Legal Alerts

9 out of 9 Supreme Court Justices Agree: Silence, Without More, Does Not Equal Fraud in SEC Reporting

In MACQUARIE INFRASTRUCTURE CORP. v. MOAB PARTNERS, L.P. the U.S. Supreme Court held that pure omissions are not actionable under Rule 10b–5(b)

Unanimous Supreme Court Decision Means More Scrutiny for Development Fees

On April 12, 2024, the United States Supreme Court issued a unanimous decision in favor of a landowner who asserted that legislatively imposed land use and permit fees could be seen as violating the Takings Clause under the Fifth Amendment to the United States Constitution.

United States DOJ Releases New Rule Mandating Digital Accessibility for State and Local Governments

The Americans with Disabilities Act prohibits covered entities from discriminating on the basis of disability.  Over the past ten years thousands of lawsuits – many styled as class actions – have been filed against covered entities alleging that they have failed to make their websites and mobile applications accessible.  The proliferation of litigation has been exacerbated by the failure of the Department of Justice, which is tasked with enacting regulations under the ADA’s public accommodation provisions, to issue long-anticipated regulations on how to measure digital accessibility. The lack of regulations has led to ambiguity about which standards applied, leaving covered entities largely in the dark regarding the best way to protect themselves from litigation and to accommodate persons with disabilities.

Generative AI Copyright Disclosure Act Introduced to Protect Creators

A new federal bill introduced by Representative Adam Schiff (D-Calif.) this week would require AI companies to disclose which copyrighted works were used to train their models. The Generative AI Copyright Disclosure Act would apply to both new models and retroactively to previously released and used generative AI systems.

A Guide to California’s Changes to Civil Discovery Rules

California legislators have changed the rules of discovery in civil cases through the passage of amendments to Code of Civil Procedure sections 2016.090 and 2023.050, effective January 1, 2024.

OFAC Sanctions Compliance Guidance for Virtual Currency

The Office of Foreign Asset Control (OFAC) on October 15 issued its Sanctions Compliance Guidance for Virtual Currency (the “Guidance”), which provides that sanctions compliance obligations apply to transactions utilizing virtual currencies just as they do for dealings involving traditional currencies.

Expansion of Insider Trading Enforcement: The Case of ‘Shadow Trading’

In a landmark case, a jury has found a biotech executive guilty of insider trading for betting on a competitor’s stock, leveraging confidential information from his own company. This verdict marks a significant broadening of insider trading law, which is traditionally focused on misuse of nonpublic information related to one's own company or tipping others to do so.
 

Florida’s Work Rule Changes Permit Some Minors To Work Longer Hours, Set New Minimum Age For One Industry

Tenth Circuit Ruling Highlights Potential Pitfalls for Employers’ DEI Programs

The landscape of Diversity, Equity, and Inclusion (DEI) training initiatives in the workplace is evolving rapidly. Within the last several years, we saw an increase in DEI training and corporate/client encouragement for such training initiatives. Recently, however, Title VII plaintiffs - mainly white males - are now challenging aspects of DEI training with some success. These recent DEI Title VII cases illustrate how DEI initiatives, while well-intentioned, can inadvertently expose employers to legal liabilities if not carefully implemented. 

Eleventh Circuit Set to Hear Challenge to Florida Law Barring Foreign Citizens From Buying Real Property

This month, the U.S. Court of Appeals for the Eleventh Circuit will hear a challenge to a recently-enacted Florida law, Senate Bill 264, which restricts foreign ownership or investment in Florida real property from specific countries and imposes a near ban on property purchases by Chinese, Russian and other foreign nationals.

California Right of Publicity Laws in Light of Tennessee’s ELVIS Act

In the realm of intellectual property and privacy rights, California stands at the forefront with robust legislation protecting individuals' right of publicity. The California Civil Code, specifically section 3344, outlines the unauthorized use of a personality's name, voice, signature, photograph, or likeness. This statute imposes liability on any individual or entity that exploits these attributes without prior consent, ensuring that damages, profits from the unauthorized use, and punitive damages can be sought by the injured party.

Workplace Violence Prevention Program Liability Headed Your Way

California employers should be aware of and prepare for the implementation of Senate Bill 553, Occupational Safety: workplace violence: restraining orders and workplace violence prevention plan. This bill continues to forge the way towards hefty employer obligations in the Golden State, requiring that employers prepare, implement and train employees on detailed violence prevention plans by July 1, 2024. Are we surprised? Sadly, no.

China Initiates WTO Process Against U.S. over Alleged Subsidies to Electric Vehicles

On March 26, the People’s Republic of China (“China”), through its Ministry of Commerce, issued a statement that it had notified the World Trade Organization (the “WTO”) of its intent to invoke the organization’s dispute settlement procedures regarding the impact of the United States’ Inflation Reduction Act’s (the “IRA”) tax incentives for new electric vehicles and other green energy-related provisions.

Generative Artificial Intelligence: Scraping Your Privacy

In the context of artificial intelligence, "scraping" refers to the process of extracting data from websites for use in training AI models. This data extraction is typically done through web scraping techniques, where specific information — including personal identifying information like names, addresses, phone numbers, and more — is gathered from websites and then used to create datasets that are utilized to train AI tools. This practice involves copying and gathering data from the web into a central database or spreadsheet for later analysis or retrieval.

Departments of Commerce, Treasury, and Justice Warn Foreign-Based Persons of Increased Enforcement to Ensure Compliance with U.S. Sanctions and Export Control Laws

Following up on its Tri-Seal Compliance Note last year cracking down on third-party intermediaries’ evasion of Russia-related sanctions and export controls, the U.S. Departments of Commerce, Treasury, and Justice have issued a new Tri-Seal Compliance Note (“Note”) detailing the obligations of foreign-based persons to comply with U.S. sanctions and export control laws. The Note describes the applicability of U.S. sanctions and export control laws to foreign-based persons as well as significant enforcement actions against foreign persons over the last two years. The Note also details compliance considerations for foreign-based persons.

Ukraine Conflict Response Alert New U.S. Commerce Department Rule Enhances Coordination Between U.S. Commerce Export Controls and U.S. Treasury Sanctions

Last week, the U.S. Commerce Department’s Bureau of Industry and Security (BIS) released a final rule to impose additional restrictions under the Export Administration Regulations (EAR) on persons and entities identified under 14 sanctions programs, on the List of Specially Designated Nationals and Blocked Persons (SDN List) maintained by the Department of the Treasury’s Office of Foreign Assets Control (OFAC). 

OFAC Narrows Venezuela-Related Sanctions General License

On February 29, 2024, the U.S. Department of the Treasury’s Office of Foreign Assets Control issued Venezuela General License (GL) 45B and, on March 1, 2024, published related Frequently Asked Question (FAQ) 1167 and updated FAQs 1137 and 1141. GL 45B and its related FAQs follow previous actions by the U.S. government to reimpose Venezuela-related sanctions (see our previous alert, “U.S. Reimposes Venezuela Sanctions Following Actions by Maduro Government”) and narrow the scope of certain transactions previously authorized under U.S. sanctions laws.

Kentucky Supreme Court Curbs Efforts to Extend Statute of Limitations for Child Sexual Abuse Claims Against Third Parties

In February, the Kentucky Supreme Court struck a blow to legislators’ attempts to extend the statute of limitations applicable to child sexual abuse claims against third parties such as schools, government employers, or churches.

Update on U.S. States’ Laws Restricting Foreigners from Buying Land

On July 1, 2023, a new Florida law (Senate Bill 264) went into effect, restricting foreign investment in Florida real estate from specific countries, and enacting a near-ban on property purchases by Chinese, Russian and other foreign nationals.

SEC’s Final Climate-Related Disclosure Rule Prompts Legal Challenges

On March 6, 2024, the U.S. Securities and Exchange Commission (SEC) released its long-awaited final climate-related disclosure rule for U.S. public companies. This groundbreaking regulation mandates that publicly traded companies provide information in their annual reports and registration statements regarding the climate risks they face, their plans to address those risks, the financial impact of severe weather events, and, in certain circumstances, greenhouse gas emissions originating from their operations.

Florida Court Partially Dismisses Coverage Lawsuit Related to Aircraft Stranded in Russia

In Zephyrus Aviation Capital, LLC, et al vs. Berkshire Hathaway International Insurance Limited, et al., Case No. CACE-23002230 (17th Jud. Cir. FL, June 30, 2023), the plaintiffs, aviation leasing, servicing, and management companies, brought suit seeking coverage for the alleged loss of use and possession of the aircraft resulting from the Ukraine crisis.

The Corporate Transparency Act: Going Forward

On March 1, 2024, a federal district court in the Northern District of Alabama, Northeastern Division, entered a final declaratory judgment in the case of National Small Business United v. Yellen, No. 5:22-cv-01448 (N.D. Ala.) declaring the Corporate Transparency Act (the “CTA”) unconstitutional. The Court concluded that the CTA exceeded Congress’s constitutional powers and permanently enjoined FinCEN from enforcing it against the plaintiffs. The judgment has left many questioning its impact, wondering whether they should continue to report beneficial ownership to FinCEN or wait for final disposition of the case.

U.S. Imposes Sweeping New Russia-Related Sanctions on Two-Year Anniversary of Ukraine Conflict

On February 23, 2024, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC), U.S. Department of State, and U.S. Department of Commerce announced significant new Russia-related sanctions on more than 500 entities.

Appellate Division, First Department Joins Second, Third, and Fourth Departments in Upholding Immunity Statute for Healthcare Professionals

On February 14, 2024, the New York Supreme Court, Appellate Division, First Department in Hasan v. Terrace Acquisitions II, LLC, 2024 N.Y. App. Div. LEXIS 805 (1st Dept. 2024) upheld the dismissal of a case alleging a failure to diagnose, treat, and prevent COVID-19 in a nursing home under New York’s now-repealed Emergency or Disaster Treatment Protection Act (“EDTPA”) (formerly Public Health Law 3082). The First Department now joins the Second, Third, and Fourth Departments in extending immunity from civil liability to any person or entity providing healthcare services related to COVID-19 between March 7, 2020 and April 6, 2021.

SEC Deflates the SPAC and De-SPAC Regulatory Vacuum

On January 24, 2024, the U.S. Securities and Exchange Commission (“SEC”) adopted new rules relating to initial public offerings (“IPOs”) of special purpose acquisition companies (“SPACs”) and the subsequent combination of SPACs with target companies (“de-SPAC transactions”). The new rules adopted by the SEC seek to enhance disclosures and provide additional investor protections in SPAC and de-SPAC transactions.

DOJ Reiterates Focus on Artificial Intelligence

Following President Biden’s October 2023 Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, governmental agencies, including the Department of Justice (DOJ), have made artificial intelligence (AI) a top priority. Companies and individuals should take note. 

A Primer on the Corporate Transparency Act

A significant new law, the Corporate Transparency Act (“CTA”), took effect on January 1, 2024. This legislation requires certain businesses to report Beneficial Ownership Information (“BOI”) to the Financial Crimes Enforcement Network (“FinCEN”), a division of the U.S. Department of Treasury. The CTA aims to enhance transparency and combat illicit activities such as money laundering and tax evasion.

G7 Diamond Ban Initiative Implemented By EU, US, Canada, and Japan Expands Sanctions and Eliminates Substantial Transformation Loophole

Russia is the largest diamond producer in the world, earning €4 billion in the diamond trade in 2023. The global natural diamond jewelry market is approximately $87 billion. Alrosa, which is 33% owned by the Russian government, is the world’s largest producer, by volume, of natural diamonds, and produces almost all Russian diamonds. 

IRS Announces Audits of Corporate Jet Usage

On February 21, 2024, the IRS announced its plans to begin dozens of audits on business aircraft involving personal use. The agency indicated that these audits will focus on aircraft usage "by large corporations, large partnerships and high-income taxpayers and whether for tax purposes the use of jets is being properly allocated between business and personal reasons."

New York Governor Signs LLC Transparency Act Legislation

On December 22, 2023, New York Governor Kathy Hochul signed Senate Bill S995B, also referred to as the “LLC Transparency Act,” into law.
 

Kentucky Supreme Court Issues Important Decisions on Causation, Affidavits of Merit in Medical Malpractice Cases

The Kentucky Supreme Court recently handed down a pair of opinions providing significant guidance for parties to medical malpractice cases. Here, two of Lewis Brisbois' partners explore the key takeaways from these decisions for medical providers.

2023 Georgia Labor & Employment Year End Review

The State of Georgia saw several developments in labor and employment law in 2023 focused on employee leave entitlements and vaping prohibition.

Price Cap Coalition Provides Updated Guidance in Compliance and Enforcement Alert

On February 1, 2024, the Price Cap Coalition (comprising the G7 countries, European Union, and Australia) released an Oil Price Cap (OPC) Compliance and Enforcement Alert, which provides an overview of important OPC considerations and reporting guidelines for suspected OPC violations.

2023 Illinois Labor & Employment Year End Review

The State of Illinois continued its best efforts to be the “California of the Midwest” in 2023. The State passed a large assortment of laws and amendments, primarily in the areas of employment, leaves of absence, and staffing.

U.S. Reimposes Venezuela Sanctions Following Actions by Maduro Government

On January 30, 2024, the United States took steps to reimpose sanctions on Venezuela, following actions by the Maduro government deemed by the U.S. Department of State to be inconsistent with prior agreements. These steps include retracting general licenses and an indication that further sanction-related action may be taken, should such actions by the Maduro government continue.

FAAAA Preemption Found Quickly in Wake of Ye, Aspen

As we previously reported, there have been several Circuit opinions confirming that the Federal Aviation Authorization Administration Act preempts state law tort claims against freight brokers. The monumental impact of these opinions can be seen in a recent set of decisive federal district court decisions. These decisions demonstrate that not only is the scope of FAAAA preemption broad, but that preemption can be established early in the proceedings at the motion to dismiss stage.

Florida Case from 2023 Remains Useful in Countering Vicarious and Statutory Employer Liability Claims Against Transportation Brokers

In Pelfrey v. J.B. Hunt Transp., Inc., 2023 Fla. Cir. LEXIS 1580 (Order of May 19, 2023, Cause No. 04-2021-CA-00116), the Circuit Court for the 8th Judicial Circuit of Bradford County, Florida ruled favorably on J.B. Hunt Transportation Company’s motion for summary judgment, which challenged vicarious liability and statutory employer theories.

2023 California Labor & Employment Year End Review

During 2023, California continued its long history of enacting legislation intended to protect the rights of employees. Below is a summary of the most critical legal updates affecting California employers and employees as of 2024, as well as recent notable State Supreme Court opinions from 2023. 

OFAC Extends Compliance Oversight to Foreign Financial Institutions

On December 22, 2023, the Office of Foreign Asset Control (OFAC) issued a Sanctions Advisory that provides guidance to “foreign financial institutions that conduct or facilitate significant transactions or provide any service involving Russia's military-industrial base.” The Advisory implements an amendment to Executive Order 12024 (EO) that grants OFAC new authority to exert jurisdiction over foreign financial institutions that now run the risk of being sanctioned by OFAC.

2023 North Carolina Labor & Employment Year End Review

The State of North Carolina saw a number of significant developments in the area of labor and employment law in 2023, including the passage of legislation that prohibits compelled speech when an individual seeks state government or community college employment and changes to the state's occupational safety and health rules

2023 Indiana Labor & Employment Year End Review

The year 2023 presented significant new developments in labor and employment law in the state of Indiana. Such developments included restrictions on noncompete agreements for physicians, the enactment of a consumer data privacy law, and new tax legislation. Below is a summary of these key changes.

2023 Oklahoma Labor & Employment Year End Review

Around 215 employment lawsuits came to an end in Oklahoma in 2023. Of those 215 lawsuits, around 140 likely ended in a settlement. The defendants prevailed on dispositive briefing 28 times, with 17 summary judgment victories. Several of the more interesting or notable cases are summarized below.

2023 Nebraska Labor & Employment Year-End Review

This update highlights key developments in Nebraska labor and employment law in 2023, as well as how these developments will impact employers in 2024.

Appellate Ruling on Pay Frequency Claims Creates Uncertainty for NY Employers

On January 17, 2024, New York’s Appellate Division, Second Department, issued its long-awaited decision in Grant v. Global Aircraft Dispatch, Inc., finding that “manual workers” as defined under the New York Labor Law (“NYLL”) do not have a private right of action to pursue alleged violations of the NYLL’s pay frequency requirement. This decision has created a split between two appellate divisions. As a result, while the situation for employers is uncertain, there is cautious optimism for New York employers who have been facing an onslaught of pay frequency litigation in recent years.

Dallas County Courts Continue Trend of Nuclear Verdicts with $105 Million Award Against Trucking Company Delivering for Amazon

In recent years, nuclear verdicts have become increasingly commonplace in Dallas County, Texas – both in District courts, and now, significantly, also in the County Courts at Law. 

2023 Minnesota Labor & Employment Year End Review

The 2023 Minnesota legislative session brought about numerous changes to employment law that will have wide-ranging and immediate impacts on all Minnesota businesses. From non-compete agreements, to paid leave and pregnancy accommodations, many aspects of Minnesota employment law have been altered. Summarized below are the major developments and dates organizations should keep in mind to stay in compliance with the changes.

2023 Washington Labor & Employment Year End Review

In the state of Washington, the legal trend has been laws favoring employees, often at the expense and burden of employers.   

That trend continues in 2024 with the following new employee-favorable statutes and regulations. 

Navigating the Corporate Transparency Act (“CTA”): A Comprehensive Guide for Compliance

The Corporate Transparency Act (“CTA”) is a significant regulatory change affecting a broad range of U.S. and foreign business entities formed and registered in the U.S. As of January 1, 2024, entities formed or registered with filing with a state must report their Beneficial Ownership Information (“BOI”), unless exempted under one of the 23 specified exemption categories.

2023 Michigan Labor & Employment Year End Review

It was a busy year for labor and employment law in the State of Michigan. Here is a recap of some of the key developments in 2023.

OFAC Settles With Insurance Company Providing Services To Sanctioned Russian Billionaire

Last month, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) settled with Privilege Underwriters Reciprocal Exchange (“PURE”) for $466,200 for its alleged violations of Ukraine/Russia-related sanctions.

Key Delaware Corporate & Commercial Decisions of 2023 - Part 2

In the second part of a two-part series, we explore more of the notable corporate and commercial decisions of Delaware courts in 2023, including a Court of Chancery ruling that rejected a former Twitter investor's request for a mootness fee in connection with the decision of Elon Musk to purchase the social media giant.

2023 Arkansas Labor & Employment Year End Review

This alert discusses the major developments in Arkansas labor and employment law from the previous year, including changes to minors’ eligibility for employment and the recognition of a special type of leave to care for foster children.

Key Delaware Corporate & Commercial Decisions of 2023 - Part 1

Delaware courts issued many important corporate and commercial decisions in 2023, including rulings by the state high court that clarified the test for analyzing board actions in the context of contested director elections, and clarified the limits of judicial equitable review of LLC agreements. In the first part of a two-part series, we examine these and other impactful decisions from last year. 

The U.S. Department of Labor's New Independent Contractor Test

Employers around the country should take note of the recent release of the long anticipated new rule adopted by the U.S. Department of Labor (DOL) that describes the test to be utilized to determine whether an individual should be classified as an employee or independent contractor under the Fair Labor Standards Act.

2023 New York Labor & Employment Year End Review

As we seem to say in every New York year-end recap, 2023 has been a year full of changes in labor and employment law in the Empire State. Workers’ rights continue to be expanded and employers’ obligations to their employees and independent contractors continue to increase. In an effort to hold employers accountable, the State has even gone so far as to amend the penal code to allow prosecution of employers for wage theft, which may now constitute a felony.

2023 New Jersey Labor & Employment Year End Review

2023 saw several notable changes to the Garden State’s labor and employment laws. The changes encompass employers’ obligations to employees, employees’ financial entitlements and, most notably, a push to hold employers accountable via a form of public shaming to ensure compliance with certain wage, benefit, and tax laws.

Updated OFAC Price Cap Guidance Identifies Additional Safe Harbor Requirements

On December 20, 2023, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) updated its earlier Guidance on Implementation of the Price Cap Policy for Crude Oil and Petroleum Products of Russian Federation Origin (“Updated Guidance”) (see our previous alert on the Russian Oil Price Cap).

2023 Missouri Labor & Employment Year End Review

This alert discusses the major developments in Missouri labor and employment law from the previous year, including minimum wage changes, reductions in income taxes, Wayfair Legislation, and recent Court of Appeals holdings.

Biden Administration Sends Cash from Russian Oligarch Konstantin Malofeyev’s U.S.-Based Bank Account as Aid to Ukraine

In a continuation of efforts to increase the bite of U.S. sanctions, on December 29, 2022, President Biden signed the Consolidated Appropriations Act of 2023, Pub. L. 117–328 (H.R. 2617), into law (CAA). This Act provides the Attorney General with authority to send the proceeds from certain forfeited asset sales of sanctioned Russian oligarchs and other entities supporting Russia’s invasion of Ukraine to the Ukrainian people. Earlier this year, the Biden Administration approved the first transfer of such assets when Attorney General Merrick Garland authorized the transfer of $5,379,876.96 from Russian oligarch Konstantin Malofeyev’s bank account as foreign aid to Ukraine.

2023 Kansas Labor & Employment Year End Review

This alert discusses the major developments in Kansas labor and employment law from the previous year, including legislation defining “gender” and “sex,” the effects of that legislation, and changes in tobacco laws. 

