Just in time for the holidays, the Nevada State Contractors Board has issued an Industry Bulletin confirming that, beginning this week, it will begin issuing a one-time refund check to eligible licensed contractors as of June 30, 2015. It will disburse approximately $2.6 million in excess funds to nearly 15,000 current active and inactive licensees on a pro-rata basis of their license fees paid over the past 5 years. It confirmed that contractors who have maintained an active or inactive license over the past 5 years with no lapse are expected to receive an estimated refund between $39 and $198.
New Year, New Contractor’s Bond Amount Required in California
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UPDATE: The California Contractors State License Board has confirmed that all currently licensed contractors contractor’s bonds must be increased to $15,000 by January 1, 2016. Contractors Urged to Make Sure They Increase Bond Coverage to $15,000 Before End of Year; Applies to All Licensees, Industry Bulletin 15-14.
A California contractor’s bond is a requirement for the issuance of an active license, reactivation of a license, and for the maintenance of an actively renewed license. Effective January 1, 2016, the required amount of a contractor’s bond will increase from $12,500 to $15,000, as a result of California Senate Bill 467 (Hill). As a condition precedent to the issuance, reinstatement, reactivation, renewal, or continued maintenance of a license, SB 467 requires the Contractors State License Board to require the applicant and/or licensee to file or have on file a contractor’s bond in the sum of $15,000. Contractors should contact their bond agent or broker, or existing bond company for guidance on increasing their bond amount to comply with this new requirement. In addition, we expect the CSLB to provide further instructions on contractor’s compliance obligations in the coming months.
Additional Source: CSLB, Bond Requirements
Third Circuit: Governmental Process May Not Be Used to Restrain Competition
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Recently the Third Circuit delivered an important message: Exploiting the permitting process to obstruct competitor growth will not shield one from antitrust claims. In mid-November, the Third Circuit considered whether a party can suffer an antitrust injury when a competitor uses the governmental permitting process to “frustrate the entry” of the competitor into the marketplace. Hanover 3201 Realty, LLC, v. Village Supermarkets, Inc., et al. is a case involving a developer’s antitrust claims premised on numerous administrative and court challenges to its permit applications. Vacating the lower court’s ruling, in part, the Court of Appeals concluded that the District Court’s view of antitrust injury was too narrow and that Hanover “can establish that its injury was ‘inextricably intertwined’ with Defendants’ anticompetitive conduct.” The Court of Appeals also held that Hanover sufficiently alleged that the defendants activity “was undertaken without regard to the merits of the claims and for the purpose of using the governmental process to restrain trade.” Accordingly to the Court of Appeals, Hanover can demonstrate that the defendants are not protected by Noerr-Pennington immunity because their conduct falls within the exception for sham litigation. See E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965).
CERCLA the Wagons, the AOCs are Coming!!!
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Contractors should beware that the Sixth Circuit’s guidance on CERCLA-related topics continues to be murky, including, in particular, what constitutes a CERCLA settlement triggering the running of the 3-year limitations period for contribution claims. On November 5, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a ruling in the case of Florida Power Corp., dba Progress Energy Florida, Inc., v. FirstEnergy Corp., interpreting two Administrative Orders by Consent for Remedial Investigation/ Feasibility Study (AOCs). The Court of Appeals held that the AOCs were not CERCLA settlements and, as a result, Florida Power’s contribution claims were not untimely. There is a significant dissent in this case, and all of the judges appear to agree that the Sixth Circuit’s decisions in this area have not provided adequate guidance to the regulated community.
Cal/OSHA’s IIPP Standard Covers Outdoor and Indoor Heat Hazards
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Contractors employing workers that perform work outside have long known the importance of addressing outdoor heat hazards in their Injury and Illness Prevention Programs (IIPP). A recent ruling by the California Occupational Safety and Health (DOSH or Cal/OSHA) Appeals Board should serve as a reminder that, at least in California, an employer’s responsibility isn’t limited to the Great Outdoors—the less-great indoors have heat hazards that must be addressed, as well. The Appeal’s Board recently ruled in favor of the Cal/OSHA 2012 citations against two employers premised on their IIPP and related training program failing to effectively address the hazards of indoor heat. The Appeals Board’s ruling affirms that the IIPP standard is not limited to outdoor heat hazards and all employers have a responsibility for ensuring compliance with all Cal/OSHA standards, not just the employer in charge of the worksite. According to the Appeals Board, contractors’ IIPPs and related employee training programs must cover both outdoor and indoor heat hazards.
Not Even Full CAA Compliance May Save You
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For contractors, keeping track of the various provisions and requirements of federal statutes such as the federal Clean Air Act (CAA) while also jumping through the many hoops of local permitting can be quite an achievement in and of itself. 
