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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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On April 12, a significant Clean Water Act (CWA) ruling has been made by the U.S. Court of Appeals for the Fourth Circuit. The Fourth Circuit, in a split decision, held, in a case of first impression in this circuit, that the movement of a discharged pollutant through groundwater to navigable waters can constitute a violation of the CWA’s requirement that discharges of a pollutant from a point source to navigable waters is illegal unless the discharge has been permitted. The case is Upstate Forever and Savannah Riverkeeper v. Kinder Morgan Energy Partners, LP.

A few weeks ago, a similar decision was rendered by the U.S. Court of Appeals for the Ninth Circuit in the case of Hawai’i Wildlife Fund, et al., v. County of Maui.

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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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On April 27, the U.S. Court of Appeals for the Ninth Circuit held, in the case of California Dep’t of Toxic Substances Control v. Westside Delivery, LLC, that a purchaser of land at a California tax sale was not entitled to the third party defense for clean-up costs contemplated by the Comprehensive Environmental Response, Compensation, and Liability Act’s (CERCLA), known also as Superfund. The Ninth Circuit concluded that The panel concluded that Westside Delivery, LLC (Westside) had a “contractual relationship” with the pre-tax-sale owner of the property and that the previous owner caused contamination of the site “in connection with” its contractual relationship with Westside. The case has been remanded for further proceedings.

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On April 27, the U.S. Court of Appeals for the Ninth Circuit denied the request for an en banc rehearing in the case of Newton v. Parker Drilling Mgmt. Serv., Ltd. that was decided on February 5, 2018. In that decision, the Court of Appeals held that California’s wage and hour, and overtime laws apply to offshore drilling facilities located in offshore waters adjacent to the State of California off the coast of Santa Barbara. No Ninth Circuit judge agreed that there should be a rehearing.

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The latest ruling in the long-running environmental insurance case, Olin Corporation v. Lamorak Ins. Co., was released on April 18, 2018, by Judge Rakoff of the U.S. District Court of the Northern District of New York. Judge Rakoff granted motions for summary judgment filed by Olin Corporation (Olin) and The London Market Insurers, and awarded Olin $55M for its claims against Lamorak Insurance Company (Lamorak).

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On April 20, the U.S. Court of Appeals for the Federal Circuit decided the case of St. Bernard Parish Government, et al., v. U.S., reversing a decision by the U.S. Court of Federal Claims. The Court of Claims had found that a Constitutional compensable “taking” had occurred with respect to the owners of real property located in St. Bernard Parish and the Lower Ninth Ward of the City of New Orleans, whose properties had been damaged as a result of the damage wrought by Hurricane Katrina and other recent hurricanes.

“In summary, we conclude that the allegations of government inaction do not state a takings claim, and that plaintiffs have not established that the construction or operation of MRGO caused their injury.”

This could be a very important ruling affecting many thousands of Texas and Southeastern United States claims that are being filed in the Court of Claims in the wake of Hurricane Harvey.

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iStock-482487681-maijuana-tax-300x200As noted in a prior post, the affordable housing industry is struggling to make ends meet after equity pricing took a dive in response to the decreased corporate tax rate under President Trump’s tax reform plan. While some reprieve was granted by the increases in tax credit allocations and appropriations for affordable housing programs under the 2018 federal spending plan, developers are still struggling to fill funding gaps. One city is proposing a creative way to funnel more money toward affordable housing: On April 16, Denver Mayor Michael Hancock proposed a 2% increase in the special tax on recreational marijuana, with the additional revenue generated to be earmarked for the City’s affordable housing fund.

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iStock-183575355-law-marijuana-300x201The cannabis industry–both recreational and medicinal–is one of constant development, with a litany of obstacles. Even since December of last year when we began our series on the legalization of marijuana and its correlation to the real estate industry, new wrinkles have emerged, which may have an effect on future cannabis real estate deals.

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