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Today, Pillsbury attorneys Julia Judish and Teresa Lewi published their advisory titled New EEOC Developments Expand Employers’ Pregnancy Accommodation Obligations. The Advisory discusses the Equal Employment Opportunity Commission’s recent overhaul of its guidance on pregnancy discrimination issues–broadening anti-discrimination coverage and cautioning employers on their obligation to provide reasonable accommodations to employees with pregnancy-related conditions.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Julia Judish or Teresa Lewi, the authors of this blog.

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The First Court of Appeals, sitting in Houston, has affirmed the decision of an arbitration panel which had ruled in favor of the claims for personal injury and property damages resulting from Forest Oil Corporation’s oil and gas exploration and production activities on the McAllen Ranch in South Texas. The ranch comprises over 27,000 acres, and its value, unimpaired by environmental contamination, is more than $65 million.

The panel of arbitrators ruled 2 to 1 in favor of the McAllen Ranch interests, who alleged that Forest Oil’s operations on the property resulted in the illegal release of hazardous substances and contaminants onto the surface and into the groundwater, and also caused personal injuries to James McAllen, the owner of the ranch.

Contesting the panel’s decision, Forest Oil argued to the Court of Appeals that the arbitrators unlawfully usurped the jurisdiction of the Texas Railroad Commission that has exclusive or primary jurisdiction over such contamination and remediation. The Court of Appeals rejected this argument, and affirmed the award of $15 million in actual property damages, $500,000 in exemplary damages, and $500,000 to James McAllen, and $6 million in attorney’s fees. The Court of Appeals also rejected Forest Oil’s argument that one of the arbitrators had a conflict of interest and the award should not prevail because of this. The case is Forest Oil Corp. v. El Rucio Land and Cattle Company, Inc., et al.

The opinion is very long, but it contains a very useful discussion of primary and exclusive jurisdiction in Texas law.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Anthony Cavender, the author of this blog.

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The Austin Court of Appeals issued an interesting ruling on whether the courts in Texas have the power to review an agency’s refusal to engage in rulemaking. In Texas Commission on Environmental Quality v. Bonser-Latin, et al., the Court of Appeals agreed with TCEQ that the lower court had no jurisdiction over a complaint that the TCEQ unlawfully refused to promulgate new Greenhouse Gas rules.

The lower court eventually ruled for the TCEQ, but denied the agency’s argument that the trial court had no jurisdiction under the Texas Administrative Procedure Act and Section 5.351 of the Water Code. The plaintiffs argued that the TCEQ was obliged under the “public trust doctrine” to engage in this rulemaking. The TCEQ responded that the “public trust doctrine” is displaced once the legislature acts–in this case, to enact the Texas Clean Air Act. The lower court, while ruling for the TCEQ, expressly rejected the agency’s reasoning concerning the public trust doctrine.

In its ruling, the Court of Appeals held that no court has ever held that an agency’s refusal to promulgate rules is reviewable by the courts, and it accordingly vacated the district court’s judgment and dismissed the cause for want of subject-matter jurisdiction, and seemingly ended the conversation about the public trust doctrine in Texas.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Anthony Cavender, the author of this blog.

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On June 20, 2014, Missouri Governor signed into law Senate Bill 529. The Act revises and expands the scope of the Missouri Public Prompt Payment Act and the law relating to public works projects. The revised provisions are operative August 28, 2014. Of note, under existing law, all public works contracts made by a political subdivision for a public works project must provide for prompt payment to the contractor. Under the revised Act, these contracts must also provide for prompt payment of any professional engineer, architect, landscape architect, or land surveyor.

Under existing law, a public owner may retain 5% of the value of a public works contract or up to 10% if it is determined by the public owner and the architect or engineer determine that a higher rate is required to ensure performance. The revised Act provides that a public owner may retain up to 10% if the contractor is not required to obtain a bond because the contract is not estimated to exceed $50,000; the Act requires contractors to furnish a bond when the estimated cost of the project exceeds $50,000 instead of $25,000 as contemplated under the existing law. In turn, retainage could be adjusted prior to completion when work was proceeding satisfactorily and retainage was to be paid after substantial completion of the contract or per contract terms. In such cases, 200% of the value of the remaining work was to be withheld until completion. The Act provides that 150% of the value is to be withheld until completion. In turn, under existing law, contractors were required to pay subcontractors and suppliers when they received payment less any retention not to exceed 10%. The Act lowers the retention to 5%.

