Articles Posted in Construction Generally

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iStock-537528238-court-of-appeal-300x199Can an employer recover liquidated damages (LDs) from a contractor if the contract terminates before the contractor completes the work?

Surprisingly, heretofore, English law provided no clear answer to this seemingly straightforward question, and inconsistent case law over the past century has left a trail of confusion. Given the widespread use of English law in international construction contracts, this uncertainty had gone on far too long.

The good news is that drafters of construction contracts throughout the world can now have a well-deserved good night’s sleep courtesy of the English Court of Appeal’s March 2019 decision in Triple Point Technology, Inc. v PTT Public Company Ltd [2019] EWCA Civ 230.

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LODGING Magazine recently published an article by Pillsbury attorneys Brian Finch and Zack Kessler titled Modernizing Hotel Security Protocols To Protect Against 21st Century Threats. The article discusses the recent bombings and shootings at high-profile hotels in the U.S. and abroad, and how the hospitality industry can benefit from risk management tools available under the Support Anti-Terrorism by Fostering Effective Technologies Act of 2002 (the SAFETY Act), enacted as part of the Homeland Security Act of 2002, Public Law 107-296.

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On March 19, the U.S. Supreme Court decided the case of Air & Liquid Systems Corp. v. Devries, affirming the ruling of the U.S. Court of Appeals for the Third Circuit in this maritime tort case involving the availability of the “bare-metal defense.” The bare-metal defense’s basic idea is that a manufacturer who delivers a product “bare metal”—that is without the insulation or other material that must be added for the product’s proper operation—is not generally liable for injuries caused by asbestos in later-added materials.

The Court confirmed that

“maritime law’s special solicitude for the safety and protection of sailors counsels us to adopt a standard-based approach to the bare-metal defense that permits a plaintiff to recover, at least in negligence, from a manufacturer of a bare-metal product when the facts show the plaintiff’s injuries were a reasonably foreseeable result of the manufacturer’s conduct.”

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Today, Pillsbury attorneys Julia Judish and Rebecca Carr Rizzo published their Client Alert titled How Employers Should Respond to the Trump Administration’s Proposed Overtime Rule.  The Alert discusses the Trump Administration’s Notice of Proposed Rulemaking (NPRM) for amending the federal Fair Labor Standards Act (FLSA) so-called “white collar” exemptions. The new rule would formally rescind the Obama Administration’s 2016 Final Rule.

The Obama Administration 2016 Final Rule would have more than doubled the minimum salary level for executive, administrative, and professional employees to be classified as exempt from overtime and minimum wage requirements (the EAP exemption) and increased the minimum salary level by a third for highly compensated employees (the HCE exemption), with automatic increases every three years (the “2016 Final Rule”).

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On February 26, 2019, the Council on Environmental Quality (CEQ) and Office of Management and Budget (OMB) issued a joint memorandum (Memo) clarifying how state transportation departments that have been delegated responsibility under National Environmental Policy Act (NEPA) should implement federal directives to streamline the environmental review and approvals of major infrastructure projects. While the Memo establishes no new affirmative duties on these state agencies, it reflects yet another step in the Trump administration’s continued efforts to ensure collective adherence to its goal of expediting environmental review under NEPA.

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Prior to deciding whether to review an important February 1, 2018, U.S. Court of Appeals for the Ninth Circuit decision involving the jurisdictional reach of the Clean Water Act (CWA), Hawai’i Wildlife Fund, et al., v. County of Maui, the Supreme Court asked the Solicitor General for the views of the U.S. on the holdings of this case and the April 12, 2018 U.S. Court of Appeals for the Fourth Circuit decision, Upstate Forever, et al., v. Kinder Morgan Energy Partners, L.P., et al.

On February 19, the Supreme Court confirmed that certiorari was granted to Question 1 presented by the Petition,

Whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. (33 U.S.C. § 1362 (12)

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Most companies have been involved in a situation where they want to end their relationship with another company, or with an employee, and to permanently terminate their mutual obligations (e.g., a settlement agreement resolving end-of-project litigation). In 1992, a California Court of Appeals, in Winet v. Price, confirmed that upholding general releases is “in harmony… with a beneficial principle of contract law: that general releases can be so constructed as to be completely enforceable.”

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On February 8, the U.S. District Court for the District of Columbia issued its latest ruling in a case which challenges the President’s January 30, 2017 Executive Order constraining the ability of federal agencies to issue new regulations and the Office of Management and Budget’s (OMB) implementation of that Order. The case is Public Citizen, Inc., et al. v. Donald J. Trump, President of the United States, et al. The District Court has not yet been convinced that the petitioning plaintiffs have standing to make this challenge to this Order, and its mandate that two existing rules be eliminated for each new rule promulgated.

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On January 31, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit issued a unanimous ruling in a commercial speech case, American Beverage Assoc., et al., v. City and County of San Francisco. The Panel held that the lower court’s denial of a preliminary injunction requested by the plaintiffs must be reversed, and the matter remanded to the lower court because the plaintiffs were likely to succeed on the merits of their claim that a 2015 San Francisco city ordinance requiring specified health warnings on a host of sugar-sweetened drinks (“WARNING: Drinking beverages with added sugars(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.”) violated their First Amendment rights.

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There were 442 bills passed by the 115th Congress and signed by the President. Most of these new laws have attracted very little attention, so it may be helpful to review a few of them. The list below provides a glimpse into the myriad issues that face each Congress, and the implementation issues that will be the responsibility of the federal agencies:

• PL 115-265, the Save our Seas Act of 2018. The law reauthorizes and amends the Marine Debris Act, located at 33 U.S.C. § 1952, to “promote international action to remove marine debris”. The law requires the Department of State and other federal agencies to develop outreach and educational strategies to address the source of marine debris and provide technical assistance reduce the incidence of marine debris and provide technical assistance to expand waste management systems on an international basis. In case of a “severe marine debris” event, to assist in the cleanup. It is also the sense of Congress that the President should support research and development on systems that result in the reduction of derelict fishing gear and land-based sources of debris that enters the marine environment. The law addresses the membership of an Interagency Marine Debris Coordination Committee. The enormous amount of plastic waste deposited in the ocean must have been a concern to the legislators. Continue reading