Articles Posted in Construction Generally

January 1, 2015, the new C-22 Asbestos Abatement contractor license classification in California became official. The Asbestos Certification (contemplated by Business & Professions Code § 7058.5) continues to be available for contractors who perform asbestos-related work only within the scope of their contractor licenses and these contractors are not required to add the C-22 classification to their existing license.
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Today, Pillsbury attorney Ray Sweigart posted his client alert titled English Court Trumps Arbitration Clause in Favor of One-Stop Litigation. The Alert discusses the English High Court in Monde Petroleum SA v WesternZagros Ltd [2015] EWHC 67 (Comm) recently deciding whether a dispute resolution clause in a settlement agreement referring disputes to the English court superseded an arbitration provision in the underlying contract so as to govern resolution of subsequent disputes arising out of both agreements. The court held that the later clause controlled, and it applied a presumption of one-stop adjudication as evidenced by the language of the clause itself as well as the surrounding factual circumstances, including the timing of the agreement to the conflicting provisions.

Today, Pillsbury attorneys Ken Taber, Julia Judish and Keith Hudolin published their client alert titled New York City Largely Bans Employers from Considering Consumer Credit History. The Alert discusses New York City Mayor Bill de Blasio‘s recent signing into law of a bill barring employers in New York City from discriminating against employees and applicants based on their consumer credit histories. The Alert explains, among other things, that the exceptions to this new law are much more limited than the exceptions found in similar laws in other states. It encourages New York City employers to review their employment policies to ensure that their employment policies and decisions do not give employees or applicants potential claims of “consumer credit history” discrimination.

Additional Source: New York Int. 0261-2014

Recently, New York Senate Bill 5043 was introduced by Senator Tony Avella. It was read twice and ordered printed, and when printed to be committed to the Committee on Housing, Construction and Community Development. If signed into law, the bill would amend the administrative code of the City of New York to add Section 28-118.22 to read that “all new building construction or alterations of current buildings in an R1, 2, 3 or 4 zoning areas shall complete construction and/or alterations and obtain a certificate of occupancy within four years of the initial permit for such construction and/or alteration. If such construction is not complete and a certificate of occupancy [] is not obtained within four years, the Department may demolish the structure and return the site to a clean and safe condition at the property owner’s expense.” The bill also proposes to amend Section 28-214.1 of the administrative code of the City of New York to read that “[a]fter a period of two years, if no attempt is made to rehabilitate the ‘sealed’ status of such building pursuant to subdivision one of this section, such building may be demolished at the property owner’s expense pursuant to Section 28-214.1.5 of this Article.” If signed into law, the bill would take effect immediately.

In a companion case decided on April 24, 2015, the Texas Supreme Court held that the Texas Citizens Participation Act (Act) can apply to private as well as public communications. In its per curiam opinion in Lippincott and Parks v. Whisenhunt, the Court held that controversial private communications on a matter of public concern, here the adequacy of medical services, can also trigger the protective provisions of the Act. Ultimately, the allegation made in the complaint must be measured against the evidentiary standards clarified in the decision in In re: Steven Lipsky.

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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