The 2023 Term of the Supreme Court: Administrative and Regulatory Law Rulings
December 03, 2024 —
Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law BlogIt is instructive to review the Supreme Court’s record in its most recent term, concentrating on regulatory and administrative law cases, which are usually back-burner issues. But not this term.
The Supreme Court began the current term on October 7, 2024. The Court has already chosen many cases to review in the new term, and it promises to be as interesting as the 2023 term, which produced several significant rulings affecting regulatory and administrative law, chiefly the Loper Bright Enterprises ruling. Loper Bright overturned the Court’s landmark administrative law ruling of Chevron, USA v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
The Background to Loper Bright
In 1984, the Supreme Court decided Chevron USA, Inc. v. National Resource Defense Council. (See 467 U.S. 839 (1984).) The unanimous decision, written by Justice Stevens, reversed then-D.C. Circuit Judge Ruth Bader Ginsburg’s ruling that set aside EPA’s Clean Air Act “bubble policy,” which was intended to provide regulatory relief from certain EPA permitting requirements.
Read the full story...Reprinted courtesy of
Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Surprising Dismissal of False Claims Act Case Based on Appointments Clause - What Does It Mean?
October 15, 2024 —
Steven H. Lee - Lewis Brisbois NewsroomAtlanta, Ga. (October 1, 2024) - In a surprising turn of events, the U.S. District Court for the Middle District of Florida recently dismissed a False Claims Act (FCA) lawsuit brought by relator Clarissa Zafirov against Florida Medical Associates, LLC, and other defendants. U.S. District Judge Kathryn Kimball Mizelle
ruled that the FCA’s qui tam provisions, which allow private individuals to bring lawsuits on behalf of the government, violate the Constitution’s Appointments Clause.
This decision follows another unexpected ruling by U.S. District Judge Aileen Cannon in the Southern District of Florida, where the court similarly dismissed an indictment against former President Donald Trump based on the same constitutional clause.
At the heart of these rulings is the argument that FCA relators - who decide whom to sue, which legal theories to pursue, and how to proceed - exercise significant executive authority. Because they are not appointed by the President, a department head, or a court, the judges concluded that these relators hold their positions unconstitutionally. As a result, Judge Mizelle dismissed the case entirely.
Read the full story...Reprinted courtesy of
Steven H. Lee, Lewis BrisboisMr. Lee may be contacted at
Steven.Lee@lewisbrisbois.com
Homeowner Survives Motion to Dismiss Depreciation Claims
September 23, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe insurer's motion to dismiss claims for improper claims handling when considering implementation of depreciation was denied. Morrison v. Indian Harbor Ins. Co, et al., 2024 U.S. Dist. LEXIS 115664 (S. D. W. Va. July 1, 2024).
Plaintiff's home suffered flood damage. The house was insured by Indian Harbor a surplus lines carrier that offered specialized and high risk property policies in West Virginia. Surplus lines policies were procured in West Virginia through a "surplus lines licensee." Here, Neptune Flood Inc. was the surplus lines licensee broker for Indian Harbor. Peninsula Insurance Bureau, Inc. was an administrator and loss adjuster involved in the claim.
After the flood, Plaintiff notified defendants of the damage and immediately cleaned and repaired the house. Plaintiff asserted that Neptune was given notice of the loss and one of its agents made recommendations regarding the coverage available and conveyed the information to Peninsula and Indian Harbour. Plaintiff claimed that defendants misrepresented his policy coverage and made incorrect adjustments for depreciation based on Neptune's statements and recommendations.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
EEOC Builds on Best Practice Guidance Regarding Harassment Within the Construction Industry
August 12, 2024 —
Abby M. Warren & Christohper A. Costain - Construction Law ZoneIn June 2024, the Equal Employment Opportunity Commission (EEOC) issued
guidance tailored to the construction industry concerning harassment in the workplace or at the jobsite. The guidance is important for construction industry leaders and employers to understand how to prevent and remedy harassment in the workplace — more than a third of all EEOC discrimination charges filed between 2019 and 2023 asserted harassment. The guidance represents the EEOC’s latest effort in executing its Strategic Enforcement Plan for Fiscal Years 2024 to 2028, which, in part, focuses on combatting systemic harassment and eliminating barriers in recruitment and hiring, particularly for underrepresented groups in certain industries, including women in construction, through the EEOC’s enforcement efforts. In this article, we highlight key principles and practices from this guidance
Leadership and Accountability
The guidance reiterates that consistent and demonstrated leadership is critical to creating and maintaining a workplace culture where harassment is unacceptable and strictly prohibited. Worksite leaders, including project owners, crew supervisors, and union stewards, are each expected to regularly communicate that harassment is intolerable through several suggested efforts.
