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In a decision released on October 11, 2016, the U.S. Court of Appeals for the DC Circuit issued a very long opinion (110 pages) which vacates an order of the Consumer Financial Protection Bureau (CFPB) that requires PHH Corporation, a large home mortgage lender, to disgorge $109 million in a captive reinsurance arrangement the CFPB held to be illegal. The case is PHH Corporation, et al., v. CFPB. In so ruling, the panel majority, in a decision written by Judge Kavanaugh, holds that the basic structure of the CFPB—an independent agency wielding enormous power over the nation’s economy that is headed by a Director who is largely immune from any Presidential control or direction—essentially operates without any institutional checks on the exercise of his or her authority. Only a few “independent agencies” have ever operated under these conditions, and their powers were quite limited. The Court of Appeals holds that this arrangement has no historical basis and in effect violates the constitutional separation of powers.

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Recently, our colleagues Tamara Bruno, Colin Kemp, Peter Gillon, Vince Morgan and Joseph Jean published an alert titled Hurricane Matthew Requires Immediate Action to Maximize Insurance Recovery to help you weather any storm.20161009-DOD-AP-0009

Photo:  U.S. Department of Agriculture – A MH-60 helicopter from the U.S. Coast Guard  (USCG) Aviation Training Center Mobile, AL conducted a fly over of the Charleston, South Carolina area that was affected by Hurricane Matthew, on Friday, October 8, 2016. The Coast Guard is committed to the safety of the community, environment, and responders. USCG photo by Petty Officer 3rd Class Alexandria Preston – Creative Commons

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A few weeks ago, we noted that the U.S. District Court for the District of Columbia, in a decision reported on September 9, 2016, denied a motion for a preliminary injunction filed by the Standing Rock Sioux Reservation against the construction of the Dakota Access Pipeline through the lands of the Tribe. That case is Standing Rock Sioux Tribe, et al., v. U.S. Army Corps of Engineers, et al. The Tribe alleged that the Corps of Engineers, in its review of the permitting requirements triggered by the project, had failed to engage in the consultative process requirements of Section 106 of the National Historic Preservation Act (NHPA), but that District Court denied relief, holding that the Tribe largely refused to engage in such consultation. On September 9, 2016, the Tribe filed an emergency appeal with the U.S. Court of Appeals for the District of Columbia, and the DC Circuit responded by issuing an order to the pipeline to freeze work on the pipeline within 20 miles of Lake Oahe. This narrow work freeze, described as an administrative injunction, was intended to give the Court of Appeals sufficient opportunity to considered the Tribe’s motion for an injunction pending appeal.

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In a decision released on October 6, 2016, the Court of Appeals for  the First District of Texas, sitting in Houston, unanimously affirmed the jury’s verdict that International Paper Company (IP) was not liable for large civil penalties as a result of the discharge of dioxin-contaminated paper mill waste into the San Jacinto River. The case is Harris County and Texas Commission on Environmental Quality v. International Paper Company. This is an important case with respect to the application of the Texas Solid Waste Disposal Act. Continue reading

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The U.S. Department of Labor has issued its final rule implementing President Obama’s 2015 Executive Order 13706, “Establishing Paid Sick Leave for Federal Contractors,” an executive order requiring federal contractors and subcontractors to provide their employees working on covered government contracts with up to seven days of paid leave per year for covered purposes. Our colleagues Rebecca Rizzo, Glenn Sweatt, Julia Judish and Dick Oliver discuss the final rule in their recent publication Department of Labor Issues Final Rule Requiring Federal Contractors to Provide Paid Sick Leave.

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Recenty, our colleagues Paul Jebely, Luca Denora and Zara Machado published an interesting client alert titled The Ties that Bind: Commitment Letters under English Law. The publication discusses a recent decision of the UK Commercial Court, Novus Aviation Limited v. Alubaf Arab International Bank BSC (c) [2016] EWHC 1575 (Comm), which contemplates that  pre-contractual deal documents may constitute a binding contract, imposing obligations on both parties.

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Recently, our colleagues Marne Sussman, Emily Burkett and Norman Carlin published their client alert California Supreme Court Sets New Deferential Standard for Supplemental CEQA Review. The Alert discusses the California Supreme Court’s rejection of the “new project” test for determining whether a changed project remains similar enough to the original project for supplemental California Environmental Quality Act (CEQA) review to be appropriate. The Alert discusses the Court’s creation of a different threshold inquiry for lead agencies under such circumstances. The case is Friends of the College of San Mateo Gardens v. San Mateo Community College District.

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On September 13, the U.S. District Court for the District of North Dakota granted a Motion for a Temporary LakeSAkakawea-300x225Restraining Order in the matter of Paradigm Energy Partners, LLC v. Fox, et al., prohibiting the defendants from interfering with the Paradigm’s construction of two pipelines (an oil and a natural gas pipeline) in McKenzie and Mountrail Counties, North Dakota.

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On September 9, the U.S. District Court for the District of Columbia denied a motion for a Preliminary Injunction against the U.S. Army Corps of Engineers to stop the construction of the Dakota Access Pipeline, a pipeline that will run within one-half mile of the Standing Rock Sioux Reservation, located in North and South Dakota. The case is Standing Rock Sioux Tribe, et al., v. U.S. Army Corps of Engineers, et al., and an emergency appeal has been filed with the U.S. Court of Appeals for the District of Columbia Circuit. The Plaintiffs allege that the Corps failed to engage in substantive consultations with the Tribe as required by the National Historic Preservation Act (NHPA). However, the District Court, in a long and comprehensive opinion, held that the Corps “has likely complied with the NHPA” and that the Tribe has not demonstrated that a preliminary injunction is warranted. Continue reading

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Check out my latest blog for Pillsbury’s Policyholder Pulse titled A Subcontractor’s Defective Work Is an Occurrence: Weedo Wobbles … and Falls Down. It discusses a recent ruling in New Jersey,  Cypress Point Condominium Assoc., Inc. v. Adria Towers, L.L.C., on the issue of whether damage caused by a subcontractor’s faulty workmanship constitutes “property damage” and an “occurrence” under a property developer’s commercial general liability insurance policy.

Additional Source: Weedo v. Stone-E-Brick, Inc.