North Carolina Court Holds Citizen Suit Plaintiffs Can Have Claims for Relief Heard By A Jury

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On December 29, 2014, the U.S. District Court for the Eastern District of North Carolina held that the plaintiffs in a Resource Conservation and Recovery Act (RCRA) and Clean Water Act (CWA) citizens-suit against the owners and operator of a swine farm had the right to have the case tried before a jury. The case is North Carolina Environmental Justice Network, et al , v. Taylor, et. al. It is alleged that the defendants illegally dumped swine waste into the waters and onto the lands surrounding the swine farm. The defendants challenged the demand for a jury trial, and both sides argued that a 1987 Supreme Court decision, Tull v. U.S., 481 U. S. 412 (1987), supported their positions. After reviewing the Tull case and other precedents, the District Court held that the Tull decision, which discussed the right to a jury trial when the federal government was seeking civil penalties, was a Seventh Amendment right available to either side in a citizens-suit case.

Washington, D.C. Court Approves Consent Decree Settlement between U.S. and Hyundai

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On January 9, 2015, the U.S. District Court for the District of Columbia approved a proposed consent decree that had been negotiated by EPA and the California Air Resources Board (CARB) that resolved the government's claims that Hyundai Motor Company, Hyundai Motor America, Kia Motors Corporation, Kia Motors America, and Hyundai America Technical Center, Inc. violated the Clean Air Act and the California Health & Safety Code by falsifying fuel economy and greenhouse gas emissions claims that affected more than 1 million vehicles sold in the 2012 and 2013 model years.

It was alleged in the consent decree that there was a discrepancy in the information provided by the defendants in connection with the application for "Certificates of Conformity" and the actual specifications of the vehicles in that the vehicles provided lower fuel economy and emitted higher emissions than was stated in the applications. 126,000 vehicles were sold in California, and the $100,000,000 civil penalty--the largest yet recovered--was split between the U.S. Government ($93,700,000) and the State of California ($6,300,000). In addition, Hyundai agreed to forfeit 4.75 million greenhouse gas credits.

The proposed settlement was published in the Federal Register, and several comments were received. Some of the commenters requested that Hyundai also provide $25 million of Supplemental Environment Projects in some states, but the United States rejected this request, arguing that to do so would unravel the settlement that had been negotiated. The decision is reported as United States of America, et al. v. Hyundai Motor Company, et al.

California Contractor License #1,000,000 Issued

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Today, the California State Contractors License Board (CSLB) announced that, over the weekend, it issued its one-millionth contractor license to a tree service company in Norwalk, California. The CSLB was created on August 14, 1929, with the support of the State of California's construction industry, so the public would be protected from irresponsible contractors.The law creating the CSLB defined three contractor categories that remain in effect today: Class "A" General Engineering, Class "B" General Building, and Class "C" Specialty contractors. In 1939, those categories evolved into the original license "classifications" and CSLB also began to examine applicants on their trade qualifications.

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New CA Public Accommodation Bill Introduced

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Existing California law allows a plaintiff to collect statutory damages in a construction-related accessibility claim against a place of public accommodation only if the plaintiff was denied full and equal access to the place of public accommodation on a particular occasion, as specified. It also requires a demand letter alleging the construction-related accessibility claim to, among other things, state facts sufficient to allow a reasonable person to identify the basis of the claim, and imposes a $1,000 limit on such statutory damages if the defendant demonstrates that it has, among other things, cured the construction-related accessibility violation within 60 days of being served with a complaint. Assembly Bill 54 (Olsen), introduced in early December 2014, seeks to amend this law to provide that, when a plaintiff brings a claim alleging a violation of a construction-related accessibility standard within 3 years of a change in that standard, a plaintiff may only collect statutory damages if she/he also provides the owner, agent, or other party responsible for the place in violation with a written notice or demand letter with specified information at least 60 days prior to filing any action and the violation is not cured.

California Civil Code § 55.56 would be amended to read (new language underlined):

"(a) Statutory damages under either subdivision (a) of Section 52 or subdivision (a) of Section 54.3 may be recovered in a construction-related accessibility claim against a place of public accommodation only if a violation or violations of one or more construction-related accessibility standards denied the plaintiff full and equal access to the place of public accommodation on a particular occasion. occasion, and the requirements of Section 55.565 have been met, if applicable."

