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A Wisconsin District Court, in Mary Haley, et al. v. Kolbe & Kolbe Millwork Co. Inc., No. 14-cv-99-bbc, recently denied a motion to certify a proposed nationwide class action of plaintiffs alleging their windows are defective. They claim breach of express and implied warranties under state law relating to contemplationofjusticeallegedly defective windows installed in the representative plaintiffs’ homes as far back as 1997, and four proposed subclasses across 50 states. Ruling on the plaintiff’s motion, the District Court found that they failed to satisfy the requirements of Federal Rule of Civil Procedure 23(a) (prerequisites) and (b) (types of actions). It identified numerous defects in the plaintiffs’ motion, and observed that “class certification of all of the issues in this case would be unmanageable under Rule 23(b)(2) or (3).” Even so, the Court has given the plaintiffs one final opportunity to file a request for certification, which addresses the concerns it outlined in a 48-page Opinion and Order. Whether or not this particular effort succeeds, cases such as Mary Haley should stay on the radar of industry general counsel. Wherever there is potential for class certification, there is the potential for significant potential exposure and industry-wide repercussions.
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In the fall of 2015, California Governor Jerry Brown signed into law Senate Bill 560 (Monning), a bill sponsored by the California Contractors State License Board (CSLB), that allows CSLB enforcement representatives (ERs) to issue a Notice to Appear in a California superior court enforcing a licensee’s obligation to secure valid and current PoliceCarLights-300x199workers’ compensation insurance in accordance with Section 3700.5 of the California Labor Code. Prior to enactment of SB 560, only California district attorney offices could issue citations to enforce this obligation. California law requires employers to have workers’ compensation insurance if they have even one employee, which includes a responsible managing employee (RME), and Section 7125 of the California Business & Professions Code requires all contractors with a C-39 Roofing classification to have a Certificate of Workers’ Compensation Insurance or a Certificate of Self-Insurance on file with the CSLB. California contractors and subcontractors should expect an uptick in the CSLB’s enforcement of California’s workers’ compensation insurance requirements.

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The U.S. Court of Appeals for the Eighth Circuit has distinguished decisions from the Fifth and Tenth Circuit that appear, at first blush, to be in conflict with its ruling that the Interstate Commerce Commission Termination Act, 49 U.S.C. § 10501(b) (ICCTA), preempts state law negligence claims. In the case of Tubbs, et al., v. Surface Transportation Board, et al., decided on December 28, 2015,flood the Court of Appeals denied a petition to review an administrative decision of the Surface Transportation Board (STB) in which the STB held that the ICCTA, preempts the plaintiffs’ state-tort law claims against the BNSF Railway Company for damage caused by the flooding resulting from the railroad’s maintenance of an earthen embankment that bisects the Tubbses’ their property on which BNSF operates a railroad track. There appears to be room for further development of the Court of Appeals’ thinking on this topic.

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In FAA Updates Guidance on Obstruction Lighting the Federal Aviation Administration recently released guidance on obstructions that may impact the National Airspace System, such as tall buildings, energy and electricity infrastructure, and communications towers. The FCC provides updated guidance for builders and developers on the requirements for markingairplane and lighting any structure. Jennifer and Ken encourage developers to familiarize themselves with the new guidance, which will apply to new construction.

Photo:  xlibber, Another Airplane! Taken on June 05, 2010 – Creative Commons.

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In Five Things You Need to Know About the Extension of the ITC/PTC, Pillsbury greenfootprintpartner Tom Morton discusses the 2016 Consolidated Appropriations Act (H.R. 2822) and the extension of federal income tax credits for solar, wind and certain other renewable energy facilities.

Photo:  Chris Potter, 3D Green Footprint, Taken December 7, 2012 – Creative Commons

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In U.S. Repeals Longstanding Ban on Export of Crude Oil, my Pillsbury colleagues Dan LeFort, Paul Marston, Tom Campbell and I discuss the President’s recent signing of the Consolidated Appropriations Act, 2016, an Act that funds the Federal government through fiscal year 2016, and its repeal of the 40-year ban on the export of crude oil.

Addition Source:  Lifting of 40-Year Statutory Crude Oil Export Ban Signed into Law; Environmental and Regulatory Provisions in the Omnibus Appropriations Act of 2016

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The 2016 Consolidated Appropriations Act (H.R. 2822) is divided into several divisions, reflecting separate appropriations acts. A cursory reading of this massive legislation discloses a few environmental and regulatory provisions of interest:money

  • Almost all of these appropriations bills included language specifically forbidding the use of federal funds by the agencies to indirectly lobby the Congress on legislative actions;
  • $200,000,000 is appropriated to the Corps of Engineers for the administration of its permitting and regulatory programs regarding navigable waters and wetlands;

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In IRS Provides Additional Guidance on Treatment of Same-Sex Marriages under Benefit Plans, Pillsbury partner Peter Hunt and senior law clerk Benjamin Asch discuss the IRS’s guidance in IRS 2015-86, in which  provides guidance to sponsors and Rainbowadministrators of employee benefit plans regarding the application of the U.S. Supreme Court’s decision in Obergefell v. Hodges to plan participants with same-sex spouses.

Photo:  Steve Snodgrass March 3, 2012 – Creative Commons

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On Friday, the Court of Appeals for the District of Columbia declined to entertain EPA’s argument that it could dictate venue for review of its decision by including within the decision that it would have “nationwide scope or effect.” Pursuant to Section 307(b)(1) of the CAA, venue over challenges to EPA actions lie exclusively with the Court of Appeals for the District of Columbia only if (1) the final action taken by EPA is “nationally applicable” or (2) EPA found that its final action was based on a determination of “nationwide scope or effect” and it published this finding. Ultimately, the Court of Appeals, in Dalton Trucking, Inc., et al., v. EPA, et al., held that venue was not proper in the District of Columbia and dismissed the petitions for review of EPA’s authorization of the California Air Resources Board (CARB) regulations.

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In their alert “Reverse CEQA” Reversed, California Supreme Court Rejects CEQA Analysis of Impacts of the Environment on the Project, Pillsbury attorney David Farabee discusses the California Supreme Court’s recent rejection of a requirement of so-called “reverse CEQA” analysis, concluding that “CEQA does not generally require an agency to consider the effects of existing environmental conditions on a proposed project’s future users or residents.” The case is California Building Industry Association v. Bay Area Air Quality Management District, Case No. S213478 (December 17, 2015).