Ocean Avenue LLC v. County of Los Angeles Affirmed; AB 2372 Passes Assembly

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorneys Matthew Burke and Craig Becker published their advisory titled Ocean Avenue LLC v. County of Los Angeles Affirmed; AB 2372 Passes Assembly. The Advisory discusses the California Court of Appeal for the Second Appellate District's June 3, 2014 order affirming the Superior Court ruling in Ocean Avenue LLC v. County of Los Angeles, holding that even though 100 percent of an entity was sold, a reassessable change in ownership of the entity's real property did not occur because no one person obtained more than 50 percent of the entity. It further discusses how Assembly Bill 2372 would change that result by requiring reassessment of an entity's realty if 90 percent or more of its ownership interests were sold within a three year period, even if no one owner acquired more than 50 percent.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Matthew Burke or Craig Becker, the authors of this blog.

Forbes Busts Monster Myth About Marketing To Women

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For most industries, attracting both male and female consumers is a must, but successfully engaging both genders is not always easy. It is becoming more difficult given that both genders' roles continue to change and their views on gender roles are ever evolving. In Monster Myth: Marketing To Women Alienates Men, Forbes contributor Ayesha Mathews-Wadhwa contends that the "monster myth: marketing to women will alienate men" is a "misconception [] entrenched in the modern marketing world but is especially strong in ads for liquor and cars. Slick, dark shots open on a woman gazing seductively at the camera while Jason Bourne-esque music swells." She, however, cautions that a "'shrink-it-and-pink-it' approach" to marketing to women hasn't work and that "tone-deaf brands equal a tuned out audience." She further cautions that it may be even more difficult with the new millennial generation, citing to the New York Times bestseller, The Athena Doctrine, which reportedly confirms that "millennials have a fundamentally stronger view of femininity and the role of women in society."

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DC Circuit Clarifies Standard of Review When Agencies Argue "Good Cause" for Bypassing APA Notice and Comment Requirement

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By Amy L. Pierce

In an Federal Communications Commission (CMC) matter, Sorenson Communications, Inc. v. FCC, the DC Circuit vacated an interim rule promulgated by the FCC without going through notice and comment. The agency argued that it had "good cause" to dispense with the Administrative Procedure Act (APA) in this instance. The court disagreed, and articulated the court's standard of review in assessing such claims. The inquiry is to be "meticulous and demanding", and the exception in the APA is to be "narrowly construed". The court's review of the claimed exception is de novo, and here the agency's argument that it was reacting to a fiscal emergency was spurious, especially as there was no support in the record to countenance such a departure from the normal APA procedures. The court recognized that it had allowed a few exceptions, but only where a real emergency involving a threat to life or property demanded quick action.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Anthony Cavender, the author of this blog.

Additional Source: Important APA Issue Awaits Supreme Court's Review

Texas Supreme Court: Economic Loss Rule Bars GC's Claim Against Architect

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In LAN/STV, a Joint Venture of Lockwood, Andrews & Newman, Inc. v. Martin K. Eby Construction Company, Inc., the Texas Supreme Court considered "whether the rule permits a general contractor to recover the increased costs of performing its construction contract with the owner in a tort action against the project architect for negligent misrepresentations -- errors -- in the plans and specifications." Under the circumstances presented, the Court concluded that "the economic loss rule does not allow recovery" for the general contractor's claim against LAN/STV for negligent misrepresentation, reversing the judgment of the Court of Appeals and rendering judgment for the architect; the "economic loss rule," a common law doctrine, restricts recovery of purely economic damages unaccompanied by injury to the plaintiff or its property.

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Employees and Independent Contractors and Day Laborers ... Oh My!

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UPDATES: Ayala v. Antelope Valley Newspapers Inc., ___ Cal. ___ (Jul. 1, 2014)--California Supreme Court clarifies the test for independent contractor status; Ruiz v. Affinity Logistics Corp., 2014 BL 166620, No. 12-56589 (9th Cir. Jun. 16, 2014)--Ninth Circuit found "overwhelming evidence" that the defendant controlled details of the delivery drivers' work and, accordingly, the drivers were employees not independent contractors under California law, citing S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 769 P.2d 399 (Cal. 1989).

Wizard of Oz.jpgThe California Contractors State License Board (CSLB) recently issued an Industry Bulletin reminding contractors of the importance of properly classifying workers as employees or independent contractors to avoid being subject to penalties and fines. Helpful information can also be found on the California Department of Industrial Relations' website, including, for example, a publication on independent contractors versus employees.