But as a recent case shows us, the “litigative shield” of full CAA compliance can mean little in the face of state common law. In a noteworthy decision issued on November 2, 2015, the U.S. Court of Appeals for the Sixth Circuit ruled, in a federal class action complaint seeking compensatory and punitive damages from a local distillery for negligence, nuisance and trespass, that the “Federally Enforceable District Origin Operating Permit issued and overseen by the Louisville Metro Air Pollution Control District” under which the defendant is operating was not preempted by the CAA. Let Merrick, et al., v. Diageo Americas Supply, Inc. serves as a cautionary note to contractors, even full compliance with the federal CAA may not eliminate their exposure to claims under the states’ common laws.
Judicial Admission Renders Licensure Uncontroverted
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Recently, the California Court of Appeal for the Fourth Appellate District, in Womack v. Lovell, et al., Case No. G409587 (June 5, 2015), reversed a judgment in favor of the homeowner, noting that “[t]he devil isn’t the only resident in the details; sometimes truth and fairness lodge there as well.” The Court of Appeal, holding the homeowner to his judicial admission that the general contractor was licensed, concluded that the homeowner’s judicial admission coupled with his failure to comply with the local rule requiring identification of all controverted issues warranted a ruling in the contractor’s favor. This ruling serves as a reminder to contractors to diligently seek a verified certificate of licensure from the California Contractors State License Board (CSLB) if their licensure may be a controverted issue in a dispute because it may take the CSLB several months to issue the certificate.
Construction Industry to See Greater Federal Footprint in Projects with New “Waters of the United States” Rule
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The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers’ (Corps) have finalized their much-discussed joint “waters of the United States” definition and rule. This regulatory definition controls the scope and scale of these agencies’ regulatory authority under the federal Clean Water Act (CWA). It was slated to go into effect August 28, 2015. However, on August 27, 2015, the U.S. District Court for the District of North Dakota, in State of Ohio, et al., v. U.S. Army Corps of Engineers, issued a preliminary injunction staying implementation of the new rule in the States of North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming, and New Mexico pending further proceedings. The Court also decided that the stay is limited to these states. Then, on October 9, 2015 the U.S. Court of Appeal for the Sixth Circuit, in a separate proceeding, entered a nationwide stay of the rule to give the court additional time to determine if it, rather than the district courts, has jurisdiction to hear these appeals. Challenges to the rule are pending in other district courts as well. The litigation already engendered by this new rule indicates that the rule will be before the federal courts and there will be significant uncertainty for some time to come.
Social Consciousness, Supply Chains, and the Power of Shame
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DECEMBER 9, 2015 UPDATE: Today, the Central District Court its Order Granting Defendant’s Motion to Dismiss in Barber v. Nestle USA, Inc., et al., No. SACV 15-01364-CJC(AGRX), concluding that “Plaintiffs’ claims are barred by the safe harbor doctrine and therefore declines to reach the remainder of Nestlé’s arguments.” Nestlé successfully argued that “a safe harbor from Plaintiffs’ state law claims was created by the California Transparency in Supply Chains Act of 2010 (“Supply Chains Act”), Cal. Civ. Code § 1714.43.” This is an important issue for retail sellers and manufacturers subject to the Supply Chains Act.
UPDATE: We invite in-house counsel to join Amy and Robert at the upcoming conference. In-house counsel that are new registrants may use the code PILLSBURYVIP, subject to approval by the ALM Events Team.
Please join Amy Pierce and Robert Wallan at the West Coast General Counsel Conference on November 17 at Hotel Nikko in San Francisco for the panel discussion Social Consciousness – Not Just for the Millennials.
Under the California Transparency in Supply Chains Act of 2010, since January 1, 2012, every retailer, seller and manufacturer doing business in California and having annual worldwide gross receipts that exceed $100 million has been required to disclose on its website its efforts to eradicate slavery and human trafficking from its direct supply chain.
Even if you have disclosed your efforts and self-certified your compliance with the Act, you may still be required to defend your efforts and, for that matter, your supply chain in 2015 and beyond.
We will be discussing the Act and litigation exposure created by this “shaming” statute.
Additional Source: These Lawyers Want Slave Labor Warnings on Your Cat Food (December 11, 2015); Compliance Alert: California’s Transparency in Supply Chain Act of 2010; California Transparency in Supply Chains Act
Photo: Debs (ò‿ó)♪, Shiny! (Creative Commons)
When is a Policy Renewal Not a Renewal?
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Acquiring adequate insurance coverage against environmental risks, in particular the spill or release of pollutants or contaminants in day-to-day operations, is important to many construction businesses confronting the requirements of environmental regulation. For example, EPA’s hazardous waste rules require permittees (at both the state and federal level) to demonstrate financial responsibility for the operations of these facilities, including site closure and post-closure care, and coverage for sudden and accidental discharges. This requirement can be satisfied by proof of acceptable insurance coverage. In addition, having such insurance often assists companies facing the challenge of an extensive and prolonged Superfund cleanup. Many courts have ruled that the receipt of a Superfund Notice Letter from EPA triggers the responsibility of the insurer to provide the coverage in the policy.