Ohio Supreme Court Rules That Wrongful Death Claims Are Subject to the Four-Year Statute of Repose for Medical Claims

In a landmark 4-3 ruling, the Supreme Court of Ohio ruled on December 28 that wrongful death claims are subject to the four-year statute of repose contained in O.R.C. 2305.113(C)

New York Governor Again Vetoes Grieving Families Act

On December 29, 2023, New York Governor Kathy Hochul again vetoed the “Grieving Families Act” championed by the New York plaintiffs’ bar. As discussed in prior Client Alerts, the draft bill would have substantially expanded the recoverable damages and classes of persons who can recover in wrongful death actions in New York, while also expanding the statute of limitations.

2023 Iowa Labor & Employment Year End Review

This update highlights key developments in Iowa labor and employment law in 2023, and how these developments will impact employers in 2024.

CoinList Markets LLC Reaches $1.2M Settlement with OFAC Over Alleged Violations of Ukraine/Russia Sanctions Regulations

CoinList Markets, a virtual currency exchange based in San Francisco, has consented to a settlement exceeding $1.2 million in response to allegations from the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC). The allegations claimed that CoinList violated U.S. sanctions by facilitating 989 transactions for users residing in the Crimea region of Ukraine from April 2020 to May 2022.

The 5th Circuit Short-Circuits the SEC’s Aggressive Rulemaking Agenda

On December 19, 2023 the U.S. Court of Appeals for the Fifth Circuit vacated the SEC’s Share Repurchase Disclosure Modernization Rule (the “Repurchase Rule” or “Rule”).

Singapore's Highest Court Rejects Bank's Own Sanctions List

Singapore’s Court of Appeal (“Court”) recently ruled that a bank’s determination that a vessel was subject to U.S. sanctions laws and regulations was an insufficient basis for denying payment to a beneficiary on letters of credit for which the bank was responsible.

Five Federal Agencies Highlight Trade and Sanctions-Related Risks in Joint Compliance Note

On December 11, 2023, the United States Department of Commerce, Department of the Treasury, Department of Justice, Department of State, and Department of Homeland Security issued a joint “Quint-Seal Compliance Note” (“Compliance Note”), targeted at entities operating in the global maritime and transportation industries.

2023 Florida Labor & Employment Law Year End Review

There were several important developments in labor and employment law last year in the state of Florida. Below is a summary of these key changes.

OFAC Continues to Enforce Sanctions Violations

The U.S. Department of the Treasury's Office of Foreign Asset Controls (OFAC) has settled with Swift Prepaid Solutions Inc. d/b/a daVinci Payments (daVinci), a financial services and payments firm based in Buffalo Grove, Illinois, for $206,213 for 12,391 apparent violations of OFAC sanctions on Crimea, Iran, Syria and Cuba. 

Judge Who Oversees Mass. Asbestos Docket Takes New Role As Chief Justice of Superior Court

Judge Michael Ricciuti, who presides over the Massachusetts state asbestos litigation docket, has been appointed to a new role as Chief Justice of Massachusetts Superior Court, effective December 22, 2023. The appointment is expected to result in the end of his tenure overseeing the state asbestos litigation. 

U.S. Imposes More Blocking Sanctions, Expands Entities List

On November 2, 2023, The United States Treasury Department’s Office of Foreign Assets Control (OFAC) imposed Specially Designated Nationals (SDN) blocking sanctions on more than 100 Russian and third-country entities and individuals, including Russian energy, metals, technology, and financial sector entities, as well as persons in multiple countries involved in the supply of dual-use and other controlled items to Russia. The new sanctions aim to further weaken Russia’s military and industrial capabilities in connection with its pursuit of the war in Ukraine.

EU Considers Expansion of Russia-Related Sanctions

On November 15, 2023, the European Union (EU) High Representative Josep Borrell, together with the European Commission, submitted to the Council of the European Union (the Council) a proposal for the 12th package of EU Russia-related sanctions.

When Must a New York Insurer Turn Over a Copy of the Policy?

It has long been the rule in New York that a defendant should disclose all insurance policies that might provide coverage to the plaintiff for an underlying claim. 

Caution: Employee Social Media Protections Coming Your Way

In light of the absence of federal regulation, more than half of the states have now stepped in to regulate the social media privacy rights of employees. The most recent push for this move towards social media protections was implemented in New York in September.  These additional employee protections add to the ever-growing list of employer obligations under state laws.

New York City Employers Must Heed the Amended Rules Governing the NYC Earned Safe and Sick Time Act

The New York City Department of Consumer and Worker Protection (“DCWP”) recently adopted amended rules related to the Earned Safe and Sick Time Act (“ESSTA”).

Miami Office Secures Summary Judgment For Remediation Specialist In Toxic Tort Case

Miami Lewis Brisbois Partners Todd R. Ehrenreich, Troy P. Cunningham, and David L. Luck recently won a defense summary judgment in a toxic-tort action pending in the U.S. District Court for the Southern District of Florida. See Vandestreek v. Lockheed Martin Corp., No. 6:21-cv-1570-RBD-DCI, 2023 WL 6396087, 2023 U.S. Dist. LEXIS 177550 (M.D. Fla. Sept. 27, 2023).

Deadline to Adopt SEC-Compliant Clawback Policy is Fast Approaching

On October 26, 2022, the Securities and Exchange Commission (“SEC”) adopted Rule 10D-1 under the Securities Exchange Act of 1934 (“Exchange Act”) implementing section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act), which required the SEC and the national securities exchanges to establish listing standards that require  publicly listed companies to adopt and comply with a “clawback policy” for the recovery of erroneously awarded incentive-based compensation paid to their executive officers. 

Pennsylvania Federal Court Holds Broker Tort Claims Preempted by the FAAAA

A recent decision out of the U.S. District Court for the Middle District of Pennsylvania brings promising news to freight brokers conducting business throughout the Third Circuit. In Michael Lee, et al. v. Golf Transportation, Inc., et al., Case No. 3:21-cv-01948 (M.D. Pa. Nov. 7, 2023) a magistrate judge presiding over the matter granted a motion for summary judgment in favor of a freight broker defendant on the basis that the common law tort claims levied against it were preempted by the Federal Aviation Administration Authorization Act (“FAAAA”), 40 U.S.C. § 14501(c)(1).

New York State Department of Financial Services Amends Cybersecurity Regulation 23 NYCRR Part 500

U.S. Suspends Select Venezuela Sanctions Following Political Agreement

On October 18, 2023, the United States Department of the Treasury’s Office of Foreign Assets Control (OFAC) suspended several Venezuela-related sanctions in response to a political agreement between the Maduro government and the Unitary Platform.

President Biden Signs Executive Order to Guide AI Development, Commerce Department Establishes U.S. AI Safety Institute

President Joe Biden signed an Executive Order on October 30, 2023 to guide the development of artificial intelligence. The Executive Order builds on previous voluntary commitments made by Big Tech and leading AI companies, as our previous alert reported. Two days later, on November 1, 2023, to coincide with Vice President Kamala Harris attending the “Safety Summit 2023” in London, the U.S. Department of Commerce announced the creation of the U.S. Artificial Intelligence Safety Institute (“USAISI").

EU FAQ Clarifies 50% Rule for Russia-Related Sanctions

On October 23, 2023, the European Commission issued a Frequently Asked Questions (“FAQ”) document clarifying the European Union’s (“EU”) blocking sanctions “50% Rule.” The FAQ applies specifically to subsidiaries of the 13 Russian entities currently subject to blocking sanctions under Annex XIX to Council Regulation 833/2014, including Russian energy, transportation, and technology companies Rosneft, Transneft, Rostec, KAMAZ, and Sovcomflot, among others.

G7 Coalition Announces Best Practices for Maritime Oil Industry Compliance with Russian Oil Price Cap

On October 12, 2023, the G7 Price Cap Coalition (Australia, Canada, the European Union, France, Germany, Italy, Japan, the United Kingdom, and the United States) released an Advisory for the Maritime Oil Industry and Related Sectors (“Advisory”), outlining best practices for the maritime oil industry to ensure compliance with price caps on crude oil and petroleum products put in place by the G7, European Union, and Australia.

SEC Division of Examinations Announces 2024 Priorities with a Continued Focus on Advisers to Private Funds

President Biden Reinforces Constraints on China’s Access to U.S. Advanced Semiconductors

On October 17, 2023, the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) announced further limitations on the sale of advanced semiconductors from the United States to China. This is the Biden administration’s latest effort to limit the capacity of  U.S. technologies to aid in the development of China’s supercomputing and artificial intelligence sectors. These updates also expand the export controls to include all 22 countries with which the U.S. has an arms embargo.

Lending Support to Russia’s Military Lands 49 Companies on Entity List

On October 6, 2023, the Department of Commerce’s Bureau of Industry and Security (BIS) amended the Export Administration Regulation (EAR) by adding 49 entities to the Entity List for their support of Russia’s military and defense industrial base. The Entity List identifies entities that are believed to be involved, or pose a risk of becoming involved, in activities contrary to the national security or foreign policy of the United States. Once added to the list, these entities, and those who do business with them, are subject to licensing requirements and supplemental regulations.

Phoenix Team Gets Claims Against Interstate Moving Company Tossed on Reconsideration

Phoenix Partner Julie E. Maurer, Chair of the National Cargo & Logistics Practice and co-Chair of the Transportation Practice, along with Partner Andrew Kleiner, recently achieved a favorable outcome on behalf of an interstate moving company through a motion for reconsideration of the partial denial of a motion to dismiss in the U.S. District Court for the Northern District of Ohio.

New York State Adopts New Employment Laws

As summer 2023 came to a close, New York continued to find creative ways to keep employers on their toes. Governor Kathy Hochul signed several new employment bills, some of which have already taken effect.

Key Updates to the BIS Entity List

On September 27, 2023, the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) added 28 new entities to its Entity List through amendments to the Export Administration Regulations (EAR). Among these listed entities is Russian corporation VSMPO-AVISMA, the world’s largest titanium producer.

September CyberCapsule

Supreme Court Agrees To Tackle Circuit Split Over Companies' Disclosure Obligations

Public companies and private securities practitioners take note: The Supreme Court has agreed to rule on a circuit split regarding whether the failure to disclose information required in a company’s Management Discussion and Analysis (MD&A) disclosure in its public filings (including its annual and quarterly filings, Forms 10K and 10Q) can be actionable in a private securities fraud action brought under Section 10(b) of the Securities Exchange Act of 1934.

The SEC Flexes Its Enforcement Muscle In a Sanctions-Related Registration Case

On September 19, 2023, the U.S. Securities and Exchange Commission (“SEC”) announced charges against Concord Management LLC (“Concord”), a Delaware limited liability company based in New York, and its principal Michael Matlin (“Matlin”) for operating as unregistered investment advisers to a single client described in the SEC’s complaint as a “wealthy former Russian political official living outside the United States.” Although not specifically named by the SEC, according to recent media reports Concord’s client is alleged to be Roman Abramovich (the “Client”), a Russian oligarch with ties to Vladimir Putin and the Russian Federation.

Illinois Appellate Court Reverses $18 Million Jury Verdict Against Freight Broker

In a huge win for freight brokers, a panel of the Appellate Court of Illinois on Thursday reversed a jury verdict, including an $18,150,750 award, against a broker. The panel reached its conclusion after finding that all the evidence presented at trial, viewed in the light most favorable to the plaintiff, overwhelmingly favored the conclusion that a driver and motor carrier were not agents of the freight broker.

It Really Does Pay To Voluntarily Disclose Sanction Violations

On September 21, 2023, the Treasury Department announced that its Office of Foreign Assets Control (“OFAC”) had reached a settlement with Emigrant Bank (“Emigrant”), a commercial bank located in New York, related to 30 apparent violations of the Iranian Transactions and Sanctions Regulations (“ITSR”) for $31,868. The announcement stated that while the “statutory maximum civil monetary penalty in the matter is $9,928,410,” the base civil monetary penalty in this case is $45,526. Because the apparent violations were non-egregious and were voluntarily self-disclosed by Emigrant, the final settlement amount was significantly reduced from even the minimum penalty.

New York Office Expands “Serious Injury” Defense for Surgery Claims

Our New York office continues its efforts to expand the playbook for successfully defending claims brought by plaintiffs who undergo surgery following motor vehicle accidents. In many motor vehicle cases, it is very questionable whether any post-accident surgery was medically necessary, and/or causally related to the alleged impact from the accident. In New York, practitioners sometimes overlook the “serious injury” defense of NY Insurance Law § 5102(d) when it comes to claims where the plaintiff undergoes a discectomy, laminectomy or a fusion after the accident. Under NY Insurance Law § 5104(a), a plaintiff who has not sustained a “serious injury” (as defined in Insurance Law § 5102(d)) has no private cause of action for non-economic loss; rather, they must pursue No-Fault insurance as their sole remedy.

Three Russian Businessmen Removed from EU Sanctions List Following Renewal Period

On September 15, 2023, three Russian businessmen were removed from the European Union (EU) sanctions list following the end of an EU sanctions renewal period.

Seventh Circuit Expands ADA's Reach To Work Commute

The U.S. Court of Appeals for the Seventh Circuit, which covers Wisconsin, Illinois, and Indiana, recently held that employers may be required to provide accommodations under the Americans with Disabilities Act (ADA) for employees to safely commute to work.

Targeting Sanctions Evaders: U.S. Imposes Additional Sanctions on Russian Elites & Industrial Complex

In a move aimed at undermining Russia's workarounds to evade sanctions thus far, the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) recently imposed nearly 100 new sanctions on Russia's industrial base, financial institutions, and technology suppliers. The Department of State has also designated more than 70 individuals.

The Impact of the Russia-Ukraine Conflict on the Insurance Industry, Part Six: Russian Airline Plans to Buy More Seized Planes

Lewis Brisbois has commented extensively on the conflicts between aircraft lessors and insurance companies related to aircraft detained in Russia due to the Russia-Ukraine conflict. The sixth part of this series looks at Russian state-owned airline Aeroflot’s plans to buy the detained airplanes.

IRS Harnesses AI to Crack Down on Tax Code Abuses

On September 8, 2023, the IRS announced a sweeping new effort to crack down on abuses of the tax code by focusing more attention on high-income earners, partnerships, large corporations and promoters. To that end, the IRS indicated it would utilize Artificial Intelligence (AI) to detect tax evasion, identify emerging compliance threats, and improve case selection tools to avoid unnecessary audits.

FTC Settlement With 1Health.io Shows Consequences Of Data Privacy Lapses

The Federal Trade Commission (FTC) recently finalized an order with the genetic testing company, 1Health.io (formerly known as Vitagene), to resolve allegations stemming from 1Health.io’s handling of sensitive consumer data and changes to its privacy policy.

New OFAC Blocking Sanctions Target Russia's Financial Elite

On August 11, 2023, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) announced a new set of Specially Designated Nationals (SDN) blocking sanctions on four prominent Russian businesspeople, as well as an association representing Russian business interests. This announcement, a year and a half after commencement of the Russian-Ukrainian conflict, shows that the sanctions landscape continues to evolve and pose continued legal risk.

IRS Guidance May Narrow Employers’ Eligibility For COVID Tax

The IRS issued a Memorandum last month addressing when an employer may be considered to have experienced a full or partial suspension of operations during the COVID-19 pandemic in 2020 or 2021 for purposes of an employment tax credit, and the agency’s guidance indicates it may be seeking to retroactively narrow availability of the credit.

EEOC Makes Good On AI Warning In First Age Discrimination Dispute

Ageist robots! As we projected in our previous Client Alert, artificial intelligence tools used to assist in employment decisions have created legal exposure as reflected by the Equal Employment Opportunity Commission’s (EEOC) recent filing and resolution of its first-ever AI discrimination in hiring lawsuit.

SEC Issues New Impactful Restrictions and Disclosure Requirements on Private Fund Advisers

On August 23, 2023, the Securities and Exchange Commission (SEC) voted 3-2 to adopt significant changes under the Investment Advisers Act of 1940 (Advisers Act) aimed at enhancing the regulation of private fund advisers including, in some instances, those that are not registered with the SEC. These new rules and amendments will, among other things, have an important impact on how private fund advisers report performance information to investors and utilize side letters to negotiate and attract investment. 

President Biden Restricts U.S. Investment In Chinese Technology

On August 9, 2023, President Biden issued Executive Order 14105 (E.O.), an outbound investment regulation limiting United States persons’ investment in certain ”countries of concern.” The E.O. specifically addresses the administration’s concerns over China’s advancing technology industry, including semiconductors and microelectronics, quantum information technologies, and artificial intelligence, and the effects it could have on the national security of the United States.

Illinois Governor Signs Bill Allowing Punitive Damages in Most Wrongful Death Actions

Illinois Governor J.B. Pritzker signed House Bill 0219 into law on August 11, 2023, effective immediately. The statutory change will allow heirs of decedents to recover punitive damages in wrongful death actions filed on or after August 11, 2023.

Proposed Legislation in New York State Would Require Disclosure of the Beneficial Owners of Limited Liability Companies

In an unprecedented move, both the New York Senate and Assembly have approved Senate Bill 995, also referred to as the “LLC Transparency Act,” which would require the disclosure of the beneficial owners of limited liability companies (LLCs) in the State of New York. The LLC Transparency Act defines a “Beneficial Owner” to include any individual who, directly or indirectly: (a) exercises substantial control over the LLC; or (b) owns or controls not less than 25% percent of the ownership interests of the LLC. The LLC Transparency Act is currently awaiting Governor Kathy Hochul's signature to become law.

Zoom’s Updated Terms of Service Signal Change in AI Data Usage Practices, Sparking Conversations On AI Governance

Zoom, the popular videoconferencing application, recently addressed concerns and sparked discussions regarding its updated terms of service (TOS) related to the use of user data for training its artificial intelligence (AI) models. The updates, which became effective on July 27, have prompted conversations about data privacy, ownership, and the ethical implications of AI development.

Voluntary Disclosures of Sanction Violations Can Mitigate Civil and Criminal Penalties

Following up on its Tri-Seal Compliance Note earlier this year cracking down on third-party intermediaries’ evasion of Russia-related sanctions and export controls, the U.S. Departments of Commerce, Treasury and Justice have issued a new Tri-Seal Compliance Note (“Note”) proposing voluntary self-disclosure (“VSD”) of potential violations of sanctions, export controls, and other national security laws. The Note describes VSD policies of each department that can provide significant mitigation of civil or criminal liability that could extend to non-prosecution agreements or a reduction of 50 percent in the base penalty amount for civil or criminal penalties. 

The Oregon Consumer Privacy Act: What Businesses Need to Know

The Oregon Consumer Privacy Act (OCPA) is the 11th comprehensive privacy law passed in the United States that gives individuals – in this case, Oregonians – significant control over their personal information. The OCPA, which goes into effect on July 1, 2024, applies to businesses that provide services and products to Oregonians and either control (i.e., collect) or process personal information from at least 100,000 Oregon consumers, or control or process personal information from 25,000 Oregon consumers where 25% of the business’s gross annual revenue comes from selling personal information.

Connecticut Supreme Court Provides Framework for Dismissal of Actions Pursuant to Executive Order 7V

The Connecticut Supreme Court issued a key ruling on August 8, 2023 regarding the immunity conferred under Executive Order 7V for civil lawsuits against health care professionals and providers.

SEC Announces New AI Rules for Financial Services Companies

On July 26, 2023, the U.S. Securities and Exchange Commission (SEC) announced new proposed rules for regulating brokerages and money managers using artificial intelligence (AI) to serve their clients. The SEC’s plan aims to address concerns about potential conflicts of interest that arise when financial services firms use the burgeoning technology. Companies and individuals in the financial industry should take note.

July CyberCapsule

Welcome to the July edition of the CyberCapsule. In this edition, we highlight new ways the Biden administration is attempting to combat cyber incidents and the threat actors' continued evasiveness and pervasiveness. The SEC also made a splash, both with the recent Covington order and with the long-awaited released of its disclosure rules. And, finally, we remind our readers of two newly amended data breach notification statutes.

The SEC Issues New Cybersecurity Reporting Requirements to Protect Investors and Markets

The Securities and Exchange Commission (“SEC”) recently adopted new Cybersecurity Risk Management, Strategy, Governance, and Incident Disclosure rules (“Final Amendments”) for publicly traded companies. From a cybersecurity reporting standpoint, these rules require public companies to: (1) report material cybersecurity incidents within four business days of discovery; and (2) annually disclose their cybersecurity risk management, strategy, and governance processes. The rules go into effect 30 days after being released in the Federal Register which typically occurs within 45 days after a rule is finalized.

BIS Issues New Guidance on Medical-Related Items Destined for Russia, Belarus, or Occupied/Covered Regions of Ukraine

On July 19, 2023, the United States Department of Commerce’s Bureau of Industry and Society (BIS) released new best practices guidance for exporters dealing with medical-related items destined for Russia, Belarus, or the Occupied/Covered Regions of Ukraine. This guidance follows the May 19 tranche of export control regulations and reinforces the U.S. Government’s approach of facilitating the flows of humanitarian and medical goods while preventing their diversion to military ends. The new guidelines aim to strike that balance by providing businesses with a set of recommendations to follow to streamline and expedite the export process for medical-related items. The BIS has put forth five specific recommendations.

Nevada “Outlaws” Cost-Reducing Liability Insurance Policies, with Guidelines to Insurers

On June 3, 2023, Nevada Governor Joe Lombardo signed into law Assembly Bill (AB) 398, which prohibits insurers from renewing or issuing insurance policies that include provisions that reduces the limit of liability by the costs of defense.

Colorado’s 2023 Legislative Session Part III: Bereavement and Inclement Weather Added as Permissible Uses of Paid Sick Leave

In this third installment of our Colorado Legislation Client Alert Series, we review amendments to Colorado’s Healthy Families and Workplaces Act (HFWA), which expand the permitted uses of paid sick leave to cover bereavement and inclement weather. 