The Act further provides that, if the owner determines the work is not substantially completed, the owner must provide a written explanation within 14 calendar days to the contractor. The contractor must then provide the notice to its subcontractors and suppliers. If the explanation is not given by the public body, the public body must pay at least 98% of the retainage within 30 calendar days. In addition, under existing law, when the public owner does not release full payment due because there are specific areas of work or materials it is rejecting, the subcontractors and suppliers involved are not paid for the rejected work. The Act now requires that the subcontractors and suppliers that will not be paid are to be provided a written explanation as to why the work or supplies were rejected.

The Act requires the public owner to include any withheld retainage with final payment of moneys owed to the contractor within 30 days of the due date, and to pay any professional engineer, architect, landscape architect, or land surveyor the amount due within 30 days after receiving an invoice. If full payment is not made, the contracting agency must pay 1.5% interest per month it remains unpaid.

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Judge Richard J. Leon of the US District Court for the District of Columbia has ruled that a federal advisory committee appointed by the FDA to issue a report consistent with the agency’s new authority over the sale of tobacco products was illegally constituted. Three of the voting committee members had conflicts of interest in that they received compensation from companies manufacturing tobacco cessation products, and that they were also frequent expert witnesses in tobacco litigation. The conflicts were so significant that the court held that the committee’s “Menthol Report” was “suspect and untrustworthy”, and barred its use.

The case is Lorillard, Inc. v. US Food and Drug Administration, decided July 21, 2014.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Anthony Cavender, the author of this blog.

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In mid-April 2014, Nebraska Governor signed into law Legislative Bill 961. Of note, it includes revisions to the Nebraska Construction Prompt Pay Act. The Act is set forth in Nebraska Revised Statutes §§ 45-1201 to 45-1210 and Section 8 of L.B. 961. The revised provisions are operative July 18, 2014.

Subdivision (3) of Section 45-1203 is amended to read:

“The owner or the owner’s representative shall release and pay all retainage for work completed in accordance with the provisions of the contract within forty-five days after the project, or a designated portion thereof, is substantially complete. When a subcontractor has performed work in accordance with the provisions of a subcontract and all conditions precedent to payment contained in the subcontract have been satisfied, the contractor shall pay all retainage due such subcontractor within ten days after receipt of the retainage.” (Underline added).

In turn, Subdivision (1) of Section 45-1204 has been amended to read:

“When work has been performed pursuant to a contract, an owner, contractor or subcontractor may only withhold payment… [f]or retainage, in an amount not to exceed the amount specified in the applicable contract, which shall not exceed a rate of ten percent. If the scope of work for the contractor or subcontractor from which retainage is withheld is fifty percent complete and if the contractor or subcontractor has performed work in accordance with the provisions in the applicable contract, no more than five percent of any additional progress payment may be withheld as retainage if the contractor or subcontractor provides or has provided satisfactory and reasonable assurances of continued performance and financial responsibility to complete the work.” (Underline added).

The definitions of contractor, subcontractor and substantially complete have also been revised:

  • The term “contractor” “does not include an individual or an entity performing work on a contract for the State of Nebraska or performing work on a federal-aid or state-aid project of a political subdivision in which the state makes payments to the contractor on behalf of the political subdivision.” Neb. Rev. St. § 45-1202(1).
  • The term “subcontractor” “does not include an individual or an entity performing work as a subcontractor on a contract for the State of Nebraska or performing work on a federal-aid or state-aid project of a political subdivision in which the state makes payments to the contractor on behalf of the political subdivision.” Neb. Rev. St. § 45-1202(6).
  • The term “substantially complete” means “the stage of a construction project when the project, or a designated portion thereof, is sufficiently complete in accordance with the contract so that the owner can occupy or utilize the project for its intended use.” Neb. Rev. St. § 45-1202(7).

Section 8 of L.B. 961 further provides that “Any individual, partnership, firm, limited liability company, corporation, or company may bring an action to recover any damages caused to such person or entity by a violation of the Nebraska Construction Prompt Pay Act. In addition to an award of damages, the court may award a plaintiff reasonable attorney’s fees and costs as the court determines is appropriate.”