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Important APA Issue Awaits Supreme Court's Review

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By Pillsbury Winthrop Shaw Pittman

The U.S. Supreme Court has agreed to review two decisions of the DC Circuit, which held that "when an agency has given its regulation a definitive interpretation, and later significantly revises that interpretation, the agency has, in effect amended its rule, something it may not accomplish [under the Administrative Procedure Act without notice and comment". The cases to be reviewed are Perez, et al. v. Mortgage Bankers Association, et al., and Nickols, et al. v. Mortgage Bankers Association, and they involve the Department of Labor's (DOL) application of the Fair Labor Standards Act (FLSA) to mortgage loan officers: Are they exempt from the FLSA's overtime wage requirements, or are they not?

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Would You Consider Paving the Way for Your Workers to Obtain a College Degree?

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Recently, Starbucks has been in the news for "giving its baristas a shot at an online college degree." Starbucks has reportedly team upped Arizona State University to offer certain of its employees access to an online undergraduate degree available at a steep discount (the "Starbucks College Achievement Plan"). Starbucks and ASU News reported that "Through this innovative collaboration, partners based in the United States working an average of 20 hours per week at any company-operated store (including Teavana®, La Boulange®, Evolution Fresh™ and Seattle's Best Coffee® stores) may choose from more than 40 undergraduate degree programs taught by ASU's award-winning faculty, such as electrical engineering, education, business and retail management."

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University of Texas Arlington Plans to Offer Master of Construction Management Degree

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Beginning in the fall of 2014, the University of Texas at Arlington plans to offer a new Master of Construction Management (MCM) degree with an option to take courses online to help meet industry demand in Texas, especially in the thriving North Texas region. It will focus on management of construction projects in three main categories: (1) heavy, which includes highways, pipelines and infrastructure; (2) residential and commercial construction; and (3) general construction. Southern Association of Colleges and Schools' approval for the program is required and it is expected by August 2014 . Once its approval is obtained, students may apply and be admitted to the program.

Additional Sources: Loud Buzzing Coming From Downtown Austin

Let's Make Monday Awesome!

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Most of us relish Fridays, but the opposite holds true for Mondays. Inc.com came up with a list of 7 Things You Can Do on Friday to Make Monday Awesome. I'm game. Are you?

Here's Inc.com's list:

  1. Set up some exciting contacts

  2. Organize the week

  3. Get one thing off your desk

  4. Shake up your routine

  5. Work on your future

  6. Surprise yourself

  7. End the week on a high

Can we add start the week on Tuesday? Or, can we meet for lunch on Monday? If we schedule lunch for Monday now, I can end the week on a high!

Additional Sources: Do These 10 Things on Friday to Make Monday Awesome; 20 Ways To Make Your Monday Awesome

New Superfund Ruling: Supreme Court Holds that CERCLA Section 9658 Does Not Preempt State Statutes of Repose

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By Pillsbury Winthrop Shaw Pittman

The Supreme Court has issued its decision in the case of CTS Corp. v. Waldburger, et al., __ S. Ct. __ (June 9, 2014), argued April 23, 2014.

The Court (Justice Kennedy) reversed the Fourth Circuit, which had held that CERCLA Section 9658 also preempted state "statutes of repose" as well as state statutes of limitations. Section 9658 was added to CERCLA in 1986. CTS operated an electronics manufacturing plant in North Carolina until 1987, when it was sold as being "environmentally sound". In 2011, the plaintiffs in this case filed a lawsuit in federal court alleging that CTS' operations had released hazardous substances that contaminated the property they had more recently purchased. CTS argued before the district court that North Carolina's 10 year statute of repose required the dismissal of their lawsuit, and the court agreed. However, the Fourth Circuit disagreed, holding CERCLA Section 9658 also preempted this North Carolina law.

The Court granted a petition for certiorari because there were some conflicting interpretations of Section 9658 by the courts of appeal. In reversing the court of appeals (the vote was 7 to 2, with Justices Ginsberg and Breyer dissenting), the Court subjected Section 9658 to a thorough textual analysis and determined that Congress had not clearly provided that state statutes of repose were preempted by CERCLA, and so the majority concluded that state statutes of repose were not included in the preemptive effect of Section 9658. This was particularly important because, as the Court noted a few years ago, the states were "independent sovereigns in our federal system" and "the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." The dissenters stated that the Court's decision gives "contaminators an incentive to conceal the hazards they have created until the repose period has run its full course".

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Anthony Cavender, the author of this blog.

Water Bill to Boost Public-Private Partnerships

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We have previously written regarding critical repairs and updates needed for the Nation's aging infrastructure. We have also noted the need for private investment to get these capital-intensive infrastructure projects off the ground. An Act recently passed with strong bipartisan support by Congress and expected to be signed into law as early as this week by President Obama seeks to promote private investment in water infrastructure projects through innovative financing programs and the use of public-private partnerships ("P3s").

