Articles Posted in Construction Generally

Today, Pillsbury attorneys Steve Becker and Elizabeth Moeller published their client alert titled Unusual Bipartisanship Makes New Free Trade Agreements More Likely. The Alert discusses major new free trade agreements that are on the horizon. For the past several years, the Obama Administration has been negotiating two new major free trade agreements: the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade and Partnership Agreement (TTIP). Because of divisions within the Democratic Party regarding trade agreements, previously it was uncertain whether the President could garner the support necessary to obtain Congressional approval. With both Houses of Congress now controlled by the Republican Party–which historically has supported trade agreements–the prospects for ultimate approval have significantly improved. Action on the TPP in particular is possible during 2015.

On April 24, 2015, the U.S. Court of Appeals for the Fifth Circuit issued an interesting opinion in another challenge to the Affordable Care Act (ACA). In the case of Steven F. Hotze, M.D., et al., v. Burwell, the Court of Appeals considered a challenge to the Patient Protection and Affordable Care Act (ACA)–based on an alleged violation of the Constitution’s Origination Clause, U.S. Const. art. I, § 7, cl. 1, which requires that all revenue raising legislation must originate with the U.S. House of Representatives.
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On April 24, 2015, the Texas Supreme Court issued a per curiam opinion clarifying the evidentiary standards that will govern the application of the Texas Citizens Participation Act (“Act”). The Court balanced the need for open and vigorous discussion of important public issues–such as hydraulic fracturing–against a litigant’s right to defend itself against unwarranted attacks. The law enacted in 2011, writes the Court, “protects citizens who petition or speak out on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them”. If a lawsuit amounts to an attempt to stifle a defendant’s ability to communicate to the public on a matter of public concern, the trial court’s duty under the Act is to dismiss the lawsuit unless the plaintiff’s “prima facie case” is supported by “clear and specific evidence”–a complicated formulation for the courts to administer. The case is In re: Steven Lipsky. This was a unanimous opinion by the Texas Supreme Court, written by Justice Devine.
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DECEMBER 9, 2015 UPDATE:  Today, the Central District Court its Order Granting Defendant’s Motion to Dismiss in Barber v. Nestle USA, Inc., et al., No. SACV 15-01364-CJC(AGRX), concluding that “Plaintiffs’ claims are barred by the safe harbor doctrine and therefore declines to reach the remainder of Nestlé’s arguments.” Nestlé successfully argued that “a safe harbor from Plaintiffs’ state law claims was created by the California Transparency in Supply Chains Act of 2010 (“Supply Chains Act”), Cal. Civ. Code § 1714.43.”  This is an important issue for retail sellers and manufacturers subject to the Supply Chains Act.

UPDATE:  Sample DOJ Letter re California’s Transparency in Supply Chain Act

Recently, we learned that the California Department of Justice is sending out notices to entities that self-reported in their California tax return that they are a retail seller or manufacturer in connection with what the DOJ is referring to as its compliance review of disclosures required by California’s Transparency in Supply Chain Act of 2010 (Act). The Act requires retail sellers and manufacturers doing business in the California and having $100,000,000 or more in annual worldwide gross receipts to disclose their efforts to eradicate slavery and human trafficking from their direct supply chains for tangible goods offered for sale, as specified. The Act was effective on January 1, 2012.
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Recently, the Louisiana State Licensing Board for Contractors updated its publication titled Important Information Regarding Reciprocity (Revised 3/17/2015). Like many other states, Louisiana may give an applicant for a contractor’s license credit for having a contractor’s license in another state in which Louisiana has a reciprocity or examination endorsement agreement, and vice versa. In order to qualify for reciprocity in Louisiana, the qualifier for the license application submitted to the Louisiana State Licensing Board for Contractors must be the qualifier on the contractor’s license in the reciprocal state. Louisiana has a reciprocity or examination endorsement agreement with Alabama, Arkansas, Georgia, Kentucky, Mississippi, North Carolina, Ohio, South Carolina, Tennessee, Texas, Utah, and Virginia.
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Seattle’s new minimum wage legislation passed by the Seattle City Council and signed into law by Mayor Murray on June 3, 2014 provides for an increase in the minimum wage in the City of Seattle to $15/hr., phased in over time, beginning April 1, 2015. The minimum wage ordinance has a different schedule for increasing the employees’ pay based upon the employers’ number of employees in the U.S. and whether the employer pays toward its employees’ medical benefits plan.
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The Franchise Tax Board (“FTB”) will begin reviewing California Competes Tax Credit Agreements of all recipient of the credit (except for small businesses) beginning this summer. If FTB determines that credit recipients have failed to achieve the employment and investment milestones set forth in their credit agreements, FTB may recommend that the awarded credits be recaptured. During the course of FTB’s review, it may request from credit recipients any information relevant to the credit agreements, and will have access to all of the information submitted in the course of the recipients’ application for a credit award. Credit recipients and future credit applicants should be aware that FTB is not prohibited from using any of this information for purposes of an unrelated income or franchise tax audit, and that contesting an FTB recommendation to recapture the credit may present unique procedural challenges.

Additional Source: Franchise Tax Board California Competes Tax Credit Review Procedures authored by Paul Casas

The Nevada State Contractors Board (NSCB) recently issued an Industry Bulletin reminding all licensed Nevada contractors of their responsibility to include specific information when advertising services. Subdivision (3) of Section 624.720 of the Nevada Revised Statutes requires that “[a]ll advertising by a licensed contractor must include the name of the contractor’s company and the number of the contractor’s license.” In its Industry Bulletin, NSCB confirmed that it frequently monitors a number of print and online media, including Angie’s List, Craigslist, online bulletins, local and statewide publications, etc. and that it has begun to see an increase in licensed contractors failing to include their license number in their advertisements.
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Today, Pillsbury attorney Ray Sweigart published his client alert titled Removal of Arbitrator for Impartiality Doubts under English Arb Act. The Alert discusses the English Court’s removal of an arbitrator under section 24 of the Arbitration Act 1996 in Sierra Fishing Company and others v Hasan Said Farran and others [2015] EWHC 140 (Comm).
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