In Hinman v. ValleyCrest Landscaping Dev., Inc., the Sixth Circuit Court of Appeals affirmed the United States District Court, for the Middle District of Tennessee, Nashville Division’s grant of summary judgment to a Third-Party Defendant based on the statute of repose. 89 F.4th 572, 573 (6th Cir. 2024). The underlying claim stemmed from alleged faulty construction of a residential pool.
FINRA has published its 2024 Regulatory Oversight Report (“Report”), which provides member firms with information from FINRA’s recent regulatory operations to strengthen their complaince departments. FINRA highlighted six key sections of the Report in its news release pertaining to the same: (1) Crypto Asset Developments; (2) Advertised Volume; (3) Cybersecurity; (4) Anti-Money Laundering (“AML”), Fraud and Sanctions; and (5) Reg BI.
In American Automobile Insurance Company v. FDH Infrastructure Services., LLC, 364 So.3d 1082 (Fla. 3d DCA 2023), The Court of Appeals of Florida, Third District (“Court of Appeals”) held all construction-based claims against design professionals are subject to a four-year statute of limitations, not the two-year statute of limitations.
On January 17, 2024, the Supreme Court of the United States (“SCOTUS”) heard oral arguments in the case of Relentless, Inc. v. Department of Commerce. The case involves a challenge by plaintiff Relentless to a rule issued by the National Marine Fisheries Service (“NMFS”) requiring the herring fishing industry to bear the cost of overcatch observers on fishing boats. In addition to a challenge of the rule, the plaintiff also challenged the Chevron doctrine, which the Court has applied to decide cases involving federal regulations since 1984. Under the Chevron doctrine, federal regulatory agency decisions are entitled to deference by the federal courts when they are a reasonable interpretation of an ambiguous statute. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 845 (1984).
In January 2024, the U.S. Equal Employment Opportunity Commission (“EEOC”) launched its REACH initiative designed to “enhance outreach to vulnerable workers and underserved communities.” The initiative was implemented by Commissioner Kalpana Kotagal for the purpose of ensuring EEOC’s outreach and education efforts reach workers who are less likely to seek the agency’s assistance.
Expert testimony is an essential element of any claim of professional engineering malpractice. However, Munro v. Dep't of Transportation, 890 S.E.2d 349 (Ga. App. 2023) demonstrates that a Georgia Rule of Evidence regarding expert testimony in professional malpractice cases can make proving design malpractice very difficult in some circumstances.
On January 11,2024, the EPA issued the final version of a new significant new use rule (SNUR) applying to 329 PFAS chemicals designated as inactive on the Toxic Substance Control Act (TSCA) Chemical Substance Inventory (the “Inventory”). A number of PFAS chemicals are already subject to SNURs. This rule omits those to avoid redundancy. The TSCA exists to regulate the use of chemical substances whose manufacture, processing, distribution, use and “disposal may present an unreasonable risk of injury to health or the environment.” The TSCA applies to most industrial chemicals in the United States, but notably excludes pesticides, food, drugs, and cosmetics. The Inventory list, which contains approximately 86,000 chemicals, tracks all chemicals and mixtures subject to the TSCA.
On January 9, 2024, the United States Department of Labor (“DOL”) released its final rule that revises the DOL’s determination of whether a worker is an employee or independent contractor under the Fair Labor Standards Act (“FLSA”). The final rule goes into effect on March 11, 2024.
On Wednesday, January 10, 2024, the Securities and Exchange Commission (“SEC”) approved the first U.S.-listed exchange traded funds (ETFs) to track bitcoin. The SEC approved 11 applications, including from BlackRock (BLK.N), Ark Investments/21Shares (ABTC.S), Fidelity, Invesco (IVZ.N) and VanEck. The approvals come a day after an unauthorized person published a fake post on the SEC’s account on social media platform X, saying the agency had approved the products for trading. The agency quickly disavowed and deleted the post. The SEC approvals mark an about-face for the agency, which had previously rejected Bitcoin ETFs due to worries they could be easily manipulated.
In 701 Palafox, LLC v. Scuba Shack, Inc., the Florida Court of Appeals reversed the trial court’s granting of a motion to amend to add punitive damages, holding that the moving party failed to make the required evidentiary showing to support a claim of gross negligence to seek punitive damages. 367 So. 3d 624 (Fla. 1st DCA 2023).
FINRA recently announced new sanctions filed against M1 Finance LLC, Open to the Public Investing, Inc., SoFi Securities LLC, and SogoTrade, Inc. for supervisory and advertising violations. The fines for these violations totaled $1.6 million. In addition to the substantial fine, FINRA also ordered the firms pay over $1 million in restitution.
Environmental groups in the United States and Europe have filed complaints against Coca Cola and other companies accusing them of “greenwashing” their environmental sustainability claims. Companies are accused of greenwashing when they make claims that something is more eco-friendly, green, or sustainable than it really is.
In Rivas v.
Purvis Holdings, LLC, the owner/general contractor of a 28-story building
project was sued by an employee of a masonry contractor in an attempt to
recover damages for injuries suffered at the construction site. 2023 WL
8440738. The trial court denied the plaintiff’s motion for summary judgment on
the cause of action alleging a violation of Labor Law § 240(1), and the
appellate court affirmed the trial court’s ruling.
In Bonilla v. Verges Rome Architects, 2023 WL 3371559 (La. App. 5th Cir. 2023), the Louisiana Fifth Circuit Court of Appeals held that an architect could be liable to an injured worker for failing to address a known safety issue, despite contractual language establishing site safety as solely a contractor responsibility.
Most, if not all, labor and employment statutes require an employee to show some kind of adverse action on behalf of the employer to prevail, especially when seeking monetary compensation. While what constitutes an adverse action can often get murky, the Equal Employment Opportunity Commission has clarified that an “adverse employment action” includes, but is not limited to, hiring, firing, failure to promote, pay reduction and demotion.
The Florida District Court of Appeals recently interpreted the statute of repose for construction claims in Westpark Preserve Homeowners Association, Inc. v. Pulte Home Corporation, 365 So. 3d 391 (Fla. Dist. Ct. App. 2023). The Court held that in projects where an Owner/Developer sold units to initial purchasers, the repose period ran from the issuance of the certificate of occupancy, rejecting the argument that the initial sale was the trigger.
The North American Securities Administrators Association (“NASAA”) and the Public Investors Advocate Bar Association (“PIABA”) have announced their support for FINRA as it challenges Alpine Securities Corporation’s (“Alpine”) arguments that it is unconstitutional. NASAA, the membership organization for state regulators, filed an amicus brief with the District of Columbia Court of Appeals citing its support for the organization. NASAA counsel Zachary Knepper wrote, “FINRA provides essential services that state and federal regulators, thousands of firms, hundreds of thousands of registered persons, and millions of American investors rely upon.” The amicus brief noted FINRA sets and enforces standards for approximately 3,400 brokerage firms and 624,000 registered representatives, in addition to maintaining critical databases and performing market surveillance. NASAA argued FINRA plays a critical regulatory role that cannot be overlooked.
On October 26, 2023, the National Labor Relations Borad (“NLRB”) issued a new standard for determining when two employers are considered “joint employers” under the National Labor Relations Act (“NLRA”). While the standard was issued in regard to the NLRA, businesses should expect that plaintiffs will use the new standard with regard to claims outside the NLRA to argue that businesses are joint employers.
The vast expansion of the renewable energy sector has prompted the EPA to modify existing universal waste requirements regarding the disposal of lithium-ion batteries and expand the universal waste rule to cover photovoltaic solar panels. The universal waste program was implemented in May 1995, as a subsection of the Resource Conservation and Recovery Act (RCRA), to regulate certain widely generated hazardous wastes. At the time, the rules covered hazardous waste batteries, waste pesticides, and waste thermostats containing mercury. The rule has been expanded to cover certain hazardous waste lamps, other mercury-containing equipment, and aerosol cans. Lithium-ion batteries are already subject to the universal waste rule, but some unique attributes have pressed the EPA to seek more specific control over their disposal.
The Court of Appeals of Georgia, in Blevins v. PECGA, LLC, 890 S.E. 2d 109 (Ga. Ct. App. 2023), recently reversed summary judgment in favor the design engineer in a lawsuit for defective construction of a home because the homeowners raised a sufficient dispute of fact regarding whether mistakes in the engineer’s plans caused defects in their home.
Effective October 16, 2023, FINRA adopted amendments to its Codes of Arbitration Procedure (Codes) to modify the process relating to requests to expunge customer dispute information in the FINRA Dispute Resolution Services (DRS) arbitration forum. FINRA operates the Central Registration Depository (CRD), and customer dispute information maintained in CRD is reported through Forms U4 and U5.
On September 29, 2023,
the Equal Employment Opportunity Commission (“EEOC”) released its revised “Proposed
Enforcement Guidance on Harassment in the Workplace”. If successful, the proposed
guidance would be EEOC’s first update on workplace harassment since the
previous update in 1999.
In Southern States Chemical, Inc. v. Tampa Tank & Welding, Inc., the Supreme Court of Georgia held statutes of repose differ from statutes of limitation, due to statutes of repose being substantive in nature, and amendments to statutes of repose do not apply retroactively. 888 S.E.2d 553 (2023). The Supreme Court of Georgia’s decision is an important decision for architects and engineers raising a statute of repose defense in Georgia.
In Commercial Painting Co. Inc. v. Weitz Co. LLC, the Supreme Court of Tennessee ruled the economic loss doctrine does not extend to fraud related to construction contract disputes. The case arose from a contract dispute between a general contractor, The Weitz Company, LLC (“Weitz”), and its subcontractor, Commercial Painting Company, Inc. (“Commercial”).
On October 3, 2023, the Environmental Protection Agency (“EPA”) announced it was accepting for investigation an Administrative Complaint filed by the Southern Poverty Law Center and the Natural Resources Council against the Alabama Department of Environmental Management (“ADEM”). The Complaint alleges that ADEM engages in racially discriminatory practices against residents in the Black Belt region of the state through its implementation of the Alabama Clean Water State Revolving Fund (“SRF”).
In an effort to delay FINRA’s expedited death sentence it imposed following its ruling that, Alpine Securities be expelled from the industry over allegations it misused customer funds and violated compliance rules, the broker dealer has taken direct action against FINRA and filed an injunction pending appeal. In its Emergency Motion for Injunction Pending Appeal, Alpine argued FINRA’s enforcement action violates the Constitution, as its hearing officers “impermissible wield executive power that may be exercised only by the President and officers under his supervision.”
In BEI-Beach, LLC v. Christman, a contractor was sued by the purchaser of a development for construction defects and a South Carolina appellate court held that the contractor was limited to an equitable indemnity claim against the project architect to recover damages for design defects that caused the contractor to incur expenses resulting from having to defend itself in the suit brought by the purchaser. 2023 WL 3082503 (S.C. App. April 26, 2023).
Public interest continues to shift due to a growing belief that individuals own their personal information and have the right to control it. As such, human resource departments can expect to see more employment protections amid growing regulations affecting human resource data. Several states have enacted Privacy Acts, including Colorado, Utah, Virginia, California and Illinois.
On September 8, 2023, the Army Corps of Engineers and Environmental Protection Agency published new standards defining “waters of the United States” as it relates to regulations under the Clean Water Act. The new regulations took effect immediately to fill a void left by the Supreme Court’s ruling in Sackett v. Environmental Protection Agency, 598 U.S. 651 (2023), in May, and they replace standards implemented in March 2023.
Arbitration in construction and design disputes can be a tempting alternative to resolving disputes outside of the traditional setting of a courtroom. However, once an arbitration award is issued, there is a high bar to be cleared should a disgruntled party move to have it vacated.
The Financial Industry Regulatory Authority has barred a veteran financial advisor for providing falsified financial documents and making false statements during an investigation in violation of FINRA Rules 8210 and 2010. Timothy James Breslin, who owned and operated his own registered investment advisory firm, TJB Wealth Management (CRD # 325641), submitted a Letter of Acceptance, Waiver, and Consent (AWC) settling the alleged rule violations and accepting a bar from the industry on August 2, 2023.
Until recently, Alabama was the only state that had yet to enact legislation ensuring that dams and reservoirs were safely constructed and maintained to protect downstream water users and upstream property owners. With the introduction of Alabama’s new Dam Safety legislation, the Alabama legislature has given professional civil engineers across the state a new role in the construction, reconstruction, and renovation of dams and reservoirs, while also opening the flood gates for potential civil liability against them.
On August 3, 2023, the Environmental Protection Agency (“EPA”) issued a proposed denial of Alabama’s permit program to manage coal ash in landfills and surface impoundments. The EPA claims Alabama’s program is significantly less protective of people and waterways than required by federal regulations. This is the first time the EPA has proposed denying a state coal ash permit program. The decision may be finalized after a 60-day comment period.
On August 11, 2023, the Equal Employment Opportunity Commission (“EEOC”) published its proposed regulations to implement the Pregnant Workers Fairness Act (“PWFA”) in the Federal Register. The PWFA became effective June 27, 2023, and requires that employers with at least 15 employees provide reasonable accommodations, absent undue hardship, to qualified employees and applicants with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The EEOC’s proposed regulations provide guidance on how the PFFA should be interpreted.
FINRA has announced it has expelled Monmouth Capital Management for various violations, including churning, excessive trading, failure to supervise its representatives and providing false and misleading disclosures to retail customers on its client relationship summary (“Form CRS”). During its investigation, FINRA obtained evidence which reflected Monmouth, by way of approximately six (6) registered representatives, excessively traded 110 accounts. 42 of those accounts also exhibited signs of churning. This improper account activity resulted in customers incurring $3.9 million in commissions and trading costs, in addition to suffering significant losses.
On June 9, 2023, Florida Governor Ron Desantis signed legislation amending the inspection requirements for condominium buildings that reach thirty years of age and for condominiums the control of which is turned over from the ownership association to the owners themselves. See 2023 Fla. Sess. Law Serv. 203. Some of the changes directly impact inspection requirements related to architectural and engineering soundness.
In Borel Builders, Inc. v. Burke, 292 A.3d 1117 (Pa. Super. Ct. 2023), the Superior Court of Pennsylvania upheld a judgment against a home builder and determined it waived its statute of limitation defense because it failed to plead sufficient facts to support the defense.
On June 29, 2023, the United States Supreme Court unanimously adopted a new “undue hardship” standard for religious accommodations under Title VII of the Civil Rights Act (“Title VII”). The decision came in Groff v. DeJoy, No. 22-174 (June 29, 2023), which concerned an Evangelical Christian postal worker who opposed working on Sundays due to his sabbath observance. Although the US Postal Service (“USPS”) attempted to accommodate Groff’s requests, it could not always find coverage for Groff’s Sunday shifts, and he was disciplined when he was scheduled to work on Sundays but refused. Groff ultimately resigned over the issue and sued USPS.
On April 12, 2023, the EPA and Biden Administration proposed new rules governing emissions from new vehicles manufactured in the United States between 2027 and 2032. The EPA bases its authority to enact the regulations on section 202(a) of the Clean Air Act. The Biden administration previously laid the groundwork for more stringent vehicle emissions standards by order titled, Executive Order on Strengthening American Leadership in Clean Cars and Trucks, signed on August 5, 2021. That Order set a non-binding target of making 50% of new passenger cars, SUVs, and light trucks net zero emissions vehicles by 2030. The proposed rule goes beyond that.
On June 12, 2023, FINRA published Regulatory Notice 23-11,1 soliciting comments on proposed Rule 4610 concerning liquidity risk management requirements. Rule 4610 would require covered members—those with the “largest customer and counterparty exposures”—to “have and maintain sufficient liquidity on a current basis” at all times. The purpose of Rule 4610 is to “ensure that members have sufficient liquid assets to meet their funding needs in both normal and stressed conditions.”
On May 25, 2023, the United States Supreme Court ruled in Sackett v. Environmental Protection Agency, 143 S. Ct. 1322 (2023) to narrow the scope of the Clean Water Act’s (“CWA”) regulations governing wetlands. The Court held that for wetlands to be regulated under the CWA, the wetlands must be connected to traditional navigable waters and have a continuous surface connection with that water. Id. at 1344. The Court interpreted the CWA’s applicability of the term “waters of the United States” to include “only those relatively permanent, standing or continuously flowing bodies of waters.” Id. at 1336. To fall under federal regulation, wetlands must be "indistinguishable from waters of the United States." Id. at 1341. This decision significantly reduces the power of the Environmental Protection Agency (“EPA”) to regulate the nation’s wetlands and waterways.
On June 27, 2023, the EEOC began accepting charges under the Pregnant Workers Fairness Act (“PWFA”). The PWFA requires “covered employers” to provide “reasonable accommodations” to a worker’s known limitations arising from pregnancy, childbirth or other related conditions, unless doing so would impose an undue hardship on the employer. With more than 30 states and cities having already adopted provisions to protect pregnant women, this new law ensures those protections are interpreted similarly.
The construction of a structure encompasses many different areas that often are not realized until a party is subject to litigation arising from the construction. Litigation can often bring to light certain warranties that attach to building materials or products that make up a newly constructed structure. Common warranties potentially impacting parties to litigation arising out of construction are material and workmanship warranties. An often-forgotten warranty claim that can impact building material providers arises out of the design of a particular material or product.
In Brown v. City of Oil City, 2023 WL 3471043 (Pa. May 16, 2023), the Supreme Court of Pennsylvania held that an out-of-possession contractor that has created a dangerous condition through work performed for a possessor of land who has accepted the contractor’s work may be liable to all persons suffering injuries caused by the dangerous condition, even if that condition is obvious or apparent in nature.
A New
Jersey appeals court affirmed summary judgment for insured pharmaceutical company
Merck in a cyber coverage dispute regarding a “Hostile/Warlike Action”
exclusion included in a $1.75 billion “all risks” property insurance program. Merck
& Co., Inc. v. Ace American Ins. Co., No. A-1879-21, A-1882-21, 2023 WL
3160845 (N.J. Sup. Ct. App. Div. 2023).
On April 20, 2023, the Securities and Exchange Commission (”SEC) released a staff bulletin regarding the standards of conduct for broker-dealers and investment advisors. The bulletin is focused primarily on the Care Obligation of Regulation Best Interest (“Reg BI”) for broker-dealers and the duty of care enforced under the Investment Advisers Act of 1940 (the “IA fiduciary standard”) for investment advisers (together, “care obligations”). Both Reg BI for broker-dealers and the IA fiduciary standard for investment advisers are drawn from key fiduciary principles that include an obligation to act in the retail investor’s best interest and not to place their own interests ahead of the investor’s interest. The care obligations generally include three components:
In 2014, Amy and William Dempsey purchased a vacant lot in a subdivision. The Dempseys hired an architect to design a home, who then contracted with Briggs Engineering to prepare plans for site grading, drainage, and erosion control. In 2015, the Dempseys entered into a contract with BrunoBuilt, Inc. to build the home, which called for the Dempseys to transfer ownership of the lot to BrunoBuilt via a quitclaim deed. The contract noted that the Dempseys would pay for the home upon its completion, and then BrunoBuilt would transfer ownership of the property back to the Dempseys.
On April 13, 2023, Governor Ron DeSantis signed into law SB 360 (Chapter 2023-22, Laws of Florida). The new Florida law affects claims against design professionals in many ways.
First,
Fla. Stat. §95.11(3)(c) establishes a new statute of repose for design defect
claims. SB 360 leaves intact the four-year statute of limitations, but shortens
the statute of repose from 10 to 7 years for latent defects.
On April 28, 2023, President Biden signed an executive order entitled “Executive Order on Revitalizing Our Nation’s Commitment to Environmental Justice for All” (“the Order”). The purpose of the Order is to renew a pledge made in Executive Order 12898 of February 11, 1994 (“the 1994 Order”) and more effectively implement the tenets in the prior executive order. The Order also works in conjunction with other executive orders President Bien has implemented during his time in office. April’s Order describes its purpose as more evenly distributing the human-environmental impact of government and business on people across race, income levels, and other demographic considerations. The Order describes a basic framework by which this is to be accomplished through regulatory and executive agencies.
The Department of Justice (“DOJ”), the Federal Trade Commission (“FTC”), the Consumer Financial Protection Bureau (“CFPB”), and the Equal Employment Opportunity Commission (“EEOC”) have issued a joint statement outlining a collective commitment to monitor the use of automated systems and artificial intelligence (“AI”) and its relation to unlawful discrimination. The agencies have warned that while AI tools utilized by employers offer a promise of advancement, their use carries the potential of unlawful bias, discrimination, and other harmful outcomes.
Kipp Flores Architects (KFA) brought a copyright infringement lawsuit against Pradera SFR (Pradera), American Housing Ventures (AHV), and KTGY in the US District Court of the Western District of Texas. KFA alleged the unlawful distribution of its copyrighted architectural design, contending that AHV either copied KFA's works or induced Pradera and KTGY to do so.