White House Announces Voluntary Commitments of Leading Artificial Intelligence Companies to Manage Potential Risks

The Biden-Harris Administration, along with other policymakers in the United States and internationally, have prioritized developing appropriate policy on artificial intelligence (AI) – hoping to seize the transformational benefits of AI, while managing its serious risks.

Understanding U.S. and UK’s Russia-Related Sanctions and Provision of Humanitarian Assistance

On June 28, 2023, the United States Department of the Treasury’s Office of Foreign Assets Control (OFAC) and His Majesty’s Treasury’s Office of Financial Sanctions Implementation (OFSI) jointly issued a Humanitarian Assistance and Food Security Fact Sheet (Fact Sheet), which clarifies certain exceptions to the broad sanctions in place against Russia to allow for continued humanitarian assistance.

Colorado’s 2023 Legislative Session: Part II - What Employers Need to Know about the POWR Act

In Part I of our Colorado Client Alert Series, we provided a brief overview of the recent legislative developments that impose significant new requirements on Colorado employers. In this second installment of our client alert series, we review the Protecting Opportunities and Workers’ Rights (POWR) Act (SB 23-172) in greater depth. The POWR Act expands employee workplace protections and imposes new compliance requirements on employers effective August 7, 2023.

Seventh Circuit Affirms that FAAAA Preempts Broker Negligent Hiring Claims

Today, the Seventh Circuit Court of Appeals weighed in on the circuit split over whether freight broker tort claims are preempted by the Federal Aviation Administration Authorization Act (“FAAAA”), 40 U.S.C. § 14501(c)(1), by holding that the plain text and the statutory scheme of the FAAAA bars a plaintiff’s state law negligent hiring claim against a freight broker and that the Act’s safety exception does not save such claims from preemption. This is excellent news for freight brokers currently defending themselves from common law state tort claims. Such brokers with pending dispositive motions should seek to add this new authority as a supplement and brokers, outside of the Ninth Circuit, whose dispositive motions have previously been denied should consider filing a motion for reconsideration.

Ohio Supreme Court Holds That Assault and Battery Exclusion in General Liability Policy Applies Where Perpetrator Was Legally Insane

Did an assault and battery exclusion apply when the perpetrator was legally insane? “Yes,” according to the Ohio Supreme Court in its recent decision, Krewina v. United Specialty Insurance Co., 2023-Ohio-2343 (July 12, 2023). The decision turned on two key points: first, the plain and ordinary meaning of “assault” and “battery,” which did not necessarily require a specific “intent;” and second, the fact that the assault and battery exclusion did not introduce the concept of “intent” or require any  specific “intent.” Thus, the court in Krewina ruled that a perpetrator’s insanity did not bar the application of an assault and battery exclusion in a commercial general liability policy (CGL).

Companies Can Once Again Freely Transfer Data with Adoption of Adequacy Decision of the EU-US Data Privacy Framework

On July 10, 2023, the European Commission adopted its adequacy decision for the EU-US Data Privacy Framework (DPF), creating a new pathway for data transfers. In this decision, the European Commission states that the new safeguards implemented by the United States via Executive Order 14086 (EO) ensures an adequate level of protection for personal data transferred from the European Union (EU) to companies participating in the DPF. Therefore, EU companies can freely transfer personal data to participating companies in the U.S. without additional data protection safeguards.

June CyberCapsule

On June 6, 2023, the U.S. Securities and Exchange Commission (SEC) received feedback from industry stakeholders regarding its proposed cybersecurity rules, delaying provision of the final rules until October 2023.

Legal Risk Remains High As EU Adopts 11th Sanctions Package

The European Union’s adoption of its 11th package of Russian sanctions on June 23, 2023 continues a trend of growing Western restrictions on Russia’s imports and exports. In addition to expanding the types of affected goods, this latest round introduces stepped-up measures to prevent circumvention of existing sanctions. At the same time, new exemptions to facilitate energy projects and enable divestment efforts add further complexity to the multinational sanctions infrastructure. 

Four Hundred Million Here, Billions There in PFAS Settlements; After A While It Adds Up To Real Money

Recently, the New Jersey Department of Environmental Protection (DEP) and Solvay Specialty Polymers USA LLC reached a $393 million settlement of claims that releases of per- or polyfluorinated alkyl substances (PFAS or so called “forever chemicals”) from Solvay’s manufacturing plant allegedly contaminated local drinking water supplies.

Canada Seizes Russian Aircraft Tied to Russia’s Invasion of Ukraine, Expanding Reach of Western Sanctions Against Russian Aerospace Sector

In June 2023, the Canadian government seized an Antonov An-124, which it alleges is owned by a subsidiary of Volga-Dnepr Airlines LLC and Volga-Dnepr Group. Canada joins the United States in actually having within its physical control assets connected to individuals and entities allegedly profiting from Russia’s invasion of Ukraine. See Lewis Brisbois’ Alert dated June 17, 2022. This action represents Canada’s first physical asset seizure under the June 2022 amendments to Canada’s Special Economic Measures Act.

Federal Court Vacates $228 Million Award Entered In First BIPA Trial, Finds Damages Are Discretionary And A Question For The Jury

On June 30, 2023, an Illinois federal district court ruled on post-judgment motions in Rogers v. BNSF Railway Co. and vacated the $228 million damages award entered in the first Illinois Biometric Information Privacy Act (BIPA) case to proceed to trial.

U.S. Supreme Court Confers Private Right of Action Under FNHRA

On June 8, 2023, the Supreme Court issued a groundbreaking decision in Health and Hospital Corporation of Marion County v. Talevski, No. 21-806 by holding an individual may pursue a private right of action for alleged violations of the Federal Nursing Home Reform Act of 1987 (FNHRA).

Washington Supreme Court Decision Reminds Employers to Be Mindful When Litigating Matters Under the State’s Family Care Act

On June 29, 2023, the Washington Supreme Court issued its decision in Alaska Airlines v. State of Washington Department of Labor & Industries. This case concerned the Washington Family Care Act, a statute that entitles employees to unpaid leave to care for sick family members.

Florida Sued Over New Law Restricting Foreign Citizens From Buying Land

A group of Chinese citizens and a real estate brokerage firm are suing the State of Florida over the state’s new law that restricts foreign investment in Florida real estate from specific countries, and enacts a near ban on purchases by Chinese, Russian, and other foreign nationals.

U.S. Supreme Court Clarifies Undue Hardship Test for Religious Accommodation Under Title VII

Title VII of the Civil Rights Law of 1964 generally requires employers to accommodate individuals’ religious beliefs. However, employers are not obligated to do so where the accommodation would impose an undue hardship on their business operations. In 1977, the U.S. Supreme Court held that employers could avoid having to provide an accommodation if doing so would impose “more than a de minimis cost” or burden. Trans World Airlines v. Hardison, 432 U.S. 63, 84 (1977). The decades that followed have seen copious litigation about what more than de minimis means in this context.

OFAC Continues Enforcement Of Sanctions Against Financial Entities

On June 20, 2023, the Department of the Treasury’s Office of Foreign Assets Control (OFAC) announced an enforcement action against Swedbank Latvia AS, headquartered in Riga, Latvia (Swedbank Latvia or the Bank).

PCAOB’s Proposed Rules: A Sweeping Attempt to Detect and Prevent Fraud in Financial Reporting

On June 6, 2023, the Public Company Accounting Oversight Board (PCAOB) announced the proposed implementation of sweeping new rules for the purpose of strengthening the detection and prevention of fraud in financial reporting. As PCAOB Chair Erica Y. Williams explained, “By catching and communicating noncompliance sooner, auditors can help companies course correct and better protect investors from risk.” PCAOB states that it bases its new rules on the fact that they found a year-over-year increase in the number of audit deficiencies dating back to 2021, and that since 2022, they found an increase in comment forms highlighting bad trends in audit quality.

Reminder: Nevada Minimum Wage To Increase July 1, 2023

Nevada’s minimum wage will increase effective July 1, 2023. For the period covering July 1, 2023 through June 30, 2024, the minimum wage rate for Nevada employees is $10.25 per hour if the employee is offered qualifying health benefits, and $11.25 per hour if the employee is not offered qualifying health benefits. 

A Commerce Clause Follow-Up Regarding SCOTUS’s Mallory Personal-Jurisdiction Decision

Following up on our Client Alert from June 28 regarding Mallory, it should also be emphasized that Justice Alito was the fifth and deciding vote on Parts I and III-B of the Court’s limited majority opinion reaffirming Pennsylvania Fire, but wrote his own special concurrence explaining that he would have held “general jurisdiction by registration” statutes unconstitutional on other grounds—specifically, the Dormant Commerce Clause.

Recent Developments of the FTC Health Breach Notification Rule

The Federal Trade Commission (FTC) has proposed significant amendments to the Health Breach Notification Rule (HBNR) in response to the rapid evolvement of health apps and other health related technologies. These changes aim to strengthen and modernize the rule, ensuring that consumers' health data are protected and that companies provide timely notifications when breaches occur.

EEOC Updates “Know Your Rights” Poster to Include Information on Pregnant Workers Fairness Act

On June 27, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) updated the “Know Your Rights: Workplace Discrimination Is Illegal” poster. Significantly, the new poster includes information about the Pregnant Workers Fairness Act (PWFA), which was signed into law on December 29, 2022. PWFA requires covered employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation causes the employer an “undue hardship.” The PWFA also requires covered employers to post a notice describing the law’s protections. This Act does not replace any federal, state, or local law that may be more protective of workers affected by pregnancy, childbirth, or related medical conditions. 

United States Supreme Court Backtracks on Recent Trajectory Away from Assertions of General Jurisdiction in Mallory v. Norfolk Southern

On June 27, 2023, the U.S. Supreme Court issued a sharply divided opinion that appears to backtrack on the Court’s steady trajectory away from assertions of general jurisdiction in recent years, e.g. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011), Daimler AG v. Bauman, 134 S. Ct. 746 (2014), BNSF Railway Co. v. Tyrrell, 2017, 137 S. Ct. 1549 (2017). Relying on a case from 1917, Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U. S. 93 (1917), Justice Gorsuch, writing on behalf of the plurality, (Justices Gorsuch, Thomas, Sotomayor, and Jackson) (Justice Alito concurring) found that Norfolk Southern “consented” to jurisdiction in Mallory via 42 Pa. Cons. Stat. §5301(a)(2)(i),(b) by registering to do business in Pennsylvania. This statute, 42 Pa. Cons. Stat. §5301, specifically permits jurisdiction over a corporation “incorporat[ed] under or qualifi[ed]as a foreign corporation under the laws of this Commonwealth … for any cause of action that may asserted against him, whether or not arising from acts enumerated in this section.”

Update On Exit Tax And Divestment From Russia

On June 4, 2023, President Putin instructed the government of the Russian Federation to use proceeds from the “exit tax,” which foreigners from “unfriendly” states pay when selling their Russia assets, for subsidies to the Industry Development Fund and for funding research and development projects to develop “priority industrial goods,” including reverse engineering.

Kentucky Supreme Court Creates New “Goldilocks Zone” to Limit Opinions of Biomechanical Experts

In a recent decision, the Kentucky Supreme Court placed stricter limitations on the opinions that biomechanical engineers may offer at trials in Kentucky courts. Specifically, the published opinion issued in Renot v. Securea, Supreme Ins. Co., 2023 Ky. LEXIS 163, recognizes a new space for the testimony of biomechanics experts – “The Goldilocks Zone.”

Unsubstantiated Anchors Away! Texas Supreme Court Reverses $15 Million Non-Economic Damages Award in Wrongful Death Action

In Sarah Gregory and New Prime, Inc. v. Jaswinder Chohan, et al., ___S.W.3d ___, No. 21-0017, 2023 Tex. LEXIS 528 (June 16, 2023), the Texas Supreme Court reversed and remanded a $15 million non-economic damages award in a wrongful death suit where there was no evidence to support the amount of the award.

Microsoft to Pay Over $3.3 Million To Resolve Alleged Violations of U.S. Export Controls and Sanctions

In a joint enforcement effort, the U.S. Department of Commerce's Bureau of Industry and Security (BIS) and the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) imposed civil penalties totaling over $3.3 million on Microsoft Corporation. The penalties were issued to resolve alleged and apparent violations of U.S. export controls and sanctions laws. Microsoft voluntarily disclosed the violations, cooperated with the investigation, and implemented remedial measures. This alert explores the details of the case and its implications for technology companies operating through foreign subsidiaries.

Colorado’s 2023 Legislative Session: Part I - Overview of Expanded Employee Protections and New Compliance Requirements for Colorado Employers

The Colorado legislature concluded the 2023 Legislative Session on May 8, 2023. As in prior years, the legislature passed several new employment-related bills that significantly expand employee protections and increase compliance burdens on Colorado employers. Governor Jared Polis recently signed many of these bills into law, so the compliance clock is now running.

Proposed Legislation Could Facilitate Reparations for Ukraine from Sovereign Assets Seized by the Russian Elites, Proxies, and Oligarchs Task Force

There are over $300 billion dollars' worth of Russian assets from Russia's central bank that have been frozen by the United States and its allies, though it will take further authority from Congress to attach the assets that have been seized or frozen. Seizures by the Russian Elites, Proxies, and Oligarchs Task Force (REPO Task Force), as part of a coordinated multilateral effort, are authorized in the U.S. under the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. §§1701–1707. However, the IEEPA does not allow the U.S. Government to take ownership over the assets (as it is not a “vesting” statute), unless the U.S. is “engaged in armed hostilities or has been attacked by a foreign country or foreign nationals.” This is not the current state of the conflict in Ukraine.

Rhode Island’s 2023 Legislative Session: What Employers and HR Professionals Need to Know

On June 16, 2023, the Rhode Island General Assembly wrapped up its 2023 legislative session. As in previous years, the General Assembly passed several new employment-related bills that expand employee protections and increase compliance burdens on Rhode Island employers. Governor Daniel McKee is expected to sign these bills into law in the coming days.

July Is Coming: Are You (CPRA) Enforcement Ready?

The California Consumer Privacy Act of 2018 (CCPA), as amended by the California Privacy Rights Act (CPRA) (collectively, the CPRA) introduced significant changes to the data privacy landscape, enhancing consumer protections and imposing new obligations on businesses. The CPRA went into effect on January 1, 2023, and will be enforced beginning July 1, 2023.

U.S. Supreme Court Issues Significant Ruling Declining to Address Section 230 of the Communications Decency Act, Thereby Preserving Immunity for Digital Content Platforms

On May 18, 2023, the United States Supreme Court issued a ruling in Gonzalez v. Google LLC (No. 21-1333), a Ninth Circuit case that the technology industry has followed closely, due to its potential implications for the immunity provided by Section 230 of the Communications Decency Act, 47 U.S.C. § 230, for platforms that host digital content provided by its users. Since its passage in 1996, Section 230 consistently has shielded platforms from liability for claims relating to user content on a variety of websites and more recently, applications. In its ruling, the Supreme Court declined to address Section 230, thereby providing a favorable outcome for the technology industry because the immunity provided by Section 230, as applied by courts throughout the country, will remain in place.

Florida Enacts Property Insurance Overhaul for Benefit of Policyholders

On June 1, 2023, Governor Ron DeSantis signed into law CS/SB 7052 (the Act), increasing consumer protection and insurer accountability in Florida. The newly enacted and amended statutes under CS/SB 7052 bolster policyholder protections and impose greater insurer oversight, including heightened penalties for insurer misdeeds in the state under a new law that will take effect on July 1, 2023 (this legal alert does not address all of the statutory revisions associated with the Act). As House Speaker Paul Renner noted, “The insurance legislation signed by Governor DeSantis today . . . not only empowers homeowners, but also cultivates market-driven competition, ultimately leading to lower costs.”

New York Senate Passes Amended Grieving Families Act, Sends Bill to Governor Hochul’s Desk

On Wednesday, June 6, 2023, the New York State Senate passed the Amended Grieving Families Act (A6698). The bill will now be sent to Governor Hochul for signature or veto. It is unclear whether the amended bill will alleviate the governor’s concerns that prompted her to veto the original version in January of this year.

OFAC Sanctions Russian Cybercriminal

On May 16, 2023, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) sanctioned Russian national Mikhail Matveev for his role in launching cyberattacks on U.S. law enforcement, businesses, and critical infrastructure. In addition to his placement on OFAC’s Specially Designated Nationals (SDN) list, District Courts in New Jersey and the District of Columbia have unsealed several indictments against Matveev, and the Department of Justice announced that it is offering a $10 million reward for any information that leads to his arrest or conviction.

May CyberCapsule

Welcome to the inaugural edition of the Lewis Brisbois CyberCapsule. Each month, the CyberCapsule will highlight newsworthy events that occurred during the preceding month.

NLRB's General Counsel Takes Stance Against Non-Compete Agreements

Last week, the National Labor Relations Board’s (NLRB) General Counsel, Jennifer A. Abruzzo, issued a memorandum to all regional directors, officers-in-charge, and resident officers detailing her position that, except in very limited circumstances, most traditional non-competition agreements violate Section 8(a)(1) of the National Labor Relations Act (NLRA).

SEC Announces Expansive Internal Breach, Dismissal of 42 Pending Enforcement Cases

The U.S. Securities and Exchange Commission announced on Friday, June 2, 2023 that an earlier-announced breach (described as a “control deficiency”) between the agency’s enforcement and adjudicatory functions was even more expansive and serious than previously announced. As a result of the internal breach, the agency has dismissed 42 pending enforcement cases, and has agreed to lift industry bans on 48 people whose cases were also involved in the breach.

Amended Grieving Families Act Passed by New York State Assembly

On Thursday, June 1, 2023, the Grieving Families Act (Assembly Bill A6698) was passed by the New York State Assembly. The bill will now be presented to the Senate for a vote and, if passed, will be delivered to Governor Hochul for signature or veto.

EEOC Warns Software Algorithms, Artificial Intelligence May Give Rise to Title VII Exposure

On May 18, 2023, the United States Equal Employment Opportunity Commission (EEOC) released its long-awaited technical assistance document on the use of software, algorithms, and artificial intelligence (AI) in employment selection procedures. The guidance document provides insight for employers and HR professionals to use these emerging technologies in a manner consistent with Title VII. 

United States Continues Expansion of Sanctions Against Russia

On May 19, 2023, the G7 announced the coordination of additional sanctions against Russia and various individuals and entities determined to be aiding sanctions evasion. These latest measures create an additional level of legal risk for companies operating in various industries around the world.

Illinois Legislature Passes Bill Allowing Punitive Damages In Most Wrongful Death Actions

On May 18, 2023, the Illinois legislature passed House Bill 0219, amending the Illinois Wrongful Death Act to allow for the recovery of punitive damages in wrongful death actions. The bill will soon be sent to the Governor’s desk for signature. If signed into law, the statutory change will allow heirs of decedents to recover punitive damages in wrongful death actions.

Florida Governor Bans Foreign Citizens From Buying Land in Florida

Florida Governor Ron DeSantis recently signed a bill prohibiting Chinese citizens who are not U.S. citizens or permanent residents from purchasing any residential or commercial land or farmland in Florida.

Exit Tax and Divestment From Russia

On March 30, 2023, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) updated its FAQ 1118 regarding the payment and implementation of the Russian “exit tax” in connection with the divestment of assets from Russia and with respect to specific licenses required from OFAC for such transactions. Such transactions may potentially require dealings with the Central Bank of the Russian Federation or the Ministry of Finance of the Russian Federation, so closer scrutiny is warranted.

Florida’s New Law Targeting Undocumented Immigrants: Requirements, Restrictions, and Penalties

The State of Florida recently passed new legislation (SB1718) regulating the hiring, transportation, and medical treatment of undocumented immigrants. Specifically, the bill that was signed into law prescribes the actions that employers must take to verify employment eligibility and sets forth reporting requirements for hospitals that treat undocumented immigrants. It also imposes penalties for engaging in various activities involving these individuals.

Former MLB Pitcher Matt Garza Serves Up Reminder for Insurance Agents to Keep Their Eye on the Ball During Application Process

It is well-established that providing complete and accurate information to insurers during the insurance application process is critical. This holds true regardless of the type of insurance an applicant is seeking, or whether an insurance agent is participating in the process. A current case involving former MLB pitcher Matt Garza underscores exactly how important it is for insurance agents to pay close attention when assisting clients.

New York’s Appellate Division Clarifies Rulebook on Defendants’ Video Surveillance Disclosure Obligations

In the matter of Pizzo v. Lustig, decided on May 10, 2023, New York’s Appellate Division, Second Department issued a lengthy decision that addresses when, and under what circumstances, defendants in New York should disclose video surveillance in order to reduce the possibility of such evidence getting precluded at the time of trial.

Congress Dramatically Expands the Rights of Pregnant and Nursing Employees

In its yearly spending bill passed in December 2022, the United States Congress expanded the rights of pregnant and nursing employees. The omnibus spending bill, HR 2617, created the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protection for Nursing Mothers Act (PUMP Act). Employers must be aware of both of these powerful new laws as well as recent guidance issued by enforcement agencies

In Absence of Explicit DHS Guidance, Accepting Electronic Forms of Identification for Form I-9 Purposes Is Unadvisable

The Form I-9 Employment Eligibility Verification process remains a primary component of onboarding new employees. As many states continue to move toward issuing digital or mobile equivalents to hard copy driver’s licenses and identification cards (mDLs), employers across the country are navigating the issue of whether they may accept mDLs as a List B document for Form I-9 purposes.

New Jersey Temporary Service Firms Beware: The Temporary Workers' Bill of Rights Is Here

The misclassification of workers as independent contractors rather than employees has been at the top of the list for legislators, regulators, and plaintiffs’ attorneys in recent years. Relatedly, attention has focused on the protection of temporary workers. New Jersey has now taken a major step designed to provide pay equity by protecting certain temporary workers who may often not receive comparable pay and other benefits.