New California Civil Code § 55.565 would provide:

" (a) When a plaintiff brings a construction-related accessibility claim alleging a violation of a construction-related accessibility standard within three years of a change in that standard, statutory damages under subdivision (a) of Section 52 or subdivision (a) of Section 54.3 may be recovered against a place of public accommodation only if the plaintiff provides the owner, agent, or other party responsible for the place of public accommodation where the alleged violation occurred with sufficient written notice of the allegations and alleged access barriers on which the claim is based at least 60 days prior to the filing of any action and the alleged access barriers are not removed.
(b) A written notice is sufficient for the purposes of subdivision (a) if either of the following conditions is met: (1) The notice states facts sufficient to allow a reasonable person to identify the basis of the construction-related accessibility claim under subdivision (a) of Section 55.31 and states that the recipient may be civilly liable for actual and statutory damages for a violation of a construction-related accessibility requirement if the access barriers that constitute the basis of the construction-related accessibility claim are not removed within 60 days. (2) The notice is a written demand letter that offers prelitigation settlement negotiations in accordance with subdivision (b) of Section 55.31.
(c) For the purposes of this section, "construction-related accessibility claim," "construction-related accessibility standard," and "place of public accommodation" have the meanings set forth in Section 55.52."

A Cautionary Tale for Small and Large Businesses in a Mentor-Protégé Relationship: Size Appeal Of Kisan-Pike

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Yesterday, we published our client advisory titled A Cautionary Tale for Small and Large Businesses in a Mentor-Protégé Relationship: Size Appeal Of Kisan-Pike. The Advisory discusses the Small Business Administration ("SBA") Office of Hearings and Appeals' ("OHA") November 24, 2014 finding that a mentor-protégé joint venture agreement between Kisan Engineering Company P.C., a small 8(a) business, and The Pike Company Inc., its large business mentor, caused the joint venture to lose its status as a small business. As a result, the joint venture was not qualified to receive a contract award on a procurement reserved for small businesses. OHA disqualified the mentor-protégé joint venture despite the fact that the SBA had approved the Kisan-Pike mentor-protégé agreement, through which Pike was to mentor Kisan.

You Can't Change That - We Had a Deal!

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On December 9, 2014, the U.S. Civilian Board of Contract Appeals ("CBCA") decided Kiewit-Turner, a Joint Venture v. Department of Veterans Affairs, in which general contractor Kiewit-Turner ("KT") scored a major victory against the Department of Veterans Affairs ("VA"). The CBCA ruled that a change order required the VA to deliver a design that could be built for costs that were capped at a specified amount -- shifting risk to the owner from the contractor.

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Environmental Provisions in the Consolidated and Further Continuing Appropriations Act, 2015

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In addition to the bread and butter federal agency appropriations language in the Consolidated and Further Continuing Appropriations Act, 2015 (the "Act"), enacted late last year, the Act includes a number of provisions affecting environmental regulation, including:

  • The interpretive rule published by Environmental Protection Agency (EPA) and the Corps of Engineers regarding the applicability of Section 404(f)(I)(A) of the Clean Water Act (CWA), effective March 25, 2014, will be withdrawn;

  • None of the funds made available by this Act may be used to require a permit for the discharge of dredged or fill materials for activities identified in Section 404(f)(1)(a), (c) of the CWA

  • None of the funds made available by this Act may be used by the Department of the Interior to write or issue, pursuant to Section 4 of the Endangered Species Act, to proposes a listing for the greater sage-grouse;

  • No funds may be used to promulgate or implement any rule requiring the issuance of permits under Title V of the Clean Air Act for emissions of greenhouse gases from biological products associated with livestock production;

  • The President is directed to provide the Congress with a comprehensive report describing in detail all federal agency funding of domestic and foreign climate change programs for fiscal years 2014 and 2015;

  • There will be no greenhouse gas reporting requirements for emissions from manure management programs;

  • Any projects financed by grants for state projects financed by funds from the Safe Drinking Water Act will use American iron and steel products; and

  • No funds may be used to regulate the lead content of ammunition or fishing tackle under Toxic Substance Control Act or any other law.

Five Facts About the Tax Increase Prevention Act of 2014

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorneys Jim Chudy and Brian Wainwright published their advisory titled Five Facts About the Tax Increase Prevention Act of 2014. The Advisory provides an overview of the Tax Increase Prevention Act of 2014 (Division A of H.R. 5771), signed into law by President Obama on December 19, 2014, an Act that extends many tax provisions that had expired at the end of 2013.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Jim Chudy or Brian Wainwright, the authors of this blog.