In A.S. Horner, Inc. v. Navarrette, 656 S.W.3d 717, 719 (Tx. App. 2022), a Texas Court of Appeals found a road contractor was entitled to statutory immunity for a personal injury suit after the completion of the project, as it built the road in compliance with the Texas Department of Transportation’s (“TxDOT”) design. In an issue of first impression, the Court held immunity was not limited only to ongoing construction, but also applied to accidents occurring after completion.
The National Labor Relations Board (“NLRB”) recently issued a decision in McLaren Macomb, 372 NLRB No. 58 (2023), holding that severance agreements containing overly broad non-disparagement or confidentiality clauses violate the rights of employees under the National Labor Relations Act (“NLRA”), Section 7. The NLRB held that such clauses interfere with employees’ rights to assist co-workers or former co-workers with workplace issues and communications with others about their employment. In the weeks following the NLRB’s decision, employers have had several questions regarding the implications of this decision and how it affects the agreements they have entered into, or plan to enter into, with employees.
On March 28, 2023, the Financial Industry Regulatory Authority (FINRA) published Regulatory Notice 23-06 addressing the “recent trend[s] in the fraudulent transfer of customer accounts through the Automated Customer Account Transfer Service (ACATS).” ACATS is an automated transfer system developed by the National Securities Clearing Corporation (NSCC). It allows eligible participants to automatically initiate, review, and complete the transfer of customer accounts through standardized procedures. FINRA Rule 11870 (Customer Account Transfer Contracts) governs the account transfer process, establishing rules that firms must follow when a customer completes a Transfer Instruction Form (TIF).
On March 30, 2023, the United States Department of Justice (“DOJ”) filed suit against railway operator Norfolk Southern Corporation for violations under the Clean Water Act (“CWA”) and the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) in connection with a train derailment in East Palestine, Ohio. The February 3, 2023, derailment resulted in at least eleven train cars containing hazardous substances colliding with one another and catching on fire.
Texas requires a plaintiff suing an engineer to obtain a “certificate of merit” from a third-party professional that the Complaint has merit, and failure to do so is grounds for dismissal. In Tucker Engineering, Inc. v. Temperley, the Texas Court of Appeals held that an engineer hired to inspect a home was practicing engineering and a certificate of merit was therefore required before filing suit. No. 03-21-00565-CV, 2022 WL 17684036 (Tex. Ct. App. Dec. 15, 2022) (unpublished).
On February 22, 2023, the U.S. Supreme Court affirmed a decision from the Fifth Circuit Court of Appeals that an employee earning a daily rate is not exempt from overtime pay under the Fair Labor Standards Act (“FLSA”). See Helix Energy Sols. Grp., Inc. v. Hewitt, 143 S. Ct. 677 (2023). In its 6-3 decision, the Supreme Court analyzed whether the employee fell within the bona-fide executive exemption to the FLSA, and ultimately found he did not because he was not paid on a salary basis. See 29 U.S.C. § 213(a)(1).
In Univ. of Massachusetts Bldg. Auth. v. Adams Plumbing & Heating, Inc., 102 Mass. App. Ct. 1107 (2023), the Appeals Court of Massachusetts upheld the dismissal of the Plaintiffs’ claims because negligence was at issue in each count and thus barred by the Massachusetts’ statute of repose.
FINRA’s Board of Governors held its first meeting of the calendar year on March 9-10. The Board voted to amend FINRA rules to align with the Securities Exchange Commission’s (“SEC”) recent rule changes which shorten the securities settlement cycle and addressed a variety of regulatory issues and technological initiatives. Specifically, the Board discussed FINRA’s recently finalized Digital Experience Transformation, which integrates and simplifies broker-dealer’s digital interactions with FINRA. The objective of FINRA’s Digital Experience Transformation is to facilitate more innovative, efficient, and effective compliance programs. The Board also addressed FINRA’s Regulatory Operations and Membership Application Program.
On March 14, 2023, the EPA announced proposed National Primary Drinking Water Regulations for six PFAS chemical compounds. The rule would limit the amount of PFOA perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) to four parts per trillion (or ng/L) in drinking water across the nation. Perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid (HFPO-DA, “GenX chemicals”), perfluorohexane sulfonic acid (PFHxS), and perfluorobutane sulfonic acid (PFBS) would be regulated at a combined amount according to a complex formula; the EPA will likely provide an online tool by which providers may input the concentrations of these chemicals they find to determine whether they are in compliance.
On December 20, 2022 3M, Inc. announced it would discontinue manufacturing of per and polyfluoroalkyl substances (“PFAS”) by the end of 2025. 3M is one of the world’s largest manufacturers of PFAS, accounting for $1.3 billion in annual sales revenue. 3M plans to scale down its PFAS manufacturing prior to the 2025 discontinuation date.
In Taylor Morrison of Texas, Inc. v. Skufca as Next Friend of KSX, the Supreme Court of Texas determined minor children who join their parents as plaintiffs in breach of contract claims based on construction defects in the home they resided in may be subject to arbitration clauses within the applicable purchase agreement based on the theory of direct-benefits estoppel. 2023 WL 443852, at *2 (Tex. Jan. 27, 2023). Plaintiffs Jack and Erin Skufca (the “Parents”) and their minor children (collectively, “Plaintiffs”) sued Taylor Morrison of Texas, Inc. and Taylor Woodrow Communities-League City, Ltd. (collectively, “Defendants”) for alleged construction defects in the home they purchased from Defendants. The purchase agreement for the home contained an arbitration clause which required arbitration of “any and all claims, controversies, breaches or disputes by or between the parties hereto” that “aris[e] out of or relate[ ] to this purchase agreement, the property, the subdivision or community of which the property is a part, the sale of the property by seller, or any transaction related hereto,” whether those claims were based in “contract, tort, statute, or equity.”
On February 1, 2023, a bipartisan group of United States Senators reintroduced a bill, entitled the “Workforce Mobility Act of 2023” (“the Act”). The Act proposes a nationwide ban on the majority of non-compete agreements and follows the recently proposed rule by the Federal Trade Commission (“FTC”).
The Supreme Court heard oral argument in Sackett v. Environmental Protection Agency on October 3, 2022. Sackett involves property owners challenging an EPA compliance order determining that a property on which the Sacketts intended to build a home was a wetland as defined in the Clean Water Act (CWA). Sackett v. U.S. Env't Prot. Agency, 8 F.4th 1075, 1079 (9th Cir. 2021), cert. granted in part sub nom. Sackett v. Env't Prot. Agency, 211 L. Ed. 2d 604, 142 S. Ct. 896 (2022).
In JPC Merger Sub LLC v. Tricon Enterprises, Inc., 2022 WL 17479912 (N.J. Super. Ct. App. Div. Dec. 7, 2022), the Appellate Division of the Superior Court of New Jersey upheld the enforceability of pay-if-paid provisions in subcontracts so long as the terms are “clear” and “unambiguous.” Pay-if-paid provisions mean a subcontractor gets paid by the general contractor only if the owner pays the general contractor for that subcontractors work. These provisions are meant to shift the risk of the owners nonpayment under the subcontractor from the contractor to the subcontractor. These provisions are unenforceable in some states, enforceable as written in others, and enforceable only if the provision is clear and unambiguous in other states. Prior to this case, New Jersey had not weighed in on the issue through either statute or judicial opinion.
The statute of repose is a powerful defense for a design or construction professional, since most provide an absolute bar to claims filed outside the repose period. Tennessee’s statute of repose was recently found to apply to contractual indemnity claims, when the United States District Court for the Middle District of Tennessee granted summary judgment to a third-party defendant sued by a landscape architect for claims of contractual indemnity. Hinman v. BrightView Landscape Dev., Inc., No. 3:19-cv-00551, 2022 WL 4231019, at *1 (M.D. Tenn., Sept. 13, 2022), appeal docketed, No. 22-6019 (6th Cir. Nov. 21, 2022).
On January 5, 2023, the Federal Trade Commission (“FTC”) proposed a rule to ban non-compete agreements between employers and workers. The proposed rule would prevent employers from requiring workers to agree to contract clauses that prevent the worker from seeking or accepting employment with another employer or operating a business after the conclusion of the worker’s employment. The only exception to the proposed rule is non-compete agreements stemming from the sale of a business or ownership interest in a business. The FTC has proposed the rule on the basis that non-compete agreements are unfair methods of competition, and it estimates that the rule would increase American workers’ earnings between $250 billion and $296 billion per year.
In Enrique Feldman and Feldman Architecture v. Florida Department of Professional Regulation, So. 3d WL 17576861, (Fla. 1d DCA 2022), the First District Court of Appeal of Florida ruled against an architect for his online marketing of design services in Florida. Enrique Feldman is an architect with thirty-five years of experience in Venezuela, but was not licensed to practice architecture in Florida where he marketed himself as an architect. Feldman used the word “architect” in his commercial webpages and laid out the services he offered. As a result, Feldman was disciplined by Florida’s architectural board, the Florida Department of Professional Architecture (“Department”). Feldman appealed the adverse ruling that the use of the word “architect” amounted to unlicensed practice of architecture in Florida.
On December 9, 2022, the U.S. Environmental Protection Agency (EPA) proposed a rule restricting the use of hydrofluorocarbons (HFCs). In a prepublication document, the EPA proposed the restriction of HFCs in refrigeration, air conditioning, heat pumps, foam blowing, and aerosols by 2025. The restriction would only apply if more environmentally friendly alternatives are available.
On December 7, 2022, President Joe Biden (“President Biden”) signed the Speak Out Act (“The Act”), which bans the use of pre-dispute, non-disclosure and non-disparagement contract clauses involving sexual assault and sexual harassment claims. The Act applies to agreements between employers, current employees, former employees and independent contractors.
In Ascot Corporation, LLC v. I&R Waterproofing, Inc., the Court of Appeals of North Carolina recently held that a subcontractor responsible for waterproofing could properly pursue the manufacturer of the waterproofing system for breach of the implied warranty of merchantability, but not for breach of express warranty, contribution, or negligence-based indemnity. Additionally, the Court held the subcontractor could pursue a subcontractor responsible for landscaping for negligence-based indemnity and contribution. No. COA22-19, 2022 WL 16937546, at *1 (Nov 15, 2022).
In a November 10, 2022, interview with CNBC’s “Squawk Box”, SEC Chair Gary Gensler called for greater protections for investors in the cryptocurrency space following the stunning collapse of crypto exchange FTX. According to FTX’s now-former CEO Sam Bankman-Fried, the crypto exchange is facing a shortfall of up to $8 billion.
The United States District Court for the Southern District of Florida erred when it dismissed a suit against a group of Burger King franchisees that alleged the restaurants illegally maintained no-hire and no-poach agreements. The workers claimed Burger King’s franchisee agreements prevented them from obtaining employment at other franchise restaurants. See Arrington v. Burger King Worldwide, Inc., 448 F.Supp.3d 1322, 1326 (S.D. Fla., 2020).
In Tinsley-Williamson ex rel. Tinsley v. A.R. Mays Construction, Inc., 195 N.E.3d 891 (Ind. Ct. App. 2022), the Court of Appeals of Indiana affirmed partial summary judgment in favor of A.R. Mays Construction, Inc. (“A.R. Mays”), a general contractor, on the ground that neither it nor any of its subcontractors had contracted with the company that employed the Plaintiff Ethan Tinsley (“Mr. Tinsley”). Therefore, the Court held that A.R. Mays owed no duty to Mr. Tinsley.
In LJA Eng'g Inc. v. Santos, 652 S.W.3d 916, 918 (Tex. App. 2022), the Court of Appeals of Texas upheld the dismissal of plaintiff’s claims when plaintiff failed to file a certificate of merit with the complaint. LJA Engineering, Inc. (“LJA”) contracted with the City of Sour Lake to provide engineering services for a sanitary sewer rehabilitation project. Manuel Molina (“Molina”) was employed by Kellen Environmental, a company working on the project. A worker fell into a sewer pipe that had an open manhole cover and Molina jumped into the pipe to help. Molina was exposed to lethal poisonous gas in the pipe. Molina’s surviving spouse sued LJA alleging its negligence caused Molina’s death.
John Webb, Chair of LGWM’s Workers’ Compensation Practice Group, spoke at the Alabama Workers’ Compensation Organization (AWCO) 2022 Annual Conference. The Conference took place November 3-4 in Birmingham, Alabama. John teamed up with Dana Mattiace (Senior Adjuster/Team Lead) with SteadPoint Risk Management Services to provide new adjuster training for approximately 40 workers’ compensation adjusters from across the United States. The presentation titled: “Handling Alabama Claims From Start To Finish” covered issues important for adjuster new to handling Alabama workers’ compensation claims.
The Financial Industry Regulatory Authority has disciplined a formerly registered representative for violating Regulation Best Interest (“Reg BI”). In a first-of-its-kind disciplinary action, Charles Malico of Huntington Station, New York, has been fined $5,000 and suspended for six months for “recommending a series of transactions in the account of one retail customer that was excessive in light of the customer’s investment profile and therefore was not in that customer’s best interest,” according to FINRA’s order.
On October, 11, 2022, the U.S. Department of Labor (“DOL”) released a proposed rule to update the test for determining whether a worker is an employee under the Fair Labor Standards Act (“FLSA”) or an independent contractor. The new rule significantly broadens the classification of workers as employees under the FLSA.
In Gaston County Board of Education v. Shelco, LLC, 2022 WL
3363819 (N.C. App. Aug. 16, 2022), a North Carolina appellate court held that
when a construction project involves multiple contractors, the statute of
repose begins to run as to each contractor when its work is completed, rather
than when the entire project is completed, but still refused to dismiss the claim
because the date of completion was not clear from pleadings.
In Franks v. Bilbrey, the Tennessee Court of Appeals held that a construction contract containing a target construction completion date and the phrase “start immediately” contained an implied “time is of the essence” term, which the contractor breached by delaying completion well beyond the target completion date. No. M2021-00766-COA-R3-CV, 2022 WL 4588871, at *1 (Tenn. Ct. App. Sept. 30, 2022).
In Carson v. Monsanto Company, No. 21-10994 (11th Cir. 2022), the Eleventh Circuit ruled on July 12, 2022, that the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) did not preempt a failure to warn claim brought under Georgia law. Plaintiff’s failure to warn claim arose from claims of malignant fibrous histiocytoma that he alleges was from exposure to glyphosate, the active chemical in the Roundup brand of pesticide produced by defendant Monsanto. Plaintiff claimed that Roundup’s label failed to adequately warn of the harmful nature of glyphosate under Georgia law.
In Hotels of Deerfield, LLC v. Studio 78, LLC, the Court held the Florida Administrative Code Section which confers “all professional and legal responsibility” to successor architects who reuse already sealed contract documents does not also release original architects from liability.
The Financial Industry Regulatory Authority (FINRA) has announced that it has fined BofA Securities Inc. (BofAS) $5 million for failing to report over-the-counter positions to the Large Options Positions Reporting system (LOPR). BofAS failed to report more than 7.4 million OTC positions it held between January 2009 and October 2020. BofAS was also censured.
In a ruling on an interlocutory appeal, the Florida District Court of Appeal for the Fifth District recently reversed a summary judgment in favor of Waters Mark Development Enterprises, LC (“WMDE”) against Brevard County (“the County”) because WMDE had not proven that the County’s residential development density standard constituted an inordinate burden on WMDE’s use of its property intended for a subdivision. Brevard County v. Waters Mark Development Enterprises, LC, No. 5D21-1809, 2022 WL 41111172, at *1 (Fla. Dist. App. Sept. 9, 2022).
On January 27, 2021, President Biden signed Executive Order 14008, which was meant to develop policies to combat climate change. Exec. Order No. 14008, 86 Fed. Reg. 7,619 (January 27, 2021). One such policy set forth in Section 208 of the Order sought to:
"pause new oil and
natural gas leases on public lands or in offshore waters pending completion of a comprehensive review and reconsideration
of Federal oil and gas permitting and leasing practices in light of the
Secretary of the Interior’s broad stewardship responsibilities over the public
lands and in offshore waters, including potential climate and other impacts
associated with oil and gas activities on public lands or in offshore waters."
The Eleventh Circuit Court of Appeals recently reversed a District Court’s decision that an employment arbitration agreement was “procedurally unconscionable”. See Lambert v. Signature Healthcare, LLC, No. 19-11900 (11th Cir. July 8, 2022).
On August 11, 2022, the Centers for Disease Control and Prevention (“CDC”) issued updated guidance regarding COVID-19 that emphasizes individual responsibility, rather than regulation by the government. The CDC states that the new guidance’s purpose is to help the public better understand how to protect themselves and others if they test positive for COVID-19 and what actions to take if exposed.
The Mississippi Court of Appeals recently held that a general contractor that sought to compel arbitration in a breach of contract dispute between it and another contractor did not waive its right to pursue arbitration by invoking the litigation process, when it entered a notice of default (that it later agreed to withdraw) and defended against its opponent’s dispositive and procedural motions, while insisting it did not waive its right to arbitration. S. Cent. Heating, Inc. v. Clark Constr. Inc. of Miss., NO. 2021-CA-00285-COA, 2022 WL 2313877, at *1 (Miss. Ct. App. Jun. 28, 2022).
On August 12, 2022, Congress passed the Inflation Reduction Act, which includes $369 billion in spending on climate action. The Act introduces a “waste emissions charge,” which makes companies who produce, transport, or store oil and gas pay for methane that leaks from their facilities into the atmosphere. The charge will start at $900.00 per metric ton of methane and rise to $1,500.00 per metric ton by 2026. The Act is the first time the federal government has directly imposed a charge, fee, or tax on greenhouse gas emissions.
North Carolina’s version of the economic loss doctrine prohibits recovery for purely economic losses in tort, “for [a defendant’s] simple failure to perform his contract.” In other words, where a party can sue for economic losses in a breach of contract claim, he is barred from also suing in tort for those same losses.
FINRA has proposed a new set of rule changes to overhaul the expungement process. The proposed changes have been sent to the SEC for approval. When discussing the proposed amendments, FINRA advised the proposal targeted “straight-in expungements” and are an attempt to modify the system so these expungements “operate as intended” and “work as a remedy that is appropriate only in limited circumstances in accordance with the narrow standards in FINRA rules.”
The Supreme Court recently decided a case related to the Clean Power Plan, an Obama-era regulatory scheme that would apply to the energy industry across the country. The main holding of the opinion in West Virginia v. EPA focused on the degree to which an administrative agency may assert power over the states, and by extension the economy, by congressional grant. In other words: how much authority may an administrative agency assert without an explicit statutory grant of the powers it is trying to assert over a specific process.
The Eleventh Circuit Court of Appeals recently reaffirmed in Brown v. Nexus Bus. Solutions LLC, that the Fair Labor Standards Act (“FLSA”) allows an administrative exemption from overtime provisions. (11th Cir. Apr. 1, 2022). Traditionally, FLSA requires employees be paid overtime for all hours worked beyond 40 in a week. The rate of pay is set at least one and a half times the employees’ regular rate of pay.
In Donovan v. Hastings, the Supreme Court of Tennessee analyzed whether the trial and appellate courts properly limited an award of attorney fees and costs under Tennessee Code § 20-12-119(c) to a plaintiff homeowner to those incurred after the date an amended countercomplaint was filed by the defendant contractor. 2022 WL 12301177, at *1 (Tenn. June 27, 2022).
In Cal-Am Properties Inc. v. Edais Eng'g Inc., 509 P.3d 386, 388 (Ariz. 2022), the Arizona Supreme Court held design professionals are not liable for economic damages incurred by a Plaintiff with whom they are not in privity of contract. Cal-Am Properties, Inc. (“Cal-Am”) was a developer and operator of RV and mobile-home parks. Cal-Am leased the Sundance RV Resort, with the intention of constructing a new banquet and concert hall on the property.
FINRA has announced Merrill Lynch, Peirce and Finner & Smith, Inc. was fined more than $15.2 million for restitution owed to customers who purchased Class C mutual funds shares despite the availability of Class A mutual fund shares. In differentiating between the two types of mutual fund shares, FINRA noted Class A shares are subject to a front-end sales charge, in contrast to Class C shares, which are not subjected to front-end sales charges, but instead have ongoing fees and expenses that are higher than those associated with Class A shares. In many instances, mutual fund issuers allow customers to purchase Class A shares without incurring a front-end sales charge if the total purchase exceeds certain thresholds. FINRA noted that in instances where a customer qualified for the purchase of Class A shares without a front-end sales charge, there “would be no reason for the customer to purchase Class C shares with a higher annual expense.”
In Thompson Hancock Witte & Associates, Inc. v. Stanley Spurling & Hamilton, Inc., 2022 WL 1010270 (Tex. App. April 5, 2022), a Texas appellate court determined a third-party plaintiff architect could not rely on the original plaintiff’s Certificate of Merit if it was not incorporated by reference into its third-party complaint.
On June 15, 2022, the U.S. Environmental Protection Agency (EPA) released new drinking water health advisories for per- and polyfluoroalkyl substances (PFAS). The EPA also announced $1 billion in funding to address PFAS and other emerging contaminants in drinking water.
The Securities and Exchange Commission has proposed new regulations that could be disruptive to Financial Advisors. There are currently 12 proposals and 26 more being discussed.