Reprinted courtesy of
Abby M. Warren, Robinson+Cole and
Christohper A. Costain, Robinson+Cole
Ms. Warren may be contacted at awarren@rc.com
Mr. Costain may be contacted at ccostain@rc.com
Read the full story...
Chicago Cubs Agree to Make Wrigley Field ADA Improvements to Settle Feds' Lawsuit
December 03, 2024 —
James Leggate - Engineering News-RecordMajor League Baseball’s Chicago Cubs have entered into a settlement with the U.S. Dept. of Justice over renovations to Wrigley Field, federal and Cubs officials announced Oct. 31. As part of the settlement, the team agreed to update Wrigley Field with more accessibility options for people with disabilities.
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James Leggate, ENRMr. Leggate may be contacted at
leggatej@enr.com
General Contractor Gets Fired [Upon] for Subcontractor’s Failure to Hire Apprentices
September 23, 2024 —
Garret Murai - California Construction Law BlogAs most public works contractors know, Labor Code section 1777.5 requires the hiring of apprentices on public works projects and, under Labor Code section 1777.7, violations are subject to civil penalties of up $100/day and up to $300/day days for repeated violations within a three-year period.
In
Lusardi Construction Co. v. Dept. of Industrial Relations, 102 Cal.App.5th (2024), a prime contractor learned the hard way that not only could it be penalized for its failure to hire apprentices but that it could also be liable for its subcontractor’s failure to hire apprentices. Forewarned is to be forearmed.
The Lusardi Construction Case
In 2014, general contractor Lusardi Construction Company hired subcontractor Pro Works Contracting to perform iron reinforcing work on a public works project owned by the San Marcos Unified School District.
Read the full story...Reprinted courtesy of
Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
‘The Ground Just Gave Out’: How a Storm’s Fury Ravaged Asheville
October 07, 2024 —
Michael Smith, Devon Pendleton, Claire Ballentine & Michael Sasso - BloombergEric Becker was at his vacation home in western North Carolina, in a community bordering the Pisgah National Forest and Blue Ridge Parkway, when the rain began to pour.
Becker, co-founder of the private wealth management firm Cresset, lives in Florida for most of the year. He had lived through a hurricane — but nothing like what he saw during Helene.
“Mud was liquefying around tree bases. You could see the root systems,” said Becker, who first began visiting the Asheville area 20 years ago and was smitten by its natural scenery, excellent food and lively arts and music scene. “The ground just gave out.”
Becker is part of a wave of affluent homebuyers who have flocked to the southern Appalachian region. Transplants from wealth managers and retirees to artists and young outdoors enthusiasts have helped create a real estate goldrush in cities including Asheville, where home prices have climbed 69% in the past five years.
Reprinted courtesy of
Michael Smith, Bloomberg,
Devon Pendleton, Bloomberg,
Claire Ballentine, Bloomberg and
Michael Sasso, Bloomberg Read the full story...
Are Mechanic’s Liens the Be All End All of Construction Collections?
August 12, 2024 —
Christopher G. Hill - Construction Law MusingsFor those of you familiar with
Construction Law Musings, you are aware of my affinity and discussion of those
powerful but tricky collection tools: mechanic’s liens. You have heard me tout their ability to secure payment when a contractor or subcontractor has not been paid on a construction project (
even in the face of bankruptcy). If you read my construction law blog regularly (though recently not-so-regularly updated), you could get the impression that a mechanic’s lien is an automatic avenue to payment.
While
mechanic’s liens can be a powerful collection tool, this post is going to discuss some pros and cons of recording, and ultimately suing to enforce, a mechanic’s lien in Virginia.
Read the full story...Reprinted courtesy of
The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
