Posted

In Hurricane Florence: Maximizing Insurance Recoveries, Pillsbury’s Joe Jean, Peter Gillon and Matt Putorti discuss the immediate and proactive steps affected businesses and other organizations should take to maximize their insurance recovery.

1. Obtain and Review Your Insurance Policies.
2. Assess All Possible Coverages.
3. Place All Insurers on Notice.
4. Document and Mitigate Your Losses.
5. Detail Your Business Interruption and Contingent Business Interruption Claims.
6. Engage Experts.
7. Follow the Policy to Preserve the Claim.
8. Consider Government Funds for Nonprofits Providing Critical Infrastructure and Essential Services.

Posted

The Clean Water Act (CWA) authorizes citizen suits to enforce the provisions of the law which requires a permit to discharge a pollutant from a point source into navigable waters. Earlier this year, the U.S. Court of Appeals for the Fourth Circuit, in Upstate Forever v. Kinder Morgan Energy Partners, held that discharges into groundwater, not surface water, could also trigger the regulatory authority of the CWA if there was a hydrological connection between the groundwater and the navigable, surface, waters. In its a closely-watched case, Sierra Club v. Virginia Electric & Power Company (“VEPCO”), which also involved discharges into groundwater, the Fourth Circuit was bound by this this new and controversial precedent (a Supreme Court review is very likely), but the plaintiffs in the VEPCO case could not establish that the landfill and the settling ponds used by VEPCO were “point sources”—another important element that must be established.

Unless this decision is reversed by an en banc Fourth Circuit ruling or the Supreme Court, VEPCO will avoid millions of dollars in cleanup costs, and this is also a restatement of the limiting conditions placed on CWA citizen suits.

Continue reading

Posted

In Hurricane Florence: Is Your Company Prepared for a Disaster?, Pillsbury’s Joe Jean, Tamara Bruno, Matt Jeweler and Janine Stanisz discuss how important it is for companies to understand how their insurance policies cover the company’s risk in the event of an unexpected or catastrophic loss. Having the correct insurance policies in place is only the first step.

Posted

It was already the case that in order to offer to install California residential solar energy systems, a contractor must be licensed by the California Contractors State License Board (CSLB) and must hold an appropriate specialty classification. Under AB 1070 enacted late last year (Chapter 662, Statutes of 2017), special consumer protections are being deployed for the benefit of homeowners. Those protections are steadily rolling out.

Continue reading

Posted

In Is the Pendulum Swinging on Agency and Government Contractor Cooperation?, Pillsbury attorneys Mike Rizzo, Glenn Sweatt and Kevin Massoudi discuss comments from the Department of Defense as well as recent good faith and fair dealing court decisions that point to and encourage improved contractor/government relationships. Their key takeaways include

  • Government officials are actively encouraging collaboration with, and less antagonism of, industry contractors.
  • Recent Boards and Court of Federal Claims construction decisions suggest a growing trend of awarding damages to contractors when the government breaches the duty of good faith and fair dealing.
  • Contractors seeking to take advantage of these trends should explore formal partnering with their government  clients to reduce future claims and early alternative dispute resolution options to resolve existing disputes.

Posted

In The Fiscal Year 2019 NDAA Imposes Government-Wide Limitations on the Use of Lowest-Price Technically Acceptable Procurements, Pillsbury attorneys Dick Oliver and Aaron Ralph are optimistic that contractors will soon have additional legal authority to demonstrate to civilian agencies that a best value tradeoff process should be employed.

  • Congress’ trend of limiting the use of the much-derided lowest price, technically acceptable (LPTA) procurement process continues.
  • Many of the Department of Defense’s (DoD) limitations on the use of LPTA process will be extended to civilian agencies.
  • The recently enacted John S. McCain National Defense Authorization  Act (NDAA) requires that the Federal Acquisition Regulation be updated by December 11, 2018, to incorporate these limitations.

Posted

On August 24, the U.S. Court of Appeals for the Ninth Circuit, in U.S. ex rel. Scott Rose, et al., v. Stephens Inst., dba Acad. of Art Univ., affirmed the U.S. District Court for the Northern District of California’s order denying the defendant’s motion for summary judgment in a qui tam action brought under the False Claims Act. The Ninth Circuit address questions of law posed in the wake of the U.S. Supreme Court’s decision in Universal Health Serv., Inc. v. United States ex rel. Escobar, regarding the tests for establishing falsity and materiality.

Continue reading

Posted

The U.S. Court of Appeals for the Federal Circuit’s July 18 ruling, in Shell Oil Company, et al., v. U.S., may have brought to an end a long-running dispute over the impact on World War II government procurement contracts on the liability of major oil companies for the remediation costs at a major Southern California Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) site — the “McColl site.”

Continue reading

Posted

On August 21, the U.S. Court of Appeals for the District of Columbia decided the “coal combustions residuals” case: Utility Solid Waste Activities Group, et al. , v. EPA. This new Resource Conservation and Recovery Act (RCRA) case could have important implications for the coal industry and powerplants that use coal.

Continue reading

Posted

On August 17, the U.S. Court of Appeals for the District of Columbia Circuit, in the case Air Alliance Houston, et al., v. EPA, vacated the Environmental Protection Agency’s (EPA) “Delay Rule.” The so-called “RMP” ( for risk management plan) rule was substantially amended after a number of plant explosions took place in the past few years. The amended rules were published a week before the new administration took office EPA had delayed the effective date of the Chemical Disaster Rule of 2017 on three separate occasions: January 26, 2017, March 16, 2017, and ultimately to June 14, 2017.

The Court of Appeals held that the actions taken by EPA were not authorized under the relevant provisions of the Clean Air Act (CAA) and were otherwise arbitrary and capricious. The Court of Appeals vacated the Delay Rule of June 14, 2017.

Continue reading