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Department Of Labor Aligns Itself With Elventh Circuit By Announcing The Primary Beneficiary Test As The Definitive Test For Assessing Whether Interns Qualify As Employees Under The Federal Labor Standards Act

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The U.S. Department of Labor (“DOL”) announced that the “primary beneficiary” test is the definitive test for analyzing intern-employer relationships under the Federal Labor Standards Act (“FLSA”).  That test has been promulgated by several Circuit Courts, including the Second, Sixth, Ninth and Eleventh Circuit Courts of Appeal. See Benjamin v. B & H Educ., Inc.,…
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Epa Approval Of Tmdls Does Not Require It To Make Permitting Determinations

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The United States Court of Appeals for the First Circuit has affirmed a lower court’s decision that the Environmental Protection Agency is under no obligation to require permits of landowners contributing to violations of state-developed Total Maximum Daily Loads (“TMDLs”).  Conservation Law Foundation v. EPA, 48 ELR 20013 (1st Cir. 2018). In this consolidated appeal,…
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Highlights From The Finra 2018 Regulatory And Examination Priorities Letter

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FINRA released its annual list of Regulatory and Examination Priorities for 2018.  FINRA will continue its focus on high-risk and recidivist brokers in terms of rulemaking initiatives and examinations. This year’s priority includes strengthening the current operation, while becoming more efficient.   The focus on senior and unsophisticated investors, which was highlighted in years past,…
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First Circuit Finds Monsanto Not Responsible For Pcb Remediation At Westport School

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The United States Court of Appeals for the First Circuit affirmed the District Court’s entry of summary judgment on all remaining claims in an action filed by the Town of Westport against Monsanto Company, Solutia, Inc., and Pharmacia.  Town of Westport v. Monsanto Company, Case No. 17-1461 (December 8, 2017).  In the suit, Westport alleged…
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Eleventh Circuit Court Of Appeals Affirms Trial Court’s Interpretation Of What Constitutes Acceptance For Statute Of Limitations Purposes For Actions On Payment Bonds

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In Devin B. Strickland v. Arch Insurance Company, No. 17-10610, 2018 WL 327443 (11th Cir. Jan. 9, 2018), the Eleventh Circuit Court of Appeals affirmed the District Court’s determination that Strickland’s claim against the bond surety was time-barred due to his waiting more than one year after the completion of the contract and the acceptance…
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California Court Of Appeals Holds That The Relation Back Doctrine Does Not Apply To The Certificate Of Merit Requirement In Professional Negligence Actions Against Architects And Engineers

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In Curtis Engineering Corporation v. Superior Court of San Diego, 16 Cal. App. 5th 542 (Cal. App. Ct. 2017), the Court of Appeals for the Fourth District of California addressed the impact of the relation-back doctrine on the certificate of merit law in professional negligence actions against design professionals.  California’s certificate of merit law, codified…
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Recent Changes To National Labor Relations Board Law

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Since taking office, President Trump has appointed three new members to the five-member board of the National Labor Relations Board (“NLRB”), who will each serve a five year term.   This has resulted in big changes to Obama-era rulings.  The rulings so far have been pro-employer: In Hy-Brand Industrial Contractors, 365 NLRB No. 156 (Dec. 14,…
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The 10th Circuit Court Of Appeals Found Alj’s For The Securities And Exchange Commission To Be In Violation Of The Appointments Clause, Which Could Potentially Upend The Black Lung Benefits Act

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An opinion from the 10th Circuit Court of Appeals, Bandimere v. Sec. & Exch. Comm’n, 844 F.3d 1168 (10th Cir. 2016), has the potential to substantially upend the Black Lung Benefits Act, particularly as it concerns authority of Administrative Law Judges to decided cases under the Black Lung Benefit Act. In Bandimere, the 10th Circuit…
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The Alabama Court Of Civil Apeals Clarifies What Costs Are Recoverable By A Prevailing Party In A Workers’ Compensation Case

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Section 25–5–89 of Alabama’s Workers’ Compensation Act provides a trial court the discretion to tax costs incurred by an injured party in pursuing their claim against an employer. However, this discretion is not unfettered and in Ex parte Ampro Prod., Inc., No. 2160818, 2017 WL 4563053, at *1 (Ala. Civ. App. Oct. 13, 2017), the…
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Insurer Bound By Insured’s Promise To Participate In Environmental Cleanup

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The United States District Court for the Southern District of Indiana has ruled that an insurer must bear the costs of a remediation agreement entered into voluntarily by the policyholder without the insurer’s knowledge or consent.  Southern Pilot Ins. Co. v. Matthews Auto Repair, Inc., 2017 BL 425647; No. 17-cv-01027 (S.D. Ind., November 29, 2017)….
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