On June 6, 2022, the United States Supreme Court issued a decision that certain airline employees are exempt from the Federal Arbitration Act (“FAA”), as they are considered to be a “class of workers engaged in foreign or interstate commerce”. See Southwest Airlines Co. v. Saxon, No. 21-309 (June 6, 2022). The FAA exempts “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce” from coverage. 9 U.S.C. § 1. The Supreme Court previously held that the phrase “any other class of workers engaged in foreign or interstate commerce” applies only to “transportation workers.” Circuit City Stores v. Adams, 532 U.S. 105, 119 (2001).
In A. Alexis Varela, Inc. v. Pagio, No. 5D21-2077, 2022 WL 1592482 (Fla. Dist. Ct. App. May 20, 2022), the Florida Fifth District Court of Appeal reversed a trial court’s order dismissing a contractor’s lien foreclosure claim. The Court of Appeal stated that the trial court erred in computing the deadline for the contractor to deliver an affidavit to the homeowners pursuant to Florida’s construction lien statute. The Court of Appeal held the affidavit was timely delivered according to Florida’s rules for the computation of time.
FINRA has announced that it has fined Wefunder and StartEngine Capital for failure to comply with various securities rules and laws designed to protect crowdfunding investors. Wefunder was fined $1.4 million for violations that occurred from 2016 to 2021.
On May 5, 2022, Attorney General Merrick Garland and EPA Administrator Michael Regan released a memorandum entitled: “Actions to Advance Environmental Justice.” The memorandum from the Office of the Attorney General announces three actions to “secure environmental justice for all Americans.”
The United States Supreme Court recently held that emotional distress damages are not recoverable in private actions to enforce statutes authorized by the Spending Clause of the United States Constitution. Cummings v. Premier Rehab Keller, P.L.L.C., No. 20-219 (Apr. 28, 2022). Statutes authorized by the Spending Clause include the Rehabilitation Act, Title IX of the Education Amendments Act of 1972, Title VI of the Civil Rights Act of 1964 and the Patient Protection and Affordable Care Act.
In KB Home Fort Myers LLC v. Taishan Gypsum Co., No. 2D21-384, 2022 WL 1099385 (Fla. Dist. Ct. App. Apr. 13, 2022), Florida’s Second District Court of Appeal reversed a trial court’s decision to vacate an $18 million default judgment against a supplier that sold defective drywall. The Court of Appeal reversed the trial court because the default judgment was not void and the drywall supplier waited over seven years to seek relief.
North Carolina’s Governor Roy Cooper signed Session Law 2022-1 early 2022, which amended and revised North Carolina statutes applicable to public construction projects within the state. Beginning March 1, 2022, the amendments and revisions went into effect, which serve to clarify and update the statutory provisions relevant to the design-build public contracting process.
In Glynn Env't Coal., Inc. v. Sea Island Acquisition, LLC, 26 F.4th 1235 (11th Cir. 2022), environmentalist Jane Fraser (“Fraser”) alleged that Sea Island Acquisition, LLC (“Sea Island”) filled wetlands with outside materials, diminishing her aesthetic interest in recreation and enjoyment of the natural beauty of the wetland. The Eleventh Circuit Court of Appeals held that Fraser’s allegations against Sea Island were sufficient to establish an injury in fact and therefore Fraser had standing to bring her claim.
In ACE American Insurance Co. v. AERCO International, Inc., 2022 WL 814788 (E.D. Mo., March 17, 2022), the United States District Court for the Eastern District of Missouri held the absence of privity of contract and the economic loss doctrine do not bar a contractor’s contribution claim against an architect and its subconsultant.
FINRA released Notice 21-43 which answered frequently asked questions about Restricted Firm Obligations. Rule 4111, or Restricted Firm Obligations, became effective on January 1, 2022, and sets additional requirements for broker-dealers with a significant history of misconduct. Rule 4111 requires member firms that are identified as Restricted Firms deposit cash or qualified securities in a segregated, restricted account; adhere to specified conditions or restrictions; or comply with a combination of such obligations.
The Seventh Circuit recently held an employer’s rescission of an employment offer upon learning the prospective employee suffered from uncontrolled seizures did not violate the Americans with Disabilities Act (“ADA”). Russell Pontinen (“Pontinen”) applied to work as a Utility Person at United States Steel Corporation’s (“USS”) Midwest Plant and received a contingent employment offer. After an investigation, USS discovered that Pontinen suffered from an uncontrolled seizure disorder that imposed work restrictions on him. The restrictions conflicted with the requirements of the position for which he applied; so, USS rescinded the employment offer. Pontinen sued for disability discrimination under the ADA, and the district court granted USS’s motion for summary judgment.
On March 3, 2022, President Joe Biden (“President Biden”) signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“the Act”), a law that limits the use of pre-dispute arbitration agreements and class action waivers covering sexual assault and sexual harassment claims. The Act amends the Federal Arbitration Act (“FAA”) to give employees who are parties to arbitration agreements with their employers the option of bringing sexual assault or sexual harassment claims either in arbitration or in court.
In Bd. of Regents of Nevada Sys. of Higher Educ. on Behalf of Univ. of Nevada, Reno v. Worth Grp. Architects, P.C., 499 P.3d 1177 (Nev. 2021), the Nevada Supreme Court held a Plaintiff’s non-indemnity claims against an architect were not preempted by the Americans with Disabilities Act (“ADA”).
In Hernandez, et al., v. CGI Windows and Doors, Inc., No. 3D20-1318, 2022 WL 610122 (Fla. Dist. Ct. App. Mar. 2, 2022), Florida's Third District Court of Appeal reversed a jury verdict in favor of a window supplier and remanded the case for a new trial. The Court of Appeal held the trial court abused its discretion in allowing inadmissible unsworn pleadings showing other subcontractors on the project had been previously dismissed from the case pursuant to a stipulation for settlement.
In Louisiana v. Biden, 2022 WL 438313 (E.D. La. 2022), the States of Louisiana, Alabama, Florida, Georgia, Kentucky, Mississippi, South Dakota, Texas, West Virginia, and Wyoming moved for a preliminary injunction to enjoin enforcement of an executive order that reinstated the Interagency Working Group on Social Costs of Greenhouse Gas Emissions (“IWG”) and ordered the IWG to publish interim estimates for the social costs of greenhouse gas emissions for agencies to use when monetizing the value of changes in greenhouse gas emissions resulting from regulation and other relevant agency actions. The issues before the District Court were: (1) whether the states had standing; (2) whether the asserted claims were subject to judicial review; and (3) whether the states satisfied the requirements to obtain a preliminary injunction.
JPMorgan Chase was recently fined $200 million for allowing employees to use their personal devices to utilize WhatsApp and other social platforms to communicate about company business and sensitive business matters. The SEC found the messages included a wide array of content, including investment strategies, client meeting and market observations. The SEC indicted that the offline communication was widespread throughout the company and even managers and senior personnel were responsible for the unauthorized communications.
In Gito, Inc. v. Axis Architecture, P.C., 2021 WL 5858467 (Pa. App. Dec. 10, 2021), a Pennsylvania Appellate Court held an anti-assignment provision in a contract between the Owner and Architect precluded the Owner from assigning the contract to a third party before the contract had been performed, but did not preclude a post-performance assignment to recover damages for breach of the contract.
The Tennessee Court of Appeals recently held Tennessee courts could exercise personal jurisdiction over Pierce & Allred Construction, Inc. (the “Defendant”), an Alabama-based company. Baskin v. Pierce & Allred Construction, Inc., No. M202100144COAR3CV, 2022 WL 258631 (Tenn. Ct. App. Jan. 28, 2022). The Court of Appeals also held Davidson County, Tennessee was a proper venue for the action, even though the allegedly defective construction took place in Alabama. This ruling reversed the trial court’s order granting the Defendant’s Motion to Dismiss for lack of personal jurisdiction and improper venue.
On Tuesday, January 25, 2022, the U.S. Occupational Safety and Health Administration (“OSHA”) announced the withdrawal of its November 2021 Emergency Temporary Standard (“ETS”) that would have required private sector U.S. employers with 100 or more employees to either mandate COVID-19 vaccinations for their employees or require them to comply with weekly COVID-19 testing and face covering requirements. On January 13, 2022, the U.S. Supreme Court stayed enforcement of the ETS, finding that those parties challenging it were likely to succeed and sent the matter back to a lower federal appellate court for review on the merits of the parties’ arguments. In issuing its order staying enforcement of the ETS, the six-justice majority sent a clear signal to OSHA that it believed OSHA may have exceeded its authority in issuing a broad vaccination-or-testing requirement that would impact nearly 90 million U.S. employees. The Court explained that OSHA exists to regulate workplace safety, not the public health. Following the Supreme Court’s decision, OSHA decided to withdraw the ETS.
The Residents of Gordon Plaza, Inc. (“Gordon Plaza”) filed suit under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972(a)(1)(B), against the Mayor of New Orleans LaToya Cantrell and the City of New Orleans (the “City”) for the City’s alleged targeting of African American residents for the sale of residential units without disclosing that the location had been previously used as a landfill. The lawsuit was dismissed due to an ongoing “removal” actions being taken by the Court, which created a RCRA statutory bar to Gordon Plaza’s Complaint.
FINRA has released its 2022 Report on Examination & Risk Monitoring which included new risks to monitor this year. The list includes several categories related to 2021’s meme-stock short-squeeze and its continuing fallout. Included in the report for the first time this year include: Muni Shorts & Fails, Trusted Contacts, Crowdfunding and Portals, and Margin and Intraday Trading. Trusted Contact risks refers to FINRA Rule 4512(a)(1)(F), which requires firms to make reasonable efforts to obtain trusted contact information for customer accounts. This is part of an ongoing effort to protect customers, especially elderly customers, from financial abuse. Muni shorts and fails refers to firms trading municipal securities which can result in taxable substitute interest to customers expecting tax-free transactions. Firms engaging in these trades need to have systems in place to monitor municipal trading.
On November 2, 2021, the Florida Legislature began proposing amendments to Florida’s construction defect statute of limitations and repose under 2022 Florida Senate Bill No. 736 (“SB 736”). “The purpose of a statute of repose is to cut off the right of action after a specified time measured from the delivery of a product or the completion of work, regardless of the time of the accrual of the cause of action or the notice of the invasion of a legal right.” According to the Florida Legislature, “the [new] bill provides for a [four]-year limitations period for bringing a construction defect action, whether the action is based on a patent or obvious defect or a latent or hidden defect. The statutory language authorizing a [ten]-year statute of repose for latent defects is repealed.”
In W. Virginia State Univ. Bd. of Governors v. Dow Chem. Co., No. 20-1712, 2022 WL 90242 (4th Cir. Jan. 10, 2022), the Fourth Circuit Court of Appeals held that it lacks federal jurisdiction over state law claims brought by West Virginia State University Board (“WSVU”) against Dow Chemical Company, Bayer Corporation, Bayer CropScience LP, Bayer CropScience Holding, Inc., Rhone-Poulenc, Inc., Rhone-Poulenc AG Co., Rhone-Poulenc AG Company, Inc., and Aventis CropScience USA, LP for pollution of groundwater on the WSVU campus.
In Lennar Homes, LLC v. Martinique at the Oasis Neighborhood Association, Inc., No. 3D20-1732, 2021 WL 6057113 (Fla. Dist. Ct. App. Dec. 22, 2021), the Third District Court of Appeal reversed the trial court’s decision to deny Lennar Homes, LLC’s (“Lennar Homes”) Motion to Compel Arbitration. The Court of Appeal held the arbitration provision was enforceable against Martinique at the Oasis Neighborhood Association, Inc. (“Neighborhood Association”).
FINRA recently announced the results of its targeted examination of Unit Investment Trust (UIT) early rollovers. The investigation resulted in settlement with six member firms, totaling $16.8 million in restitution for approximately 10,000 investors. Following its investigation into the six firms, FINRA concluded that each firm failed to reasonably supervise early rollovers of UIT’s, which caused customers to incur potentially excessive sales charges. UIT’s are generally intended as long-term investments and have sales charges based on their long-term nature. These charges include deferred sales charges, and a creation and development fee. When a registered representative recommends a customer sell his or her UIT before the maturation date and then roll those funds over into a new UIT, a customer incurs a greater sales charge than if the customer had held the UIT until maturity, thereby raising suitability concerns.
On November 5, 2021, OSHA released the COVID-19 Emergency Temporary Standard (“ETS”) providing that employers with at least 100 employees adopt a vaccination policy requiring employees to be fully vaccinated or submit to weekly testing. On January 13, 2021, in a 6-3 decision, the United States Supreme Court issued a ruling blocking the mandate stating that the Labor Secretary “lacked authority to impose the mandate” and it should have been left up to Congress to decide.
In Johnson Nathan Strohe, P.C. v. MEP Engineering, Inc., 2021 WL 4314216 (Colo. App. Sept. 23, 2021), a Colorado appellate court addressed an issue of first impression and held that a limitation of liability provision in the contract between an architect and engineer was ambiguous, but did not render the provision void.
In Gen. Contractors of Cent. Fla. LLC v. Heritage Prop. & Cas. Ins. Co., No. 3D21-34, 2021 WL 5617450 (Fla. Dist. Ct. App. Dec. 1, 2021), the Third District Court of Appeal affirmed the lower court’s decision to dismiss General Contractor of Central Florida’s (“General Contractors”) lawsuit seeking payment for work it performed on its client’s home.
After a dramatic boom in options trading this past year,
FINRA plans to increase rules governing these risky trades. FINRA plans to
solicit opinions on options rules from the public in the coming weeks.
"We share the concerns raised by the SEC and others that retail investors may be opening accounts to trade options and other complex leveraged products without fully appreciating the risks involved," FINRA Chief Executive Officer Robert Cook said in a congressional testimony earlier this year.
On Friday December 10, 2021, an EF-3 tornado devastated the Midwest, including the community of Edwardsville, Illinois. The Amazon warehouse in Edwardsville was hit by the tornado, causing the sides of the warehouse to collapse and the roof to cave in. Six were killed and one other hospitalized.
Plaintiff KMG-Bernuth, Inc., (“KMG”) operates a
pentachlorophenol (“penta”) plant in Tuscaloosa which produces and stores
liquid penta, an industrial wood preservative. Penta is a hazardous pesticide subject to Environmental
Protection Agency (“EPA”) regulations.
Defendant Ranger Environmental Services, LLC's (“Ranger”) is an
industrial cleaning and environmental services company based in Tuscaloosa,
Alabama.
On November 5, 2021, OSHA released a COVID-19 Emergency Temporary Standard (“ETS”) providing that employers with at least 100 employees adopt a vaccination policy requiring employees to be fully vaccinated or submit to weekly testing. The ETS further required employers to provide paid time off to recover from and receive the vaccine, and unvaccinated employees must wear a mask when in contact with coworkers. Under the ETS, the test for the number of employees is counted by the enterprise, not the location. Part-time employees are counted, but independent contractors are not. In a traditional franchisor-franchisee relationship in which each franchise location is independently owned and operated, the franchisor and franchisees would be separate entities for coverage purposes.
Builder Sys., LLC v. Klamer, No. 1200433, 2021 WL 4472047 (Ala. Sept. 30, 2021) concerned a contractor’s appeal from an order enforcing an arbitration award in favor of the homeowners. The Klamers purchased a home built with defective drywall. In 2011, they joined a class action against the manufacturer of the drywall. The class action settled, and, as part of the settlement, the plaintiffs chose to renovate their home, including replacing the defective drywall, some fixtures, and their HVAC unit.
In 1971, President Richard Nixon cancelled construction of the Cross Florida Barge Canal in order to prevent permanent damage to the Ocklawaha River. By the time the Canal construction was cancelled, nearly one-third of the project was completed. The Rodman Dam (now the Kirkpatrick Dam) blocked the Ocklawaha River and created the Rodman Reservoir. The creation of the reservoir flooded approximately 9,000 acres of forest and significantly damaged the Ocklawaha River.
FINRA Board of Governors met on September 23-24, 2021 to approve new maintaining qualifications fees and to reaffirm FINRA’s Financial Guiding Principles.
On April 29, 2021, Alabama Governor Kay Ivey signed a new law that prohibits certain type indemnification provisions in professional services contracts and establishes a single standard of care for Alabama design professionals for Alabama projects governed by Alabama law. The new law, titled “Contract requirements for professional services of design professionals,” went into effect on July 1, 2021, under Alabama Code § 41-9A-3 (the “Act”), and applies to all design professional contracts created since that date. Alabama joins states such as Georgia and North Carolina by enacting a state law that seeks to limit financial liability and risk allocation to design professionals in construction contracts.
FINRA has adopted new rules specifically tailored towards
firms with a significant history of misconduct. The new rules, which become effective
on January 1, 2022, allow FINRA to impose new obligations on broker-dealers
with significantly higher levels of risk-related disclosures than other
similarly sized peers. The new rules would also apply to firms with a high concentration
of individuals with a significant history of misconduct.
On October 11, 2021, Community group SaveRGV (“SaveRGV”) sued the Texas General Land Office, Texas Land Commissioner George P. Bush and Cameron County (“Texas”) for allegedly violating the state constitution. SaveRGV alleges that, by frequently and unpredictably closing a nearby beach for SpaceX to launch rockets at a nearby facility, Texas is violating its constitution. SaveRGV, v. Texas General Land Office et al., 2021-DCL-05887.
Last year, the United States Supreme Court decided Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731 (2020) and held that it is unlawful under Title VII to discriminate against an employee because of their gender identity or sexual orientation. Since then, employers have been left with little guidance regarding how far the decision reaches. Earlier this year, the Equal Opportunity Employment Commission (“EEOC”) issued guidance clarifying the implications following Bostock. The EEOC Guidance is not binding, however, it shows the EEOC’s interpretation and how the EEOC intends to enforce discrimination laws going forward.
In Childs v. Pommer, the Supreme Court of Alabama reviewed two appeals from judgment in connection with a construction contract. 2021 WL 4022619, at *1. With respect to the first appeal, the Supreme Court analyzed whether a subcontractor could be liable under a breach-of-contract theory when he was not a party to the contract. Under the second appeal, the Supreme Court analyzed whether the Plaintiffs should be allowed to pierce the corporate veil of the contractor company to pursue a post-judgment course of action against its sole owner.
In Chicago Ambulatory Surgery Associates, Inc. v. Restore Construction, Inc., 2021 WL 4168597 (Ill. App. Sept. 14, 2021), an Illinois court held an architect that contracted to provide design drawings and make regular site visits did not also undertake a duty to inspect plumbing work for compliance with those drawings.
In Barrientos v. Jacobs Engineering Group, Inc., No. 13-20-00092-CV, 2021 WL 3411869 (Tex. App. Aug. 5, 2021), the Court of Appeals of Texas, Corpus Christi-Edinburg held that Texas law mandates that a design professional expert offering opinions against another design professional must be licensed or registered in Texas.
In The Cottages at Stoney Creek Condominium Association, Inc., et al. v. JDR Construction, LLC, et al., No. 1D20-956, 2021 WL 2209851 (Fla. Dist. Ct. App. June 1, 2021), the Florida First District Court of Appeal affirmed the trial court’s decision granting summary judgment in favor of a general contractor on a statute of limitations defense. The trial court granted summary judgment in favor of the general contractor based on its determination that the owner knew or should have known of the alleged defects more than four years before suit was commenced. The trial court’s order discussed whether a six-year-old report established that the condominium association knew or should have known of the defects at issue in the case.
In Johnson v. 27th Ave. Caraf, Inc., the Eleventh Circuit Court of Appeals sent a message: If you choose to misuse the legal system, be prepared to suffer the consequences. No. 19-14353, 2021 WL 3627604, at *30 (11th Cir. Aug. 17, 2021).
In Petro Harvester Oil & Gas Co., LLC v. Baucum, No. 2019-IA-01442-SCT, 2021 WL 3418398 (Miss. Aug. 5, 2021), Mississippi property owners Tay and Deidra Baucum brought an action against Petro Harvester Oil & Gas Company (“Petro Harvester”) for improper use of its oil-disposal well located on neighboring land. The Baucums brought trespass, public and private nuisance, and negligence claims against Petro Harvester, alleging that for decades the company engaged in systematic and illegal dumping and disposal of oil field petroleum waste and drilling waste on Petro Harvester’s property and Baucum’s property.
In light of the fact that many member firms are increasingly using third-party vendors to perform a variety of core business functions, FINRA recently published Regulatory Notice 21-29, “FINRA Reminds Firms of their Supervisory Obligations Related to Outsourcing to Third-Party Vendors.”
On August 11, 2021, Louisiana’s Attorney General filed a complaint against the National Marine Fisheries Service (“NMFS) to prevent implementation of recent regulations amending 50 C.F.R. § 223 related to sea turtle conservation. Louisiana State v. Department of Commerce et al, U.S. District Court for the Eastern District of Louisiana, No. 2:21-cv-01523. The new rule requires certain shrimp fisherman to install a device on their fishing nets to help prevent the incidental bycatch of endangered sea turtles. Sea Turtle Conservation; Shrimp Trawling Requirements, 84 Fed. Reg. 70,048 (Dec. 20, 2019) (to be codified at (to be codified at 50 C.F.R. § 223).
