Articles Posted in Construction Generally

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Today, our colleagues Cathie Meyer and Amy Pierce published their Client Alert titled California Enacts Mini-GDPR Effective January 1, 2020. Under the new law, covered businesses will need to update policies and procedures for responding to customer inquiries about collection, use, sale and disclosure of customers’ personal information or face stiff enforcement actions. Takeaways from the Client Alert include:

  • The California Consumer Privacy Act of 2018 provides consumers with broad rights to control use of their personal information by covered businesses.
  • Covered businesses will need to review and revise their existing privacy policies to make the required disclosures and to provide two methods for customers to inquire about use of their personal information.

The new law is effective January 1, 2020.

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On June 27, the U.S. Court of Appeals for the Seventh Circuit decided the case of Orchard Hill Building Co. v. U.S. Army Corps of Engineers. The Court of Appeals vacated the decision of the District Court granting the U.S. Army Corps of Engineers’ (Corps) motion for summary judgment dismissing the Orchard Hill Building Company’s (Orchard) complaint that the Corps’ jurisdictional determination erroneously found that the waters at issue were “jurisdictional waters” under the Clean Water Act (CWA) subject to the Corps’ jurisdiction. Acknowledging that the Corps and EPA had promulgated a new rule re-defining “waters of the United States” in 2015—which is now being challenged in the courts—the Court of Appeals noted that this case is controlled by the pre-2015 definition of “waters of the United States.” The Court of Appeals remanded the case to the Corps, directing it to determine if there was a significant nexus, as required.

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Today, our colleague Tom Shoesmith published his Client Alert titled China: Are Joint Ventures the Answer to Trump’s Trade Wars?  In the Alert, Tom discusses how U.S. companies may respond to the Trump Administration’s tariff wars. This could including entering into a joint venture (JV) with a Chinese partner, enable the U.S. company to respond nimbly to changes in the global trade environment. However, Tom notes that JVs in China are subject to structural requirements and a regulatory regime unlike those found in Western countries and encourages U.S. companies to consider whether the JV should be organized in a non-People’s Republic of China (PRC) jurisdiction.

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Recently, our colleague Trevor Wood published a Client Alert titled LIBOR and the Transition to Risk-Free Rates, discussing the Chief Executive of the UK Financial Conduct Authority’s (FCA) recent announcement that, because of insufficient trading in the underlying markets, the London Interbank Offered Rate (LIBOR) will no longer be supported by the FCA after 2021. Take always from the Client Alert include:

  • Work continues on the transition to risk-free rates, but progress is slow—FCA has published timetable and milestones.
  • The London Loan Market Association (LMA) issued guidelines, but changes may not be readily accepted by market participants.
  • A “synthetic” or “zombie” LIBOR will likely continue to be published in order to deal with legacy transactions.

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This morning, our colleagues on the State & Local Tax team published their Client Alert titled The U.S. Supreme Court Changes Sales and Use Tax Collection Nexus. In South Dakota v. Wayfair, Inc., the Court overrules the “physical presence” requirement as “unsound and incorrect.” Takeaways from the Court’s decision include:

  • South Dakota law satisfies the Commerce Clause “substantial nexus” requirement based on the “economic and virtual contacts” with the State.
  • The Wayfair decision does not prohibit the retroactive application of this new standard for Commerce Clause “substantial nexus.”
  • The decision strikes a blow to the Court’s stare decisis jurisprudence.

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Today, our colleague Mark Litvack published his Client Alert titled The Supreme Court Narrows Its Holding in American Pipe & Construction Co. v. Utah. Takeaways include:

  • The Court bars previously absent class members from bringing subsequent class actions outside the applicable statute of limitations period.
  • The Court’s decision in China Agritech, Inc. v. Resh cements a new limit on the filing of successive class actions.

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Today, the U.S. Supreme Court issued its decision in China Agritech v. Resh et al., a decision concerning the U.S. Court of Appeals’ application of the tolling rule first stated in American Pipe & Constr. Co. v. Utah and later clarified in Crown, Cork & Seal Co. v. Parker.  The Court was called on to answer the question

“Upon denial of class certification, may a putative class member, in lieu of promptly joining an existing suit or promptly filing an individual action, commence a class action anew beyond the time allowed by the applicable statute of limitations?”

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Today, our colleagues Paula Weber and Erica Turcios Yader published their client Upending the Gig Economy? California Supreme Court’s new Dynamex test may throw a wrench into business models that rely on independent contractors. Takeaways include

  • The California Supreme Court has imposed a new test for determining who is an independent contractor or employee subject to protection under the California Wage Orders;
  • The new 3-part test, which requires employers to satisfy each element of the test, will make it harder for companies to classify workers as independent contractors; and
  • Workers who do not engage in an independent business and who do not provide services outside the usual course of the hiring entity’s business will be deemed employees, even if they are free from the direction and control of the hiring entity.

Additional Source: Dynamex Operations West Inc. v. Superior Court of Los Angeles

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Today, our colleagues Tom Morton and Emily Bias published their Client Alert titled Impacts of the Omnibus Spending Plan on the Affordable Housing Industry, Trump’s Omnibus Spending Plan adopts two key provisions from the proposed Affordable Housing Credit Improvement Act that will strengthen and expand low-income housing credit. Takeaways include

  • 2018 spending plan increases housing credit ceiling by 12.5% for next 4 years and incorporates a new “Average Income Test” to qualify for low-income housing tax credits; and
  • The Average  Income Test offers potential benefits to taxpayers, but open issues include whether States will adopt this option, the mechanics of application, and difficulties in monitoring compliance.

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On May 2, the U.S. Court of Appeals for the Ninth Circuit decided the case of Daniels Sharpsmart, Inc. v. Smith, Director of the California Department of Public Health. The Ninth Circuit affirmed the decision of the U.S. District Court for the Eastern District to issue a preliminary injunction enjoining state health officials from enforcing, on an extraterritorial basis, provisions of the California Medical Waste Management Act (MWMA) against Daniels Sharpsmart, Inc., an Illinois-based corporation that “designs, develops, manufactures, markets and sells reusable sharps container systems for the disposal of needle-inclusive biohazardous medical products” (Daniels).

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