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Recently, Utah Governor Gary Herbert signed into law House Bill 46, new law that amends the provisions relating to unauthorized and excessive claims of preconstruction and construction liens. For those parties who agree to arbitrate claims for a residential project or for $50,000 or less, H.B. 46 amends Section 38-1a-308 of the Utah Code to add Subdivisions (b)(4) through (15), which create procedures to initiate, conduct, and appeal an arbitration proceeding to resolve a claim for an excessive notice of preconstruction or construction lien.
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Today, Pillsbury attorneys Mark Jones and Kathleen Bardunias, and summer associate Kevin Lin, published their client alert SEC Proposes Pay-for-Performance Disclosure Rules. The Advisory discusses the SEC’s recently proposed rule under the Dodd-Frank Wall Street Reform and Consumer Protection Act that would require public companies to disclose the relationship between the compensation actually paid to certain key executives and the financial performance of the company, as measured by total shareholder return. If the proposed rule is finalized during 2015, affected companies may be required to make the “pay-for-performance” disclosures as early as the 2016 proxy season.

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In an important decision released on May 29, 2015, the U.S. Court of Appeals for the Tenth Circuit rejected the Sierra Club and other environmental organizations’ most recent objections to the permitting and construction of TransCanada’s Gulf Coast pipeline. The case is Sierra Club, et al. v Bostick. The U.S. Army Corps of Engineers issued letters verifying that the Corps Nationwide Permit 12, authorized by the Clean Water Act (CWA), would cover the proposed pipeline. The pipeline has now been constructed and is delivering oil, and covers 485 miles and consists of 2000 water crossings necessitating the use of this permit, which “allows anyone to construct utility lines in U. S. waters ‘provided the activity does not result in the loss of greater than ½ acre of U. S. waters for each single and complete project.'” The Court of Appeals noted that the project also required TransCanada to satisfy wetlands mitigation requirements. In challenging the validity of the Nationwide Permit and the verification letters, the plaintiffs argued that the Corps of Engineers violated both the National Environmental Policy Act (NEPA) and the CWA.
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Recently, Virginia Governor Terry McAuliffe signed into law Senate Bill 891, new law effective July 1, 2015. S.B. 891 adds Section 11-4.1:1 to the Virginia Code and amends Subdivision (C) of Section 43-3 of the Virginia Code to prohibit the waiver of payment bond claims or contract claims, and the waiver of the right to file or enforce any mechanics’ lien by subcontractors, lower-tier subcontractors and material suppliers in construction contracts.
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The Missouri Department of Natural Resources (DNR) denied the 2012 application of the Trinity Lutheran Church to participate in a state program that makes state solid waste management funds available to qualifying organizations to purchase recycled tires to resurface playgrounds. This use of recycled tires is described as a “beneficial use of solid waste”. Trinity Lutheran’s application was rejected on the basis of a long-standing provision of the Missouri Constitution which specifically provides that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church”. Trinity Lutheran filed a challenge to this decision in federal court, alleging that the rejection of its application, which the DNR ranked 5th of 44 applications received in 2012, violated its rights under both the federal and Missouri state constitutions. Noting that Missouri has a long history of maintaining a very high wall between church and state, the federal district court dismissed the lawsuit, which the Eighth Circuit affirmed in an opinion released on May 29, 2015. The case is reported as Trinity Lutheran Church of Columbia, Inc. v. Pauley.
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Recently, a California Court of Appeals, in East West Bank v. Rio School District, concluded that “a dispute over the contract price does not entitle a public entity to withhold funds due a contractor,” avoiding the Public Contract Code § 7107 penalties. It further noted its disagreement with the 2009 decision in Martin Brothers Construction, Inc. v. Thompson Pacific Construction, Inc., 179 Cal.App.4th 1401 (2009), and confirmed that the doctrine of unclean hands does not apply to Section 7107.
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A version of our article titled Surviving the Storm originally appeared in a Bay Area Council publication in the March 2015. It discusses Superstorm Sandy’s sobering preview of the types of insurance and risk management issues that business and residents face given the prospects of a catastrophic storm.

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Florida’s Third District Court of Appeals recently held that whether “prompt” notice was given to an insurer of a claim occurring over three and a half years after a hurricane caused damages to a condominium is a question of fact that must be given to the jury. This ruling confirms that the date on which an insureds’ duty to report a claim is triggered under an insurance policy’s notice provision is an issue of fact not ripe for summary judgment. The case is Laquer v. Citizens Property Insurance Corporation.
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The following important U.S. District Court decisions are being appealed to the Fifth and Tenth Circuit Court of Appeals:

  • Louisiana District Court says no go to suit against 88 oil and gas companies. On May 20, 2015, another important environmental appeal was filed with the Fifth Circuit Court of Appeals. The case is Board of Commissioners of the Southeast Louisiana Flood Control Authority – East v. Tennessee Gas Pipeline Company, LLC, et al., 2015 U.S. Dist. LEXIS 18461 (February 13, 2015). In February 2015, the U.S. District Court for the Eastern District of Louisiana dismissed a major lawsuit that the Board of Commissioners filed against 88 oil and gas companies operating in South Louisiana for many years. The lawsuit, filed in state court and removed to federal court, alleges that the oil and gas operations of the defendants, in particular the construction and operation of canals located in the jurisdiction of the plaintiff levee boards, caused significant coastal erosion which in turn caused the destruction of thousands of acres of coastal lands.
  • Texas District Court shows Clean Air Act citizen suit the door. In December 2014, the U.S. District Court for the Southern District of Texas issued a ruling in Environment Texas Citizen Lobby, Inc., et al. v. ExxonMobil Corporation, et al., rejecting the Clean Air Act citizen suit claims filed against ExxonMobil with respect to its operation of the large Baytown, Texas petrochemical complex. This is one of the few cases to be tried before a court, and now, on May 15, 2015, an appeal has been filed with the Fifth Circuit by the plaintiffs. The Case No. is 15-20030, and, again, the brief is very long and comprehensive.
  • Not your dog? Last November, the U.S. District Court for Utah ruled that the federal government does not have the constitutional authority to regulate the “taking” of the Utah prairie dog–a species located only in Utah–on non-federal land. The species has, however, been listed as an endangered

    • species since 1973. The decision, People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service, et al., has been appealed to the Tenth Circuit, and the Justice Department has now filed a very comprehensive brief in this matter; the Case No. is 14-4165.

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On May 12, 2015, the U.S. District Court for the District of Columbia partially granted a request for a preliminary injunction against the enforcement on new Interior Department rules which are intended, under the Department’s reading of the Lacey Act, 18 U.S.C. Section 42, to prohibit the interstate transportation of listed “injurious species”; the species in this matter are the Reticulated Python and the Green Anaconda. These species are raised and sold in commerce, but if they escape, they can become dangerous predators. The case is United States Association of Reptile Keepers, Inc., v. Jewell. Although the case make be about snakes, it serves as a reminder that a public agency is not permitted to exceed its authority when promulgating rules.
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