In Joseph Riccardi v. Carl Little Construction Co., Inc., et al., 2021 WL 3137251 (Tenn. App. July 26, 2021), a Tennessee Appellate Court held that the statute of limitations and statute of repose defenses should be submitted to the jury when fraudulent concealment or equitable estoppel is at issue, even if there is no genuine dispute of material facts.
On July 29, 2021, the U.S. Department of Labor (“DOL”) announced the withdrawal of the “Joint Employer Rule”, which was established during the Trump Administration. This rule, which took effect on March 16, 2020, was intended to clarify the definition of who may be held jointly liable as an employer under the Fair Labor Standards Act (“FLSA”) by emphasizing whether the proposed employer:
FINRA recently published Regulatory Notice 21-26, “FINRA Amends Rules 5122 and 5123 Filing Requirements to Include Retail Communications That Promote or Recommend Private Placements.” The notice amends FINRA Rules 5122 and 5123 to require additional filing requirements by member firms as it relates to the sale of private placement offerings.
The United States Court of Appeals for the Eighth Circuit recently became the first appellate court to weigh in on the litany of lawsuits filed by businesses seeking coverage for business interruption resulting from COVID-19-related restrictions. Oral Surgeons, P.C. v. Cincinnati Ins. Co., 2 F.4th 1141 (8th Cir. 2021). In a big win for insurers, the Eighth Circuit affirmed the district court’s grant of the insurer’s Motion to Dismiss, finding the lack of physical damage to the business fatal to the insured’s claim for coverage.
On March 18, 2020, pursuant to §§ 12-2-30(b)(8) and 25-5-12, Ala. Code 1975, Chief Justice Tom Parker issued “Administrative Order Concerning Workers’ Compensation Cases During the Period of Suspension of In-Person Proceedings,” authorizing circuit judges to conduct workers’ compensation settlement hearings telephonically or by videoconference. This Order also authorizes the use of the Alabama Department of Labor Ombudsman Program for remote approval of workers’ compensation settlements as well, and specifically allows the dismissal of a workers’ compensation claim that was pending in court if settled with written approval of an ombudsman. The order is in effect until October 29, 2021, or further order of the Court.
On July 15, 2021, the presiding judge of Jefferson County entered an Administrative Order extending the previously entered Order allowing the holding of non-jury court proceedings by video or audio conference.
The previous Order provided Jefferson County Circuit Judges with discretion to hold virtual court hearings in all non-jury proceedings which included workers’ compensation cases.
In light of the recent increase in the number of Delta variant
related cases in Jefferson County, we anticipate some of our local judges will
set workers’ compensation hearings, status conferences and trials via audio
conference.
In accordance with the provisions of Section 25-5-68(c), Code of Alabama 1975, the Secretary of Labor determined the new maximum workers’ compensation payable is $983.00 per week and the minimum increased to $270.00 per week
The memorandum regarding the new maximum and minimum rates issued by
the Director of the Alabama Department of Labor Workers’ Compensation Division
Steve Garrett, can be accessed at https://labor.alabama.gov/docs/guides/wc_weeklywage.pdf.
Last summer, the United States Supreme Court decided Bostock v. Clayton County and held that Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate against individuals for being homosexual or transgender. 140 S. Ct. 1731 (2020). The Fifth Circuit Court of Appeals recently decided Olivarez v. T-Mobile USA, Inc., where it rejected the argument that Bostock altered the standard for these individuals in their Title VII suits. No. 20-20463, 2021 WL 1945680 (5th Cir. May 14, 2021).
In RLI Insurance Company v.
Architrave, Inc., 2021 WL 1863259 (D.S.C. May 7, 2021), a federal court in
South Carolina held that a factual issue remained as to when an architect was
required to put its insurer on notice of a potential claim.
Bobbitt Design Build (“Bobbitt”) was hired by Mount Moriah Missionary Baptist Church, Inc., (“the Church”) to construct a new worship center. Bobbitt hired Architrave, Inc. (“Architrave”) to design the worship center. Three (3) years after the project was completed, the Church sent two demand letters to all the entities that were associated with the project, including Architrave. The demand letters listed various problems with the HVAC system and water intrusion from the roof, which Architrave contended were unrelated to its work. Architrave did not report these demand letters to its carrier, RLI Insurance Company (“RLI”).
In Jones v. Reda Homebuilders, Inc., the Court of Appeals of Tennessee, at Nashville, analyzed whether the trial court properly denied Plaintiffs’ Motion for Attorney’s Fees based on the language of the construction contract. 2021 WL 2375883, at *1 (Tenn. Ct. App. June 10, 2021). The appellate court additionally analyzed whether the trial court’s award of damages was speculative.
Plaintiffs Frederick and Kimberly Jones (“Plaintiffs”) entered into a “New Construction Purchase and Sale Agreement” (the “Contract”) with the Defendant home builder, Reda Homebuilders, Inc. (“Reda”), on or about April 21, 2014. Reda provided Plaintiffs with a one-year builder’s warranty at closing. Within the applicable one-year warranty period, Plaintiffs discovered numerous defects in the construction of the home and brought suit against Reda for breach of contract, breach of warranty, and negligence.
In PennEast Pipeline Company, LLC v. New Jersey, the Supreme Court of the United States (SCOTUS) defended the federal government’s ability to delegate its eminent domain power to a natural gas company. No. 19-1039, 2021 WL 2653262, (U.S. June 29, 2021).
The Natural Gas Act (“NGA”) was passed by Congress in 1938 to regulate the sale and transportation of natural gas across state lines. NGA requires a natural gas company to obtain a certificate from the Federal Energy Regulatory Commission (“FERC”) in order to build an interstate gas pipeline. The certificate reflects that construction of the pipeline “is or will be required by the present or future public convenience and necessity.” 15 U.S.C. § 717f(e).
FINRA, SEC, and NASAA recently announced a new presentation intended to assist securities firms in detecting, preventing, and reporting financial exploitation of seniors pursuant to the Senior Safe Act, Section 303 of the “Economic Growth, Regulatory Relief, and Consumer Protection Act,” which was signed into law on May 24, 2018, as well as the state training requirements for certain firms and financial institutions relating to senior investor protection.
In Sellers v. Venture Express, Inc. (not yet released for publication), the Plaintiff asserted a workers’ compensation action in the Circuit Court of Cullman County asserting an on-the-job injury in the course and scope of her employment with Defendant Venture Express. The claimed injury occurred in Alabama, but the Plaintiff and Defendant entered into an agreement stating that all workers’ compensation complaints were to be filed in Tennessee. The Defendant filed a Motion to Dismiss the Complaint based on the agreement and the Trial Court granted the Motion. The Plaintiff appealed the dismissal of her complaint.
In Clarksville Towers, LLC v. Straussberger, the Court of Appeals of Tennessee analyzed whether the trial court properly granted summary judgment for the owner of a corporation which was engaged as the contractor in a multi-million-dollar construction project. 2021 WL 1884636, at *1 (Tenn. Ct. App. May 11, 2021). The plaintiff, Clarksville Towers, LLC (“Clarksville Towers”), sought to hold the owner, John Straussberger, personally liable for the corporation’s alleged violations of the Tennessee Contractors Licensing Act (“TCLA”) and the Tennessee Consumer Protection Act (“TCPA”). The trial court determined the owner could not be held personally liable for the corporation’s alleged violations and granted summary judgment on the claims against Straussberger. The Court of Appeals of Tennessee affirmed the grant of summary judgment.
On June 10, 2021, the
Occupational Safety and Health Administration (“OSHA”) published an Emergency
Temporary Standard (“ETS”) limited to employers in the healthcare section for
COVID-19. OSHA has the authority to
issue an ETS without utilizing the regular rulemaking process if it determines that
(1) workers are exposed to grave danger from exposure to substances or agents
determined to be toxic or physically harmful, or from new hazards; and (2) an
ETS is necessary to protect workers from that danger.
The United States District Court for the District of Connecticut has granted the state’s remand motion in its case against Exxon Mobil for allegedly misleading the public about connections between its products and climate change, as well as alleged interference with the marketplace for renewable energy and “greenwashing.” Connecticut v. Exxon Mobil Corp., No. 3:20-cv-1555 (June 9, 2021).
In County of Saratoga v. Delaware Engineering, D.P.C., 189 A.D.3d 1926, 139 N.Y.S.3d 381 (3d Dept 2020), the New York Supreme Court Appellate Division held that an engineer’s contractual indemnity claim against the contractor was due to be dismissed, as the indemnity provision unambiguously and expressly excluded claims for damage to the “work itself.”
In Carlson, Brigance & Doering, Inc. v. Compton, 2020 WL 7233612 (Tex. App. Dec 8, 2020) the Court of Appeals of Texas held that a Certificate of Merit addressing the alleged negligence of an individual engineer does not have to separately address the employer’s alleged negligence arising out of the same acts or omissions.
On May 6, 2021, the U.S. Department of Labor (“DOL”) announced the withdrawal of the “Independent Contractor Rule”, which was established in the last days of the Trump Administration. This rule would have established a uniform standard for determining a worker’s status as an “independent contractor” under the Fair Labor Standards Act (“FLSA”).
In JLB Builders, L.L.C. v. Hernandez, the Supreme Court of Texas analyzed whether the Texas Court of Appeals erred in finding a fact issue existed as to whether a general contractor on a construction project owed a duty of care to a concrete subcontractor’s employee who was injured on the job. 2021 WL 1822947, at *1 (Tex. May 7, 2021).
On April 28, 2021, the Department of Justice lodged a proposed consent decree with the United States District Court for the Northern District of New York in the lawsuit entitled United States and State of New York v. Holcim (US) Inc., CV No. 1:21-cv-490. The United States and the State of New York filed the action for injunctive relief and civil penalties pursuant to Sections 309(b) and (d) of the Clean Water Act (“CWA”), 33 U.S.C. §1319(b) and (d), and Article 17 of the New York Environmental Conservation Law (“ECL”) against Holcim (US) Inc., for illegal discharges of leachate pollutants.
On March 18, 2020, pursuant to §§ 12-2-30(b)(8) and 25-5-12, Ala. Code 1975, on March 18, 2020, Chief Justice Tom Parker issued “Administrative Order Concerning Workers’ Compensation Cases During the Period of Suspension of In-Person Proceedings”, authorizing circuit judges to conduct workers’ compensation settlement hearings telephonically or by videoconferencing. This Order also authorized the use of the Alabama Department of Labor Ombudsman Program for approval of workers’ compensation settlements as well, and specifically allowed the dismissal of a workers’ compensation claim that was pending in court if settled with written approval of an ombudsman.
In March 2018, a pedestrian bridge collapsed at Florida International University (“FIU”) in Miami-Dade County, Florida. Magnum Construction Management, LLC v. WSP USA Solutions, Inc., 2021 WL 799448 (S.D. Fla. 2021). FIU had retained Plaintiff Magnum Construction Management, LLC (“Magnum”) to design and construct an elevated pedestrian bridge. Magnum contracted with FIGG Bridge Engineers, Inc. (“FIGG”) to perform all design and engineering services for the bridge. FIGG then contracted with The Louis Berger Group, Inc. (“Louis Berger”) for an independent peer review of certain aspects in the bridge’s design.
In Curtis Park Group, LLC, v. Allied World Specialty
Insurance Co., 2021 WL 1022703 (D. Colo. March 17, 2021), the United States
District Court for the District of Colorado held that a report produced by an
engineering expert retained by the contractor was discoverable in an action
between owner and its insurer, as the report was not created in anticipation of
litigation and therefore was not work product.
On April 7, 2021, the Eleventh Circuit Court of Appeals rendered its opinion in Gil v. Winn-Dixie Stores, Inc., reversing the trial court’s decision against Winn-Dixie, holding that websites are not places of public accommodation under Title III of the Americans with Disabilities Act (“ADA”) and an inaccessible website is not necessarily equal to the denial of goods or services. See Gil v. Winn-Dixie Stores, Inc., No. 17-13467 (11th Cir. Apr. 7, 2021).
In an April 1, 2021 ruling, the U.S. Supreme Court unanimously dismissed Florida’s claims against Georgia in a long-running dispute over the use of water in the Apalachicola-Chattahoochee-Flint (ACF) river basin. State of Florida v. State of Georgia, 141 S.Ct. 1175 (2021). The court rejected Florida’s request for an order requiring Georgia to reduce its use of water in the Apalachicola - Chattahoochee - Flint River Basin (“Apalachicola River Basin”), affirming the Special Master’s finding that Florida did not meet its burden of proof in establishing Georgia's water use caused serious harm to Florida's oyster fisheries or river wildlife and plant life.
The SEC Division of Examinations recently announced its examination priorities for fiscal year 2021, discussing key risks, trends, and examination priorities in an overall effort to promote and improve compliance.
The two largest programs run by the Division, Investment Adviser/Investment Company Program and Broker-Dealer and Exchange Program, focus on the protection of retail investors and retirement savers. The Division stated in its annual report that this year’s emphasis will be on sales related to mutual funds and exchange-traded products, municipal securities, other fixed income products, and microcap securities, but the examinations will be in the context of compliance with Regulation Best Interest (“Reg BI”).
This week has seen a few notable updates in the ongoing dispute regarding insurance coverage for business interruption resulting from COVID-19-related business closures, as federal and state appellate courts finally have had the opportunity to weigh in on these arguments.
On September 29, 2020 in Iowa, United States District Judge Charles R. Wolle granted with prejudice an insurer’s Motion to Dismiss an oral surgery clinic’s declaratory judgment action seeking coverage for business interruption. Oral Surgeons, P.C. v. Cincinnati Ins. Co., 491 F. Supp. 3d 455 (S.D. Iowa 2020). The plaintiff claimed its losses resulted from government orders restricting performance of “non-emergency dental procedures.” The insurer emphasized that purely economic loss is not covered; rather, the policy requires physical loss to trigger coverage.
This Clean Water Act (CWA) case arose from
the 2007 disposal of fill from Defendants’ property (containing purported
wetlands) allegedly into “waters of the United States.” United
States v. Acquest Transit LLC, No.
09-CV-55S, 2021 WL 809984, at *13 (W.D.N.Y. Mar. 3, 2021). The underlying issue is whether that property contained wetlands that
are part of “waters of the United States” to be governed by the CWA. The CWA applies to “navigable waters”
which, in turn, are defined as the “waters of the United States,” 33
U.S.C. § 1362(7).
On February 1, 2021, FINRA published the 2021 Report on FINRA’s Examination and Risk Monitoring Program (“2021 Report”). Annually, FINRA publishes the Report on its Examination and Risk Monitoring Program in order to provide member firms with information they can use to assess and strengthen their compliance, supervisory, and risk management programs. The Report summarizes noteworthy findings from recent examinations, outlines effective practices that FINRA observed during its oversight, and provides additional resources that may be helpful to member firms in fulfilling their compliance obligations.
In D’Allessandro v. Lennar
Hingham Holdings, LLC, 2020 WL 6438937 (Mass. Nov. 3, 2020), the Massachusetts
Supreme Judicial Court held the statute of repose governing the claims for
design and construction defects for a multi-building condominium project began
to run when each building was opened for its intended use or was substantially
completed, not when the first building was complete. The condominium in question consisted of twenty-eight (28) buildings
built in twenty-four (24) phases between 2008 and 2015. Each building was issued
a Certificate of Occupancy when the architect determined the building or units
were “substantially complete.”
In Kanza Constr., Inc. v. Kansas City S. Railways Co., the Mississippi Court of Appeals analyzed whether the circuit court properly granted partial summary judgment when it found, as a matter of law, that a construction company was not entitled to acceleration damages on the contract it breached. 2021 WL 670993 (Miss. Ct. App. Feb. 22, 2021).
In response to a directive from President Biden, the U.S. Department of Labor (“DOL”) has issued guidance to state unemployment insurance agencies that expands the number of instances in which workers can be eligible for Pandemic Unemployment Assistance (“PUA”). PUA is a federally funded unemployment expansion that was adopted under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) to provide unemployment benefits for certain individuals not otherwise entitled to state benefits and unemployed for COVID-19-related reasons. The new DOL guidance reflects the Biden administration’s pledge to “ensure that unemployed Americans no longer have to choose between paying their bills and keeping themselves and their families safe from COVID-19.”
The Eleventh Circuit continues to dismiss suits brought by business owners seeking coverage for losses caused by COVID-19. But policyholders in other jurisdictions have achieved some notable wins so far in 2021. While “success” often means a policyholder merely survived dismissal on the pleadings, some courts have ruled in favor of policyholders in later stages of litigation.
In Paschen v. B&B Site Development, Inc., the parties to a subcontract disagreed over the scope of work required for the project. 2021 WL 359487 (Fla. App. Ct. 2021). Plaintiff F.H. Paschen, S.N. Nielson & Associates (“Paschen”) worked as the general contractor for the United States Postal Service to perform construction work at a post office in Okeechobee, Florida. Paschen’s contract with the Postal Service required it to “verify all dimensions shown of existing work” and to report any discrepancies prior to submitting a price proposal.
On January 6, 2021, the US Department of Labor (“DOL”) announced its final rule clarifying the standard for employee versus independent contractor under the Fair Labor Standards Act (“FLSA”). The effective date of the final rule is March 8, 2021.The purpose of the new rule is to provide clarity to workers and employers by making it easier to identify employees covered by the FLSA. The new rule replaces the previously used seven-factor economic realities test that the DOL and most Courts have used when analyzing a work relationship to determine independent contractor versus employee status.
Plaintiffs in Melton Properties, et al. v. Illinois Central Railroad, 2020 WL 7335018 (N.D. Miss.) recently argued the Supreme Court’s decision in County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020), overrules the 5th Circuit’s precedent in Hamker v. Diamond, 756 F.2d 392 (5th Cir. 1995). Plaintiffs are property owners or farmers near the site of a train derailment that caused a toxic spill. On application for rehearing, Plaintiffs asked the Court to reinstate their previously dismissed claims.
FINRA recently issued Regulatory Notice 21-03 providing information to help FINRA member firms that engage in low-priced securities business assess and, as appropriate, strengthen their controls to identify and mitigate their risk, and the risk to their customers, including specified adults and seniors, of becoming involved in activities related to fraud involving low-priced securities. FINRA issued this guidance because it has observed potential misrepresentations about low-priced securities issuers’ involvement with COVID-19 related products or services, such as vaccines, test kits, personal protective equipment, and hand sanitizers.
In Wright Construction Services, Inc.v. The Hard Art Studio, PLLC, 2020 WL 7906704 (N.C. App. Dec. 31, 2020), a North Carolina appellate court held that the “licensure defense,” which prevents a builder that is unlicensed at the start of a project from recovering in a breach of contract claim, does not apply to negligence claims against design professionals, and is limited only to a builder’s breach of contract claims against owners.
In Rochester Endoscopy and Surgery Center, LLC and Jaro Company, LLC v. DesRosiers Architects, PC, 2020 WL 6231823 (Mich. App. October 22, 2020), the Court of Appeals of Michigan granted Defendants’ Motion to Dismiss the professional negligence claims against the architect. The Rochester Plaintiffs purchased a unit in a condominium, which they intended to convert to a surgical outpatient facility. Plaintiffs hired OYK Engineering & Construction (“OYK”) to serve as the Design-Builder for the project. OYK subcontracted with Desrosiers Architects, PC, (“Desrosiers”) to provide design and architectural services.
The U.S. Supreme Court has agreed to hear
litigation concerning which section of the law, and their different statutes of
limitations, parties must use when seeking to recoup Superfund cleanup costs. The case, Guam v. United States, Case No. 20-382, is slated to be heard
in the Court’s upcoming term.
FINRA’s Board of
Governors met on December 2-3, 2020, to review FINRA’s 2020 financial
performance, approve the organization’s 2021 proposed budget, reaffirm FINRA’s
Financial Guiding Principles, approve rule proposals, and receive several
operational updates.
The Board approved
two rule proposals to be filed with the Securities and Exchange Commission
(SEC), directing impacting our clients. As customary, the proposed rules will
be published for public comment within the year and must be approved by the SEC
before becoming effective.
In Hayward Baker, Inc. v. Westfield Ins. Co., the Florida District Court of Appeal, Second District, reversed a lower court’s order denying a subcontractor’s motion for attorneys’ fees under Florida Statutes, Section 713.29. 2020 WL 7767859, at *1 (Fla. Dist. Ct. App. Dec. 30, 2020). The underlying case stemmed from construction of an addition to University Community Hospital in Carrollwood, Florida.
The Food and Drug
Administration (“FDA”) recently issued emergency use authorizations for COVID-19
vaccines. As the vaccines become widely available, more employers will consider
whether to mandate vaccinations for employees. While generally employers may
mandate vaccinations, there are some additional considerations with the COVID-19
vaccine.