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In a decision released Friday in the case of United States of America v. Volvo Powertrain Corp., the DC Circuit affirmed the lower court’s decision finding that a Consent Decree entered into by several engine manufacturers to settle civil complaints that they had violated federal law by equipping certain engines with “defeat devices” to suppress emissions during EPA tests applied to Volvo Powertrain. The terms of the Consent Decree also required these manufacturers to attain EPA emissions standards ahead of schedule.

At issue here were Volvo Penta engines, which Volvo argued were not subject to the terms of the Consent Decree. In a long opinion interpreting the Consent Decree, Judge Srinivasan, writing for a unanimous panel, held that the consent decree, by its terms, did apply to this Volvo plant, noting that certain issues had been forfeited when they were not argued before the trial court. Interestingly, the court also held that the relevant regulations, located at 40 C.F.R. Part 89, apply to all engines for which a manufacturer seeks a certificate of conformity, regardless of whether the engines are sold in the United States.

The action was prompted by a tip from Caterpillar Inc., one of Volvo Penta’s competitors, complaining that these engines should be part of the enforceable provisions of the Consent Decree.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Anthony Cavender, the author of this blog.

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The Seventh Circuit, in the case of State of Michigan, et al. v. US Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago, once again denied a request by five states bordering on Lake Michigan seeking an injunction against the Corps and the Water Reclamation District. The Asian carp threatens to overwhelm the Great Lakes unless its migration through the Chicago Area Waterway System which connects Lake Michigan with the Mississippi River. The states appear to favor a hugely expensive and environmentally questionable project to physically separate these bodies of water to prevent the carp from entering and pillaging the Great Lakes. The court denied relief, but the opinion by Judge Wood is a masterful exposition of federal common law principles, nuisance law, and the way the 1899 River and Harbors Act is intended to work. The court declined the invitation to step into the middle of this controversy, while it acknowledges that some progress has been reported.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Anthony Cavender, the author of this blog.

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Recently, the DC Circuit held that a Presidential Order prohibiting a transaction to develop wind farms in Oregon because of unspecified national security issues, was violative of the constitutional guarantees of due process. The case is Ralls Corporation v. the Committee on Foreign Investment in the United States (an Executive Branch committee created by the Defense Production Act of 1950). Ralls is an American corporation, but the owners are Chinese nationals. For this reason the purchase of four American limited liability wind farm companies was subject to review by the Committee and a Presidential Order implementing the Committee’s recommendation that the transaction be prohibited.

Although the law under which the President acted provides that his actions and findings are not subject to judicial review, the courts do not view this as prohibiting judicial review when the issues raised are constitutional–in this case, whether the owners’ due process rights were violated. As the court notes, they have never received any notice of the evidence of a national security concern, nor an opportunity to rebut that evidence. Consequently, the court concluded that the Presidential Order deprived Ralls of a constitutionally protected property interest without due process of law, and the matter was returned to the District Court to ensure that Ralls now has an opportunity to at least review any unclassified evidence that the government relied upon in making this disputed decision.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Anthony Cavender, the author of this blog.

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Recently, the DC Circuit decided the case of National Mining Association v. McCarthy. Reversing the lower court, the court held that an “Enhanced Coordination Process” memo and guidance authored by EPA and the Corps of Engineers to coordinate their joint review of coal mining Clean Water Act, 33 U.S.C. §§ 1251, et seq. (“CWA”), water discharge permits was only a procedural rule and not a “final action” subject to review under the APA. The Court of Appeals concludes that the memo only enhances these agencies’ ability to coordinate the application of their duties under the CWA, and does not change their substantive statutory responsibilities.

Responding to the complaint that the memo was in fact a “legislative rule’ whose promulgation was subject to the APA and pre-enforcement review, the court refers to the case law in this area, which it describes as “sometimes byzantine”. The Court of Appeals notes that EPA acknowledged at oral argument that the memo has no legal impact. Therefore, the Court of Appeals concludes that it may not be the basis for an enforcement action against a regulated entity, and, as a “matter of law, state permitting authorities and permit applicants may ignore this final guidance without facing any legal consequences”. Accordingly, the question before the Court of Appeals was not whether judicial review was available, but “whether judicial review is available now”.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Anthony Cavender, the author of this blog.