Amended Grieving Families Act Re-Introduced Into New York State Senate

On Tuesday, May 2, 2023, the Grieving Families Act was re-introduced into the New York State legislature. A press release regarding the re-introduction of the bill claims that this new version responds to New York Governor Kathy Hochul’s concerns by “clarifying the bill’s retroactive effect, limiting the types of damages that can be recovered, reducing the extension of the statute of limitations, and clearly defining who is a close family member eligible to recover.”

NLRB Further Constrains Employers’ Ability to Terminate Problem Employees

On Monday, May 1, 2023, the National Labor Relations Board (NLRB) handed down a controversial decision in the collective cases of Lion Elastomers and United Steelworkers, effectively hamstringing employers from terminating employees who have outbursts of temper at the workplace.

Smoother First Republic Transaction Creates Less Panic – But Same Issues Exist

A little more than a month after the high-profile closure of Silicon Valley Bank (SVB), California bank regulators closed First Republic Bank on Monday, May 1, 2023, marking the second-largest bank failure in U.S. history and launching a hurried bidding process from several banks over the weekend. In the early morning hours of May 1, the Federal Deposit Insurance Corporation (FDIC) was appointed receiver, and it then transferred all of First Republic’s deposits and most of its assets to JPMorgan Chase Bank (Chase).

OFAC Issues Warning on Practices That Could Result in Evasion of Price Cap on Russian Crude Oil

The U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) administers and enforces sanctions. OFAC issued a new advisory on April 17, 2023 warning U.S. citizens and entities (U.S. Parties) of practices that could result in evasion of the price cap on crude oil originating from Russia. OFAC issued the advisory because of several incidents involving oil exported through the Eastern Siberia Pacific Ocean (ESPO) pipeline and ports on Russia’s eastern coast. 

Biden Administration Takes Administrative Action Against Third-Party Facilitators of Sanctions Evasion

The U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) and the State Department continue to take concrete actions to crack down on third-party intermediaries used to evade both U.S. Russia-related sanctions and export controls. (See Lewis Brisbois’ alert from March 7, 2023.)

Florida Enacts Comprehensive Tort Reform, Revamping Framework of Extra-Contractual Bad Faith

On March 24, 2023, Florida Governor Ron DeSantis signed a sweeping tort reform bill, CS/CS/HB 837 (HB 837), into law. Among its numerous implications, HB 837 amends Florida Statute §624.155 (the Civil Remedy Statute), heightening the insured’s burden for recovery of extracontractual, i.e. “bad faith,” damages under Florida law.

U.S. Supreme Court Allows Climate Change Lawsuits to Proceed in State Court

On Monday, April 24, the U.S. Supreme Court refused to hear appeals by several major energy companies that sought to remove lawsuits filed by state and local governments from state court into federal court. The Court’s certiorari denials reject companies’ appeals in five separate cases, which involved claims brought by municipalities in Colorado, Maryland, California, Hawaii, and Rhode Island. 

The Impact of the Russia-Ukraine Conflict on the Insurance Industry, Part Five: A Look at Aircraft Insurers’ UK Mega Trial Over Planes Stuck in Russia

Lewis Brisbois has commented extensively on the impact of the Russia-Ukraine conflict on the insurance industry. Adding to its four-part series on the fallout of the Russia-Ukraine conflict on the insurance industry – including (1): Coverage, Exposure, and Losses; (2) Availability of Insurance; (3) Aircraft Lessors Sue For Damages Related to Aircraft Stuck in Russia; and (4) A Look at the Reinsurance Market and its Impact on Ship Insurance – is a look into a giant, consolidated lawsuit set to be heard in London’s High Court beginning in October 2024. See AerCap Ireland Ltd. v. AIG Europe SA and another, case number CL-2022-000294, the High Court of Justice of England and Wales. The case involves insurers of aircraft leasing companies. The insurers successfully merged several lawsuits filed by aircraft leasing companies arising from their claims for planes stranded in Russia as a result of the conflict and subsequent sanctions.

Eleventh Circuit Ruling on FAAAA Preemption of Freight Broker Tort Claims Sets Up Circuit Split

This week, the Eleventh Circuit Court of Appeals issued a ruling that sets up a split in authority over whether freight broker tort claims are preempted by the Federal Aviation Administration Authorization Act (FAAAA) (40 U.S.C. § 14501(c)(1), and whether those claims are excluded from preemption under the “safety exception” found in 49 U.S.C. § 14501(c)(2)(A). Essentially, the court held that the construction of the statute's exception used specific and intentional language and thus does not accommodate general state law negligence claims, regardless of whether they are safety concerns and within the state's safety regulatory authority.

Florida’s “Groundbreaking” Property Insurance Reform Law

On December 16, 2022, Florida Governor Ron DeSantis signed into law Senate Bill 2-A (S.B. 2-A, or the Act). Widely touted as “groundbreaking,” S.B. 2-A reforms many aspects of the claims process, including the timing for paying and adjusting claims, eliminating one-way attorneys’ fee awards, and banning assignment-of-benefits agreements. This alert provides an overview of the key provisions of S.B. 2-A. Unless otherwise stated in each amended statute, December 16, 2022 appears to be the effective date of the Act.

California Introduces Nation's First Zero-Emission Truck Standard Despite Concerns From Commercial Trucking Industry

California’s Air Resources Board is introducing the nation’s first zero-emission commercial truck standard, which will see the state mandating makers of medium and heavy-duty trucks, such as semi-trailers, big rigs, cement mixers, garbage trucks, delivery vans, and airport shuttles, to sell hybrid or electric heavy-duty trucks. The aim is to increase the supply of such trucks in California in the next two decades. However, this has caused concerns for the commercial trucking industry, including truck manufacturers, suppliers, and vendors, who have highlighted a number of compliance hurdles, such as the lack of charging infrastructure, ongoing supply chain shortages, and pending regulatory changes. 

The Benefits of Using Consent Decrees When Settling ADA Website Accessibility Cases

For several years, Lewis Brisbois’ ADA Compliance & Defense attorneys have used consent decrees when settling New York federal court putative class action lawsuits in which the vision disabled plaintiffs allege that the defendants’ websites and mobile apps are not accessible in violation of the Americans with Disabilities Act (ADA) and, in some cases, state and local laws.

A $10 Million “Advisory Verdict” and the Unpredictable Risks of Going to Trial

Going to trial is always a risky decision, but it can be especially risky in the rural areas of Eastern Kentucky. Last month, a jury from Pikeville, Kentucky returned a $10 million verdict against Pikeville Medical Center for allegedly committing medical malpractice resulting in the death of the plaintiff.

Standstill: New Jersey Courts Continue to Suffer from Dearth of Judges

The lack of trial judges and civil jury trials in New Jersey has spread to all of the Garden State’s vicinages (counties), and there is little end in sight. The effects of this deficiency are being felt by attorneys across the state, including Newark Trial Partners Afsha Noran and Colin Hackett.

Sovereign Immunity in Kentucky: A Two-Pronged Analysis

The principle of sovereign immunity has existed since the inception of common law societies to protect the state from tort liability. In the United States, the government is immune from lawsuits in tort unless it consents. The United States Supreme Court has made clear that sovereign immunity likewise applies to state and local governments.

SVB Deposits & Loans Transferred – Now What?

As the receiver of Silicon Valley Bank (SVB), the Federal Deposit Insurance Corporation (FDIC) is charged with managing SVB’s assets to preserve their value and to dispose of them as quickly as possible, consistent with the objective of maximizing the net return on those assets. Now that the FDIC has announced it has entered into a purchase and assumption transaction for all deposits and loans of the interim Silicon Valley Bridge Bank by First–Citizens Bank & Trust Company, Raleigh, North Carolina (First Citizens), borrowers and depositors will have opportunities to alter their new relationships with First Citizens or seek new financial partners. 

Florida Tort Reform Passes, Plaintiffs' Firms Panic - Lewis Brisbois' Attorneys in Firm's Three Florida Offices Stand Ready for Flood of Lawsuits and Time Limit Demands

On Friday, March 24, Florida Governor Ron Desantis signed HB 837 into law, enacting sweeping tort reform in the Sunshine State. As a result of the impending passage of this law, tens of thousands of cases were filed in Florida courts, as the Plaintiffs’ Bar raced to get cases filed before the law was enacted.

Texas Supreme Court Declines to Waive Sovereign Immunity in Premises Defect Case

The Supreme Court of Texas recently upheld a Thirteenth Court of Appeals’ judgment finding that the plaintiffs in a premises defect case brought against the Texas Department of Transportation (TxDOT) had failed to raise a fact issue regarding the creation of a dangerous condition and, consequently, failed to establish waiver of the defendant’s sovereign immunity. Daniel K. Christ and Nicole D. Salinas v. Tex. DOT, et al., No. 21-0728, 66 Tex. Sup. Ct. J. 306, 2023 Tex. LEXIS 128, at *1 (Feb 10, 2023).

Whether Plants or People – Texas Toxic Tort Causation Clarified

The Supreme Court of Texas recently addressed the proof necessary to show causation in toxic tort cases and clarified that regardless of who or what is affected, the evidence remains the same. In Helena Chemical Company v. Cox, No. 20-0881, 2023 Tex. LEXIS 208, 66 Tex. Sup. J. 389 (Tex. 2023), cotton farmers in Coke, Sterling, and Mitchell Counties brought suit alleging that two planes dusted with the aerial herbicide – Sendero – in July 2015, which spread across their fields and damaged their crops.

Florida Courts Inundated by Wave of New Lawsuits as Sweeping Tort Reform Appears Imminent

Plaintiffs’ attorneys throughout Florida are rushing to file lawsuits in anticipation of sweeping tort reform legislation. It has been reported that some plaintiffs’ firms in the Sunshine State have filed hundreds – and in some cases thousands – of new lawsuits this week ahead of the potential enactment of the bill. It has also been reported that this record number of new suits being filed is causing difficulty and failures in some court computer systems.

Lewis Brisbois Cargo & Logistic Team Successful in Matter That Highlights New Internet Scam Targeting Brokers, Carriers, and Warehouse Operators

According to the Federal Bureau of Investigation’s (FBI) annual Internet Crime Report, released this month, Americans lost $10.3 billion to an array of internet scams during 2022. Although news regarding cyber scams in the financial services, retail, and healthcare industries often make headlines, other industries have seen an increase in fraudulent schemes in recent years. Specifically, a new type of internet-based scam involving phony purchase orders has penetrated the transportation industry. 

New York’s First Dept. Reminds Defense Bar That Dismissal Under Graves Amendment Requires Affidavit from Person with Personal Knowledge or Proper Business Records Affidavit

In Muslar v. Hall, 2023 NY Slip Op 01063 (1st Dep’t 2023), the Appellate Division, First Department, recently reversed the trial court’s award of summary judgment to a rental company under the Graves Amendment because the affidavits provided were “of no probative value.”

REPO Task Force Identifies Sanctions Evasion Schemes, Recommends Countermeasures

The Russian Elites, Proxies, and Oligarchs (REPO) Task Force, which was established to enforce multi-national sanctions against Russia, issued an advisory on March 9, 2023, identifying common measures used to evade the interdiction efforts of the REPO Task Force. Through these new actions, the REPO Task Force has now moved to crack down on sanctions evasion schemes.

Silicon Valley Bank Sale Process Evolving in Unusual Direction

Having failed to quickly find a buyer for the assets and deposits of the newly created Silicon Valley Bank, N.A., Santa Clara, California (SVB), the FDIC has announced that it will expand the bidding process in the hopes of maximizing the value it can obtain from a sale. Now, non-banks will have the unusual opportunity to acquire assets from SVB.

Foreign Investors in U.S. Real Estate Now Subject to Greater Scrutiny

On January 25, 2023, the Financial Crimes Enforcement Network (FinCEN) issued an alert that could significantly impact the acquisition of commercial real estate (CRE) in the U.S. by foreign individuals and entities. The new alert complements ongoing U.S. government efforts to isolate sanctioned Russian elites, oligarchs, and their proxies.

Silicon Valley Bank and Signature Bank Closed: What Should You Do?

Silicon Valley Bank (SVB), based in Santa Clara, California ($209 billion in assets), and Signature Bank (Signature), based in New York, New York ($110 billion in assets), were closed over the weekend and the FDIC was appointed receiver of both banks. The senior management of both banks has been removed, which is standard procedure. SVB and Signature debt will be sold by the FDIC to other banks in the upcoming weeks.

Connecticut Supreme Court Holds Opinion Letter Requirement Does Not Implicate Personal Jurisdiction

The Supreme Court of Connecticut recently determined that the opinion letter requirement under Connecticut General Statutes § 52-190(a) – the accidental failure of suit statute – did not implicate a court’s personal jurisdiction. In so holding, Connecticut’s highest court not only reversed the dismissal of the dental malpractice action before it, but also overruled other prior Connecticut decisions.

Biden Administration Continues Use of Export Control Reform Act to Seek Forfeiture of Russian Foreign-Based Assets

The United States Department of Justice (DOJ) continues its efforts to seize and forfeit high-profile foreign-based assets owned by Russian companies and individuals in response to Russia’s actions in the Ukraine conflict.

Rule 10b5-1 Plans in the Hot Seat, Subject To Close Scrutiny By SEC, DOJ

Federal regulators are increasingly scrutinizing inside trading (Rule 10b5-1) plans, which allow corporate insiders to trade securities under a forward looking written plan adopted when they are not aware of material nonpublic information. See SEC Commissioner Allison Herren Lee, Stock Trading Plans Should Prevent – Not Enable – Insider Trading: Statement on Proposed Amendments to Rule 10b5-1 (Dec. 15, 2021).

Iowa Legislature Proposes Caps on Commercial Motor Vehicle Liability, Damages

The Iowa House and Senate have recently proposed companion bills that would limit employer liability in civil actions involving commercial motor vehicles. The proposed bills would place a $2 million damages cap on noneconomic damages for each plaintiff in any personal injury or wrongful death action against the owner or operator of a commercial motor vehicle, regardless of the number of claims, theories of recovery, or defendants in the civil action.

NLRB Imposes New Limits on Confidentiality, Non-Disparagement Provisions in Severance Agreements: What Employers Need to Know

On February 21, 2023, the National Labor Relations Board (NLRB, or the Board) issued a sweeping ruling with profound implications for employers. In the McLaren Macomb case, the Board overruled several of its own Trump-era decisions that held that employers may include broad confidentiality and non-disparagement provisions in their severance agreements.

U.S. Government Goes All In on Enforcing U.S. Sanctions, Export Control Laws

The U.S. government recently released the first-ever joint compliance note from the U.S. Departments of Commerce, Treasury, and Justice concerning “cracking down” on third-party intermediaries used to evade both U.S. Russia-related sanctions and expert controls (the Note). Top officials at the U.S. Department of Justice (DOJ) have already stated that compliance with U.S. sanctions and export control laws and regulations is the “New FCPA [Foreign Corrupt Practices Act]” and the Note cements this rhetoric.

DOJ Announces Game-Changing Clawback Program

The United States Department of Justice (DOJ) just announced its first-ever Pilot Program on Compensation Incentives and Clawbacks. This game-changing initiative – which will be in force for three years – will send significant ripples through executive compensation and government corporate resolution programs. Navigating this new program will require deft counsel who understand this new intersection between employment law and corporate compliance programs.

New Jersey Legislature Proposes New Law, Regulations for Long-Term Care Facilities, Part Two: Guardianship Rules & the Medicaid Application Process

On February 13, 2023, two New Jersey State senators introduced a bill that, if passed, will affect long-term care facilities throughout the Garden State. The proposed legislation will supplement Titles 26 (the Health Care Facilities Planning Act) and 46 (of which Chapter 2B contains the Revised Durable Power of Attorney Act) of the Revised Statutes. A companion bill was introduced on February 16 in the General Assembly. Part One of this alert discussed the proposed legislation’s impact on long-term care resident admission agreements and arbitration agreements. This part covers the proposed changes to guardianship rules and the Medicaid application process.

U.S. Ramps Up Russia-Related Sanctions on One-Year Anniversary of Conflict

On February 24, 2023, the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) listed additional entities and individuals either operating in several key sectors of the Russian economy or suspected of aiding the unlawful evasion of U.S. sanctions. In addition, the U.S. government expanded the areas of the Russian economy subject to sanctions by adding the metals and mining sector of the Russian Federation.

New Jersey Legislature Proposes New Law, Regulations for Long-Term Care Facilities, Part One: Resident Admission Agreements and Arbitration Agreements

On February 13, 2023, two New Jersey State senators introduced a bill that, if passed, will affect long-term care facilities throughout the Garden State. The proposed legislation will supplement Titles 26 (the Health Care Facilities Planning Act) and 46 (of which Chapter 2B contains the Revised Durable Power of Attorney Act) of the Revised Statutes. A companion bill was introduced on February 16, 2023, in the General Assembly. Part One of this two-part alert discusses the proposed legislation’s impact on long-term care resident admission agreements and arbitration agreements. Part Two will cover proposed changes to guardianship rules and the Medicaid application process.

Kentucky Supreme Court Reinforces Standard for Premises Owner Liability for Third-Party Criminal Acts

In Walmart, Inc., et al. v. Leigh Ann Reeves (Case No. 2021-SC-0288-DG), the Kentucky Supreme Court recently addressed a case involving third-party criminal acts and premises liability.

Illinois Act Set to Require Paid Employee Leave Effective January 1, 2024

Illinois Governor J.B. Pritzker is expected to sign the Illinois Paid Leave for All Workers Act (the Act) into law soon, granting most employees the right to earn 40 hours of paid leave annually beginning January 1, 2024. On January 10, 2023, the Illinois legislature passed the Act, joining Nevada and Maine in requiring paid employee leave for any reason upon either oral or written request.

Illinois Supreme Court Affirms BIPA Claims Accrue with Each Separate Violation, Opening Door to Astronomical Damages

Today, in a 4-3 decision, the Illinois Supreme Court handed down the most significant opinion interpreting the Illinois Biometric Information Privacy Act (BIPA) since Rosenbach v. Six Flags, holding in Cothron v. White Castle Systems, Inc. that a separate claim accrues under Section 15(b) and 15(d) of BIPA each and every time a private entity collects or discloses a biometric identifier or information.

Congress Permits Proceeds from Sale of Russian Oligarchs’ Forfeited Assets to Be Sent as Aid to Ukraine

In a continuation of effort to increase the bite of U.S. sanctions, on December 29, 2022, President Biden signed the Consolidated Appropriations Act of 2023, Pub. L. 117–328 (H.R. 2617), into law (CAA). This Act provides the Attorney General with authority to send the proceeds from certain forfeited asset sales of sanctioned Russian oligarchs and other entities supporting Russia’s invasion of Ukraine to the Ukrainian people.

New California Law Limits Levying of Detention & Demurrage Charges

California Governor Gavin Newsom recently signed Assembly Bill 2406 (AB 2406) into law. The bill, which became effective January 1, 2023, increases regulatory scrutiny of certain maritime practices relating to detention and demurrage (D&D) charges.

OFAC Issues Updates to Russian Harmful Foreign Activities Sanctions Regulations

In recent weeks, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) has issued updates to several Russia-related general licenses and FAQs pertaining to the Russian Harmful Foreign Activities Sanctions Regulations at 31 C.F.R. part 587. It is important that companies stay informed of the latest developments in Russia-related regulations as these updates, detailed below, could have significant impacts on their businesses.

2022 Pennsylvania Labor & Employment Year End Review

2022 was an unexpectedly busy year in the employment law arena for Pennsylvania. Below, we recap the key new developments that employers should be mindful of to ensure legal compliance in 2023.

New Jersey Supreme Court Issues Statement Addressing Judicial Vacancies, Backlogs

New Jersey Supreme Court Chief Justice Stuart Rabner recently issued a statement indicating that due to “the current high number of judicial vacancies, trials in the Civil Division and matrimonial trials will not be conducted in [Vicinage 13 or Vicinage 15], beginning Feb. 21, 2023, except for very limited circumstances.”

2022 Iowa Labor & Employment Year End Review

This alert reviews key developments in Iowa labor and employment law from the prior year, as well as how these developments will impact employees and employers in 2023.

Illinois Legislature Reintroduces Bill Allowing Punitive Damages in Wrongful Death Actions

On January 12, 2023, Illinois House of Representatives member La Shawn K. Ford introduced House Bill 35, amending the Illinois Wrongful Death Act to allow for the recovery of punitive damages in wrongful death actions. If signed into law, the statutory change will allow heirs of decedents to recover punitive damages in wrongful death actions.

2022 Texas Labor & Employment Year End Review

The Texas legislature operates under a biennial system and holds regular sessions every other year, in odd-numbered years. As the Texas legislature was out of session in 2022, this year-end review focuses on selected case law developments impacting employers in the Lone Star State.

Illinois Supreme Court Rules Five-Year Statute of Limitations Applies to All BIPA Claims

On February 2, 2023, the Illinois Supreme Court issued its long awaited opinion in Tims v. Black Horse Carriers, ruling that the five-year, catchall statute of limitations period applies uniformly to claims brought under all provisions of the Illinois Biometric Information Privacy Act (BIPA). 

2022 California Labor & Employment Year End Review

The California legislature had another busy year passing employment regulations ranging from protecting employee leaves of absence to extending statutes of limitations. Judicial decisions also played a major role in shaping the employment world moving into 2023. This alert provides summaries of the most significant employment-related laws passed or altered in 2022 and caselaw updates that will impact employers and employees in the Golden State going forward.

2022 Maryland & Washington, D.C. Labor & Employment Year End Review

2022 brought about several changes in labor and employment law that will have ramifications for employers across the State of Maryland. Next door in the nation’s capital, there were also several notable employment and labor regulatory amendments. This alert contains a summary of these significant changes.