A key consideration is the Americans with Disabilities Act (“ADA”), which generally requires that a disability-related inquiry or medical examination of an employee be job related, consistent with business necessity, and no more intrusive than necessary. With the COVID-19 pandemic continuing to spread, the direct threat COVID-19 poses to the workplace may be sufficient to meet the ADA’s requirement. Many healthcare employers require employees to receive the influenza vaccine and have successfully demonstrated that the inquiries related to the flu vaccine are job related and consistent with business necessity.
On October 21, 2020, the Southern District of Alabama issued its first opinion addressing a COVID-19-related claim for lost income under the “business interruption” provision of an “all-risk” policy. Hillcrest Optical, Inc. v. Cont’l Cas. Co., No. 1:20-CV-275-JB-B, 2020 WL 6163142 (S.D. Ala. Oct. 21, 2020). After the plaintiff closed its business in compliance with Governor Ivey’s “stay-at-home” order, it filed a claim with its insurer for lost income, alleging a direct physical loss from the loss of use of its office. The plaintiff’s policy contains a provision covering “direct physical loss of or damage to” the plaintiff’s business. It does not, however, define what constitutes “direct physical loss or damage.” The policy also contains a “Business Income and Extra Expense” endorsement providing coverage for lost income from a necessary suspension of operations during a “period of restoration” caused by a covered direct physical loss to property. This provision covers expenses reasonably and necessarily incurred because of direct physical loss or damage but excludes periods of restoration extended by regulations governing the use of the covered property. It expressly contemplates physical repair to or rebuilding of the property.
The U.S. Environmental Protection Agency (EPA) has issued a Draft Guidance Memorandum following the recent U.S. Supreme Court decision in County of Maui v. Hawaii Wildlife Fund. 139 S.Ct. 1164 (2019). This Guidance Memo attempts to give regulators and source owners additional clarity as to when the functional equivalent test should be applied.
On November 2, 2020, the SEC adopted amendments to “simplify, harmonize, and improve certain aspects of the exempt offering framework” under the Securities Act of 1933. The amendments are intended to meet evolving market needs by providing, among other changes, all of the following: greater clarity around the SEC’s integration doctrine that can pose challenges for companies with ongoing or recurring financial needs to permit concurrent private and public offerings; increased efficiency of the private capital raising process by increasing the ceiling on the amount of funds that can be raised under Regulation A, Regulation Crowdfunding, and Rule 504 of Regulation D offerings; clear and consistent rules governing certain offering communications, including permitting certain “test-the-waters” and “demo day” communications; and aligned financial disclosure requirements for Rule 506(b) offerings to non-accredited investors with the requirements under Regulation A.
In Bristol Southside Association, Inc. v. Meridian Construction & Development, LLC, the United States District Court for the Northern District of Alabama denied the Defendant’s Motion for Summary Judgment, which it supported by arguing the Plaintiff’s claims were barred under Alabama’s statute of repose. 2020 WL 6712270.
Throughout the past few months, COVID-19 cases have continued to rise causing several areas of concern for employers across the nation. On November 18, 2020, the California Division of Occupational Safety and Health (“Cal OSHA”) proposed emergency regulations containing new workplace protocols that provide employers with more comprehensive guidelines to adequately enforce or modify existing safety rules regarding COVID-19. These regulations can be found at California Code of Regulations (CCR), Sections 3205, 3205.1, 3205.2, 3205.3 and 3205.4.
In Hinman v. ValleyCrest
Landscape, Inc. and Aquatic Design & Engineering, Inc., No.
3:19-cv-551, 2020 WL 434161 (M.D. Tenn. Jan. 28, 2020), the United States
District Court for the Middle District of Tennessee granted Defendants’ Motion
to Dismiss the fraud claims alleged against
the engineer for lack of specificity in the pleading.
FINRA recently adopted Rule 3241, limiting registered representatives from being named a customer’s beneficiary or holding a position of trust for a customer. The rule limits a registered representative from being named a beneficiary, executor or trustee, or to have a power of attorney or similar position of trust for or on behalf of a client, unless specifically approved by the broker dealer prior to accepting the position of trust. The rule does not apply, however, where the customer is a member of the registered person’s immediate family.
Across the nation, COVID-19 cases continue to rise and so have COVID-related complaints to the Occupational Safety and Health Administration (“OSHA”). OSHA has initiated over 1,000 investigations related to COVID, and as of October 22, 2020, OSHA had issued just under 150 COVID-related citations. OSHA has not developed standards specific to COVID-related concerns. Instead, it is applying existing OSHA standards.
In Liberty Constr. Co., LLC v. Curry, the Tennessee Court of Appeals, Nashville Division, reversed a lower court’s holding that the owners of a commercial building failed to provide a construction company with notice and a reasonable opportunity to cure a defect it allegedly caused. 2020 WL 6158461, at *1 (Tenn. Ct. App. Oct. 21, 2020).
In Town of West Seneca v. Kideney Architects, P.C., 2020 WL 5867490 (N.Y. App. Oct 2, 2020), a New York appellate court held a project owner’s claim against the architect accrued, and the statute of limitations began, upon completion of the project, rather than discovery of the damage. Town of West Seneca, the project owner, contracted with an engineering firm for professional services on the project. The engineering firm then contracted with Kideney Architects (“Kideney”) for architectural services. The project was certified as substantially complete in 2002.
The Middle District Court of Florida in Urogynecology Specialist of Florida, LLC, v. Sentinel Insurance Company, LTD., 2020 WL 5939172 (M.D. Fla. 2020) broke from many other cases in Florida and elsewhere in denying an insurer’s motion to dismiss a COVID-19 business loss claim on the grounds of a virus exclusion in the policy. The court held that the virus exclusion included in an all-risk insurance policy was “arguably ambiguous” as applied to the forced shutdown, which made a coverage determination inappropriate on a motion to dismiss. The policy, which provided coverage for “physical loss of or physical damage to Covered Property” also covered loss of business income due to necessary suspension of operations. The policy’s coverage was extended to pay for losses to the business’s accounts receivable.
In Optum Construction Group, LLC et al. v. City Electric Supply Company, 2020 WL 5792581 (Ga. App. 2020), appellee City Electric Supply Company (“City Electric”) furnished materials to Palmetto Power Services, LLC (“Palmetto Services”), an entity that represented itself as a subcontractor for a hotel construction project on which appellant Optum Construction Group, LLC (“Optum”) was the general contractor. After Palmetto Services failed to pay City Electric for the materials, City Electric sued Palmetto Services and filed a materialman's lien on the hotel and real estate (“the Property”) on which it was constructed. Optum and its surety, Fidelity and Deposit Company of Maryland (“Fidelity”), discharged the lien by filing a bond.
Plaintiffs continue to struggle in compliance with Certificate of Merit requirements in Texas. In TRW Engineers, Inc. v. Hussion Street Buildings, LLC, 2020 WL 4457975 (Tex. Ct. App. August 4, 2020), the Texas Court of Appeals held that an engineer’s deposition testimony, which was read into the record by the plaintiff, did not obviate the need for compliance with the certificate-of-merit requirement found in Tex. Civ. Prac. & Rem. Code § 150.002, and accordingly dismissed plaintiff’s unsupported petition.
In 2019, FINRA launched a retrospective review to assess the effectiveness and efficiency of its rules and administrative processes meant to help protect senior investors from financial exploitation. Based on feedback received during the review, FINRA is now proposing amendments to Rule 2165 regarding financial exploitation of specific adults to extend the hold period and allow temporary holds on transactions.
The United States District Court for the D.C. Circuit has denied an environmental advocacy group’s motion to reconsider the Court’s 2018 ruling giving Environmental Protection Agency’s (EPA) discretion as to how to establish a new “total maximum daily load” (“TMDL”) for trash in the Anacostia River. Plaintiff Natural Resources Defense Council (“NRDC”) argued little progress had been made since the Court’s 2018 ruling and that EPA should be required to establish a TMDL within one year.
FINRA recently issued Regulatory Notice 20-30 “Fraudsters Using Registered Representatives Names to Establish Imposter Websites.” The Notice warns of individuals maliciously using publicly available information regarding registered representatives in order to create “imposter websites” exhibited as the registered representative’s personal website. Through these “imposter websites,” individuals are able to collect personal information from potential customers with the likely goal of committing financial fraud.
The National Labor Relations Board (“NLRB”) recently addressed the issue of COVID-19 for the first time since the pandemic. The NLRB issued a series of advice memoranda instructing its regional offices to dismiss various COVID-19 related charges against employers.
In 22 Gramercy Park, LLC v. Michael Haverland Architect, P.C., 2020 WL 4141384 (N.Y. Cty. Sup. Ct. July 20, 2020), a New York court held an architect that was sued for design defects could not seek common law indemnification from an engineer, but could seek contribution.
In Ex parte Kohler Company, Inc., 29 ALW 4-4 (2190081); 1/17/2020, the Employer, Kohler Company, Inc., (“Kohler Company”) petitioned the Alabama Supreme Court for a writ of mandamus directing the trial court to vacate its Order denying Kohler’s Motion to Vacate the Order granting the employee’s motion to provide a second opinion doctor. The Alabama Supreme Court denied Kohler’s writ of mandamus.
Businesses continue to grapple with the realities of working during the COVID-19 pandemic and the quickly evolving legal landscape regarding returning employees to work. A number of new lawsuits related to pregnancy discrimination have been recently filed because COVID-19 can present an elevated immune and respiratory risk to pregnant women.
The U.S. District Court for the Northern District of California has dismissed a Clean Air Act (CAA) complaint asserting EPA must reassess risks of hazardous pollution sources whenever it requires technological upgrades for them. Citizens for Pennsylvania's Future et al. v. Wheeler, No. 19-cv-2004, 2020 WL 3481425 (N.D. Cal. June 26, 2020). In a matter of first impression, the Court rejected the environmental groups' argument that the CAA, 42 U.S.C.A. § 7412(d)(2) requires the agency to reassess hazardous air pollution risks within eight years of any revision of emissions standards.
In Edwin Taylor Corp. v. Mortg. Elec. Registration Sys., Inc., the Florida District Court of Appeals, Third District, analyzed whether a subcontractor’s properly perfected claim of a construction lien could relate back to the date the general contractor recorded a notice of commencement that was not signed by the property owner for purposes of determining the priority of competing interests in lien foreclosure action. 2020 WL 3261177 (Fla. Dist. Ct. App. June 17, 2020). The issue was one of first impression for the Court.
For over 40 years, the Securities and Exchange Commission (SEC) has used disgorgement as a common enforcement tool. In securities enforcement matters, disgorgement requires wrongdoers to disgorge ill-gotten profits or commissions. The Ninth Circuit has stated that “disgorgement is designed to deprive a wrongdoer of unjust enrichment, and to deter others from violating securities laws by making violations unprofitable.” See Security and Exchange Commission v. JT Wallenbrock & Associates., 440 F.3d 1109, 1113 (9th Cir. 2006).
On
May 6, 2020, the Alabama Secretary of Labor, Fitzgerald Washington, determined,
pursuant to Alabama Code Section 25-5-68(c), that the State of Alabama’s
average weekly wage for 2019 was $920.07. Based on this determination, Steve
Garrett, Director of the Alabama Department of Labor Workers’ Compensation
Division, issued a memorandum on May 11, 2020 stating the maximum workers’ compensation
payable to injured workers is increased to $920.00 per week and the
minimum is increased to $253.00 per week. The new rates take effect July
1, 2020, and apply to injuries occurring on or after that date.
The 9th Circuit U.S. Court of Appeals has affirmed the right of state and local governments to sue Volkswagen over tampering with emissions devices on their vehicles after they were sold. The decision reverses the lower court’s dismissal of the claims and opens the door for more litigation. In re Volkswagen "Clean Diesel" Mktg., Sales Practices, & Prod. Liab. Litig., No. 18-15937, 2020 WL 2832121 (9th Cir. June 1, 2020).
In Whitaker v. R2M Engineering, LLC, 2020 WL 2786941 (Tex. Ct. App, May 28, 2020), the Texas Court of Appeals held that plaintiff’s alleged damages arose out of the provision of professional services by a licensed or registered professional, triggering the Certificate of Merit requirements.
In Decks N Such Marine, Inc. v. Daake, the District Court of Appeal of Florida, First District, considered whether a trial court’s award of attorney’s fees to a junior interest holder in a construction lien enforcement action was proper under Section 713.29, Florida Statutes (2018). 2020 WL 2507500 (Fla. 1st Dist. Ct. App. 2020). The Appellate Court found that junior interest holders are not entitled to attorney’s fees as the prevailing party in an action brought to enforce a construction lien.
On February 7, 2020, FINRA filed with the SEC a proposed rule change to amend FINRA’s Code of Arbitration Procedure for Customer Disputes and Code of Arbitration Procedure for Industry Disputes to apply minimum fees to requests for expungement of customer dispute information. The SEC recently approved this proposed rule change in an order dated May 26, 2020, which was published in the Federal Register on June 1, 2020.
On June 15, 2020, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects gay, lesbian and transgender persons in their employment. Prior to the Supreme Court’s ruling, the law had no specific protection for sexual orientation or gender identity. The Court’s decision has resolved a conflict among several federal circuits as to whether Title VII prohibits employment discrimination on the basis of sexual orientation and gender identity.
In Baker v. Rabren General Contractors, Inc., 2020 WL 12145326 (M.D. Ala. 2020), the United States District Court for the Middle District of Alabama analyzed whether an arbitration provision in an unsigned subcontract was enforceable. Defendant Rabren General Contractors, Inc. (“Rabren”) filed a Motion to Compel Arbitration in the suit brought against it by Plaintiff Charles Baker (“Baker”), pursuant to an arbitration provision in an unexecuted written contract drafted by Rabren. The subcontract purported to be for concrete work by Baker on a construction project Rabren had been awarded to build a new high school in Auburn, Alabama (the “Auburn Project”).
The Equal Employment Opportunity Commission (“EEOC”) has clarified a question that has been playing on the minds of employees and employers alike: during the COVID-19 pandemic, how does the ADA apply to workers who do not want to return to the workplace because they are “high risk?” If an employee, who has a medical condition identified by the Center for Disease Control (“CDC”) that puts him or her at greater risk of severe illness from COVID-19 infection, requests a reasonable accommodation, the employer should provide the reasonable accommodation. If the employee does not request a reasonable accommodation, the ADA does not require that the employer take action.
In Management & Consulting, Inc. v. Tech Electric, Inc., the District Court of Appeal of Florida, Third District, reviewed a lower court’s denial of a motion for discharge of a mechanic’s lien. 2020 WL 1540958 (Fla. 3d Dist. Ct. App. 2020). The Appellate Court found a subcontractor failed to comply with the requirements of section 713.21(4), Florida Statutes, when it asserted the validity of its mechanic’s lien, but failed to show good cause as to why its lien had not been enforced or file a foreclosure suit within the statutory timeframe.
In Preyde One, LLC v. Hoffman Consultants, LLC, 2020 WL 908943
(Mich. App. Feb. 25, 2020), a Michigan appellate court ruled that a
project owner's claim against a structural engineer was a malpractice claim, governed
by the malpractice statute of limitations and untimely. Preyde One,
LLC ("Owner") sued Glasers Lumber ("Glasers") for breach of
contract for allegedly providing defective work and materials on the construction of
a hotel. Glasers identified Hoffman Consultants, LLC ("Hoffman"), the
structural engineer for the hotel, as a responsible non-party and Owner filed a
Second Amended Complaint against Hoffman, alleging Hoffman negligently prepared
the drawings and specifications and negligently inspected and supervised the
structural work.
On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), which is a $2 trillion relief package aimed to help diminish the economic impact of the COVID-19 pandemic. The Act includes certain provisions particularly relevant to employers.
The United States Court of Appeals for the D.C. Circuit has ruled EPA acted improperly when it suspended restrictions on the use of hydrofluorocarbons (HFCs) to replace ozone-depleting substances (ODSs). Natural Resources Defense Council v. Wheeler, No. 18:1172 (D.C. Cir. April 2020). EPA did this without going through notice-and-comment procedures, which is what the Natural Resources Defense Council challenged and won.
FINRA amended its Code of Arbitration Procedure for Customer Disputes (Customer Code) to expand the options available to customer claimants dealing with “inactive members”—those firms or individuals whose FINRA registration has been terminated, suspended, canceled, or revoked, or who have been expelled or barred from FINRA. FINRA has amended the Customer Code to further the routes available to customers in situations where a firm becomes inactive during a pending arbitration or where an associated person becomes inactive either before a claim is filed or during a pending arbitration.
In Mississippi State Board of Contractors v. Hobbs Construction, LLC, the Supreme Court of Mississippi analyzed whether the Mississippi State Board of Contractors (“the Board”) deprived Hobbs Construction, LLC (“Hobbs”) of its procedural right to due process. 2020 WL 1081410 (Miss. 2020).
The United States Court of Appeals for the Fourth Circuit has affirmed a District Court order remanding to state court a suit filed by the City of Baltimore seeking to hold oil companies accountable for climate change. In 2018, the Mayor and City Council of Baltimore filed suit against major oil companies in state court. The complaint alleged that the oil companies contributed to climate change by extracting, producing, promoting and selling fossil fuels, while deceiving the public about the known harms of fossil fuel products. Baltimore brought eight state law claims against the oil company, including nuisance and trespass.
In Gannett Fleming, Inc. v. Corman Construction, Inc., 2019 WL 6207616 (Md. App. Nov. 21, 2019), the Maryland Court of Special Appeals held that an arbitration provision contained in a subsequent agreement may still apply to work performed under a prior agreement that did not contain a similar arbitration provision.
In June 2019, the SEC adopted Regulation Best Interest. The Regulation requires broker-dealers (and natural persons associated with broker-dealers) to act in the best interest of their retail customers in making a recommendation of any securities transaction or investment strategy involving securities. Since the rule’s promulgation, there have been several questions relating to compliance with Regulation Best Interest. Accordingly, within the past few months, and as recent as February 2020, the U.S. Securities and Exchange Commission (SEC) Division of Trading and Markets released answers to Frequently Asked Questions (FAQs) relating to compliance with Regulation Best Interest.
Both the Occupational Safety and Health Administration (“OSHA”) and the Center for Disease Control and Prevention (“CDC”) published guidance for employers on planning for and protecting their workplaces from exposure to and infection from COVID-19, or coronavirus.
On January 16, 2020, the U.S. Department of Labor published in the Federal Register the Final Rule regarding joint employer status under the Fair Labor Standards Act (“FLSA”). These changes to the rule are the first meaningful revisions to the regulations in more than 60 years.
On January 23, 2020, the EPA and the U.S. Army Corps of Engineers released the Navigable Waters Protection Rule (NWPR) which redefines “waters of the United States” (WOTUS). This new rule adopts a more limited definition of WOTUS that are subject to the Clean Water Act. The NWPR defines WOTUS to include only four categories of waters: (1) territorial seas and waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters which are subject to the ebb and flow of the tide; (2) tributaries; (3) lakes and ponds, and impoundments of jurisdictional waters; and (4) adjacent wetlands. The NWPR confirms that groundwater is not subject to regulation under the Clean Water Act, which means water features connected only by groundwater are also not subject to regulation.
In WSA Group, PE.,PC v. DKI Engineering & Consulting USA PC, 2019 WL 7173322 (N.Y. App. Dec. 26, 2019), a New York appellate court held that the statute of limitations governing malpractice claims against architects and engineers in New York begins to accrue when the contract is complete and the professional relationship ends, rather than when the plaintiff incurs damages.
FINRA released its 2020 Risk Monitoring and Examination
Priorities Letter. The Letter addresses
emerging priorities for FINRA’s risk monitoring, surveillance, and examination
programs in the coming year.
On October 4, 2019, the Alabama Court of Civil Appeals released AMEC Foster Wheeler Kamtech, Inc. v. Chandler, -- So. 3d --, 2019 WL 4894327 (Ala. Civ. App. 2019), which found the employer, Defendant AMEC Foster Wheeler Kamtech, Inc., failed to prove the employee, Plaintiff Jimmy Chandler, returned to work making the same or greater average weekly wage (“AWW”) and that Ala. Code § 25-5-57(a)(3)i (the “return-to-work” statute) did not apply to prevent the trial court from awarding damages based on Plaintiff’s vocational impairment.
In Couvillion Group, LLC v. Plaquemines Parish Government, 2019 WL 6769614 (La. App. Dec. 11, 2019), Plaquemines Parish Government (“PPG”) contracted with Couvillion Group, LLC (“Couvillion”) to be the general contractor for the Project. PPG contracted with Professional Engineering Consultants Corporation (“PEC”) to provide engineering services for the project.
The National Labor Relations Board (“NLRB”) ruled that an employer may now require confidentiality from employees involved in open workplace investigations. This resolves a conflict between the NLRB and the Equal Employment Opportunity Commission (“EEOC”) and provides clarity for employers.
A federal district court in Ohio has endorsed the “constructive submission” doctrine as a way to require the EPA to set standards for polluted bodies of water when states neglect or refuse to set those standards. Environmental Law & Policy Center v. EPA, Docket No. 3:19-cv-00295 (November 13, 2019, N.D. Ohio). The Clean Water Act citizens suit, which was filed by two environmental groups, asks EPA to require Ohio’s EPA to adopt a legally sufficient and adequate Total Maximum Daily Load (TMDL) for western Lake Erie.