Three Obstacles to EPA's O3 Rule: Industry Opposition, Implementation, and Congressional Oversight

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By Pillsbury Winthrop Shaw Pittman

Yesterday, Pillsbury attorneys Matt Morrison and Bryan Stockton published their advisory Three Obstacles to EPA's O3 Rule: Industry Opposition, Implementation, and Congressional Oversight. The Advisory discusses the EPA's recent proposal to revise the national air quality standard for ozone, the key pollutant in smog and regional haze, and the complex issues the EPA must navigate as it prepares to finalize the rule by October 1, 2015.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Matt Morrison or Bryan Stockton, the authors of this blog.

Divided DC Circuit Panel Vacates Provisions of the 2008 Ozone Standards

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Last week, a divided panel of the DC Circuit Court of Appeals vacated two provisions of the 2008 ozone standards on the ground that they exceed the EPA's authority under the Clean Air Act. The two provisions extended the deadlines for some air quality regions to attain the 2008 ozone standards and revoked what is known as the "transportation conformity requirements". Judge Randolph, in dissent, argued that the majority was, in effect, substituting its policy judgment for that of the EPA, and failed to discuss exactly how EPA and the states are expected to implement this decision, which he considers to be "a mistake in judicial analysis". The case is NRDC v. EPA, et al.

NLRB Addresses Employees' Rights to Use Employers' Email System for Non-business Purposes

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Recently, the National Labor Relations Board (NLRB), in a 3-2 decision, in Purple Communications, Inc. and Communications Workers of America, AFL-CIO. Cases 21-CA-095151, 21-RC-091531, and 21-RC-091584, considered the right of employees under Section 7 of the National Labor Relations Act (Act) to effectively communicate with one another at work regarding self-organization and other terms and conditions of employment. Ruling on this question, the NLRB concluded that "employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems." In doing so, it overruled the NLRB's divided 2007 decision in Register Guard, 351 NLRB 1110 (2007), to the extent it holds that employees can have no statutory right to use their employer's email systems for Section 7 purposes because its "analysis fails 'to adapt the Act to changing patterns of industrial life'"; the NLRB majority in Register Guard accepted the employer's contentions there that an email system is analogous to employer-owned equipment and that prior cases had established that employers could broadly prohibit nonwork use of such equipment. It further found it appropriate "to apply our new policy retroactively.

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A New U.S. Course for Cuba Relations: What Does It Mean for Business?

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By Pillsbury Winthrop Shaw Pittman

Recently, Pillsbury attorneys Chris Wall, Steve Becker, Nancy Fischer, Aaron Hutman and Stephanie Rohrer published their advisory titled A New U.S. Course for Cuba Relations: What Does It Mean for Business? The Advisory discusses President Obama's unexpected announcement signaling a "new course" for Cuba after more than 50 years of comprehensive U.S. sanctions, and possible opportunities for certain exports markets including telecommunications, building materials, agricultural equipment, and certain goods for use by Cuban entrepreneurs.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Chris Wall, Steve Becker, Nancy Fischer, Aaron Hutman or Stephanie Rohrer, the authors of this blog.

California Department of Industrial Relations Posts 2014 Legislative Digest

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Today, the California Department of Industrial Relations (DIR) released its 2014 Legislative Digest, which includes, among other things, an overview of new laws related to the work of DIR and its divisions, which include the Labor Commissioner's Office, Cal/OSHA, the Division of Workers' Compensation and the Division of Apprenticeship Standards.

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6th Circuit Rules that Federal Tort Claims Act's "Discretionary Function" Exception Shields Army Corps of Engineers Against Flood-Related Damages in Nashville

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In May 2012, a catastrophic flood inundated large sections of Nashville, resulting in many lawsuits being filed against the U.S. Army Corps of Engineers with respect to the Corps' operation of the Old Hickory Dam. The dam is located on the Cumberland River, and water that flows through this river and the Old Hickory Dam eventually reaches Nashville. The several lawsuits that followed were consolidated, and the plaintiffs included A.O. Smith Corporation, Gaylord Enterprises, the Opryland Hotel, the Grand Old Opry, the Gibson Guitar Corporation, other hotels, businesses and insurance companies.

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Sierra Club's CAA Citizen Suit Against ExxonMobil Rejected by Houston District Court

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Wednesday, U.S. District Judge David Hittner issued a long (82 pages) and complex ruling rejecting all of the claims for relief requested by Environment Texas Citizen Lobby, Inc. and Sierra Club from ExxonMobil Corporation, ExxonMobil Chemical Company and ExxonMobil Refining and Supply Company. In reaching its decision, the Court conducted a 13-day, non-jury trial in which the plaintiffs requested a declaratory judgment, penalties of $643,000,000 and the appointment of a Special Master to oversee Exxon's compliance with the injunction that was requested with respect to the huge petrochemical complex operated by Exxon in Baytown, Texas.

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