New York Governor Vetoes Grieving Families Act

Following up on our previous updates regarding the pending New York legislation known as the Grieving Families Act, just before the deadline on January 30, 2023, Governor Hochul vetoed the piece of legislation.

2022 New Jersey Labor & Employment Year End Review

This alert discusses the major developments in New Jersey labor and employment law in 2022, including new legislation and key appellate decisions that will impact employers and employees in the Garden State.

2022 Connecticut Labor & Employment Year End Review

2022 brought new developments to Connecticut’s labor and employment law. For the first time, Connecticut employees had the option of applying for paid medical leave through the state. Restrictions on certain employers’ ability to discipline employees for off-duty use of cannabis also went into effect. Protections for employees who opt-out of listening to political or religious speech in the workplace were also implemented.

2022 Nebraska & Oklahoma Labor & Employment Law Year End Review

There were a number of changes to the labor and employment laws of Nebraska and Oklahoma in 2022. In the Cornhusker State, these changes were initiated through ballot initiatives, legislation passed by the Nebraska unicameral, and case law decided by the Nebraska Supreme Court. Similarly, in the Sooner State, several new pieces of legislation were enacted that will impact both public and private employers.

2022 Kansas Labor & Employment Year End Review

The 2022 legislative session for the State of Kansas began in January 2022. The legislators were back in the Capitol for the first time since the COVID-19 pandemic and ready to work. This alert provides a summation of pertinent labor and employment related bills of last year that were enacted into law.

2022 West Virginia Labor & Employment Year End Review

There were several important changes to labor and employment law in West Virginia in 2022. This alert reviews the key legislative and judicial developments that will impact employers in the Mountain State.

Refresher/Primer: The Scope, Purpose, and Enforcement Mechanisms of Florida’s Public Records Act

Florida's Public Records Act (the Act) (Fla. Stat., §119.01 et seq) is a vital piece of legislation that ensures the public has free access to records held by the State and its agencies.

New York Appellate Division Makes New Law by Granting Summary Judgment to Defendant on Comparative Fault

In a first-of-its-kind ruling, New York’s Appellate Division, First Department has granted summary judgment in favor of a defendant on the issue of a plaintiff’s comparative negligence.

The Impact of the Russia-Ukraine Conflict on the Insurance Industry, Part Four: A Look at the Reinsurance Market and Its Impact on Ship Insurance

For the first time since February 2022, reinsurers have an opportunity to scale back exposure to losses as a result of the Russia-Ukraine conflict. Effective January 1, 2023, many reinsurers have canceled or curtailed policies for war-related claims regarding losses to ships, planes, and cargo shipments.

2022 Minnesota Labor & Employment Year End Review

The 2022 Minnesota legislative session was fairly quiet on the labor and employment front. However, there was expansion of rights and wages for employees that went into effect in 2022 and will continue to 2023. This alert contains a summary of some of the notable changes in Minnesota that employers should keep in mind.

2022 Massachusetts Labor & Employment Year End Review

In 2022, there were several new developments in Massachusetts labor and employment law. These included new legislation prohibiting discrimination based on natural hair styles or textures historically associated with race, changes to minimum wage and Sunday/holiday premium pay requirements, updates to paid family and medical leave benefit rates, and noteworthy case law developments.

OFAC Issues Preliminary Guidance on Price Cap for Russian-Origin Petroleum Products

On December 30, 2022, Department of the Treasury’s Office of Foreign Assets Control (OFAC) issued preliminary guidance on the implementation of a price cap exception to the ban on maritime transportation of Russian-origin petroleum products.

2022 Michigan and Indiana Labor & Employment Year End Review

2022 was an exciting year for labor and employment law in the state of Michigan. The minimum wage was increased, but a key court ruling cleared the way for possible significant further expansion of the state’s minimum wage and sick leave laws. Conversely, it was a quiet year for Michigan’s neighbor, Indiana, when it came to developments in labor and employment law.

Update: Recent Developments Regarding Los Angeles’ Minimum Wage Ordinance

Private healthcare employers in California successfully challenged the Los Angeles minimum wage ordinance as part of the “No on Los Angeles Unequal Pay Measure” campaign.

2022 North Carolina Labor & Employment Year End Review

This alert contains a summary of the major labor and employment law updates in North Carolina from the previous year, including the state’s Wage and Hour Act, its Occupational Safety and Health Act, and two key state Supreme Court decisions involving attorney-client privilege during workplace investigations and the limits of employee handbooks.

2022 Missouri Labor & Employment Year End Review

This alert discusses the major developments in Missouri labor and employment law from the previous year, including minimum wage changes and a constitutional amendment regarding legalized marijuana. We also discuss a bill working its way through the Missouri legislature that would amend the state’s Human Rights Act.

2022 Illinois Labor & Employment Year End Review

2022 was another busy year for labor and employment law in the state of Illinois, with multiple significant developments. These developments include a wide range of topics, from payroll to non-compete agreements to human rights, and are summarized in this alert.

2022 Oregon Labor & Employment Year End Review

Oregon saw a handful of new employment laws enacted this past year that employers should take note of. Additionally, the much-anticipated Oregon Paid Family Leave Act went into effect on January 1, 2023. Further, two recent Oregon cases interpreting state statutes related to employment discrimination claims and Oregon’s wage statutes will help define the new year for employers.

New York Governor Considers Amendments to State’s Proposed “Grieving Families Act”

Following up on our recent updates regarding the pending New York legislation known as the Grieving Families Act, it has been reported that an amended version of the bill was delivered to Governor Hochul last week.

2022 New York Labor & Employment Law Year End Review

As seems to be the case every year, 2022 was a busy year in the employment law arena for New York State and City. In this alert, we recap the key new developments that employers should be mindful of in order to move forward with a compliant 2023.

2022 Florida Labor & Employment Law Year End Review

The following are summaries of changes in Florida labor & employment law that occurred in 2022.

New York Team Expands “Forman Doctrine” with Favorable Rulings on Plaintiffs’ Social Media, Private Journals

Lewis Brisbois’ New York team recently secured a dismissal and an adverse-inference charge in two cases that demonstrate the continued importance of obtaining discovery regarding social media and plaintiffs’ private journals, respectively. In King v. Shabab and Clarke v. Povella, New York Partners David L. Rosenthal, Nicholas P. Hurzeler and Jennifer R. Harris, with Associates Briana O’Connor and Dean Pillarella, argued that a straightforward application of the principles set forth in the New York Court of Appeals’ decision in Forman v. Henkin, 30 N.Y.3d 656, 666 (2018) warranted discovery sanctions.

New York Bar Braces for Governor Hochul’s Potential Signature on the “Grieving Families Act”

For months, the New York legal and business communities have been following the progress of Bill S74A, also known as the “Grieving Families Act,” which was passed by the New York legislature in June 2022. Now that Governor Hochul has been reelected, we anticipate she may sign the bill into law within days or weeks.

Crude D'Etat - OFAC Implements Policy & Guidance Relative to Price Caps on Crude Oil Originating from Russian Federation

On November 21, 2022, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) issued a determination (the Crude Oil Determination) pursuant to sections 1(a)(ii), 1(b), and 5 of Executive Order 14071 of April 6, 2022 (E.O. 14071, “Prohibiting New Investment in and Certain Services to the Russian Federation in Response to Continued Russian Federation Aggression”), that certain “Covered Services” are subject to the prohibitions of E.O. 14071.

OFAC Issues General Licenses, Providing Narrow Exceptions to Sanctions

In recent weeks, U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) has issued several general licenses that provide limited exceptions to certain activities that have been prohibited under various Executive Orders (E.O.s).

U.S. Department of Commerce Places Restrictions on Exports of Chip-Making Materials to China

The White House recently announced that President Biden will meet with Chinese President Xi Jinping on Monday, November 14, 2022, in Bali, Indonesia, on the sidelines of the G20 Summit. Although the White House did not announce a specific agenda for the meeting, the battle over the future of microchip manufacturing will certainly hang over this first face-to-face meeting between Presidents Biden and Xi Jinping.

The Impact of the Russia-Ukraine Conflict on the Insurance Industry, Part Three: Aircraft Lessors Sue for Damages Related to Aircrafts Stuck in Russia

On October 31, Carlyle Aviation Partners LLC and Carlyle Aviation Partners Ltd. filed a complaint against a group of insurance companies and re-insurers in Florida state court alleging that the insurers failed to pay out for losses stemming from the seizure of their airplanes in Russia, following the start of the conflict in Ukraine. While the case is in its infancy, it is anticipated that a key issue will turn on the interpretation of the policy language and likely on whether this situation is subject to any exclusions.

U.S. Department of Treasury Designates Virtual Currency Mixer Tornado Cash

Virtual currency mixers blend different streams of cryptocurrency to provide privacy about the source of funds that are being transferred through the financial system. While not illegal, currency mixers are widely viewed as a mechanism used to facilitate money laundering. The U.S. Department of the Treasury is cracking down on these virtual currency mixers.

The Emerging Indirect Expropriation Strategy under Russian Sanctions, Tax, and Bankruptcy Laws

On Friday, October 7, 2022, the Russian government moved forward by presidential decree to disenfranchise the owners of the Sakhalin-1 energy project, including the foreign nationals of several countries that the Russian government designated as “unfriendly countries.” Russia has applied the “unfriendly country” designation to any country, including the United States, that has joined in international sanctions against Russia.

OSHA Announces Expansion of “Severe Violator Enforcement Program”

Employers beware! The Occupational Safety and Health Administration (OSHA) is significantly expanding its “Severe Violator Enforcement Program” (SVEP). Employers that are placed into the program by OSHA will be significantly scrutinized, with the potential for very damaging information about their failure to maintain a safe workplace being made public for customers, partners, and vendors to see.

U.S. Sanctions Pressure Continues to Intensify on Multiple Fronts

In recent weeks, the U.S. government has taken actions on multiple fronts to step up sanctions pressure against Russia. These new developments affect many types of business dealings, and U.S. companies should be alert to their ever-increasing need for vigilance to avoid potential legal vulnerability and adverse consequences to their reputation and bottom line.

Federal Prosecutors Ramp Up Sanctions Violation Prosecutions

On Wednesday, October 19, 2022, two U.S. Attorney’s Offices, the Eastern District of New York (EDNY) and the District of Connecticut – with the support of the U.S. Department of Justice’s Task Force KleptoCapture – charged nearly a dozen individuals and two Europe-based corporate entities with multiple violations of U.S. laws, including exporting civil-military, dual-use technology to Russia in violation of U.S. sanctions laws. U.S. individuals and corporations should take note of this increased enforcement focus on sanctions violations.

New York’s Fourth Dept. Holds Repeal of EDTPA is Prospective, Not Retroactive, Potentially Impacting Future COVID-19 Nursing Home Litigation

On October 7, 2022, the Appellate Division, Fourth Judicial Department concluded that the statute repealing New York’s Emergency or Disaster Treatment Protection Act (the EDTPA) is to be given prospective application and not retroactive application, as has been hotly contested by plaintiffs’ firms in the midst of a recent glut of nursing home litigation cases.

Third Circuit Decides Key Question on Anti-Retaliation Provision of FLSA

On September 14, 2022, a panel of the U.S. Court of Appeals for the Third Circuit decided an important question under the Fair Labor Standards Act (FLSA) in Uronis v. Cabot Oil & Gas Corp., __ F.4th __, 2022 U.S. App. LEXIS 25727. In this case, the plaintiff asserted that his job application to a prospective employer was denied because the employer anticipated that he would soon be filing an opt-in notice to join a collective action filed against the employer under the FLSA.

Deadline for Hurricane Ian Disaster Recovery Applications Announced

On Friday, October 7, 2022, the Florida Division of Emergency Management (FDEM) announced that applications for the Federal Emergency Management Agency’s (FEMA) Public Assistance Grant Program are due by October 29, 2022. FEMA provides disaster recovery assistance, but the process for recovering costs is complicated, and FEMA has broad discretion to determine whether applicants and their expenses are eligible.

Oregon to Ring in the New Year with Paid Leave Program

Paid leave is finally coming to Oregon. In 2019, Oregon Governor Kate Brown signed HB 2005, which laid the groundwork for the establishment of a paid family and medical leave insurance (PFMLI) program for Oregon employees. Paid Leave Oregon, the implementing program, becomes effective January 1, 2023, and will provide employees with paid leave for qualifying purposes as of September 3, 2023.

Assisting Russian Nationals with U.S.-Based Forfeiture Proceedings Against Foreign-Based Assets Likely Requires FARA Registration

In response to Russia’s action in the Ukraine conflict, the United States Department of Justice has initiated civil asset forfeiture proceedings with respect to several high-profile assets, including Suleiman Kerimov’s $300-million yacht (see our June 17 alert, “Administration Steps Up Forfeiture Activities Against Foreign-Based Assets of Russian Oligarchs”) – and Roman Abramovich’s Boeing 787–8 and Gulfstream G650ER airplanes (see our August 5 alert, “Biden Administration Uses Export Control Reform Act to Seek Forfeiture of Russian Oligarchs’ Foreign-Based Assets”).

The Impact of the Russia-Ukraine Conflict on the Insurance Industry, Part Two: Availability of Insurance

In part one of this three-part series, we focused on the losses and coverage issues that arose in the insurance industry as a result of the Russia-Ukraine conflict. In part two, we focus on a key developing issue for the insurance industry: the availability of insurance to Russian corporations and/or companies doing business with or in Russia.

Texas Supreme Court Refuses to Impose Liability on Good Samaritan Business Owner

In Three Aces Towing, Inc. d/b/a Three Aces Storage, Cause No. 21-0652, ___SW3d ___, (Tex. 2022), the Texas Supreme Court reversed a decision from the state’s Fourteenth Court of Appeals to impose liability on a business owner who assisted in the offloading of a portable storage unit, finding that the owner’s duty of care ended prior to the accident.

New Law Expected to Significantly Increase Filings of Federal Civil Suits Arising Out of Childhood Sexual Abuse

On September 16, 2022, President Biden signed into law the Eliminating Limits to Justice for Child Sex Abuse Victims Act (the Act), Public Law No. 117-176, which amended 18 U.S. Code sec. 2255 and eliminated any statute of limitations for federal civil claims related to sex abuse crimes against minors, including forced labor, sex trafficking, sexual abuse and sexual exploitation of children. 

New Jersey Supreme Court Clarifies Independent Contractor Classification

The New Jersey Supreme Court’s recent decision in East Bay Drywall, LLC v. Department of Labor and Workforce Development, Docket No. A-7-21 (August 2, 2022), provides guidance as to the perils that may arise when businesses misclassify workers as independent contractors rather than employees. Under the state’s Unemployment Compensation Law (UCL), the “ABC Test” is used to determine whether certain workers are properly classified as employees or independent contractors. See N.J.S.A. 43:21-19(i)(6)(A)-(C). The court’s new decision is significant because it held that a contractors’ establishment of a separate corporate structure through which to render services may not suffice to establish independent contractor status under the ABC Test.

California Legislature Set to Revive Lapsed Sexual Assault Claims with Passage of Sexual Abuse and Cover Up Accountability Act

With the passage of Assembly Bill 2777 (AB 2777), also known as the Sexual Abuse and Cover Up Accountability Act, by its State Senate on August 25, 2022, California is one step closer to reviving sexual assault claims for which the statute of limitations has expired. 

White House Announces Strategy on Incorporating Nature-Based Accounting in Benefit-Cost Analyses

The White House Office of Management and Budget (OMB) is seeking input on the development of government-wide natural capital accounts and standardized environmental-economic statistics. The Administration intends for these new metrics to be used in benefit-cost analyses associated with agency actions and to measure risks in the environmental, social, and governance (ESG), and lending contexts.

New Jersey Court Finds Minority Tolling Provision in Med Mal Cases Not Applicable to Suit Brought on Behalf of Minor Decedent

On July 14, 2022, the Superior Court of New Jersey, Appellate Division, issued an opinion in Monk v. Kennedy University Hospital, Inc. that considered whether the New Jersey legislature intended to apply the minority tolling provision in N.J.S.A. 2A:14-2(a) to the state’s Wrongful Death Act.

The Impact of the Russia-Ukraine Conflict on the Insurance Industry, Part One: Coverage, Exposure, and Losses

The Russia-Ukraine conflict has far-reaching implications for the insurance industry and for insurers and insureds alike. Many corporate policy holders around the world have withdrawn or scaled back operations with Russia and/or Russian-based corporations.

DOJ Expands Reach By Prosecuting Kickbacks Involving Private Insurance Payors

Healthcare companies may need to be mindful that the federal government has started investigating and prosecuting referral-based arrangements for private insurance claims under the Travel Act and the Eliminating Kickbacks in Recovery Act.

Biden Administration Uses Export Control Reform Act to Seek Forfeiture of Russian Oligarchs’ Foreign-Based Assets

In March 2022, in response to Russia’s actions in the Ukraine conflict, the Biden Administration along with the governments of Austria, Canada, Germany, France, Italy, Japan, the United Kingdom, and the European Commission created the Russian Elites, Proxies, and Oligarchs (REPO) task force. The REPO task force – consisting of the justice and finance ministers in each member nation – have seized or begun forfeiture proceedings with respect to more than $30 billion worth of assets.

West Virginia Federal Court Determines Comparative Fault Theory Applies to Deliberate Intent Actions Under State Law

A federal judge in the U.S. District Court for the Northern District of West Virginia has dramatically changed the landscape for employers to litigate against personal injury and wrongful death claims by employees. In a recent matter, the plaintiff brought a deliberate intent action under West Virginia Code § 23-4-2 against his employers for injuries that he allegedly suffered while working as a coal miner. He contended that the injuries were caused by unsafe workplace and dangerous mining activities.

OFAC Issues General Licenses Enabling Certain Russian Debt Settlement

On July 22, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) issued two new Russia-related General Licenses (GLs) authorizing certain financial transactions that are otherwise prohibited under U.S. sanctions laws and regulations. These general licenses grant U.S. persons and financial institutions greater latitude in settling Russian foreign sovereign debt through the wind down of agreements and participation in a credit default swap auction, respectively. The new measures follow Russia’s alleged default on a sovereign bond in June 2022 (caused by payment in rubles rather than U.S. dollars) and will help U.S. investors wind down their financial commitments and settle certain credit default swaps.

California Court of Appeal Clarifies Meaning of “Provide” in Context of Suitable Seating

On July 19, 2022, the California Court of Appeal issued an opinion in Meda v. AutoZoners, Inc. that further defined an employer’s obligation to “provide” its employees with suitable seating pursuant to the Industrial Welfare Commissions’ Wage Orders. The Court of Appeal reversed the trial court’s granting of summary judgment, holding that where an employer has not expressly advised its employees of the availability of seating, and where the employer has not provided a seat at a workstation, the question of whether an employer has provided suitable seating is fact-intensive and not subject to summary judgment.

U.S. Issues Clarifications on Sanctions and Additional Measures to Facilitate Global Food Security

Reacting to concerns that U.S. sanctions could be viewed as impeding exports or global transactions related to urgently needed food, fertilizer, agricultural equipment, or medical supplies, on July 14, 2022, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) issued a fact sheet clarifying that “agricultural and medical trade are not targets” of U.S. sanctions.

The Slow Erosion of Labor Law § 240(1) Ladder Cases: NY Court of Appeals’ Focus on Sole Proximate Cause

On April 28, 2022, the New York Court of Appeals issued three significant decisions that chip away at the formerly impenetrable ladder cases that arise under New York Labor Law § 240(1). Less than a week later, Lewis Brisbois, relying on one of these decisions, successfully defeated a plaintiff’s motion for summary judgment on a Labor Law § 240(1) claim in Bronx County.

City of Los Angeles Raises Minimum Wage for Employees of Some Private Healthcare Facilities to $25.00 Per Hour

On July 8, 2022, Los Angeles Mayor Eric Garcetti signed an ordinance approving a raise to the minimum wage for employees of “covered healthcare facilities” in the City of Los Angeles to $25.00 per hour. The ordinance will go into effect on August 7, 2022 and provides for further annual increases to the minimum wage, beginning on January 1, 2024.

City of Los Angeles Expands Protections and Wages for Hotel Workers

The City of Los Angeles formally adopted the Hotel Workers Ordinance on July 8, 2022. The key changes of this ordinance include an increase in minimum wage for all workers employed at large hotels, restrictions on the amount of square footage housekeeping employees can clean per shift, and additional protections for housekeeping employees.

New Minimum Wage Increases Affect California Employers

On July 1, 2022, the California minimum wage increased in 13 California cities and in the counties of Los Angeles and San Francisco. The cities of Alameda, Belmont, Berkeley, Emeryville, Foster City, Fremont, Los Angeles, Malibu, Milpitas, Pasadena, San Francisco, Santa Monica, Malibu, and West Hollywood are all subject to minimum wage increases and employers should adjust accordingly in order to remain in compliance:

U.S. Commits to Decrease Russian Imports and Increase Tariffs

On June 27, 2022, following the G7 annual summit in Madrid, Spain, President Biden issued a statement affirming the United States commitment to levy tariffs on imports from Russia, impose sanctions on entities aiding Russia, and restrict Russian access to industrial inputs services and technologies. These measures will impact a substantial number of U.S. industrial sectors and businesses, and create additional considerations for U.S. companies navigating a complex maze of potential legal risks.

FinCEN/BIS Joint Alert Urges Vigilance on Export Sanction Evaders

On June 28, 2022, the U.S. Treasury’s Financial Crimes Enforcement Network (FinCEN) and the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) issued a joint alert advising financial institutions to be aware of individuals or entities attempting to circumvent U.S. export controls related to the ongoing conflict between Russia and Ukraine.