In Goudy Construction, Inc. v. Raks Fire Sprinkler LLC, Plaintiff Goudy Construction, Inc. (“Goudy”) served as the general contractor for a project for which Defendant Raks Fire Sprinkler LLC (“Raks”) submitted a bid to install a fire sprinkler system. 2019 WL 6841067 (N.D. Ala. 2019). Goudy accepted Raks’ bid and entered into a contractual agreement that required Raks to provide commercial liability insurance for the duration of the Project and was also required to provide a performance bond with Goudy as the owner. Raks complied with these requirements, purchasing the performance bond from Defendant Aegest Security Insurance Company (“Aegest”).
The FINRA Board of Governors met on December 4-5, 2019 to
discuss the organization’s 2020 proposed budget, reaffirm its Financial Guiding
Principles, discuss several operational updates, and approve two rule
proposals.
Of noted importance to our clients, the Board approved two rule proposals to be filed with the Securities and Exchange Commission (SEC). Both proposed rules will be published for public comment within the year and must be approved by the SEC before becoming effective.
In Grace and Naeem Uddin, Inc. v. Singer Architects, Inc., 278 So. 3d 89 (Fla. 4th DCA 2019), Florida’s Fourth District Court of Appeals held an architect had sufficient supervisory control over a contractor to establish a duty of care. Broward County (the “County”) hired Grace and Naeem Uddin, Inc. (“GNU”), a general contractor, for an improvement project at the Fort Lauderdale Airport (the “Project”). The County hired Singer Architects, Inc. (“Singer”) to provide consulting and administrative services for the Project.
The United States District Court for the District of Massachusetts has ruled pollution from a Cape Cod resort that travels through groundwater into the Atlantic Ocean is not subject to Clean Water Act permitting requirements. Conservation Law Foundation v. Longwood Venues & Destinations, Inc., No. 1:18-cv-11821 (November 26, 2019, D. Mass.). The Complaint alleges treated wastewater seeps through the groundwater into Wychmere Harbor from a wastewater treatment facility at the Massachusetts Wychmere Beach Club on Cape Cod. The Massachusetts Department of Environmental Protection found that the discharges were partially responsible for excessive nitrogen in the harbor.
FINRA is seeking comments on a new rule proposal that would limit any registered person of a broker-dealer from being named a beneficiary, executor or trustee, or to have a power of attorney or similar position of trust, for or on behalf of a customer. FINRA believes being a customer’s beneficiary or holding a position of trust may present significant conflicts of interest and hopes the proposed rule would help further address misconduct in this area.
The Middle District of Florida held that a client-owner was not unjustly enriched despite a subcontractor’s belief that the client-owner was undercharged by the general contractor. In Commercial Repairs and Sales, LLC v. Signet Jewelers Limited, Plaintiff Commercial Repairs and Sales, LLC (“CRS”) provided construction improvement and facility management. Defendant Signet Jewelers Limited (“Signet”) is a jewelry conglomerate with retail locations around the world.
After a recent Eleventh Circuit decision in Lewis v. Governor of Alabama 896 F.3d 1282 (11th Cir. 2018), the Eleventh Circuit Court of Appeals agreed to a full-court review to decide the validity of a 2016 Alabama Law prohibiting cities or other local municipalities from adopting their own laws concerning minimum wages. The law was originally enacted in response to an ordinance by the Birmingham City Council that increased the minimum wage for all employees within the Birmingham City’s boundaries from the current federal minimum of $7.25 to $10.10. The day after this ordinance was enacted to increase the minimum wage, the Alabama Legislature enacted and the Governor signed the Alabama Minimum Wage Act, voiding Birmingham’s wage increase after one day of operation.
The United States Supreme Court heard oral arguments on November 6, 2019, in Hawai’i Wildlife Fund v. County of Maui, a groundwater case that challenges the scope of the Clean Water Act (“CWA”). 831 F.3d 754 (9th Cir. 2018). The Ninth Circuit previously held that where a point source discharge to groundwater is fairly traceable to a navigable water, it falls within the jurisdiction of the Act.
In Rankin v. South Street Downtown Holdings, Inc., 2019 WL 3562167 (N.H. Aug. 6, 2019), the New Hampshire Supreme Court addressed whether the state’s Statute of Repose applied to indemnity and contribution claims against architects, or only applied to claims for direct losses. The Court found the statute did apply and imposes a time limit on indemnity claims against architects.
On October 16, 2019, FINRA published its 2019 Report on Examination Findings and Observations (“The Report”). The Report essentially details observations from recent examinations of broker-dealer firms. In the past, broker-dealer firms have used these reports to anticipate potential areas of concern and improve their procedures and controls accordingly.
In E Solutions for Buildings, LLC v. Knestrick Contractor, Inc., et al., appellant E Solutions for Buildings, LLC (“E Solutions”) challenged the trial court’s award as it related to a subcontractor’s payments owed to E Solutions. 2019 WL 5607473 (Tenn. Ct. App. 2019). The case stemmed from the construction of the Centennial Sportsplex Indoor Fitness Expansion Building (the “Sportsplex”) by the Metropolitan Government of Nashville and Davidson County (“Metro”). Metro entered into a contract with Knestrick Contractor, Inc. (“Knestrick”) for the construction of the Sportsplex (the “Contract”). Under the Contract, Knestrick was obligated to accomplish substantial completion of the project by December 2, 2013.
On November 8, 2019, a unanimous three-judge panel of the Tenth Circuit Court of Appeals issued an opinion in Tesone v. Empire Marketing Strategies holding that employees who sue their employers for violations of the Americans with Disabilities Act (“ADA”) do not necessarily need to submit expert medical testimony to establish they have a disability.
On October 18, 2019, the Alabama Court of Civil Appeals released an opinion holding that Plaintiff Orethaniel Swain’s (“Plaintiff”) outrage, fraud and conspiracy claims against Defendants AIG Claims, Inc., Insurance Company of the State of Pennsylvania, Coventry Health Care Workers’ Compensation, Inc. and Jackie Angeles (“Defendants”), based on the handling of his worker’s compensation claim were not barred by the exclusive remedy provisions of Ala. Code § 25-5-53 and stated a valid claim. Swain v. AIG Claims, Inc., 2019 WL 5284748, at *10 (Ala.Civ.App. 2019).
The Maui County Council has voted to settle a Ninth Circuit
U.S. Court of Appeals Clean Water Act (“CWA”) case scheduled for oral argument before
the United States Supreme Court on November 6, 2019. County of Maui v. Hawaii Wildlife Fund et
al., Case No. 18-260. The case was one
of three pending before the U.S. Supreme Court seeking a determination of
whether the CWA’s regulatory power is limited to regulating direct releases
from discrete and defined sources into federally protected water or extends to
indirect releases via groundwater.
In ALA Construction Services, LLC v. Controlled Access, Inc., ALA Construction Services, LLC (“ALA Construction”) hired subcontractor Controlled Access, LLC (“Controlled Access”) to provide equipment and related services for the construction of townhomes. 2019 WL 4463305 (Ga. App. Ct. 2019). Pursuant to their written contract, Controlled Access signed two documents entitled “Interim Waiver and Release Upon Payment”, which required it to file an affidavit of nonpayment or a claim of lien within a 60 day period or else the amount due to it by ALA Construction would be considered paid in full. ALA Construction failed to pay the agreed upon amount, but Controlled Access did not file an affidavit within the required time period.
In Demetro v. Dormitory Authority of the State of New York, 170 A.D. 3d 437 (N.Y. 2019), a New York Appellate Court addressed whether an architect’s failure to identify deviations from its designs subjected the architect to liability for personal injuries as a result of the defective condition. On a Motion for Summary Judgment, the Court found there was a genuine issue of material fact regarding whether a contractor’s deviation from the design, and subsequent failure to correct deviation, was an intervening and superseding cause which relieved the architect from liability.
On September 24, 2019, the Department of Labor released its Final Rule, modifying the Fair Labor Standards Act’s (“FLSA”) overtime regulations. The Final Rule results in fewer employees being exempt, and more employees being eligible for overtime pay. As such, employers should budget to include additional expenditures in overtime for the coming year.
In recently published Regulatory Notice 19-31, FINRA responded to questions regarding how members can comply with FINRA’s communications rules, Rules 2210 through 2220, when using electronic media. FINRA issued this guidance to facilitate simplified and more effective disclosure in communications with the public, particularly in the context of members’ marketing and advertising of their products and services using websites, email, social media, search advertisements, mobile applications, and other electronic media.
FINRA recently issued Regulatory Notice 19-28 addressing member firms’ supervisory responsibilities as it pertains to customer accounts owned by municipal entities. The guidance was issued to clarify misconceptions surrounding the definition of the term “municipal advisors” and to ensure compliance with relevant FINRA and SEC regulations.
The Eleventh Circuit has determined the U.S. Environmental Protection Agency (EPA) does not have to withdraw from a partnership with Alabama that allows the state to issue permits under the Clean Water Act (CWA), even though environmental groups have claimed Alabama’s program has failed to comply with the federal law’s requirements over the years. Cahaba Riverkeeper et al. v. U.S. Environmental Protection Agency, Case No. 17-11972 (11th Cir.).
In Novum Structures, LLC v. Larson Engineering, Inc., 2019 WL 1924878 (E.D. Wis. April 30, 2019), a Wisconsin District Court addressed whether an engineer’s sealing of design drawings makes the engineer the “Engineer of Record” and establishes a duty to verify the accuracy of the entire design. In 2014, Novum Structures, LLC (“Novum”) was hired to build a glass enclosed atrium. Novum prepared design drawings and supporting calculations for the atrium’s steel structure, but the drawings did not specify the type of welds that would be used to connect trusses to beams.
In Jeanes v. McBride, Plaintiff Janet Jeanes (“Ms. Jeanes”) brought a suit against Defendant Greg McBride (“Mr. McBride”) regarding Mr. McBride’s construction of a building on a plot of land owned by Ms. Jeanes. 2019 WL 2583113 (W.D. La. 2019). Ms. Jeanes told Mr. McBride that she wanted a building for spaces for her horses and living quarters for herself (“the Building”).
The Equal Employment Opportunity Commission (“EEOC”) and the Office of Federal Contract Compliance Programs (“OFCCP”) both provide protections against discrimination on the basis of gender identity. OFCCP’s frequently asked questions define gender identity as referring to a person’s internal sense of their own gender and that this internal sense may or may not correspond to the sex assigned at birth and may not be visible to others. Despite these regulations, employers who are required to submit EEO-1 reports face challenges in reflecting gender identity diversity in their workforce because the federal reporting forms reflect a binary gender framework.
FINRA commenced a retrospective review of its rules and administrative processes meant to help protect senior investors from financial exploitation and is now requesting comment on suggested changes to and creation of rules and administrative processes addressing the issue.
In Hayes v. Intermountain GeoEnvironmental Services, Inc., 2019 WL 2621931 (Utah Ct. App. June 27, 2019), the Utah Court of Appeals upheld the economic loss rule, finding a property owners’ tort claims against a geotechnical engineer were barred. In 2004, a developer hired Intermountain GeoEnvironmental Services, Inc. (“IGES”) to conduct a geotechnical investigation for a proposed subdivision. IGES concluded construction could proceed and the developer sold the lots to a third-party, who later sold an individual lot to Kim and Nancy Hayes (the “Hayes”) for construction of a home.
In Construction Services Group, LLC v. MS Electric, LLC, 2019 WL 2710115 (Ala. Civ. App. 2019), the parties entered into an agreement with the Alabama Public School and College Authority. The agreement provided that Construction Services Group, LLC (“Construction Services”) would act as the general contractor on a construction project for additions and alterations to Montevallo Middle School (“the Project”). MS Electric, LLC (“MS Electric”) submitted a bid to perform the electrical work on the Project, which Construction Services accepted.
FINRA recently issued Regulatory Notice 19-23 addressing “extraordinary cooperation” by broker dealers and broker dealer firms. The Notice highlights FINRA’s hopes to incentivize broker dealers and broker dealer firms to take “proactive and voluntary steps beyond those required under FINRA rules” by crediting such cooperation in FINRA’s regulatory enforcement decisions. The Notice also clarifies the difference between “required cooperation” and “extraordinary cooperation” by broker dealer and broker dealer firms, in light of FINRA rules and policies that already require cooperation in regulatory investigations.
In Ex parte Farley, --- So.3d ----, 2019 WL 2558824 (Ala. Civ. App. June 21, 2019), the Employee, Randy Farley (“Farley”) filed suit for workers’ compensation benefits against his Employer, Transport America, Inc. (“Transport America”) in Etowah County, Alabama. As part of its discovery requests, Transport America asked that Farley execute releases for obtaining certain records, including his Social Security disability records, tax records from the Alabama Department of Internal Revenue and records from Alabama Department of Labor. Farley refused, arguing that the Alabama Rules of Civil Procedure did not require execution of releases and that such a requirement would result in an overly broad release of information.
Attorneys Aaron Ashcraft and John C. Webb recently obtained summary judgment in a workers’ compensation action pending in Bessemer Alabama. The summary judgment asserted a novel res judicata argument, and was based on the proposition that a Plaintiff cannot recover benefits after previously asserting, and settling, a claim for permanent total disability benefits against the same employer.
The Georgia Supreme Court granted certiorari in Hughes v. First Acceptance Ins. Co. of Ga., Inc., 343 Ga. App. 693, 808 S.E.2d 103 (2017), to review whether the Court of Appeals erred in reversing the grant of summary judgment to the insurer on the insured’s failure-to-settle claim. The Court also asked the parties to address...
In United States for Use and Benefit of Cleveland Construction, Inc. v. Stellar Group, Inc., the Middle District of Georgia considered the issue of whether a contract provision allows a contractor to recover attorneys’ fees, even where that contractor did not prevail on all of its claims. 2019 WL 338887 (M.D. Ga. 2019). Stellar Group, Inc. (“Stellar”) subcontracted with Cleveland Construction, Inc. (“Cleveland”) to provide certain...
FINRA released its 2019 Risk Monitoring and Examination Priorities Letter. Compared to previous years, this Letter takes a novel approach by highlighting those topics that will be materially new areas of focus for FINRA’s risk monitoring and examination programs this year. The Letter also identifies areas of ongoing concern that FINRA will continue to review.
In D.R. Horton, Inc. v. Heron’s Landing Condo. Assn. of Jacksonville, Inc., No. 1D17-1941, 2018 WL 6803698 (Fla. Dist. Ct. App., 1st Dist. 2018), the First District Court of Appeals of Florida affirmed a Florida Circuit Court’s ruling that a breach of the implied warranty of habitability did not require a condominium to be uninhabitable.
The United States Supreme Court recently held that land may only be designated a “critical habitat” for an endangered species if that same land is first a “habitat” for an endangered species. In Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, 139 S. Ct. 361 (2018), the Supreme Court evaluated the United States Fish and Wildlife Service’s (“the Service”) designation of certain land in Louisiana as a critical habitat for the dusky gopher frog, which is classified as an endangered species.
In D.R. Horton, Inc. – Jacksonville v. Heron’s Landing Condo. Assoc. of Jacksonville, Inc., 2018 WL 6803698 (Fla. 1st DCA Dec. 27, 2018), the District Court of Appeals of Florida, affirmed the trial court’s decision to allow expert testimony related to construction defects, even though the testimony was admitted pursuant to the Daubert standard, rather than the Frye standard. The Court held the expert’s opinion was admissible under both Daubert and Frye.
In Precision Roofing, Inc., Appellant v. David Zavelson & Tracy Zavelson, Appellees, No. 03-17-00550-CV, 2018 WL 5852680, at *1 (Tex. App. Nov. 9, 2018), the Texas Court of Appeals addressed the validity of a subcontractor’s materialman’s liens.
Employee Joseph Fields, (“Fields”) filed a Complaint against
his employer Sexton Lawn & Landscape, for workers’ compensation benefits
relating to right leg and lower back injuries he allegedly received from a brown
recluse spider bite on August 13, 2015, while in the course and scope of his
employment with Sexton Lawn & Landscape.
In Ohio Valley Environmental Coalition (OVEC) v. Pruitt,
893 F.3d 225 (4th Cir. 2018), the Fourth Circuit Court of Civil
Appeals rejected the District Court’s application of the “constructive
submission” doctrine, which applies when a state disregards its obligations to submit
Total Maximum Daily Loads (TMDLs) required by federal law. Under
this doctrine, a Court may interpret the failure of a state to timely submit
TMDLs as a “constructive submission” of a list of no TMDLs.
In Stapleton v. Barret Crane Design & Engineering, 2018 WL 985775, (2nd Cir. 2018), the United States Court of Appeals for the Second Circuit found that contractual privity, or its functional equivalent, did not exist between an owner and engineering firm retained by the design-builder, because there was no contract between the parties and the parties did not communicate directly to sufficiently “link” them.
The Fourth Circuit reversed a District Court’s dismissal of a lawsuit over a Kinder Morgan Energy Partners LP subsidiary’s gasoline pipeline spill in South Carolina, holding the Clean Water Act covers claims that the spill contaminated nearby creeks and wetlands after traveling through groundwater. Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018). In a split panel decision, the Appeals Court held that citizens may bring suit alleging a violation of the CWA when the point source of pollution is no longer releasing the pollutant, but the pollutant continues to be discharged into surface waterways via groundwater.
In Engineering and Terminal Services, L.P. v. TARSCO and Orcus Fire Protection, LLC, 525 S.W. 3d 394 (TX 2018), the Court of Appeals of Texas held the statutory requirement to file a Certificate of Merit along with a lawsuit based on professional negligence of an engineer does not apply to third party claims for contribution.
In Blok Builders, LLC v. Katryniok, No. 4D16-1811, 2018 WL 637399 (Fla. Dist. Ct. App. Jan. 31, 2018), the District Court of Appeal of Florida, Fourth District, overturned a trial court’s decision requiring a subcontractor to defend and indemnify a project owner based on a reference in the Subcontract which adopted and incorporated by reference the terms of the General Contract, that include an indemnification provision between the Owner and General Contractor.
In U.S. for benefit of Bonita Pipeline, Inc. v. Balfour Beatty Construction LLC, et. al., 2017 WL 2869721 (U.S. Dist. Ct., S.D. Cal.), the United States District Court for the Southern District of California ruled the Spearin Doctrine, in which an entity providing plans or specifications is liable for deficiencies in the plans or specifications, applies to subcontractors in design-build projects, even when plans or specifications are by definition meant to be further refined by the subcontractor.
Last week, the Eleventh Circuit in InComm Holdings, Inc. v. Great American Insurance Company affirmed a district court decision holding an insurer is not obligated to reimburse a prepaid debit card processer for a $10.7 million loss.
In recent years, a Circuit Court split has emerged regarding whether Title VII prohibits discrimination based solely on sexual orientation. On February 26, 2018, the Justices of the Second Circuit Court of Appeals heard an appeal seeking reinstatement of a Title VII claim brought by the estate of a former employee, Donald Zarda (“Mr. Zarda”). The estate alleged that Mr. Zarda was fired from his job as a skydiving instructor after he told a customer he was gay. Zarda v. Altitude Express addressed a narrow question: whether Title VII prohibits discrimination on the basis of sexual orientation. The Second Circuit overturned its earlier precedent and held that Title VII does prohibit discrimination on the basis of sexual orientation.
In Patrick Durkin v. MTown Construction, LLC, N No. W201701269COAR3CV, 2018 WL 1304922, (Tenn. Ct. App. Mar. 13, 2018), the Court of Appeals of Tennessee overturned an award of property damages which was predicated in part upon the diminution of property value based upon a finding that the defendant had failed to present sufficient evidence establishing the unreasonableness of the costs to repair the real property.
FINRA launched a retrospective review of its outside business activities and private securities transactions rules in May of 2017 to assess their effectiveness and efficiency. This request for comment stems from that review of FINRA Rule 3270 (Outside Business Activities of Registered Persons) and FINRA Rule 3280 (Private Securities Transactions of an Associated Person). The proposed rule would replace FINRA Rules 3270 and 3280 and is intended to reduce unnecessary burdens, while strengthening investor protections relating to outside activities.
In Triangle Construction Company, Inc. v. Fouche and Associates, Inc., 218 So. 3d 1180 (Mississippi 2017), Triangle Construction Company, Inc. (“Triangle”) contracted with East Madison Water Association (“EMWA”) to build a water system in Madison and Leake Counties in Mississippi. The contract designated Fouche and Associates (“Fouche”) as the project engineer, although Fouche was not a signatory to the contract. Triangle nevertheless argued Fouche was a party to the contract because Fouche’s seal was affixed to the contract’s cover, was designated as the project engineer and was designated as the agent and representative of the owner.
Shell, BP and Sunoco have agreed to pay $196.5 million
to resolve New Jersey’s contamination claims over a gasoline additive that
seeped into groundwater throughout the state.
