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Seal_of_the_Supreme_Court_of_Texas-300x300On May 3, 2019, the Texas Supreme Court issued a significant administrative law ruling in the case of Mosely v. Texas Health and Human Services Commission. The court held, unsurprisingly, that under the Texas Administrative Procedure Act (Texas APA), an appellant seeking review of an administrative action must first file a petition for rehearing with the Administrative Law Judge, “unless another statute plainly provides otherwise.” However, when the agency, as here, provided seriously incorrect information to the appellant about the proper procedures to follow to seek review of an adverse order, that action can, “under some circumstances,” violate the appellant’s constitutional right to due process.

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Whenever a claim is made that a state law has  been prempted by an analogous federal law, the courts will rigorously test the strength of the claim.  As as example, in a preemption case decided on September 15, by the U.S. Court of Appeals for the Ninth Circuit, Association des Éleveurs de Canards et d’Oies du Québec, et al., v. Becerra, the Ninth Circuit reversed the holding of the District Court that California’s statutory ban against the sale of products made from force-fed birds such as foie gras was preempted by the provisions of the federal Poultry Products Inspection Act (PPIA).

As described, the practice of force-feeding these birds to enlarge their livers is especially brutal. The California Assembly found that the process is “so hard on the birds that they would die from the pathological damage it inflicts if they weren’t slaughtered first.” Nevertheless, the District Court held that California statutory ban imposes an “ingredient requirement,” which was the sole province of the federal law.

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The recent Spanish Peaks decision from the Ninth Circuit (covering Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) deepens the split in case law on the ability to strip off leases in a landlord/borrower bankruptcy. This decision, which joins the Qualitech decision from the Seventh Circuit (covering Illinois, Indiana and Wisconsin), may significantly impact and complicate sales in bankruptcy of real property for lenders and non-debtor tenants alike.

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Seeking regulatory relief from even an exotic statute like the the Commodity Exchange Act requires adherence to the relevant provisions of the law. Failure to comply with, for example, a provision governing timely pursuing a claim may be cause for denial of relief even for otherwise meritorious claims.

On May 25, a matter that was argued on May 18, was decided by the U.S. Court of Appeals for the Seventh Circuit in The Conway Family Trust v. Commodity Futures Trading Commission. This is another statute of limitations case involving on this occasion the Commodity Exchange Act. The Court of Appeals, which affirmed the CFTC’s ruling, and in doing so also held that the Trust failed to establish that the two-year statute of limitations should be equitably tolled.

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On May 9, the U.S. Court of Appeals for the District of Columbia issued a significant ruling in Kahl v. Bureau of National Affairs, Inc. The Court of Appeals addresses (i) whether Yorie Von Kahl is a public figure for First Amendment purposes; and (ii) if so, whether he has produced sufficient evidence of actual malice by the Bureau of National Affairs, Inc. (BNA) to overcome BNA’s motion for summary judgment.

Some of these issues may play a role in a defamation lawsuit that is now before the local District of Columbia courts, Michael Mann v. Competitive Enterprise Institute, which concerns the hotly debated topic of climate change and global warming. On December 22, 2016, the District of Columbia Court of Appeals held that a jury could reasonable conclude that articles published in the National Review magazine “were false, defamatory and published with actual malice.”

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The California Contractors State License Board issued notice of its upcoming Legislative Committee Meeting:

Friday, May 19, 2017, 10:00 a.m. – 11:30 am
(or until the conclusion of business)
Contractors State License Board HQ, John C. Hall Hearing Room
9821 Business Park Drive, Sacramento, CA 95827

At the meeting, the CSLB is expected to discuss:

  1. A.B. 710 (Wood) Department of Consumer Affairs: Board Meetings
  2. A.B. 996 (Cunningham) Contractors Licensing Board Web Site: Search Function
  3. A.B. 1005 (Calderon) Professions and Vocations: Fines: Relief
  4. A.B. 1070 (Gonzalez) Contractors (“solar energy system disclosure document”)
  5. A.B. 1162 (Bocanegra) Electrical Contractors: Local Permits
  6. A.B. 1190 (Obernolte) Department of Consumer Affairs: BreEZe System
  7. A.B. 1278 (Low) Contractor Licensing: Final Judgments
  8. A.B. 1357 (Chu) Home Inspectors: Roofing Contractors: Roof Inspections
  9. S.B. 27 (Morrell) Professions and Vocations: Licenses: Military Service
  10. S.B. 486 (Monning) Contractors State License Law: Letter of Admonishment
  11. S.B. 715 (Newman) Regulatory Boards: Removal of Board Members
  12. S.B. 721 (Hill) Contractors: Decks and Balconies: Inspection
  13. S.B. 800 (Business, Professions & Economic Development) Professions & Vocations

This meeting will be open to the public except when specifically noticed otherwise. Members of the public are permitted to address the Committee during the public comment session; however, the total time allocated for public comment may be limited at the discretion of each Committee Chair.

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In U.S. v. Brownstein, the U.S. Court of Appeals for the DC Circuit, reversing the District Court, held that a federal law regulating conduct in the Supreme Court Building, 40 U.S.C. § 6134, which prohibits “harangues and orations” during oral argument, is constitutionally infirm.  On April 1, 2015, the defendants interrupted oral argument to announce their displeasure for the Supreme Court’s ruling in the Citizens United v. Federal Election Commission, a political speech case.  Noting that the defendants had fair notice of the rules governing conduct in this area, the DC Circuit, citing the movie “My Cousin Vinny,” concluded that a” person of ordinary intelligence could read this law and understand that, as a member of the Supreme Court’s oral argument audience, making disruptive public speeches is clearly proscribed behavior.”

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On January 3, the U.S. Court of Appeals for the Tenth Circuit issued a ruling reversing the district court’s decision that Asarco could not proceed with its claims for cost recovery at a Utah Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) mining site. The case is Asarco, LLC v. Noranda Mining, Inc.

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Today, our colleagues Jenny Sheng and Julian Zou published a client alert discussing China’s recent restrictions on outbound investments by Chinese companies in certain industries. Among other things, they encourage Chinese firms and foreign investors engaged in overseas investments to be aware of these new trends and to prepare to adjust their strategic plans and overseas activities. The alert is titled China’s Recent Restrictions on Outbound Investments by Chinese Companies.