U.S. Supreme Court Denies Certiorari and California Trucking Industry Prepares for AB5

On June 30, 2022 – the final day of the October 2021 term – the U.S. Supreme Court declined to review whether California’s worker classification law runs afoul of the Federal Aviation Administration Authorization Act of 1994 as applied to truck drivers. This blow to 70,000+ independent contractors in California will reverberate across the national supply chain and interstate commerce.

Smaller Employers in Miami-Dade County: Get Ready for More Litigation

The Florida Third District Court of Appeal unanimously expanded the rights of private employees to sue for workplace discrimination under a local Miami-Dade County ordinance. In White v. AutoZone Investment Corp., No. 3D21-598 (Fla. 3d DCA June 15, 2022), the Third District held that the “plain and unambiguous language” of section 11A-28(10) of the Miami-Dade County Code establishes a private cause of action for employees who file employment discrimination complaints under the ordinance.

U.S. Supreme Court Permits Individual Arbitration of California PAGA Claims

The United States Supreme Court held in Viking River Cruises, Inc. v. Moriana that individual claims under California’s Private Attorneys General Act (PAGA) may be divided from the PAGA action and forced into arbitration, which then causes the individual plaintiff to lose standing to act as a group-wide PAGA representative. This holding opens a path for employers around the holding in Iskanian v. CLS Transp. Los Angeles, LLC, which precluded the division of PAGA actions into individual and representative claims through an agreement to arbitrate.

Introducing Lewis Brisbois' State-by-State Transportation Claims "Cheat Sheets"

The patchwork of state laws that impact transportation-related claims can create substantial headaches for companies that operate across state lines. To assist businesses in navigating this complexity, Lewis Brisbois' National Transportation Practice attorneys have developed "cheat sheets" for most of the United States, with more coming soon.

California Amends CCP 377.34 Permitting Recovery of Damages for Pain, Suffering, or Disfigurement in Survival Actions

On October 1, 2021, Governor Gavin Newsom signed into law AB 447, which amends California Code of Civil Procedure Section 377.34. This new law allows recovery of damages for pain, suffering, or disfigurement by a decedent’s personal representative or successor in interest, by way of a survival action, following the death of the decedent.

Georgia’s Continuing Battle Over Respondeat Superior and Apportionment Claims

Respondeat superior claims in Georgia continue to be a hot button topic. Several key legal updates occurred, which swung the needle in both directions, affecting both liberal and conservative applications of the claim.

New York Wrongful Death Legislation Awaits Governor’s Signature or Veto

The New York legal community is closely following the status of Bill S74A, also known as the Grieving Families Act. As discussed in our previous update, if signed into law, the Act would greatly increase the recoverable damages in wrongful death actions and, as written, would have retroactive effect on all pending lawsuits in the state.

Administration Steps Up Forfeiture Activities Against Foreign-Based Assets of Russian Oligarchs

In March 2022, in response to the Russia Federation's actions in the Ukraine conflict, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) issued sanctions targeting Russian “elites and business executives who are associates and facilitators of the Russian regime." This alert details the reach of existing authority exemplified by the seizure of the motor yacht Amadea. The Amadea is a 348-foot yacht worth $300 million owned by sanctioned Russian oligarch Suleiman Kerimov.

SEC Proposes New ESG Disclosure Requirements

On June 17, 2022, the U.S. Securities and Exchange Commission (SEC) published two proposed rules targeted at environmental, social, and governance (ESG) investment disclosures. The proposed rules would require certain investment advisers and companies to provide specific disclosures regarding their ESG investment practices and, where applicable, information substantiating their use of ESG-related names.

U.S. Army Corps Announces Regulatory Program “Modernization” Plan

The U.S. Army Corps of Engineers and the Department of the Army recently announced plans to amend the Corps Civil Works program to better serve Indian nations and other disadvantaged and underserved communities.

Florida Supreme Court Decision Limits Special Damages Presented to Juries

Verdicts in personal injury cases are greatly impacted by the amount of medical expenses a plaintiff can present to juries. In Florida, collateral sources of compensation, such as insurance payments, are generally not disclosed to juries. However, caselaw also typically does not allow plaintiffs to recover the gross amount of medical bills, but instead the amount after insurance adjustments.

U.S. Continues to Turn Up the Heat on Russia Sanctions

Continuing to tighten economic pressure on Russia, on June 2, 2022, the White House announced the imposition of new sanctions against leading Russian government officials and business leaders. Businesses and individuals involved in transactions with or affecting Russian entities face a heightened level of risk in these matters and should take extra care both to ensure compliance and to structure dealings with these complicated factors in mind.

Labor Law § 240(1) Summary Judgment Motions in the Appellate Division in 2021

Despite the uncertainty amidst the COVID-19 pandemic, New York’s Appellate Division still decided a number of Labor Law appeals in 2021. Of particular interest were the 118 cases in which the Appellate Division decided appeals regarding Labor Law § 240(1), most of which were in the First and Second Departments. This article compiles statistics about those decisions, including the number of cases decided in plaintiffs’ favor, in defendants’ favor, and the cases in which the courts found questions of fact precluding summary judgment.

Statute vs. Ordinance: A Review of Judicial Analysis of Labor Law Sec. 241(6)

In recent years, there has been a concerning development regarding judicial analysis of Labor Law § 241(6). Specifically, courts have – incorrectly – applied a somewhat “absolute liability” interpretation to Labor Law § 241(6). However, § 241(6) is not an “absolute liability” statute, like Labor Law § 240(1), and these recent rulings are contrary to decades of jurisprudence.

The Bizarre World of OSHA Subpart R & Fall Protection Requirements

It is widely known and accepted in the construction industry that fall protection must be provided to workers working at a height of six (6) feet or more. This six-foot rule is set forth in OSHA Subpart M (§1926.500, et. seq.). Additionally, Industrial Code Section 23-1.7(b) requires fall protection for workers who are working near unguarded openings or edges, consisting of barriers, safety railings, or gates. 

Sentencing Disparities Can Lead to Increased Uncertainty for Victim Companies of Trade Secret Theft

According to recent data, the theft of trade secrets has cost American companies between $225 billion and $600 billion annually. Sadly, restitution awards associated with the prosecution of these thefts have not made victims whole and point towards massive recovery disparities. As such, it is important to have competent counsel who can navigate these complexities when a matter is referred to the federal authorities.

When Is a Medication Error Homicide? A Case Study of State v. Vaught

Recently, the nation was riveted by the highly publicized criminal trial of former Registered Nurse, RaDonda Vaught, who was convicted of reckless homicide and impaired adult abuse after a 2017 medication error killed her 75-year-old patient, Charlene Murphey. Although medication errors occasionally result in patient injury or death, those committing such errors are typically disciplined by state licensing boards or tried for negligence in medical malpractice cases in civil courts.

Potential Limitation of Collateral Estoppel Effect on NY Workers’ Comp Board Decisions Under State’s Justice for Injured Workers Act

The New York State Legislature recently passed the “Justice for Injured Workers Act,” which is pending presentation to the governor for signature and would amend the state’s Workers' Compensation Law.

New York Legislature Strengthens Nursing Home Oversight

On June 4, 2022, the New York State Legislature passed legislation to strengthen the Empire State’s nursing home oversight program, through bills A10045A and S8617A. The bills would require the New York State Long-Term Care Ombudsman Program to include additional information in publicized annual reports, including types and patterns of complaints filed against long-term care facilities.

Imports from China: The Clock is Ticking on Implementation of Uyghur Forced Labor Prevention Act

Signed into law December 23, 2021, the Uyghur Forced Labor Prevention Act (UFLPA) is set to go into effect June 21, 2022, without the benefit of implementation guidance that importers sought before covered shipments to the U.S. began their journeys.

SEC Sample Letter Indicates Potential Ukraine-Related Disclosure Obligations for Reporting Companies

The staff of the Division of Corporation Finance (CorpFin) of the U.S. Securities and Exchange Commission (SEC) recently released a Sample Letter indicating that companies subject to federal securities disclosure requirements may have obligations related to the conflict in Ukraine, regardless of whether they are directly subject to U.S. sanctions against Russia.

New York Governor Expected to Sign Legislation Greatly Expanding Recoverable Damages in Wrongful Death Actions

The New York Senate and Assembly recently passed Bill S74A, also known as the Grieving Families Act, and it is expected that Governor Hochul will likely sign the bill into law. If passed, the law would significantly expand the damages available in wrongful death actions in a number of ways.

SCOTUS Rejects Prejudice Requirement for Wavier of Right to Arbitrate

In Morgan v. Sundance, Inc., No. 21-328 (May 23, 2022), the United States Supreme Court granted review to resolve the split in authority between federal courts regarding whether there is an arbitration-specific waiver rule requiring a showing of prejudice. The Supreme Court held that federal courts may not create arbitration-specific variants of federal procedural rules, like those concerning waiver, based on the “policy favoring arbitration” under the Federal Arbitration Act (FAA).

California Supreme Court Confirms Employees Owed Meal & Rest Period Premiums May Recover Derivative Wage Statement, Waiting Time Penalties

This week, the California Supreme Court clarified in Naranjo v. Spectrum Security Services, Inc. whether meal and rest period violations may also result in wage statement penalties and waiting time penalties against an employer. In its ruling, the California Supreme Court held that meal and rest period premiums may trigger derivative wage statement and waiting time penalties.

Florida Supreme Court Bars Nonmonetary Terms in Proposals for Settlement

Effective July 1, 2022, the Florida Supreme Court has amended Florida Rule of Civil Procedure 1.442—governing procedural requirements for service of proposals for settlement—to preclude service of a proposal containing “nonmonetary terms, with the exceptions of a voluntary dismissal of all claims with prejudice and any other nonmonetary terms permitted by statute.” The court’s amendment comes on the court’s own motion and after a lengthy comment period and oral argument.

Potential Expansion of Emotional Damages Under New York's Grieving Families Act

The New York State Legislature is currently reviewing proposed bill S74A, known as the Grieving Families Act (GFA). Introduced by State Senator Brad Hoylman (D – Manhattan), the GFA proposes a vast expansion of compensable damages in wrongful death actions

Rhode Island Legalizes Cannabis for Adult Recreational Use: A Q&A for Employers and HR Professionals

After a decade of discussion and deliberation, the Rhode Island General Assembly finally voted to legalize cannabis for adult recreational use. On May 25, 2022, Rhode Island Governor Daniel McKee signed into law the comprehensive legalization bill known as the Rhode Island Cannabis Act.This Q&A is intended to address many of the most pressing questions and concerns that employers and human resource professionals have about how legalization will play out in the Ocean State.

California Court Strikes Down “Women on Boards” Law, Eradicating Recently Instituted Gender-Based Quotas for Board Seats

Last week, a California Superior Court Judge struck down California’s “Women on Boards” law. The law, passed in 2018, required that California-based, publicly-held corporations seat women on their boards of directors.

California Supreme Court Rejects Third Exception to Privette Doctrine

In Gonzalez v. Mathis (August 19, 2021) 12 Cal. 5th 29, the California Supreme Court considered whether to create a third exception to the Privette Doctrine specific to known hazards on a worksite, when a contractor cannot remedy the hazard by taking reasonable safety precautions to protect against it.

The Statute of Limitations Opens Again, Act II: Adult Survivor Act Signed by Governor Hochul

As an update to our previous alert regarding New York’s Adult Survivor Act (ASA), on May 23, 2022, the New York State Assembly approved the ASA with a majority vote of 140 to 3.

Administration’s RICO Proposals Could Provide Significant New Enforcement Tools Against Russian Oligarchs

In March 2022, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) issued sanctions targeting Russian “elites and business executives who are associates and facilitators of the Russian regime.” More recently, in an effort to go further, the Administration released a package of proposals to “establish new authorities for the forfeiture of property linked to Russian kleptocracy,” which would greatly enhance existing legal authority under the Racketeer Influenced and Corrupt Practices Act (RICO).

Texas Supreme Court Clarifies When to Use But-For Causation Test in Medical Malpractice Case

On Friday, May 13, 2022, the Texas Supreme Court issued an important opinion addressing but-for causation in Pediatrics Cool Care v. Ginger Thompson (o/b/o A.W.). In this case, tragically, the minor plaintiff A.W. committed suicide after seeing her pediatric healthcare provider and complaining of feelings of depression.

U.S. Sanctions on Russia and Post-Closing Obligations in M&A Transactions: “Dust-Off” Your Closing Binder

The imposition of U.S. sanctions against Russia may impact the obligations of the parties following the closing of an agreement for the purchase and sale of equity interests or assets under circumstances that may not be anticipated.

Expanding Russia Sanctions and Export Restrictions Present Additional Risks for US Businesses

Recent actions by both the Treasury Department’s Office of Foreign Assets Control (OFAC) and the Commerce Department’s Bureau of Industry and Security (BIS) continue to expand the scope of products and services covered by U.S. sanctions and export restrictions against Russia. The result is a widening net of risk for U.S. businesses that will require increased vigilance and compliance efforts.

Impact of Russia’s Intellectual Property Decree Against Businesses from “Unfriendly Countries”

The Russian government – in an act that appears to be one of the first of its kind – passed a decree on March 7, 2022 allowing businesses in Russia to use the intellectual property (IP) rights of IP owners from “unfriendly countries” without paying compensation.

New Overtime Requirements for Oregon Agricultural Workers

On April 18, 2022, Oregon Governor Kate Brown signed HB 4002, which will begin, in 2023, a five-year phase-in process for Oregon employers to pay agricultural workers overtime requirements. In enacting this law, Oregon joins a handful of states – including California, Washington, and New York – that have removed exemptions to exclude agricultural workers from overtime laws.

California’s Push for Regulatory Clarity on Crypto Assets & Potential DFPI Enforcement Actions

In an effort to promote regulatory clarity and establish a “comprehensive, thoughtful, and harmonized regulatory and business environment for crypto assets,” California Governor Gavin Newsom issued California Executive Order N-9-22 on May 4, 2022 (the Order). California is currently the largest hub in the United States for crypto and digital asset related companies and home to two of the largest cryptocurrency exchanges in the worl

Are Payments to a U.S. Company Through a Sanctioned Russian Bank Prohibited?

In Executive Order 14204 of April 15, 2021 (E.O. 14024) (Order), the President found that specified harmful foreign activities of the Government of the Russian Federation, among other things, constituted an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States, and declared a national emergency to deal with that threat.

SEC Enforcement Case Ups the Ante on Corporate ESG Disclosures

From the earliest days of the Biden Administration, the Securities and Exchange Commission (SEC) signaled its intention to use all the tools at its disposal to address investor disclosures of Environmental, Social, and Governance (ESG) information. In March 2021, the SEC established a high-profile enforcement-focused Climate and ESG Task Force. Then, on April 11, 2022, the SEC published a proposed rule (with comments due by May 20, 2022) that will require detailed disclosures about greenhouse gas emissions, climate-related risks and targets, and corporate oversight and governance matters.

The Next Victim’s Act on the New York Frontier

On Tuesday April 26, the New York State Senate approved the Adult Survivors Act (ASA). The bill, known as S66A, follows on the heels of New York’s Child Victims Act (CVA), enacted in 2019.

Florida Governor Approves Bill with New Limitations on Viewpoints, Concepts Employers May Present in Required Instruction

On Friday, April 22, 2022, Florida Governor Ron DeSantis signed House Bill 7 – known as the “Stop WOKE Act” – into law. “Stop WOKE” stands for “Stop Wrongs Against Our Kids and Employees.” The law prohibits classroom or workplace training and instruction that causes students or employees discomfort over their race, color, sex, or national origin.

Contract Defenses and Forum Selection Issues for Lawsuits Related to U.S. Sanctions

With the long list of sanctions imposed on dealings with Russia continuing to grow, many businesses are finding themselves in need of expert guidance not only on compliance, but also on resolving disputes resulting from impacts of those sanctions on existing contractual relationships. One critical question is which forum, or which court, such contract disputes and other related disputes should be litigated in.

Russia Sanctions Create Heightened Need for Sophisticated Due Diligence in Sales Contracts

The increasing number and intensity of U.S. sanctions against Russia have brought the need to conduct adequate due diligence prior to the execution of an agreement for the sale of goods and services into sharp focus. In the current fraught environment, businesses need to exercise an elevated degree of care to avoid the risks of both potential sanctions violations and the limited recourse available in the event of a contract default caused by the imposition of sanctions.

U.S. Sanctions on Russia Keep Coming, and the Legal Issues and Risks Keep Growing

The United States has had economic sanctions in place against Russia since 2014, when it invaded the Crimea Region of Ukraine. But reaction to Russia’s wholesale military incursion in 2022 has taken the extent and degree of sanctions to a far higher level, creating the need for U.S. companies to establish much stronger diligence programs and in some cases deal with complex compliance issues.

Ohio Supreme Court Rules Providing Defective Ingredient to Manufacturer, Which is Integrated Into Final Product, is “Occurrence” Resulting in “Property Damage”

On March 23, 2022, the Ohio Supreme Court issued a decision in Motorists Mutual Insurance Company v Ironics, Inc., et al., Slip Opinion 2022-Ohio-84. The court ruled that an umbrella insurance policy provides liability coverage for claims against an insured for supplying a contaminated ingredient (in this case, tube scale) that was incorporated into a final product (namely, glass containers). The “your work,” “your product,” and “impaired product” exclusions did not apply.

Climate-Related Financial Risk Management Principles Will Not Just Be for Big Banks

The FDIC recently published a Notice of Proposed Policy Statement that seeks to provide a framework for the safe and sound management of large banks’ exposures to climate-related financial risks. While the proposed policy would apply only to the largest commercial banks at this time, the FDIC has signalled the broader implications of the new policy.

Illinois Supreme Court Announces Time Standards for Closing Out Cases

Beginning July 1, 2022, Illinois trial courts will begin imposing new time standards for closing out pending cases. This change follows the Illinois Supreme Court’s March 25, 2022 announcement setting new time standards for case closure in trial courts. This announcement will apply to all cases filed in the State of Illinois on or after January 1, 2022.

FAA Preempts NJLAD’s Prohibition on Mandatory Arbitration, With a Catch

The New Jersey Appellate Division’s recent decision in Gilbert Antonucci v. Curvature Newco, Inc., et al., Docket No. A-1983-20 (February 15, 2022), confirms what was understood to be the law: a properly drafted and consented-to employer-employee arbitration agreement is binding notwithstanding the prohibition on mandatory arbitration for discrimination claims set forth in the New Jersey Law Against Discrimination (NJLAD) because the Federal Arbitration Act (FAA) preempts that prohibition as to arbitration agreements governed by the FAA.

Eleventh Circuit Holds Miami Restaurant’s Service Charges Are Not Tips and Can Be Used as Alternative Method to Compensate Waitstaff

In Compere v. Nusret Miami, LLC, et. al., Case No. 20-12422 (11th Cir. March 21, 2022), a three-judge panel from the United States Court of Appeals for the Eleventh Circuit unanimously upheld a district court decision that celebrity restaurateur and Lewis Brisbois client Nusret Gökçe (also known as “Salt Bae”) and his Miami steakhouse were in compliance with the Fair Labor Standards Act (FLSA) when they used an 18% mandatory service charge to fulfill the restaurants minimum wage and overtime obligations.

Pennsylvania Supreme Court Holds Mandatory Registration Requirement Unconstitutional

In December 2021, the Pennsylvania Supreme Court addressed the Keystone State’s mandatory registration requirement as it relates to personal jurisdiction in the case Mallory v. Norfolk S. Ry. Co. 266 A. 3d 542 (2021). In short, the Supreme Court of Pennsylvania affirmed the Philadelphia Court of Common Pleas decision to dismiss the Mallory action for lack of personal jurisdiction, opining that Pennsylvania’s mandatory registration requirement was unconstitutional to the extent that it afforded Pennsylvania courts general jurisdiction over foreign corporations that were not “at home” in Pennsylvania

Texas Supreme Court Clarifies Chapter 74 Expert Reports

In Lake Jackson Med. Spa, Ltd. v. Gaytan, No. 20-0802, 65 Tex. Sup. Ct. J. 512, 2022 Tex. LEXIS 197 (Feb. 25, 2022), the Texas Supreme Court clarified a plaintiff’s expert report obligations, under Chapter 74 of the Texas Civil Practice and Remedies Code, in relation to an amended petition.

New Jersey Supreme Court Holding Impacts Allocation of Damages in Cases Involving Successive Tortfeasors

Late in 2021, the Supreme Court of New Jersey addressed the issue of allocating damages in personal injury cases in which the plaintiff asserts claims against successive tortfeasors, such as medical malpractice in the treatment of a slip and fall injury caused by negligence.

Delaware Supreme Court Addresses Preliminary Agreements That Contemplate Second-Stage Contracts

The Delaware Supreme Court recently issued a decision in which it reviewed Delaware contract law as it relates to preliminary or transitional agreements that contemplate a more comprehensive second-stage agreement.

Workers’ Compensation Claims Involving Remote Workers: What Employers and HR Professionals Need to Know

The ongoing COVID-19 pandemic has led to a dramatic increase in the number of employees working from home on a part-time or full-time basis. This alert will delve into the question of whether employees working remotely are covered under workers’ compensation laws and will highlight developing coverage considerations in case law.

New Jersey Labor & Employment Law Developments – A 2021 Year-In-Review

2021 was another busy year for both the legislature and the courts in the Garden State. Highlights of the biggest employment law changes are summarized in this legal alert.

Russia-Ukraine Conflict Presents Business Issues and Concerns for U.S. Companies

Russia’s incursion in Ukraine is likely to impair both U.S. and Ukrainian companies’ performance of their respective obligations under agreements for the supply of goods and services in Ukraine. Conflict has spread throughout the country, including in major cities. As the situation develops, parties to contracts governed by U.S. law to be performed in Ukraine should be mindful of their rights and obligations if there are interruptions in the supply and payment for goods and services, in order to minimize their losses.

