vince Morgan and Roland Backhaus report on a U.S. Government Accountability Office (GAO) sting operation in Texas during which GAO investigators obtained a radioactive material license in the name of a fictitious business permitting it to purchase dangerous quantities of radioactive material, and the related fallout.  The client alert is titled Texas Sting Operation Increases Focus On Radioactive Material Pre-Licensing Activities.