The case
is the first to be finalized since voters approved a constitutional amendment
prohibiting money from such lawsuits being diverted away from cleanup and
restoration of natural resources.
Stephen Hrobowski (“Hrobowski”) was involved in a motor vehicle accident in Montgomery County, Alabama in 2015 wherein his vehicle collided with a vehicle being operated by Kevin Ledyard (“Ledyard”). The impact of this collision caused Ledyard’s vehicle to strike a vehicle being operated by Roosevelt McCorvey (“McCorvey”).
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).
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., 877 F.3d 1139 (9th Cir. 2017); Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, (2d Cir. 2016); Schumann v. Collier Anesthesia, P.A., 803 F.3d 1199 (11th Cir. 2015); Solis v. Laurelbrook Sanitarium & Sch., Inc., 642 F.3d 518,529 (6th Cir. 2011).
In Ballard v. Lee A. McWilliams Constr., Inc., No. 2160469, 2018 WL 670459, at *1 (Ala. Civ. App. Feb. 2, 2018), the Alabama Court of Civil Appeals determined an award of prejudgment interest is due despite a defense that such damages should not be recoverable given that they were not “certain” at the time of the alleged breach due to the parties’ disagreement on the amount owed under the oral cost-plus contract.
Arbitration case filings through December 2017 reflected a 6 percent decrease compared to cases filed in 2016 during the same time frame. More specifically, 3,681 cases were filed in 2016, but 3,456 cases were filed in 2017. Of the 3,456 cases filed, 65 percent or 2,260 were customer disputes and 35 percent or 1,196 were intra-industry disputes.
In Zirkelbach Construction, Inc. v. DOWL, LLC, 402 P.3d 1244 (Mont. 2017), the Supreme Court of Montana ruled design professionals can contract to limit liability for a contract claim, even if the limitation is a nominal percentage of the overall fees paid, as long as the parties do not disclaim all liability outright. However, the Court held that the limitation did not apply to the negligence claim in the suit.
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 in the Business and Professions Code, Section 411.35, requires an attorney to consult with an architect or engineer in the same discipline before filing a complaint against a licensed architect or registered professional engineer and certify that, based on the consultation, there is reasonable and meritorious cause for filing the complaint. If an attorney is unable to obtain a consultation prior to the running of the statute of limitations, the law provides that a certificate of merit may be filed within sixty (60) days after the filing of the complaint.
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 by the public authority to bring suit.
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 Monsanto and its related corporations, Solutia, Inc. and Pharmacia, were liable for property damage caused by PCB-laden caulk installed in a Massachusetts middle school in the 1960s.
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.
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.
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 Alabama Court of Civil Appeals addressed the properness of such costs.
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). In 2016, an environmental investigation revealed toxic waste on Matthews Auto’s property. Subsequently, Matthews Auto entered into a voluntary remediation agreement with the Indiana Department of Environmental Management ( “IDEM”) without notifying its insurer.
In Perez-Gurri Corp. v. McLeod, No. 3D15-2590, 2017 WL 5616924, at *1 (Fla. Dist. Ct. App. Nov. 22, 2017), the District Court of Appeal of Florida, Third District, overturned a trial court’s decision to preclude a general contractor from seeking delay damages on the basis that the subcontractors were not intended third-party beneficiaries of the contract between the general contractor and the owner.
More and more plaintiffs are testing the judicial waters by bringing claims for discrimination based on sexual orientation under Title VII. Just recently, the Equal Employment Opportunity Commission (“EEOC”) celebrated its first success in a sexual orientation discrimination lawsuit.
In Sierra Court Condominium Association v. Champion Aluminum Corporation, 2017 IL App (1st) 143364, 75 N.E.3d 260 (Ill. Ct. App. 2017), First District Appellate Court of Illinois reaffirmed architects and engineering firms are not subject to the implied warranty of habitability of construction, even in the event the developer and general contractor are insolvent.
Our firm recently obtained an award from a FINRA panel granting a Motion for Expungement. The claim (Arbitration number 16-01770) was filed in June, 2016 and alleged negligence, breach of fiduciary duty, negligent supervision, and breach of contract. The claims were related to charges Claimant suffered when he surrendered a fixed annuity and losses he incurred in various types of moderately aggressive investments.
The Eastern District of Michigan recently entered summary judgment in favor of an insurer in a coverage dispute concerning a computer fraud provision in American Tooling Center, Inc. v. Travelers Cas. & Sur. Co. of America, 2017 WL 3263356.
In Sears, Roebuck & Co. v. Hardin Constr. Grp., Inc., 697 F. App'x 637 (11th Cir. 2017), the United States Court of Appeals for the Eleventh Circuit affirmed the United States District Court for the Southern District of Alabama’s conclusion that a specific written timeframe is necessary in order to extend Alabama’s statute of repose.
The FINRA Codes of Arbitration and Mediation Procedure currently allow compensated non-attorney representatives (“NAR”) to represent clients in securities arbitration and mediation subject to some exceptions. Some parties are represented by relatives or friends who assist with case preparation or presentation. NAR firms typically provide public investors an alternative to representation by attorneys in disputes between investors and broker dealers. FINRA is conducting a review of the efficacy of continuing to allow such representation and is accepting comments from member firms and other interested parties.
In Twist Architecture & Design, Inc. v. Oregon Board of Architect Examiners, 361 Or. 507, 395 P.3d 574 (Or. 2017), the Supreme Court of Oregon ruled that the “practice of architecture” includes the preparation of master plans drawn to scale for the development of a project, even if construction drawings or specifications are not ultimately produced.
In Ex parte Locklear Chrysler Jeep Dodge, LLC and Locklear Automotive Group, Inc., the Alabama Supreme Court granted a Petition for Writ of Mandamus (“Petition”), finding that the trial court exceeded its discretion when it granted a Motion to Compel discovery on issues unrelated to arbitration while a Motion to Compel arbitration was presently pending.
In Team Contractors, L.L.C. v. Waypoint Nola, L.L.C., et al., No. CV 16-1131, 2017 WL 4366855 (E.D. La. Sept. 29, 2017), the United States District Court for the Eastern Division of Louisiana concluded that because the contract was ambiguous as to whether the type of lost profits sought in the case were considered “consequential damage” by the terms of the contract, the matter was not ripe for summary judgment as it required it to determine whether the parties intended such damages to fall within the contract’s “consequential damages” waiver.
The Circuit Court of Appeals for the Sixth Circuit has held that residents of Flint, Michigan, may pursue class claims against state actors in state court. Mays v. City of Flint, 47 E.L.R. 20112, No. 16-2484, (6th Cir., September 11, 2017). In January 2016, several plaintiffs filed a class-action lawsuit in state court alleging they had been harmed since April 2014 by the toxic condition of the Flint water supply. In April 2016, defendants sought removal under 28 U.S.C. §1442, the federal-officer removal statute, and 28 U.S.C. §1441, which allows removal of state court actions that involve substantial federal questions. State officials from the Michigan Department of Environmental Quality (MDEQ) claimed they were being sued for actions they took while acting under the direction of EPA, which delegated primary enforcement authority to the MDEQ to implement the Safe Water Drinking Act in Michigan.
In Sedgewick Homes, LLC v. Stillwater Homes, Inc., 2017 WL 3221488 (W.D. NC. 2017), the United States District Court for the Western District of North Carolina ruled there was a genuine issue of material fact as to whether Stillwater Homes, Inc. (“Stillwater”) infringed upon the copyrighted architectural plans of its competitor, Sedgewick Homes, LLC (“Sedgewick”). Sedgewick and Stillwater are home builders in North Carolina, who both interacted with two customers, the Bivins and the Shoemakers.
The Seventh Circuit Court of Appeals recently ruled in Severson v. Heartland Woodcraft, Inc.,
No. 15-3754, 2017 WL 4160849 (7th Cir. Sept. 20, 2017) that the ADA does not
require employers to accommodate employees by granting them leave well beyond
the employee’s leave entitlement under the FMLA. The Court addressed what
amount of leave constitutes a reasonable accommodation under the ADA and
concluded that employers are not required to provide multiple months of
additional leave, despite a stipulation of definite duration, to employees who
have already exhausted their 12 weeks of FMLA leave. The Court’s decision was
premised on the fact that long periods of leave render employees practically unable
to work and unable to be “qualified individuals” under the ADA. The Court,
however, indicated that short periods of additional leave would continue to be
a reasonable accommodation under the ADA given the proper factual
circumstances.
Every October, FINRA’s Office of Dispute Resolution significantly reduces mediation prices in order to encourage mediation and settlement of customer and industry disputes. The goal of Settlement Month is to encourage parties to experience the benefits of mediation for the first time and to reinforce its value and effectiveness for those who have been through the mediation process already.
In Don Facciobene, Inc. v. Hough Roofing, Inc., No. 5D15-1527, 2017 WL 3091578 (Fla. Dist. Ct. App. July 21, 2017), the Fifth District Court of Appeal of Florida held that although a valid merger clause in subcontract signed after the subcontract was almost completed, it applied retroactively to the date work first commenced. However, the Court held that failure by general contractor to plead an affirmative defense regarding a condition precedent in the subcontract with enough specificity and particularity as required under Florida Rules of Civil Procedure barred it from relying upon what otherwise would have been an enforceable provision of the subcontract and, thus, the general contractor was required to pay the subcontractor in full.
In Parkcrest Builders, LLC v. Housing Authority of New Orleans, 2017 WL 3394033 (E.D. LA. 2017), the United States District Court for the Eastern District of Louisiana held the Court could determine whether substantial completion had been achieved, despite a contract provision assigning this determination to the Architect.
An Eleventh Circuit Court of Appeals panel held that a “gender non-conformity claim is not ‘just another way to claim discrimination based on sexual orientation,’” but is instead a “separate, distinct avenue for relief under Title VII.” The majority opinion explained that Title VII recognizes discrimination based on a failure to conform to a gender stereotype (i.e., discrimination based on gender non-conformity) as a type of sex-based discrimination, but declined to hold that Title VII can provide relief for an individual claiming sex-based discrimination on the basis of their sexual orientation alone.
The Ninth Circuit Court of Appeals vacated a District Court’s summary judgment in favor of the defendant in a contribution action under CERCLA, finding mining company Asarco timely brought a claim to recoup compensation from Atlantic Richfield. Asarco, LLC v. Atlantic Richfield Co., No.14-35723 (9th Cir., August 10, 2017). CERCLA § 113(f) provides that after a party has, pursuant to a settlement agreement, resolved its liability for a “response” action or the costs of such an action, that party may seek contribution from any person who is not a party to the settlement.
In Saarinen v. Hall, 26 ALW 36-8 (1160066), 9/1/2017, the Supreme Court held that the failure of the employee’s supervisors to install a safer saw that was on the employer’s premises was not the equivalent of removing a safety guard from an existing saw so as to subject the supervisors to liability under the Alabama Workers’ Compensation Act.
In Wyatt v. Baptist Health Sys., Inc., No. 2160280, 2017 WL 3096691, at *1 (Ala. Civ. App. July 21, 2017), the Alabama Court of Civil Appeals clarified that the Plaintiff bore the burden of establishing medical causation and that the fact finder did not have to resolve all reasonable doubts in conflicting medical evidence in her favor.
In Grieser v. Advanced Disposal Services Alabama, LLC, 26 ALW 33-4 (2160290), 8/11/17, the Court of Civil Appeals reversed a trial court’s refusal to consider the employee’s vocational disability and held that separate circumstances relieving an employer’s liability under the “Return to Work” statute are affirmative defenses which must be plead or are deemed waived.
In Am. Builders & Contractors Supply Co. v. Precision Roofing & Consulting, LLC, No. 2:17CV97-WHA, 2017 WL 3431844, (M.D. Ala. Aug. 9, 2017), the United States District Court for the Middle District of Alabama dismissed a breach of contract claim filed against a distributor that provided supplies to a roofing subcontractor in light of the plaintiff, a subcontractor, having failed to obtain its own license at the time work commenced.
In Sunset Beach Investments, LLC v. Kimley-Horn and Associates, Inc., 207 So. 3d 1012 (Fla. Ct. App. 2017), the Fourth District Court of Appeal of Florida held an engineering intern could not be liable for professional negligence. The Court explained an “engineer intern” could not be considered a professional because he does not maintain a license.
The United Parcel Service (“UPS”) recently agreed to pay $2 million to settle the claims of approximately 90 disabled employees. Approximately 70 employees were parties to a lawsuit filed by the EEOC and the remaining 20 had pending administrative Charges.
The United States District Court for the District of Columbia has ruled the Environmental Protection Agency does not have authority under the Clean Air Act to force companies that use hydrofluorocarbons (“HFCs”) in products like spray cans, automobile air conditioners and refrigerators to replace the HFCs with an EPA-approved alternative. The EPA enacted the rule in 2015, responding to research showing HFCs contribute to climate change. Mexichem Flour Inc. and Arkema Inc. challenged the rule’s legality.
The
Department of Labor (“DOL”) recently submitted a proposal to delay
implementation of the remaining parts of its fiduciary rule from January 1,
2018 until July 1, 2019. Two provisions
of the rule, which greatly expands the definition of who counts as a fiduciary
under the Employee Retirement Income Security Act and the Internal Revenue
Code, took effect on June 9, 2017. One
remaining provision includes the best interest contract exemption, which allows
brokers to charge variable compensation for products as long as they sign a legally
binding agreement to put their clients’ interests ahead of their own. The other exemptions include those for
principal transactions and for insurance agents and brokers.
In LaShip, LLC v. Hayward Baker, Inc., No. 15-30816, 2017 WL 829503 (Mar. 1, 2017), the Fifth Circuit held a commercial contractor was not required to warn the owner of alleged defects in the design specifications of foundation columns that were provided by the engineer despite the fact the contractor had specialized experience in foundation design. The Fifth Circuit refused to broaden the affirmative tort duty to warn based on a party’s expertise and upheld the statutory protections for the contractor.
The
SEC approved a proposed rule change to amend FINRA Rules 12402 and 12403 of the
Customer Code and Rule 13403 of the Industry Code to allow the Director of
FINRA’s Office of Dispute Resolution (“Director”) to send the list generated by
the Neutral List Selection System to all parties at the same time, within 30
days after the last answer is due. The
list will now be sent within this time, regardless of whether the parties agree
to extend any answer due date.
A West Virginia federal judge rejected a proposed $151 million deal reached by American Water Works and Eastman Chemical that would have settled class claims arising from a 2014 coal-processing chemical spill, but indicated the agreement is salvageable. Good et al. v. American Water Works Co. Inc. et al., Case No. 2:14-cv-01374, (S.D. W. Va., July 6, 2107). The chemical, called methylcyclohexane methanol, or crude MCHM, caused nausea, vomiting and eye irritations that led to infections after it entered the water supply in January 2014.
Since November 2016, a nationwide injunction has prevented the Obama Administration’s new overtime rule for white collar workers from going into effect. The Obama-era rule, which increase the minimum annual salary required to support exempt status from $23,660.00 to $47,476.00, was poised to convert millions of employees from exempt to non-exempt from the FLSA’s overtime rules. Many employers re-classified employees, increased salaries or both in an effort to comply with the new standard, which was scheduled to take effect in December 2016. Since the injunction, those same employers have awaited clarification on whether the rule, or a modified version, would go into effect.
In Curtis v. Miss. Board For
Architects, Prof. Engineers, Prof. Land Surveyors, and Prof. Landscape
Architects, No. WD 80174, 2017 WL 2241516 (Mo. Ct. App. May 23, 2017), the
Missouri Court of Appeals affirmed the Missouri Board of Architects,
Professional Engineers, Professional Land Surveyors, and Professional Landscape
Architects’ (the “Board”) disciplinary order against an architect for violations
of a previous probation order. Donald
Dustin Curtis was an architect based in Arizona and licensed in multiple
jurisdictions, including Missouri. Mr.
Curtis’s license was placed on probation in Missouri for one year after he
failed to inform the Board of disciplinary action in Nevada. As part of his probation Mr. Curtis was
required to submit his plans for any projects in Missouri to the Board for
review.
In Melden & Hunt, Inc. v. East Rio Hondo Water Supply Corporation, No. 16-0078, 2017 WL 2492006 (Tex. June 9, 2017), East Rio Hondo Water Supply Corp. contracted with Melden & Hunt, Inc. to provide engineering-design and project-supervision services for a new water-treatment plant in San Benito, Texas. Following substantial completion of the project, East Rio complained about the quality of water treated at the plant and attributed the water-quality issues to the plant’s design and construction. East Rio subsequently filed a complaint against Melden & Hunt asserting claims for breach of contract, breach of express and implied warranties, negligence, and negligent misrepresentation.
Recent decision issued by the Ninth Circuit Court of Appeals held that an
employer may defend a claim under the Equal Pay Act by proving that its pay
structure was based on employees’ prior salaries, so long as this structure was
reasonable and effectuated a business policy. This decision parts ways with
other Circuits that have discouraged using an employee’s prior pay, by itself,
to justify pay decisions.
In Anderson v. Taylor Morrison of Florida, Inc.,
No. 2D16-314, 2017 WL 2374404 (Fla. Dist. Ct. App. May 31, 2017), the Second
District Court of Appeal of Florida held an arbitration provision in a
homeowner’s sales agreement was void as against public policy because it
limited the homeowner’s statutory remedies.
Our
firm recently obtained an award from a FINRA panel denying all of Claimant’s
claims and finding for Respondents. The
panel also granted our Motion for Expungement.
The claim (Arbitration number 16-03568) was filed in December,
2016. Claimant alleged claims of breach
of fiduciary duty, breach of contract, failure to supervise, violation of the
Alabama Securities Act, violation of securities regulatory rules, ongoing
fraud, and common law claims of misrepresentation, unjust enrichment and
negligence. The claims were related to
Claimant’s purchase of preference plus variable annuities in 2005 and 2007.
A New York Appellate Court has ruled a hazardous materials exclusion did not relieve an insurer of its obligation to defend a recycling plant operator from claims the Plant is spreading a foul odor. Hillcrest Coatings, Inc. v. Colony Ins. Co., 2017 NY App. Div. LEXIS 4519 (NY 4th Dept. June 9, 2017). The five-judge panel partially upheld the lower court decision finding the insurer had a duty to defend because the source of the odor behind the underlying suit against Hillcrest Coatings is not necessarily hazardous materials.
Typically, if an employee is injured on the job
they can file two types of actions. First, and the most traditional, is filing
suit against their employer for workers’ compensation benefits. Second, if the
injured employee sustained the injury as a result of a defective product or in
a car accident involving an individual who is not a co-employee, they have the
right to file a separate suit against that entity or individual.
The Massachusetts Supreme Court recently issued the most comprehensive opinion to date addressing whether an insurer’s duty to defend extends to counterclaims asserted by the insured. The court in Mount Vernon Fire Ins. Co. v. VisionAid,Inc., SJC-12142 (Mass. 2017), held that where an insurance policy provides that the insurer has the “duty to defend any claim” initiated against the insured, the insurer’s duty to defend does not require it to prosecute affirmative counterclaims on behalf of its insured.
On January 17, 2017, the IRS issued a Guidance Notice classifying syndicated conservation easement transactions as “Listed Transactions,” or presumed tax shelters.
The Washington State Supreme Court recently published an opinion that may impact how courts will approach exclusions in certain liability policies. In Xia v. ProBuilders Specialty Insurance Company, 2017 WL 1532219 (Wash. Apr. 27, 2017), a homeowner became ill soon after moving into a new house. It later was determined an improperly installed exhaust vent for the hot water heater discharged carbon monoxide into the basement of the home.
The National Employment Law Project (“NELP”) partnered with several other organizations to spearhead a grassroots movement to encourage employers to change their policies to consider the qualification of job applicants without consideration of their criminal history. Prior to the efforts of NELP, it was commonplace for an employer to ask a job applicant whether the applicant has been convicted of a crime.
In Corwin v. NYC Bike Share, LLC, No. 14-CV-1285, 2017 WL 1399034 (S.D.N.Y. Apr. 13, 2017), the Southern District of New York granted a Motion for Summary Judgment in favor of Alta Planning + Design + Architecture of New York, PLLC (“APD”) against the City of New York (the “City”) based on deviations from APD’s design of a bike share station which the Court concluded constituted an intervening cause of the alleged damage.
In Busch v. Lennar Homes, LLC, No. 5D16-1626, 2017 WL 1372085 (Fla. Dist. Ct. App. April 13, 2017), Florida’s Fifth District Court of Appeals found the trial court improperly dismissed the Homeowner’s complaint regarding construction defects based on the ten year statute of repose. The Court determined the Homeowner’s complaint was not barred by the ten year statute of repose, because the purchase contract contained a provision allowing the builder to correct defects within a reasonable time after closing and the complaint did not conclusively establish that such repair work did not occur.
A Mississippi federal court has held expert testimony regarding health risks posed by exposure to the disposal of a hazardous waste is admissible, even though plaintiffs did not assert claims for personal injuries. Hollingsworth v. Hercules, Inc., 2:14-cv-KS-MTP (S. D. Miss. Jan. 3, 2017). The testimony was offered by two experts for the defendant, a company that operated a chemical plant in Hattiesburg, Mississippi from the 1920s until 2009.