Federal Spending Plan Creates New Opportunities for Industry Sectors

On February 22, the White House announced actions under the Infrastructure Investment and Jobs Act (IIJA) to promote domestic production of critical minerals, lithium and lithium batteries, clean hydrogen and carbon capture, utilization, and sequestration (CCUS) technologies.

UPDATE: New York Governor Signs Into Law Chapter Amendment & Revision to Comprehensive Insurance Disclosure Act

New York Governor Kathy Hochul has now signed into law Senate Bill 7882A, which encompasses the revision and the chapter amendment to the Comprehensive Insurance Disclosure Act (CIDA).

Maryland Labor & Employment Law Developments – A 2021 Year-In-Review

For many reasons, 2021 felt like déjà vu all over again. The pandemic dragged on, Tom Brady won another Superbowl, and swarms of cicadas greeted us on their 17-year cycle. However, at least for Maryland employers, the more things remained the same, the more they changed. There were several important developments in labor and employment law last year in the State of Maryland, including expansions to the Flexible Leave Act, modifications to COVID-19 workplace safety laws, and amendments to filing deadlines.

New York's Comprehensive Insurance Disclosure Act: Chapter Amendment & Revision To Be Signed Into Law By Governor

On February 24, 2022, Senate Bill 7882A, which encompasses the revision and the chapter amendment to the Comprehensive Insurance Disclosure Act (CIDA), was sent to New York Governor Kathy Hochul to be signed into law, ahead of the March 1, 2022 deadline.

FTC Announces New HSR Filing & Interlocking Directorates Thresholds for 2022

he Federal Trade Commission (FTC) recently announced the revised thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR), Section 7A of the Clayton Act. HSR requires the parties to transactions that exceed the revised thresholds to file a premerger notification report to the FTC and the Antitrust Division of the Department of Justice.

California’s “Silenced No More” Act Further Limits Confidentiality and Non-Disclosure Agreements

Taking effect on January 1, 2022, California’s Senate Bill 331, known as the Silenced No More Act, expands existing law aimed at preventing or restricting the disclosure of certain factual information in settlement agreements to apply to all claims of harassment, discrimination, or retaliation under the California Fair Employment and Housing Act (FEHA). 

New York Labor & Employment Law Developments – A 2021 Year-In-Review

In 2021, the New York State Legislature and the New York City Council were customarily active in adopting new laws and amending existing laws touching on labor and employment. Employers in these jurisdictions must continue to stay nimble in adjusting themselves to changes in the law that impact how they operate in a myriad of respects. We summarize the key developments in this alert.

Two Decisions from New York's Appellate Division Show Unpredictability of Appellate Courts

Two decisions from New York's Appellate Division, Second Department, demonstrate the unpredictability of the courts when reviewing jury verdicts in personal injury matters involving expert testimony. 

Rare Grant of Summary Judgment Motion from Virginia Federal Court in Slip-and-Fall Case Opens Door for Defense

Virginia courts are renowned for denying motions for summary judgment, at both the state and federal level. Indeed, it is difficult to prevail on a motion for summary judgment on simple liability defenses, but even more rare to secure summary judgment on an affirmative defense such as contributory negligence. In Admassu v. Speedway LLC, 1:21-cv-00581, the United States District for the Eastern District of Virginia (Alexandria Division) granted a motion for summary judgment in a slip-and-fall case, giving hope to defense lawyers who are considering whether to file such a motion in such cases in the future.

California Supreme Court Confirms Employee-Friendly Test for Whistleblower Retaliation Suits, Rejecting McDonnell Douglas Standard

The California Supreme Court’s recent unanimous decision in Lawson v. PPG Architectural Finishes, Inc., __ P.3d __, 2022 WL 244731 (Cal., Jan. 27, 2022) clarified the burden for employers that are defending against whistleblower retaliation claims brought by employees. The state high court confirmed that the employee-friendly standard articulated in Labor Code section 1102.6 applies to claims for whistleblower retaliation brought under Labor Code section 1102.5, and that the burden-shifting framework borrowed from the United States Supreme Court’s decision in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas) ― which is applicable to employment discrimination cases ― is not the appropriate standard to use.

UPDATE: Revision of Chapter Amendment to New York’s Comprehensive Insurance Disclosure Act

On February 14, 2022, the chapter amendment (S7882) to New York's Comprehensive Insurance Disclosure Act was recalled from the assembly and amended (S7882A). This revision or “amendment” of the chapter amendment removes the language “sold or delivered within the state of New York” from the statute.

California Labor & Employment Law Developments – A 2021 Year-In-Review

The California legislature kept busy this past year, passing numerous labor and employment related laws. While there were fewer COVID-19 related laws than the previous year, the legislature continued its pattern of increasing regulations on businesses and employers. This alert provides a summary of the most significant employment related laws of 2021, all of which are in full effect as of January 1, 2021, unless otherwise specified.

Texas Supreme Court Holds Courts Can Consider Extrinsic Evidence When Determining Duty to Defend

For almost two decades, policyholders and insurers alike have wondered if the Fifth Circuit Court of Appeals got it right with its Erie guess in Northfield Ins. Co. v. Loving Home Care, Inc., 363 F.3d 523 (5th Cir. 2004), holding that Texas law should permit courts to consider extrinsic evidence when determining the duty to defend. On February 11, 2022, the Texas Supreme Court determined that it agreed with this holding when it was presented with a certified question from the Fifth Circuit in Monroe Guaranty Ins. Co. v. BITCO General Ins. Corp., No. 21-0232.

New York City Will Require Employers to Disclose Salary Information in Job Postings Commencing May 15, 2022

Effective May 15, 2022, New York City has amended the New York City Human Rights Law (NYCHRL) to make it “an unlawful discriminatory practice for an employment agency, employer, employee, or agent thereof to advertise a job, promotion, or transfer opportunity without stating the minimum and maximum salary for such position in such advertisement.”

Senate Passes Bill to End Forced Arbitration of Sexual Assault & Sexual Harassment Claims – What Comes Next?

On February 10, 2022, the United States Senate passed Senate Bill 2342 through a voice vote. Titled the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” Senate Bill 2342 (the Bill) is expected to be signed by President Biden and will take effect immediately.

BIPA Claims Not Barred by Illinois Workers’ Compensation Act

On February 3, 2022, the Illinois Supreme Court issued a long-awaited, seminal ruling under the Illinois Biometric Privacy Act (BIPA). The court, in McDonald v. Symphony Bronzeville Park, LLC, held that the Illinois Workers Compensation Act (IWCA) does not pre-empt workplace claims arising under BIPA when no actual injury is alleged.

Nevada Labor & Employment Law Developments – A 2021 Year-In-Review

There were several important developments in labor and employment law last year in the State of Nevada, including changes to the hiring process, anti-discrimination protections, and COVID-19 vaccine-related and re-hire legislation.

Infrastructure Spending and Jobs Act Promises New Regulations for Transportation Sector

The Infrastructure Spending and Jobs Act includes considerable funding for the transportation sector, including funds for improving freight corridors, addressing supply chain issues, promoting women in the workforce, and mandating truck emissions and carbon reduction programs.

Texas Labor & Employment Law Developments – A 2021 Year-in-Review

In a year that seemed to be dominated by COVID-19 and vaccinate mandates, Texas had several legislative and case law developments that impacted employers. Our team briefly summarizes some of the more prominent legal developments of 2021 from the Lone Star State.

Connecticut Labor & Employment Law Developments - A 2021 Year-In-Review

2021 brought several new developments to Connecticut’s labor and employment law, including COVID-19 federal relief, vaccine mandates for long-term care workers and state employees, and new rules supporting the promotion of equal pay and anti-age discrimination in hiring. This alert features an overview of these key updates.

Chapter Amendment to New York’s Comprehensive Insurance Disclosure Act Passes the Senate

A chapter amendment to the Comprehensive Insurance Disclosure Act is presently before the Assembly, having passed the Senate earlier today. As a chapter amendment, it was previously red-lined by the Governor and agreed upon by various leaders of both houses. Based on the expedited process, we expect the chapter amendment to be adopted.

The New Jersey Insurance Fair Conduct Act

On January 18, 2022, New Jersey Governor Phil Murphy signed into law the New Jersey Insurance Fair Conduct Act (IFCA). Effective immediately, the IFCA creates a private cause of action for first-party claimants in part for “an unreasonable delay or unreasonable denial of a claim for payment of benefits under an insurance policy.”

Indiana Labor & Employment Law Developments – A 2021 Year-In-Review

There were several important developments in labor and employment law last year in the State of Indiana, including changes to minors’ work hours, pregnancy accommodations, and teachers’ right to refrain from joining and paying union dues. Below is a summary of these key changes.

Colorado Labor & Employment Law Developments – A 2021 Year-In-Review

The past year brought numerous changes to Colorado’s employment laws, including those governing the hiring process, wage and hour payments, and anti-discrimination protections. Lewis Brisbois’ Labor & Employment team is here to help you keep track of these new and notable changes and ensure compliance of your business’ operations. This alert provides a deeper dive into some of the bigger changes.

Rhode Island Labor & Employment Law Developments – A 2021 Year-In-Review

2021 was a productive year for the members of the Rhode Island General Assembly. Against the backdrop of the ongoing COVID-19 pandemic, the Assembly passed several significant pieces of labor and employment legislation.

New York State Senate to Vote on Amendments to Comprehensive Insurance Disclosure Act

Following up on our recent alerts regarding the New York legislature’s newest insurance disclosure requirements under CPLR 3101(f), the amended text of Senate Bill S7882 has now passed committee and is waiting for the floor calendar before being presented to the Senate and Assembly. If passed and then signed by the Governor, the amended bill would differ from the prior version in several key ways.

Minor League Teams Take a Swing at Baseball’s Antitrust Exemption

A group of minor league baseball teams have filed suit in the U.S. District Court for the Southern District of New York in Manhattan against Major League Baseball (MLB) in a pitch to end a nearly century-old antitrust exemption first granted by the U.S. Supreme Court in 1922.

Supreme Court Stays Enforcement of OSHA COVID-19 Mandate, Endorses HHS Vaccine Requirement for Healthcare Workers

On January 13, 2022, the United States Supreme Court issued two important rulings. It barred enforcement of the COVID-19 vaccination-or-testing mandate for large businesses adopted by the Occupational Health and Safety Administration (OSHA), but endorsed a separate federal vaccine requirement for healthcare facilities.

New York State Dramatically Expands Potential Liability for Employer Retaliation Against Whistleblowers

On January 26, 2022, New York’s newly expanded whistleblower protections will go into effect, creating substantial potential liability for employers.

Colorado Becomes First State to Criminalize Void Non-Compete Agreements

Colorado recently became the first state to criminalize the use of void non-compete agreements. The law goes into effect on March 1, 2022 and makes it a class A misdemeanor for employers to implement void restrictive covenants.

New Mexico Labor & Employment Law Developments – A 2021 Year-In-Review

New Mexico saw significant changes in employment law in 2021. It increased the statewide minimum wage, passed legislation requiring paid sick leave, and the Tenth Circuit Court of Appeals issued a decision that impacts how employers must compensate for the time it takes employees to start up a computer and launch certain software before they can clock-in, deeming that time integral to the job and therefore compensable.

N.Y. Court of Appeals Abolishes Jurisdiction Over Foreign Corporations Solely Based on Consent by Registration

The New York Court of Appeals’ decision in Aybar v. Aybar, 2021 N.Y. Slip Op. 05393, issued on October 7, 2021, overturned over 100 years of precedent in ruling that foreign corporations are no longer subject to being dragged into lawsuits in New York State court under the theory of "consent by registration."

2021 Florida Labor & Employment Law Year-End Review

There were several important developments in labor and employment law last year in the State of Florida, including changes to the minimum wage, new hire reporting obligations, and COVID-19 vaccine-related legislation. Below is a summary of these key changes.

Massachusetts Employment Law Developments – A 2021 Year-In-Review

2021 was a year of significant new developments in Massachusetts employment law. Some of the new compliance challenges facing Massachusetts employers included the staggered commencement of paid leave benefits under the Massachusetts Parental and Family Medical Leave Act (PFMLA), increases in the state minimum wage, gradual elimination of Sunday and holiday premium pay requirements for some – but not all – legal holidays, and a new emergency paid sick leave mandate for qualifying reasons related to COVID-19.

Colorado Tort Law Update

Colorado is an at-fault, modified comparative negligence state, so a plaintiff can recover only if his or her negligence is less than 50% when compared against the negligence of all other tortfeasor. Colorado’s comparative negligence act, codified at C.R.S § 13-21-111, mandates a comparison of the relative degree of negligence of the plaintiff, the defendants, and any responsible non-parties. 

Tenth Circuit Reprograms FLSA Liability for Computer Boot-Up Time

While employers were busy dealing with the pandemic and the on-again/off-again world of the OSHA ETS orders, the Tenth Circuit further complicated the timekeeping responsibilities of employers. Employers across the country use computer software to track employee time. On a typical day, hourly employees across the nation boot up their computers, log in to their timekeeping software, punch the digital clock, and begin work. Now, according to the Tenth Circuit, employers must pay employees for the computer “boot up” time.

Shifting Ground: Governor Hochul Proposes Changes to Newly Enacted Comprehensive Insurance Disclosure Act

New York State recently enacted the Comprehensive Insurance Disclosure Act, amending the C.P.L.R. As we discussed in our recent alert, these amendments will be unduly onerous on both carriers and insureds. Governor Kathy Hochul would appear to agree and "redlined" the bill with numerous proposed changes before signing it.

New York’s 2022 Comprehensive Insurance Disclosure Act: Significant Amendments to the C.P.L.R.

On December 31, 2021, New York State Governor Hochul signed into law the Comprehensive Insurance Disclosure Act. The alleged justification for the act was to reduce the use of “delaying tactics” by compelling disclosure of the complete primary, excess, and umbrella policies implicated by the claim. These amendments will be unduly onerous on both carriers and defense counsel—for a multitude of reasons. It imposes an obligation on the insurer to immediately identify excess policies, eroding policies, and other information or contracts that affect the available coverage.

Green Investigations Are Here: U.S. Department of Justice Turns Towards Environmental Enforcement Actions, Deprioritizes Compliance Assistance

Two high-ranking Department of Justice (DOJ) officials announced that the Biden Administration is prioritizing environmental regulatory enforcement over compliance assistance. This new policy is in contrast to the Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA)'s previous emphasis on compliance and pollution mitigation instead of enforcement actions under the prior administration.

NYC Adopts New Law to Combat Perceived Threat of Discrimination Via Use of AI-Powered Employment Decision Tools

As artificial intelligence (AI) continues to cement itself in society, an increasing number of employers are relying on smart technology in the hiring and recruitment processes. Because AI can analyze the skills and behavior of applicants, some employers are using AI to review applicants’ resumes and video interviews.

Oregon 2021 Labor & Employment Law Year-End Roundup

It’s the end of the year, which, for employers, means it’s time to look at what new laws and updates are going into effect that will be important to know. Oregon has seen a number of new employment laws passed in the last year. Below are a few that every employer in the Beaver State should be aware of.

Rhode Island Reimposes Indoor Mask Mandate as COVID-19 Cases Rise Sharply

In response to the nation’s highest rate of new coronavirus infections and an alarming rise in new hospitalizations, Rhode Island Governor Daniel McKee has adopted aggressive new measures to “flatten the curve” and reduce the strain on a hospital system that he characterized as “at a breaking point” at his December 15 press conference announcing the rules. As of Monday, December 20, 2021, all Rhode Islanders are required to mask up before entering certain large businesses. Small businesses have the option of allowing people to enter mask-free if they produce proof that they are fully vaccinated for COVID-19.

Lewis Brisbois Secures Defense Verdict in New York Jury Trial

New York Partner James T. Whalen, Jr. recently secured a defense verdict when a New York jury determined that a plaintiff who was struck by a bus and underwent three knee surgeries did not sustain a threshold injury under New York law.

OSHA Vaccination Rules (Temporarily) Back in Effect - Which Way Do We Go Now?

In the early evening hours of December 17, 2021, a three-judge panel of the Sixth Circuit Court of Appeals lifted the stay of the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). As a result, employers with more than 99 employees must have all employees vaccinated or masked and tested weekly.

Vaccine Mandate Confusion Continues – CMS Vaccine Mandate Restored in Some (But Not All) US States

As has been widely publicized, the Biden Administration has attempted to impose various forms of vaccine mandates under a variety laws and programs. At the same time, we have seen a flurry of opposition to these efforts ranging from new state laws to court challenges seeking to enjoin the effort. One of the federal mandates was issued by the Centers for Medicare & Medicaid Services (CMS) and is applicable to staff at Medicare- and Medicaid-certified healthcare providers.

New York City and State Impose New COVID-19 Vaccination and Masking Mandates

All New York City employers should take heed regarding the City’s newly announced vaccine mandate applicable to all private sector employers in NYC. Although we expect legal challenges to be filed, employers should strongly consider becoming familiar with the requirements and developing an implementation plan (including employee communications) in the event that the mandate is not stayed by court order on a temporary basis.

East Texas Jury Awards $730 Million Wrongful Death Verdict

Less than a month after we alerted you to the staggering nuclear verdict awarded in the Cruz matter out of Harris County, Texas (Houston), another Texas jury has returned an incredible nuclear verdict. The nine-figure verdict is yet another sobering reminder that now the entire state of Texas is a problematic venue for corporate transportation defendants that are inexperienced and ill-equipped to defend catastrophic personal injury and wrongful death claims under the Reptile Strategy.

New Infrastructure Law Promises $1.2 Trillion in Transportation and Infrastructure Spending, And More Funds Are On the Way

The Infrastructure Investment and Jobs Act, signed into law on November 15, 2021, provides federal funding for improving basic infrastructure such as highways, roads, bridges, airports, and rail. The bill also includes considerable funding for upgrading electric and water delivery systems, expanding broadband and electric vehicle infrastructure, and addressing greenhouse gas emissions, climate resiliency, environmental justice, and workforce issues.

EPA Reconsiders 2014 Proposed Determination Restricting Development of Mineral Rich Area in Southwest Alaska

On November 23, 2021, the United States Environmental Protection Agency (EPA) announced it would extend through May 31, 2022, the agency’s reconsideration of a 2014 Proposed Determination to restrict mining associated with a specific mineral deposit within a vast area of Alaska. 

New York Supreme Court Issues Precedent-Setting Ruling in Favor of Lewis Brisbois’ Ridesharing Company Insurer Client, Holding That There was No SUM Coverage for Ride Originating in New York City With TLC Vehicle

New York Partners Patricia Alarcon Demetri and Gina Suarez Misiaszek recently secured a precedent-setting ruling on behalf of a ridesharing company insurer client when Justice Ulysses B. Leverett of the Supreme Court of New York, Queens County issued a decision determining that supplemental uninsured motorist (SUM) benefits were not available to a rideshare passenger who was involved in an accident. 

Florida Throws Wrench in Federal Vaccine Mandate Programs

Earlier this month, OSHA issued emergency workplace safety rules requiring businesses with 100 or more employees to ensure their employees are vaccinated or submit to regular COVID-19 testing. In response, on November 18, 2021, Florida Governor Ron DeSantis signed into law four bills passed during a special session of the Florida legislature, which limit employers’ ability to impose COVID-19 vaccine mandates and prohibit school districts from adopting a mask mandate or requiring asymptomatic students that have been exposed to COVID-19 to quarantine and require Florida to set up its own OSHA program.

Stay of OSHA Vaccination Rule

Our recent alert described the OSHA emergency temporary standard (ETS) – promulgated on November 5, 2021 – requiring vaccinations or testing by employers with at least 100 employees, which was issued in response to President Biden’s directive of September 9. We advised as to the planned dates by which covered employers had to become compliant, as well as the measures required to achieve compliance. However, OSHA has announced a suspension of activities related to the implementation and enforcement of the ETS in light of the November 12 decision by the Fifth Circuit Court of Appeals to stay the ETS.

Senate Confirmation of Jonathan Kanter as Head of DOJ Antitrust Division Presages More Rigorous Antitrust Law Enforcement

On November 16, 2021, with broad bipartisan support, the U.S. Senate confirmed Jonathan Kanter as the new Assistant Attorney General for the Antitrust Division of the Department of Justice (DOJ) by a vote of 68-29. Mr. Kanter’s confirmation marks another step in the Biden Administration’s commitment to more vigorous enforcement of U.S. antitrust laws.

Infrastructure Legislation Provides New Opportunities for Lithium-Ion Battery Producers

On November 15, 2021, President Biden signed the $1.2 trillion infrastructure package into law, providing significant funding for renewable energy and electric vehicle infrastructure, including lithium-ion battery storage and recycling technology, along with funding for transportation, electric grid, broadband, and water infrastructure upgrades.

California Introduces Slate of New Employment-Related Laws

On September 22, 2021, Governor Gavin Newsom signed into law several employment-related bills, which are set to go into effect January 1, 2022. This alert contains a summary of those new laws, which impact abitration fees, warehouse distribution centers, farmworkers, optometrists, and more.

Oregon General Liability: A Primer

This alert will provide a “cheat sheet” for general liability laws and regulations in the State of Oregon. Issues addressed include statutes of limitations, assignment of fault and damages, attorney fees, arbitration requirements, and unique discovery practices.

A Guide to Evaluating Snow & Ice Cases

As the winter season nears, defendant property owners are reminded that New York law imposes liability for sidewalk accidents resulting from slip and falls on snow and ice. Within the City of New York, Administrative Code § 7-210 imposes liability on the owners of real property (other than single-family dwellings) to maintain an abutting sidewalk in a reasonably safe condition, which includes the removal of snow and ice.