The Water Resources Reform and Development Act of 2014 ("WRRDA") (H.R. 3080) establishes a five-year pilot program - the Water Infrastructure Finance and Innovation Act ("WIFIA") - which provides low-interest federal loans and loan guarantees for major water infrastructure projects. WIFIA authorizes the Army Corps of Engineers and the Environmental Protection Agency to provide up to $175 million in direct loans and loan guarantees for the construction of critical water infrastructure projects, including those delivered through P3s. WIFIA is modeled after the Department of Transportation's Transportation Infrastructure Finance and Innovation Act, a successful federal program which has supported major P3 transportation projects.

In addition, WRRDA creates a separate 15-project pilot program - the Water Infrastructure Public-Private Partnership Program - to assess the use of P3s to accelerate projects in such areas as hurricane, storm, and flood damage reduction; coastal harbor improvement; and aquatic ecosystem restoration. These pilot projects authorize the Army Corps of Engineers to enter into agreements with private entities and state and local governments to help address a significant project backlog.

It is estimated that the U.S. water and sewer infrastructure will need an investment of between $600 billion and $1 trillion in the coming decades. Given the magnitude of capital needed and the critical nature of these projects, P3s seem to be an ideal structure for accomplishing the work, particularly given the current financial pressures faced by the government and its agencies. If WRRDA and its programs prove successful, it makes sense to expand such financing programs and encourage the use of P3s to fund projects addressing other sectors of the Nation's infrastructure.

Hallmarks of Infrastructure Success

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Enhancing the quality of life and economic opportunity in any region will require investments in social infrastructure--facilities for civic life, health care, education, and social services--as well as transportation infrastructure--transit, highways, surface streets, and parking. These projects entail considerable risks in design, approval, and execution, and must compete with investments elsewhere in the public and private sectors. Attracting economic and political support of all types for infrastructure will be critical to achieving the region's potential.

In this article, reprinted with permission from the Bay Area Council Economic Institute, Pillsbury Partner Rob James identifies the hallmarks of projects that tend to realize the greatest success in navigating the risks and meeting the competition.

WA Administrative Code Revisions Effective July 1, 2014

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UPDATE: Arc Fault Circuit-Interrupter (AFCI) and Ground Fault Circuit-Interrupter (GFCI) Protection -- Effective July 1, 2014, Washington will require Arc Fault Circuit-Interrupter Protection (AFCI) as specified in the 2014 National Electrical Code (NEC).

Proposed rule changes to Washington Administrative Code § 296-46B were adopted on May 20, 2014 and will become effective on July 1, 2014. In addition to the changes to WAC 296-46B, the 2014 edition of the National Electrical Code ("NEC") (NFPA 70-2014) will also become effective July 1, 2014. The Washington State Department of Labor & Industries recently confirmed that Permits purchased prior to July 1, 2014 may conform to either the 2008 NEC or 2014 NEC. However, permits purchased July 1 or after must comply with the 2014 NEC.

It further confirmed it will enforce 2014 NEC § 210.64 for indoor electrical service areas only. 2014 NEC § 210.64 states: "At least one 125-volt, single phase, 15- or 20-ampere rated receptacle outlet shall be installed within 15 m (50 ft) of the electrical service equipment." It recognized that this new requirement responded to concerns that cords used to power equipment used for testing and monitoring service equipment being routed down hallways, across rooms, and through doorways creating slip, trip and fall hazards. It confirms that it understand this intend and therefore will only enforce the requirements of NEC § 210.64 for indoor electrical service areas; if service equipment is located outdoors, the requirements of NEC § 210.64 will not apply.

Additional Sources: Washington 2014 Electrical Rule Development

Social Media, Not Just For Everyone Else

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Many of you who read blogs and other on-line publications likely understand the power of social media. Is it a tool in your company's tool belt? Amy Pierce June 2 2014.jpgWhat are your reasons for using social media? How are you using it? And, if not, why not?

Important reasons for embracing and/or changing the way you view social media may include:

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WA Issues Guidance On Who Can Place Building Integrated PV Systems

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Revised Code of Washington §§ 19.28.041, 19.28.161, and 19.28.006 definitions of "Equipment" and "Electrical construction trade" require that all parts and components of solar photovoltaic (PV) systems be installed and maintained by properly licensed electrical contractors and certified electricians. Construction contractors who are not electrical contractors are not properly licensed to install solar PV panels except in very specific applications as described in Washington Administrative Code § 296-46B-690. The allowance in Washington Administrative Code § 296-46B-690(5) permits construction contractors and uncertified individuals to place only "building integrated" PV panels but all electrical work, including wiring installation, terminations, etc., necessary to complete the electrical installations must be completed by the entity that obtained the electrical work permit.

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