Yesterday, Pillsbury attorney Robert Wallan published his client alert titled In Reversal, California Supreme Court Allows Assignment of Coverage for Liability Claims. The Alert discusses the California Supreme Court’s reversal of its own heavily criticized decision in Henkel Corp. v. Hartford Accident & Indem. Co. (2003) 29 Cal. 4th 934. The case is Fluor Corp. v. Superior Court. The California Supreme Court announced that its rule against assignment, set forth in Henkel, must be reversed because the earlier decision failed to consider a 19th-century statute that dictates a ruling favoring assignability.
District Court Issues Preliminary Injunction, Enjoining New Rule Redefining “Waters of the United States”
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On August 27, 2015, the U.S. District Court for the District of North Dakota, Southeastern Division, issued a preliminary injunction enjoining the new rule jointly promulgated by EPA and the U.S. Army Corps of Engineers redefining “Waters of the United States,” which is a linchpin of federal regulatory jurisdiction under the Clean Water Act. Twelve States, and representatives of New Mexico executive departments filed a lawsuit challenging the new rule, and also requested the issuance of a preliminary injunction. Ruling that the new rule has only “an attenuated connection to any permitting process”, the District Court held that it had jurisdiction to hear this case, and that the plaintiffs demonstrated a substantial likelihood that they would succeed on the merits and met the other criteria necessary to obtain a preliminary injunction. The case is State of North Dakota, et al., v. EPA and U.S. Army Corps of Engineers.
SEC Adopts Final Pay Ratio Disclosure Rules
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Today, Pillsbury attorneys Mark Jones, and Jessica Lutrin published their client advisory titled SEC Adopts Final Pay Ratio Disclosure Rules. The Advisory discusses the SEC’s adoption of its Final Rule under the Dodd-Frank Act to require U.S. public companies to disclose the ratio of the annual total compensation of their principal executive officer to the median annual total compensation of all employees.
Additional Source, SEC Proposes Pay Ratio Disclosures
NV Shining Bright Light on Solar Contractors
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The Nevada State Contractors Board (NSCB) appears to be continuing its efforts to ensure that solar companies remain in compliance with state regulations. NSCB reports that it is using a series of outreach presentations to contractors and homeowners interested in solar construction, reporting, in part, on licensing-related violations within the industry. NSCB continues to caution that only companies with Nevada contractor’s licenses are allowed to install solar equipment in Nevada. It reports that out-of-state contractors “have been known to hire unlicensed sales representatives [to] solicit solar projects, who then contract for the work to be installed. This follows NSCB’s report in its February 2015 Senior Bulletin “aggressive efforts from out-of-state manufacturers to sell and install their products in Nevada homes is becoming more and more rampant.” It cautions Nevada licensed-contractors not to jeopardize their licenses by contracting with unlicensed contractors.
Additional Source: Nevada State Contractors Board, Horizons (August 2015), Board Addresses Solar Concerns; Nevada State Contractors Board, Horizons (February 2015), Beware of unlawful practices in solar sales
9th Circuit Issues CWA Decision re Water Transfers on the Klamath River
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The U.S. Court of Appeals for the Ninth Circuit issued a ruling Friday in the case of ONRC Action v. United States Bureau of Reclamation. Affirming the district court, the Court of Appeals held that the transfer of water into the Klamath River by means of the Klamath Straits Drain, as part of the Klamath Irrigation Project operated by the Bureau of Reclamation (Bureau) in parts of California and Oregon, is not the discharge of pollutants into waters of the United States without a permit. Continue Reading ›
7th Circuit “going outside the record” to reverse District Court’s grant of a motion for summary judgment
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In what may be a harbinger of things to come, the U.S. Court of Appeals for the Seventh Circuit debated the propriety of using the court’s own internet research to decide a case before it. The case is Rowe v. Gibson, et. al., decided on August 19, 2015; a pro se prisoner civil rights dispute that was dismissed by the district court. Continue Reading ›
2nd Circuit Affirms Finding that New York Fracking Moratorium is Not a Force Majeure Extending the Term of the At-issue Leases
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On August 19, 2015, the U.S. Court of Appeals for the Second Circuit issued a ruling discussing the impact of New York State’s “Fracking Moratorium” on some existing oil and gas leases. The case is Beardslee, et al., v. Inflection Energy, LLC, et al. The Court of Appeals affirmed the district court’s decision to grant a motion for summary judgment filed by a group of landowners located in Tioga County, New York. The district court had concluded that the parties’ five-year oil and gas leases had expired by their terms and that the leases’ force majeure clauses did not extend the leases’ primary terms. It did so despite the energy companies’ arguments that New York Fracking Moratorium amounted to a force majeure automatically extending the term of these leases.
SEC’s Conflict Minerals Rule Again Held to be Unconstitutional
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In the latest ruling in the case of National Association of Manufacturers, et al., v. SEC, a divided panel of the U.S. Court of Appeals for the District of Columbia held today that the Secuiety and Exchange Commission’s “conflict minerals” rule’s compelled disclosures—affecting the acquisition of certain minerals produced in the Democratic Republic of the Congo—and indeed Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. 111-203, H.R. 203, H.R. 4173) (commonly referred to as Dodd-Frank), violate the First Amendment and are unconstitutional. Two Senior Circuit judges (Randolph and Sentelle) formed the majority, and Judge Srinivasan dissented.
Worker’s Death Results in Prison Term for Construction Company Owner and Project Manager
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Recently, Cal/OSHA issued a News Release confirming that its criminal investigation into a cave-in death of a day laborer in late January 2012 has resulted in a 2-year prison sentence for both the employer and the project manager for involuntary manslaughter. Christine Baker, Director of the Department of Relations (DIR) warns: “California employers must provide workers with the necessary protection and training so they can do their jobs safely… When our investigations uncover negligent behavior by employers, we exercise our full jurisdiction to protect workers – including referrals to district attorneys for prosecution.” Cal/OSHA Chief Juliann Sum joined in, warning: “When preventable deaths occur on the job, employers must be held accountable.”
N. Cal. District Court Rejects FWS’s New 30-Year Bald and Golden Eagle “Take” Permit Extension
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On August 11, 2015, the U.S. District Court for the Northern District of California, San Jose Division, issued a long ruling deciding a challenge to a new rule, adopted by the U.S. Fish and Wildlife Service (FWS) in December 2013, which increased the maximum duration of a “programmatic permit” to “take” bald and golden eagles incident to otherwise lawful activities from 5 to 30 years. The case is Shearwater, et. al. v. Dan Ashe, Director, U.S. Fish and Wildlife Service, et al.