Recently, our colleagues Luca Denora and Zara Machado published an interesting client alert titled The Ties that Bind: Commitment Letters under English Law. The publication discusses a recent decision of the UK Commercial Court, Novus Aviation Limited v. Alubaf Arab International Bank BSC (c) [2016] EWHC 1575 (Comm), which contemplates that pre-contractual deal documents may constitute a binding contract, imposing obligations on both parties.
Cal. Court Creates New Threshold Inquiry for Supplemental CEQA Review
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Recently, our colleague Norman Carlin published his client alert California Supreme Court Sets New Deferential Standard for Supplemental CEQA Review. The Alert discusses the California Supreme Court’s rejection of the “new project” test for determining whether a changed project remains similar enough to the original project for supplemental California Environmental Quality Act (CEQA) review to be appropriate. The Alert discusses the Court’s creation of a different threshold inquiry for lead agencies under such circumstances. The case is Friends of the College of San Mateo Gardens v. San Mateo Community College District.
ND Pipeline Decision: Court Grants TRO to Prevent Indian Nation from Interfering with Construction of Pipelines
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On September 13, the U.S. District Court for the District of North Dakota granted a Motion for a Temporary 
Restraining Order in the matter of Paradigm Energy Partners, LLC v. Fox, et al., prohibiting the defendants from interfering with the Paradigm’s construction of two pipelines (an oil and a natural gas pipeline) in McKenzie and Mountrail Counties, North Dakota.
District Court Rejects Petition for Preliminary Injunction to Stop Dakota Access Pipeline, Triggering Forceful Response by Federal Government
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On September 9, the U.S. District Court for the District of Columbia denied a motion for a Preliminary Injunction against the U.S. Army Corps of Engineers to stop the construction of the Dakota Access Pipeline, a pipeline that will run within one-half mile of the Standing Rock Sioux Reservation, located in North and South Dakota. The case is Standing Rock Sioux Tribe, et al., v. U.S. Army Corps of Engineers, et al., and an emergency appeal has been filed with the U.S. Court of Appeals for the District of Columbia Circuit. The Plaintiffs allege that the Corps failed to engage in substantive consultations with the Tribe as required by the National Historic Preservation Act (NHPA). However, the District Court, in a long and comprehensive opinion, held that the Corps “has likely complied with the NHPA” and that the Tribe has not demonstrated that a preliminary injunction is warranted. Continue Reading ›
Subcontractor’s Faulty Workmanship: Property Damage and An Occurrence Under Developer’s CGL Policy?
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Check out my latest blog for Pillsbury’s Policyholder Pulse titled A Subcontractor’s Defective Work Is an Occurrence: Weedo Wobbles … and Falls Down. It discusses a recent ruling in New Jersey, Cypress Point Condominium Assoc., Inc. v. Adria Towers, L.L.C., on the issue of whether damage caused by a subcontractor’s faulty workmanship constitutes “property damage” and an “occurrence” under a property developer’s commercial general liability insurance policy.
Additional Source: Weedo v. Stone-E-Brick, Inc.
Courts of Appeals Issue Highway Beautification Act Decisions
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Two Court of Appeals, one in the District of Columbia and the other in Texas, issued opinions regarding the federal Highway Beautification Act, 23 U.S.C. § 131 (HBA) and its state counterpart, the Texas Highway Beautification Act, respectively. The first decision illustrates how the courts will apply the principles of administrative law in a wide variety of cases. The plaintiffs had to demonstrate they had standing to prosecute their claims, and if so, whether the Department of Transportation’s (DOT) interpretation of the HBA was reasonable. In addition, the decision gives the agencies the elbow room to make room for emerging technologies.
New EAJA Decision in the DC Circuit
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The Equal Access to Justice Act (EAJA) directs a court to award fees and other expenses to prevailing party in a civil action against the United States unless the government’s position was substantially justified or special circumstances make an award unjust. The EAJA has been used to recover attorney’s fees from the United States in connection with challenges to federal administrative actions. In the case of SecurityPoint Holdings, Inc. v. TSA, decided on September 2, 2016, the U.S. Court of Appeals for the D.C. Circuit held that SecurityPoint was entitled to substantial attorney’s fees (in the amount of $86,714.78) under the EAJA when its successful litigation against the TSA was a remand to the agency that required some corrective action. In so ruling, the Court of Appeals overruled Waterman Steamship Corp. v. Maritime Subsidy Board, a decision that had the effect of making SecurityPoint ineligible for the award of attorney’s fees, and may expand the right to recover these fees in the future. Continue Reading ›
“Blacklisting” Executive Order Final Rule Issued
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Our colleagues, Kimberly Higgins, Julia Judish, Selena Brady, Rebecca Carr Rizzo, John Jensen and Dick Oliver, today published their alert titled Final Rules and Guidance Issued on “Blacklisting” Executive Order, Controversial Mandate Requires Disclosure of Labor and Employment Violations as Part of the Federal Contracting Process discussing the Federal Acquisition Regulatory Council’s final rules and the Department of Labor’s published final guidance implementing President Obama’s 2014 “Fair Pay and Safe Workplaces” Executive Order 13673.
Small Business Mentor-Protégé Program
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Our colleagues Dick Oliver, Selena Brady and Travis Mullaney, in SBA To Begin Accepting Online Applications for Small Business Mentor-Protégé Program, encourage everyone to check out the Small Business Administration’s (SBA) new government-wide mentor-protégé program for all small businesses, covering Historically Underutilized Business Zone (HUBZone) businesses, Women-Owned Small Businesses (WOSB), Service-Disabled Veteran-Owned small businesses (SDVOSB), and other small businesses generally. The new program expands mentor-protégé access to a wider community of federal contractors than the pre-existing SBA 8(a) Business Development program. The SBA will start accepting applications for the new Small Business Mentor-Protégé Program via the online portal on October 1, 2016.
District Court Rules Against an Illinois Power Plant in CAA Citizen Suit, Rejecting Three Defenses to Liability
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In the case of National Resources Defense Council , et al. , v. Illinois Power Resources, LLC and Illinois Power Resources Generating, LLC, decided August 23, 2016, the United States District Court for the Central of District of Illinois held that the defendants, who operate a coal-fired power plant in Bartonville, Illinois, failed to establish that they were entitled to various regulatory and statutory defenses in this Clean Air Act (CAA) citizen suit. The District Court found that the plaintiff environmental organizations had standing to file this lawsuit, observing that even an “identifiable trifle” can establish an injury-in fact.