In Regulatory Notice 17-20, FINRA announced it is requesting comments on Rules 3270 and 3280 governing outside business activities and private securities transactions. The request for comments comes as a result of FINRA’s new retrospective rule review. The review concentrates on rules governing broker dealer employees’ business and securities activities carried out away from their firm—activities that are outside the regular course of scope of their employment with the firm.
In United States of America v. Osborne, No. 4:11-CV-1029, 2017 WL 1135640 (N.D. Ohio March 27, 2017), the Northern District of Ohio denied a Motion for Summary Judgment filed by Third-Party Defendant William R. Gray Associates, Inc. (“Gray”) based on the permit procurement obligations in Gray’s agreement for engineering services with Third-Party Plaintiff City of Willoughby (the “City”).
In early April, the United States Court of Appeals for the Seventh
Circuit became the first Federal Circuit Court to hold that discrimination on
the basis of sexual orientation is a form of sex discrimination and, therefore,
prohibited by Title VII of the Civil Rights Act of 1964 (“Title VII”).
The Seventh Circuit’s decision sides with the position taken by the EEOC, which
has been pushing to extend Title VII’s protections to include sexual
orientation.
The United States District Court for the Eastern District of New York
has held that Defendants responsible for dumping hazardous waste in a town park
are not liable under CERCLA because they did not know of the hazardous nature
of the material dumped. Town of Islip
v. Datre, 47 E.L.R. 20049 (E.D.N.Y. 2017).
Arbitration case filings for year-end 2016 reflected a 7 percent increase compared to cases filed in 2015 during the same time frame. More specifically, 3,435 cases were filed in 2015, but 3,681 cases were filed in 2016. Of the 3,681 cases filed, 68 percent or 2,519 were customer disputes and 32 percent or 1,162 were intra-industry disputes.
The Eleventh Circuit recently affirmed summary judgment in favor of an insurer on the issue of pre-tender defense costs in EmbroidMe.com, Inc. v. Travelers Property & Casualty Company of America, 845 F.3d 1099 (11th Cir. 2017). Applying Florida law, the court denied the insured’s breach of contract suit for over $400,000 in fees incurred before the insured notified its insurer.
In Horton v.
Hinton, 26 ALW13-4 (2150631), the Court of Civil Appeals affirmed a trial
court’s dismissal of a lawsuit based on plaintiff’s failure to comply with
discovery orders.
In Levinson Alcoser Associates, L.P. v. El Pistolón II, LTD., No. 15-0232, 2017 WL 727269 (Tex. Feb. 24, 2017), the Supreme Court of Texas held Texas’s recently amended Certificate of Merit statute requires a plaintiff to accompany his complaint not only with a sworn Certificate of Merit from an expert stating the claim has merit, but also, the Certificate of Merit must demonstrate the expert has knowledge of the area of practice to which the complaint relates.
In Golden Nugget Lake Charles, LLC v. W.G. Yates & Sons Constr. Co., No. 16-30496, 2017 WL 892407 (5th Cir. Mar. 6, 2017), the Fifth Circuit Court of Appeals determined the 60-day period for general contractors to file a lien against a project owner’s property under Louisiana Private Works Act § 9:4822(B) does not begin to run until the owner files either a Notice of Termination or a Notice of Substantial Completion. The Court rejected the owner’s interpretation of the statute that the 60-day period begins when the event of substantial completion occurs, not when the Notice of Substantial Completion is filed.
A recent decision issued by the Tenth Circuit Court of Appeals provides support for employers seeking to avoid broad and seemingly irrelevant Requests for Information by the Equal Employment Opportunity Commission (“EEOC”). While an employer’s response to Requests for Information is usually an avenue to support its defenses, in the rare instance of overreaching or an apparent fishing expedition, employers have additional authority with which to negotiate a compromise regarding the scope of the EEOC’s requests.
The United States
Court of Appeals for the Fourth Circuit has ruled CERCLA’s discovery rule
applies to toll West Virginia’s statutes of limitations only where the
plaintiff has a viable CERCLA claim. Blankenship
v. Consolidation Coal Company, et al., No. 15-2480 & 2482 (4th
Cir., March 7, 2017).
In SEC v. Levin, the United States Court of Appeals for the Eleventh Circuit (“Eleventh Circuit”) held that the safe harbor provision of Regulation D’s Rule 508(a) is available to a defendant in a Securities and Exchange Commission (“SEC”) enforcement action based on a failure to register securities under Section 5 of the Securities Act.
Last week, the District of Oregon became the latest court to rule on the pollution exclusion that appears in almost every general liability policy. The court in Colony Insurance Company v. Victory Construction LLC, 2017 WL 960024 (D. Or. Mar. 9, 2017), concluded Colony had no duty to defend or indemnify its insureds for two bodily injury lawsuits arising from the release of carbon monoxide from a pool heater.
In Ex parte Tenax Corp., the Alabama Supreme Court reaffirmed that the exclusive-remedy provisions of the Alabama Workers' Compensation Act, § 25–5–1 et seq., Ala. Code 1975 can provide immunity from tort claims filed by workers’ provided to an employer through a staffing agency.
In Orchard, Hiltz & McCliment, Inc. v. Phoenix Insurance Co., Nos. 16-1176 & 16-1231, 2017 WL 244787 (6th Cir. 2017), the United States Court of Appeals for the Sixth Circuit affirmed a lower court’s grant of Summary Judgment against the Engineer, Orchard, Hiltz & McCliment, Inc. (“OHM”)...
In Hand Constr., LLC v. Stringer, the Court of Civil Appeals addressed an issue regarding the scope of jurisdiction under the Alabama Worker’s Compensation Act for out of state injuries. The Plaintiff, a resident of Mobile, Alabama, entered into a contract for hire with a construction contractor operating out of Shreveport, Louisiana. The job offer was communicated to the Plaintiff while he was in Mobile, but he traveled to Louisiana to sign the employment contract.
In Pharmacists Mut. Ins. Co. v. Advanced Specialty Pharmacy LLC, No. 1140046, 2016 WL 6819657 (Ala. Nov. 18, 2016), the Alabama Supreme Court reduced an award against a pharmacy’s general liability and umbrella insurer by $3M after finding underlying claims only were subject to the policies’ general aggregate limit, and not also the products/completed work hazard aggregate limit.
In Harleysville Group Ins. v. Heritage Communities, Inc., 2017 WL 105021 the South Carolina Supreme Court considered the impact that vague reservation of rights letters have on an insurer's right to pursue its coverage defenses. The claim arose out of property damage to condominiums originally caused by the insureds' faulty workmanship.
Insurance-appointed counsel should be familiar with the “tripartite” relationship. Those insurance-appointed counsel who defend under a reservation of rights (“ROR”) especially should be aware of the potential conflicts that befall such representation. One commentator aptly described the ROR defense as “deeply and unavoidably vexing.”1 The Supreme Court of Mississippi has recognized the “tripartite” relationship creates problems that would “tax Socrates.”
On September 16, 2016, the Alabama Court of Civil Appeals released its decision in Page v. Southern Care, Inc., --- So.3d ---, 2016 WL4938180 regarding reimbursement of reasonably necessary mileage costs.
In Sandlin v. Harrah’s Illinois Corp., 2016 WL 4585932 (App. Ct. Ill. September 2, 2016), the Appellate Court of Illinois (the “Appellate Court”) affirmed a lower court’s grant of Summary Judgment for Cross-Claim Defendant Hnedak Bobo Group, Inc. (“HBG”) dismissing Cross-Claim Plaintiff Harrah’s Illinois Corporation (“Harrah’s) claims for contribution.
In Sierra Pacific Industries v. Bradbury, 2016 WL 4699116 (Colo. App. September 8, 2016), the Colorado Court of Civil Appeals, Division I, upheld the district court’s entry of summary judgement in favor of a subcontractor on an indemnification claim for damages, costs and expenses related to an underlying construction defect claim brought by the condominium association based on the statute of repose.
In Ebert v. General Mills, 823 F.3d 472 (8th Cir. 2016), the United States Court of Appeals for the Eighth Circuit held the United States District Court of Minnesota’s entry of an Order certifying a proposed class of plaintiffs in an environmental pollution case was an abuse of discretion because “the class lacks the requisite commonality and cohesiveness to satisfy Rule 23.” The case was remanded to the District Court with directions to revisit the issues in conformity with the Court’s holding.
The National Labor Relations Board (“NLRB”) filed a petition for certiori earlier this month asking the United States Supreme Court to consider the enforceability of class-action waivers in employee arbitration agreements. The arbitration agreements at issue are those that require employees to waive their right to bring or join a class action, instead requiring the employees to submit to individual arbitration. The NLRB’s position is that such agreements are invalid because they are contrary to the National Labor Relations Act’s protection of concerted activity.
FINRA allows for expedited arbitration proceedings in cases involving senior and seriously ill parties. While there is no specific rule within the Code of Arbitration Procedure, once FINRA determines that a matter involves an elderly or ill party, the case is flagged as an expedited case. FINRA then endeavors to complete the arbitration process as quickly as possible. FINRA recently formed a committee to determine how to process expedited cases more efficiently.
An interesting decision concerning the course and scope of employment was recently issued by the Alabama Supreme Court, in Ex parte Lincare Inc. The Plaintiff in the action resigned from her employment with Lincare on June 6, 2014, and submitted a letter of resignation to her supervisor. After she presented her supervisor with the resignation letter, her supervisor confronted her with paperwork, which the Plaintiff forcibly removed from her supervisor’s hand.
In Town of Windsor v. Loureiro Engineering Assoc., 2016 WL 4007747 (Conn. Super. Ct. June 20, 2016), the Superior Court of Connecticut (the “Superior Court”) granted a Motion to Decide Questions of Law and to Dispense with a Jury Trial filed by Defendants Loureiro Engineering, Inc., Newman Architects, LLC, Herbert S. Newman, and Michael Raso (collectively, “Defendants”), the engineer and architects hired by Plaintiff the Town of Windsor (the “Town”) to design the Windsor High School auditorium.
In Centerpoint Builders GP, LLC v. Trussway, Ltd., 2016 WL 3413329 (Tex. 2016), the Texas Supreme Court held the general contractor, Centerpoint Builders, LLC (“Centerpoint”), was not a “seller” under the Texas Products Liability Act and could not obtain indemnity from the manufacturer of the defective product even though Centerpoint had not altered the product in any form.
Between 1978 and 2002, PCS and its predecessor sent equipment to facilities in North Carolina for repairs. During the repairs, PCBs were released. In 2003, the EPA launched an investigation of the site. The EPA settled with potentially responsible parties following its investigation.
Last month, in Kimberly Hively v. Ivy Tech Community College, South Bend, the United States Court of Appeals for the Seventh Circuit dismissed Plaintiff Kimberly Hively’s (“Ms. Hively”) lawsuit against her employer for sexual orientation discrimination and harassment under the Civil Rights Act of 1964 (“Title VII”). Ms. Hively alleged she was denied full-time employment and promotions based on her sexual orientation.
FINRA released Regulatory Notice 16-25 reminding broker dealers that claimants have a right to request arbitration through FINRA at any time and do not forfeit that right by signing any agreement with a forum selection provision specifying another dispute resolution process or an arbitration venue other than the FINRA arbitration forum.
In Venturedyne, Ltd. v. Carbonyx Inc., 2016 WL 3402807 (N.D. Ind. June 21, 2016), the Northern District of Indiana (the “District Court”) granted a Motion for Judgment on the Pleadings filed by Plaintiff/Counterclaim Defendant Venturedyne, Ltd. d/b/a Scientific Dust Collectors (“SDC”), an engineer hired by Defendant/Crossclaimant Carbonyx, Inc. (“Carbonyx”), to design and manufacture dust collection systems.
In Schindler v. Tully Construction Co., 139 A.D.3d 930 (May 18, 2016), the New York Supreme Court, Appellate Division, reversed a trial court’s award of $209,000.00 in delay damages in favor of a subcontractor on a public contract in a nonjury trial.
The United States District Court for the Eastern District of California held the owner of a farm violated the Clean Water Act when he allowed wetlands on his property to be tilled. Duarte Nursery, Inc. v. United States Army Corps of Engineers, No. 2:13-cv-02095-KJM-AC (June 10, 2016). John Duarte, president of Duarte Nursery, purchased approximately 2,000 acres of real estate in Tehama County, California, in 2012. There had been no farming activity on the land since 1988.
On July 13, 2016, the Equal Employment Opportunity Commission (“EEOC”) proposed additional changes to EEO-1 data reporting requirements, modifying its original proposal from January 2016. The original proposal, intended to enforce the prohibitions on pay discrimination in Title VII, the EPA and Executive Order 11246 regarding Equal Employment Opportunity, required employers to begin reporting pay data.
FINRA recently authorized filing with the SEC two proposed amendments to rules from the Code of Arbitration Procedure for Customer Disputes and Industry Disputes. The rules affect chairperson eligibility in arbitration and the arbitrator panel selection process.
In Bd. of Managers of Film Exchange Lofts Condo. Ass’n v. Fitzgerald Associates Architects, P.C., 2016 WL 2841978 (Ill. App. May 11, 2016), the Appellate Court of Illinois consolidated three appeals and affirmed the lower courts’ decisions not to extend the implied warranty of habitability to architects. All three consolidated cases involved condominium boards bringing actions against architects for breach of the implied warranty of habitability, a claim typically alleged against the developer.
In County of Galveston v. Triple B Services, LLP, 2016 WL 3025261 (Tex. Civ. App. May 26, 2016), the Court of Appeals of Texas held a contractors’ breach of contract claim against a county fell within the scope of sovereign immunity waiver for construction contracts. The Court determined the disruption damages sought by the contractor were "a direct result of owner-caused delays,” and the Texas statute providing limited waiver of sovereign immunity for delay damages was applicable.
In a unanimous decision, the U.S. Supreme Court ruled on May 31, 2016, that property owners could file suit against the U.S. Army Corps of Engineers over the agency’s determination that their land contains “waters of the United States” covered by the Clean Water Act. Army Corps of Engineers v. Hawkes Co., 578 U.S. – (2016). The decision makes it easier for landowners to challenge the decision of federal regulators that the use of property is restricted by the Clean Water Act.
This week the Eleventh Circuit Court of Appeals provided greater clarity as to what comments can establish a racially hostile work environment under Title VII. In Mahone v. CSX Transportation, Inc., Case No. 2:14-cv-00535-AKK (June 13, 2016), the Court affirmed the lower court’s grant of summary judgment for the employer finding that that a coworker’s use of the term “homeboy” was insufficient to establish a racially hostile work environment.
FINRA issued Regulatory Notice 16-19 in an effort to encourage firms to review their practices regarding stop orders. Registered representatives often recommend stop orders as a tool for managing market risk. Investors use stop sell orders to protect profit position in the event a stock’s price declines and stop buy orders if they have a short position to limit losses in the event a stock’s price increases. Once stop orders are triggered, they become market orders, which are inherently risky, especially in volatile market conditions.
In Ex parte Lowe’s Home Centers, LLC, (Ala. Civ. App. May 6, 2016)[25 ALW 20], the employee Sarah Brown (“Brown”) filed a workers’ compensation action against her employer Lowe’s Home Centers, Inc. (“Lowe’s), seeking medical treatment for her claimed back injury and an award of disability benefits.
In Bronstein v. Omega Construction Group, Inc., 2016 WL 1577185 (N.Y. App. April 20, 2016), the Supreme Court of New York, Appellate Division, affirmed a lower court’s denial of a Motion to Dismiss filed by Defendant Michael T. Cetera, an architect hired by Plaintiffs to provide architectural services. In 2006, Plaintiffs entered into an agreement with Mr. Cetera to prepare plans for an addition to their residence.
In Dallas/Fort Worth International Airport Board v. INET Airport Systems, Incorp., et al., 2016 WL 1445205 (5th Cir. April 12, 2016), the Fifth Circuit Court of Appeals reversed a trial court’s $1.29 million judgment in favor of the contractor and against the owner. The Fifth Circuit determined genuine issues of fact remained regarding whether the owner first breached the contract by failing to cooperate with the contractor to resolve change orders.
In May 2016, the U.S. Supreme Court denied Exxon’s petition for writ of certiorari seeking review of a $236 million trial judgment against it in a groundwater contamination case in New Hampshire. The Court’s refusal to review the issues raised by Exxon leaves in place a verdict Exxon claims violates its due process rights.
On May 18, 2016, the U.S. Department of Labor issued its final version of the overtime exemption rule applicable to white collar employees. The rule exempts from the Fair Labor Standards Act’s overtime requirements employees earning above a set salary threshold per year. The new version promulgated by the Department of Labor significantly raises that salary threshold to the new figure of $47,476.
The SEC recently approved the adoption of FINRA Rule 2273 which creates an obligation to deliver educational communication in connection with firm recruitment practices and account transfers. The new rule affects financial firms that want to recruit the former clients of newly hired representatives.
John Webb recently prevailed in a workers’ compensation trial before Judge D. Alan Mann in Madison County, Alabama in Antonio Octaviano v. Coast Personnel Services, Inc.
In, Ex parte Reed Contracting Servs., Inc., No. 2150230, 2016 WL 360725 (Ala. Civ. App. Jan. 29, 2016), the plaintiff, Henry Riley (“Riley”), injured both of his knees and wrists during the course of his employment with his employer, Reed Contracting Services (“Reed”) when he fell from a man lift in March 2012. Id. at *1. Riley was diagnosed with a torn medial collateral ligament in his right knee, and osteoarthritis in both knees in the months after the accident.
Aaron Ashcraft recently prevailed in a compensability hearing before Judge Steven Haddock in Decatur, Alabama in Darrin Hester v. Minor Tire Company, et al.
On February 27, 2015, the Alabama Court of Civil Appeals released an opinion re-affirming the principle that an employer is only liable under the Worker’s Compensation Act for treatment of the temporary injury when a work related injury aggravates a preexisting condition. Ex parte Fairhope Health & Rehab, LLC, 2015 WL 836706, at *7 (Ala. Civ. App. Feb. 27, 2015).
John Webb recently obtained a defense verdict on behalf of a global coal mining company in a workers’ compensation hearing loss trial.
On February 27, 2015, the Alabama Court of Civil Appeals entered a decision in the case of Pollock v. Girl Scouts of Southern Alabama, Inc., 24 ALW 10-6 (2130538), 2/27/15. The issue in Pollock was whether an employee’s participation in a horseback riding event organized and planned by a co-employee was within the scope of the employee’s employment. See id.
In Goodyear Tire & Rubber Co. v. Bush, the Alabama Civil Appeals Court held that the trial court erred in concluding that the employee was permanently and totally disabled under the Act, Ala. Code § 25-5-57(a)(4)(d), because it used the vocational disability of the employee as the basis for the compensation award without first deciding that an exception to the schedule applied.” 2014 Ala. Civ. App. LEXIS 153 (Ala. Civ. App. Aug. 22, 2014).
On April 4, 2014, the Alabama Court of Civil Appeals issued an opinion on the effect of an employee’s preexisting condition and its impact on the issue of medical causation. See Madison Academy, Inc. v. Hanvey, 2014 WL 1328334 (Ala. Civ. App. 2014).
In Dubose Construction v. Simmons, the Alabama Court of Civil Appeals revisited an employee’s burden for obtaining compensation outside the schedule based on a seemingly routine knee injury. 2013 Ala. Civ. App. LEXIS 239 (Ala. Civ. App. Dec. 20, 2013). The employee, James Simmons, injured his knee in a workplace fall. Medical examinations revealed a torn medial meniscus which was arthroscopically repaired.
In Roblero v. Cox Pool of the Southeast, 2013 Ala. Civ. App. LEXIS 137 (Ala. Civ. App. June 21, 2013) the Alabama Court of Civil Appeals affirmed a trial court’s finding that an employer was entitled to subrogation of UIM/UM benefits paid to an injured worker.
In Bates v. Riley, the Alabama Court of Civil Appeals examined whether the unsafe use of a safety device was sufficient to support a co-employee liability claim based on the alleged willful or intentional removal of a safety device. 2013 Ala. Civ. App. LEXIS 32 (Ala. Civ. App. Feb. 1, 2013).
In McDuffie v. Medical Center Enterprise, the Alabama Court of Civil Appeals recently declined an opportunity to expand an exception to the “coming and going” rule when it examined the case of a nursing student injured on hospital grounds after her regular shift was over. 2012 Ala. Civ. App. LEXIS 249 (Ala. Civ. App. Sept. 14, 2012).
The 9th Circuit U.S. Court of Appeals has affirmed the right of state and local governments to sue Volkswagen over tampering with emissions devices on their vehicles after they were sold. The decision reverses the lower court’s dismissal of the claims and opens the door for more litigation. In re Volkswagen "Clean Diesel" Mktg., Sales Practices, & Prod. Liab. Litig., No. 18-15937, 2020 WL 2832121 (9th Cir. June 1, 2020).