Federal Mandates for Vaccination & Testing Have Been Unveiled; Employers Must Take Heed

Employers nationwide have waited anxiously following the Biden Administration’s September 9 announcement that a new set of rules would be forthcoming governing vaccination for employers with large workforces. On November 4, 2021, the federal Occupational Safety and Health Administration ended the suspense by issuing an Emergency Temporary Standard (ETS), requiring all employers with 100 or more employees to ensure their workforces are fully vaccinated to the extent possible, and requiring regular testing and other safeguards for those employees who are not vaccinated.

Texas Nuclear Verdict Awards $352 Million to Injured Airline Worker

Harris County, Texas – home to the City of Houston – was formerly considered a relatively conservative jurisdiction compared to the rest of Texas. However, Harris County has become increasingly problematic for corporate defendants in personal injury litigation. A recent Harris County nuclear verdict solidifies this fact and places corporate defendants on notice that there may be no safe haven anywhere within the State of Texas when it comes to defending catastrophic personal injury and wrongful death claims from the “Reptile” strategy.

Challenging Mergers: Timing is (Mostly) Everything

Clayton Act Section 7 is a statute private companies often overlook when seeking to combat mergers that are likely to degrade competition and, in the process, impair a company’s ability to participate as a market supplier or consumer. A Fourth Circuit case reminds us, however, that private parties directly can use the statute in the right circumstances to level the playing field where they operate.

Chamber Seeks Full Ninth Circuit Look at California's Forced Arbitration Ban

Since Governor Gavin Newsom first signed Assembly Bill 51 (AB 51) into effect on October 10, 2019, there has been an ongoing battle as to the legal enforceability of this ban on arbitration as a condition of employment. In December 2019, the Chamber of Commerce challenged the law and was awarded a preliminary injunction. In September 2021, a divided three-judge panel partially reversed the injunction. On October 20, 2021, the Chamber filed a petition for a rehearing of its case en banc.

White House Proposal Returns to 1978 NEPA Review Procedures

The Council on Environmental Quality (CEQ) has requested comments, by November 22, 2021, on proposed revisions to the National Environmental Policy Act (NEPA) regulations. The proposal is Phase I in a two-phased approach that will eventually undo a final rule, effective September 2020, that updated NEPA regulations to reflect decades of agency experience and caselaw interpreting the 1969 Act.

SEC Climate Change Disclosure Letter Foreshadows Anticipated Regulatory Changes

In late September 2021, the Division of Corporation Finance of the Securities and Exchange Commission (SEC) issued a Sample Letter providing guidance to companies on how their climate disclosures will be analyzed for compliance with material risk reporting obligations. The Sample Letter precedes the SEC’s issuance of mandatory climate-related disclosure rules anticipated by year-end and signals a greater focus on specific information used to support securities filings, a development that businesses should take seriously.

All Florida Employers Must Now Report New Hires and Independent Contractors to State Directory

Previously, all large employers (those with 250 employees or more) were required to report new hires to a state registry. Florida has now expanded that reporting obligation to all employers regardless of size AND added a reporting requirement for independent contractors. Effective October 1, 2021, all Florida companies must report to the State Directory of New Hires all newly hired or rehired employees, as well as independent contractors, who are paid $600 or more per calendar year for services.

New PFAS Reporting Requirements Will Ensnarl Many Companies

Businesses across the country will soon face challenging new requirements to disclose the presence in their products of, and worker and environmental exposure from, an enormous set of chemicals that have been used for years in products, including cooking pans, furniture and carpets, food wrappers, apparel, paint, automobiles, machinery, and a vast array of other products. The U.S. Environmental Protection Agency (EPA) is set to finalize these new regulations soon.

What Do They Mean, "Judgment Obtained"? Florida Supreme Court Addresses Key Question on State’s 'Proposal For Settlement' Provision

Florida's Proposal For Settlement (PFS) provision was created to encourage early settlement of litigation and is governed by Florida Statute 768.79 and Florida Rule of Civil Procedure 1.442. In Florida, a PFS can be a strategic move that carries financial consequences if rejected.

Ninth Circuit Revives California Ban on Employer Use of Mandatory Arbitration Agreements

As previously reported, on October 10, 2019, California enacted AB 51, which prohibited employers from requiring employees to submit to binding agreements that waived “any right, forum or procedure” available under the California Fair Employment and Housing Act (FEHA) and Labor Code for resolving employment-based claims. Labor Code § 432.6 (a). Last week, in a divided 2-1 panel decision, the Ninth Circuit reversed in part the district court’s conclusion that AB 51 is preempted by the FAA and vacated the preliminary injunction, holding that the core of AB 51 – the prohibition of mandatory employment arbitration agreements – is not preempted.

California Court of Appeal Holds Trial Courts Can Strike Unmanageable PAGA Claims

On September 9, 2021, in a significant victory for California employers, the California Court of Appeal issued the first published appellate opinion in Wesson v. Staples the Office Superstore, LLC holding that trial courts have authority to ensure the manageability of PAGA claims, which includes the power to strike unmanageable PAGA claims as necessary.

Colorado Legislature Overturns Ferrer, Permits Direct Negligence Claims Alongside Respondeat Superior Claim

In May 2021, Colorado Governor Jared Polis signed HB21-1188, which explicitly overturned the Colorado Supreme Court’s ruling in Ferrer v. Okbamicael, 390 P.3d 836 (Colo. 2017). This law went into effect on September 7, 2021.

Illinois Appellate Court Holds Different Statutes of Limitations Apply to Different BIPA Provisions

Today, in a highly-anticipated opinion, the Illinois First District Appellate Court ruled in Tims v. Black Horse Motor Carriers, Inc. that different statutes of limitations apply to different provisions of the Illinois Biometric Information Privacy Act (BIPA, or the Act). This ruling has far reaching implications for all pending BIPA litigation and is likely to be appealed.

California Appellate Court Holds Unpaid Medical Bills May Be Admitted Into Evidence Under Very Limited Circumstances

In Qaadir v. Figueroa (2021) 67 Cal.App.5th 790, the plaintiff sued the defendants for negligence arising from a car accident defendants caused. During trial, both parties had billing experts testify about the reasonableness of the medical bills. Neither of the billing experts relied upon plaintiff’s unpaid medical bills to determine the reasonableness of the plaintiff’s medical expenses. On appeal, the defendants argued that the trial court erred by admitting the plaintiff’s unpaid medical bills.

FTC Publishes Report on Non-HSR Acquisitions by Tech Giants

On September 15, 2021, the Federal Trade Commission (FTC) published a report summarizing its findings from a study it performed regarding acquisitions made by five large technology firms over a 10-year period that were not reported to the federal U.S. antitrust agencies under the Hart-Scott-Rodino (HSR) Act.

House Democrats Propose Detailed Federal Tax Changes, Mostly Increases

Late in the night on Sunday, September 12, 2021, Democrats on the House Ways & Means Committee leaked changes spanning much of federal tax law. On September 13, Ways & Means officially released a summary of the proposed changes and 645 pages of draft legislative text.

Large Employer Vaccine Mandate and COVID-19 Action Plan

On September 9, 2021, in response to growing case counts and lagging vaccination rates, the Biden Administration announced its COVID-19 Action Plan, laying out a “path out of the pandemic.” The centerpiece of the president’s announcement is a new employee vaccination mandate for all private sector employers with at least 100 employees.

Florida Supreme Court Adopts Apex Doctrine, Provides Protections for High-Level Corporate Officials

Historically, Florida state courts have allowed plaintiffs to depose a defendant’s senior executives regardless of whether they have personal knowledge of the underlying claim, a tactic that has been used by some plaintiffs' counsel to exert pressure on the defendant. In federal court, however, this practice is prohibited by the “Apex Doctrine.” On August 26, 2021, the court amended the Florida Rules of Civil Procedure following a certified question of the First District Court of Appeal.

Texas Legislature Passes Overtly Employee-Friendly Reforms to Sexual Harassment Laws

Perhaps surprising for Texas employers, the Texas legislature has significantly expanded sexual harassment protections for employees, rendering Texas’ state law protections more expansive than those provided by similar federal statutes. These changes, which took effect on September 1, 2021, have significant practical implications.

Two Steps Backward for Gig Economy Businesses After California Superior Court Judge Finds Proposition 22 Exemption to AB 5 Unconstitutional

In November 2020, California voters passed Proposition 22, which exempted gig economy businesses (such as Uber Technologies Inc., Lyft Inc., DoorDash Inc. and Instacart Inc.) from California Assembly Bill 5 (AB 5). Previously, AB 5 had required these “app-based drivers” to be classified as employees instead of independent contractors. In what is unlikely to be the only judicial attack on Prop. 22, an Alameda County Superior Court Judge recently deemed Prop. 22 unconstitutional and unenforceable.

Compliance Update for NYC Employers: City Council Amends Fair Chance Act

Although the New York City Fair Chance Act (FCA) has been in effect since October 27, 2015, it has now been amended and employers need to be aware of the changes in order to achieve compliance. The FCA is one of the “ban the box” laws passed in many jurisdictions in recent years. Unless an exemption applies, it generally prohibits employers from inquiring about an applicant’s criminal history prior to making a conditional offer of employment.

Florida Jury Finds Damages in Excess of $1 Billion in Wrongful Death Trucking Accident

There are more than a billion reasons to take a very close look at what is happening in courtrooms across America right now. Nuclear verdicts are occurring with increased frequency and can no longer be ignored. On August 20, 2021, a Nassau County, Florida jury awarded damages in a wrongful death matter in excess of $1 billion, after just five days of testimony and four hours of deliberation. This award included a punitive damages award of $900 million.

New York Federal Judge Issues Landmark Ruling Signaling Potential Change in Tide of ADA Website Litigation

New York federal courts have been hospitable to claims by disabled plaintiffs that websites do not comply with the Americans with Disabilities Act (ADA) due to lack of accessibility based on, among other things, incompatibility with software used by visually impaired individuals and lack of closed captioning on videos that contain audio content as is needed by deaf or hard-of-hearing individuals. A notable new decision took a much different tack, and if it is affirmed on appeal or followed by other jurists, New York federal courts will no longer be a hotbed of these cases.

California Supreme Court Declines to Create Exception to Privette Doctrine for “Known Hazards”

In Gonzalez v. Mathis (Aug. 19, 2021, S247677) __ Cal.5th___, the California Supreme Court reversed an appellate decision holding that a landowner may be liable to an independent contractor, or the contractor’s workers, for injuries resulting from “known hazards,” as running contrary to the Privette doctrine.

The Reptile Theory in Practice

The “Reptile Theory” is a trial strategy that attempts to use fear and anger to make the jury dislike the defendant so strongly they will award a plaintiff a grossly excessive amount of damages. The plaintiff’s attorney will seek to activate the jurors’ “survival mode” instincts by presenting the defendant’s conduct as highly dangerous and worthy of punishment. The defendant’s conduct will be portrayed as a threat to the safety of the general public, and the award as a deterrent needed to protect the community at large. The Reptile Theory appeals to the jurors’ emotions in place of any rational, impartial evaluation of the evidence.

State Biometric Legislation Developments

In 2008, Illinois became the first state to regulate the collection and storage of biometric information amidst the advent of pay-by-touch technologies. Nearly 13 years later, as workers across the country return to their workplaces following a global pandemic and have their temperature and other vitals screened, many state legislatures are busy enacting or amending laws pertaining to biometric data. This alert provides a survey of the existing legal landscape as well as some noteworthy developments across different jurisdictions.

Oregon Businesses & Employers Take Note: New Indoor Spaces Mask Mandate Effective Today

Effective August 13, 2021, Oregon law requires masks, face coverings, or face shields in all indoor spaces (but not private residences) in Oregon regardless of vaccination status under Oregon Administrative Rule (OAR) 339-019-1025.

Delaware Courts Lift COVID-19 Restrictions

Delaware has two separate trial courts – the Superior Court, which is a trial court of general jurisdiction, and the Court of Chancery, which has limited equitable jurisdiction. This streamlined process was substantially slowed in March 2020, due to the pandemic and the series of orders implementing a judicial emergency during COVID-19. However, on June 29, 2021, Chief Justice Collins J. Seitz, Jr, of the Delaware Supreme Court signed what is hoped to be the final order extending the judicial emergency.

Mandatory Vaccination Policies – Don’t Miss Your Shot

Can a business mandate that its employees be fully vaccinated from COVID-19 as a term of condition to their employment? The short answer is, it depends. The long answer is that a business may mandate that its employees receive the COVID-19 vaccination as long as the policy does not violate any existing statutory or anti-discrimination laws. 

Delaware Court of Chancery Allows Claims for Breach of Both Fiduciary Duty and Contract Against LLC Manager

The Delaware Court of Chancery recently explained under what circumstances dual claims will be allowed to proceed for both breach of fiduciary duty and breach of contract in the context of the manager of an LLC allegedly using LLC assets for his personal benefit in a manner not shared by all the other LLC members. In Largo Legacy Group, LLC v. Charles, C.A. No. 2021-MTZ (Del. Ch., June 30, 2021), the court addressed many noteworthy bedrock principles of Delaware commercial litigation.

New Jersey Permits Recovery of Personal Injury Damages on Employee Claims for Failure to Accommodate Disabilities

The New Jersey Supreme Court’s recent decision in Mary Richter v. Oakland Board of Education will effectuate a sea change in the law governing disability discrimination and failure to accommodate claims under the New Jersey Law Against Discrimination (LAD).

Texas Supreme Court Clarifies Rule on Controverting Affidavits

The Texas Supreme Court recently clarified the rules related to medical billing counter affidavits, under Section 18.001 of the Texas Civil Practice and Remedies Code, and restored fair balance to the dispute of reasonable medical charges. 

Texas Supreme Court Allows Corporate Representative Depositions in UIM Cases

In a recent mandamus opinion, the Texas Supreme Court resolved a split in opinion among the Texas Courts of Appeals as to when a corporate representative deposition of an uninsured motorist (UIM) insurance carrier is appropriate. Previously, the Corpus Christi and San Antonio Courts of Appeals permitted such depositions, but both Houston Courts of Appeals held them impermissible.

In Groundbreaking Decision, California Supreme Court Mandates Use Of Regular Rate Of Pay In Calculating Meal And Rest Period Premiums

In an unfortunate and costly shift for employers, the California Supreme Court ruled last week that meal and rest period premiums must be paid at employees’ regular rate of pay, rather than employees’ straight hourly wage. The California Labor Code already made explicitly clear that calculation of employees’ overtime wages must be at employees’ regular rate of pay. Unlike a straight hourly wage, the regular rate of pay includes all remunerations employees received during the applicable pay period, including non-discretionary incentive compensation and bonuses, shift differentials, commissions, mandatory service charges, meals provided to employees, and the like.

EEOC Issues Guidance Regarding Discrimination Based On Sexual Orientation and Gender Identity

In reaction to the United States Supreme Court’s decision in Bostock v. Clayton County, which held that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 extends to employment discrimination on the basis of sexual orientation or gender identity, the Equal Employment Opportunity Commission (EEOC) has provided its own informal guidelines outlining workplace protections for LGBTQ employees and job applicants.

New York Office Secures Three Significant Summary Judgment Victories on “Serious Injury” Threshold Grounds - Discectomy, Arthroscopic Knee Surgery, and Alleged Fractures Do Not Defeat Threshold Motions

Lewis Brisbois' New York office has been gaining significant traction in getting transportation cases dismissed on the basis that the plaintiff did not sustain a “serious injury” within the meaning of New York Insurance Law section 5102(d). This alert outlines three recent cases won by Lewis Brisbois attorneys on these grounds.

Texas Legislature Passes HB 19, Transportation Industry Breathes Sigh of Relief

Transportation industry insiders have known for quite some time that the industry has been in crisis and under immense pressure. The increased demands from commerce have butted up against burdensome regulations and oversight, a nationwide driver shortage, and rising operating costs. The industry has been desperate for help, and it finally came in the form of Texas House Bill 19 (HB 19).

Amendments to Recently Adopted NY HERO Act Now In Effect, Model Exposure Prevention Plans Issued

As noted in our May 13 Client Alert, New York recently enacted the Health and Essential Rights Act (HERO Act), which mandates extensive new workplace health and safety protections to prevent workplace exposure to airborne infectious diseases. Shortly thereafter, amendments were signed into law on June 11, 2021.

President Biden Signs Executive Order on Promoting Competition in the American Economy

On July 9, 2021, President Biden signed an “Executive Order on Promoting Competition in the American Economy.” According to a Fact Sheet released in advance of the signing, the Executive Order takes “decisive action to reduce the trend of corporate consolidation, increase competition, and deliver concrete benefits to America’s consumers, workers, farmers, and small businesses.” 

Fourth Circuit Questions EPA 2020 Clean Water Act 401 Certification Rule Tolling Prohibition

Last week, in North Carolina Department of Environmental Quality v. Federal Energy Regulatory Commission, the Fourth Circuit Court of Appeals suggested that Congress did not intend for the states, or tribes, to take final action on Clean Water Act (CWA) Section 401 applications within a year of filing.

California Contractors: Amended Section 7141.5 Provides Important License Renewal Safety Net

During the August 5-6, 2019 Executive, Licensing, and Legislative Committee Meetings, the Contractors State License Board discussed proposed amendments to Section 7141.5 to reduce both the burden on it to review applications for retroactive renewal of a license that had not been timely submitted and to provide contractors with some relief from the high burden to establish “the failure to renew was due to circumstances beyond the control of the licensee.”

L.A. Employers Subject to New COVID-19 Vaccine Paid Sick Leave Order

On June 24, 2021, City of Los Angeles Mayor Eric Garcetti issued a new order titled Vaccine Paid Sick Leave Due to COVID-19 (the Order). The Order is intended to reduce barriers workers face when seeking the COVID-19 vaccine. 

Florida Court Addresses Rear-End Presumption and Loss of Consciousness Defense

Florida’s rear-end presumption rule and the loss of consciousness defense, in car accident cases, was recently the focus of a Third District Court of Appeals decision in Hernandez v. Mishali, 46 Fla. L. Weekly D1016 (Fla. 3d DCA May 5, 2021).

EPA Seeks Comment on Clean Water Act Section 401 Certification Rule

The Environmental Protection Agency (EPA) announced that it will revise a 2020 final rule clarifying requirements for water quality certification under the Clean Water Act (CWA). 85 Fed. Reg. 42210 (June 2, 2021). CWA Section 401 requires states and tribes to certify that any discharges associated with a federal permit will comply with applicable state or tribal water quality requirements.

NYC’s New Biometric Privacy Law, Soon to be Effective, Imposes New Obligations on Businesses That Collect Biometric Data

Right on cue with mask mandates being lifted, a new NYC law aimed at the ever-popular facial recognition software takes effect on July 9, 2021. New York City’s Biometric Identifier Information Law applies to a broad array of biometric data and will have important implications for businesses going forward.

Six Flags Agrees to $36 Million BIPA Class Action Settlement

The parties to the seminal litigation on the application of the Illinois Biometric Information Privacy Act (BIPA), Rosenbach v. Six Flags Entertainment Corp., have received preliminary approval for a proposed class action settlement with an anticipated value of $36 million. If final approval is granted, the settlement would be the second-largest BIPA class action to resolve, trailing only Facebook’s record $650 million settlement for 1.6 million members. 

California Court of Appeal Affirms Summary Judgment in Favor of Individual Defendant on Claim of Individual Liability for Wage & Hour Violations

In an opinion issued on May 28, 2021, the California Court of Appeal for the Fourth Appellate District affirmed summary judgment in favor of an individual owner of a company who was personally sued for alleged wage and hour violations under Labor Code section 558.1.

Illinois Enacts Prejudgment Interest For Personal Injury, Wrongful Death Lawsuits

On May 28, 2021, Illinois Governor JB Pritzker signed Illinois Senate Bill 72 (the Prejudgment Interest Act) into law, which allows 6% prejudgment interest in personal injury or wrongful death lawsuits. The new legislation takes effect on July 1, 2021 and will have an immediate impact on personal injury cases in Illinois.

Analyzing Issue of First Impression, Penn. Supreme Court Invalidates No-Poach Provision Between Two Businesses in Service Contract

On April 29, 2021, the Pennsylvania Supreme Court delivered its long-anticipated decision in Pittsburgh Logistics Systems, Inc. v. Beemac Trucking LLC, et al., unanimously affirming that a no-hire agreement between a business entity and its service vendor was unenforceable because it constituted an unreasonable restraint on trade. The court’s ruling is illustrative of widespread resistance to enforce non-poaching agreements and highlights that Pennsylvania strongly disfavors such restrictions unless they are narrowly tailored.

How New York and Illinois Are Addressing Changes in CDC Guidance

As the COVID-19 vaccine rollout continues into summer, states are beginning to ease their coronavirus-related restrictions in favor of new, more flexible guidelines for vaccinated individuals. In a sampling of the similarities and differences in guidance, this alert covers recent changes in New York and Illinois.

New York's Appellate Division Rules Governor Cuomo’s COVID-19 Orders “Toll” Statutes of Limitations

Since the COVID-19 crisis began, New York’s legal community has been closely following developments regarding a series of Executive Orders issued by Governor Cuomo involving the suspension and/or tolling of legal deadlines during the 228-day period from March 20 to November 3, 2020. In particular, uncertainty had lingered as to whether these orders would effectively “toll” statutes of limitations and other legal deadlines, or alternatively, merely “suspend” them.

New York Appellate Division Dismisses Labor Law Action Based on “One Family Exemption” Despite Commercial Project Next Door

By statute, owners of “one- or two-family dwellings” are exempt from liability under the express language of Labor Law §§ 240(1) and 241(6), unless they directed or controlled the work being performed. The exemption does not apply to general contractors or subcontractors, even if they worked on single-family homes. 

Proper Method for Calculating Meal & Rest Period Premiums in California Hangs in the Balance as California Supreme Court Deliberates

Currently, California law requires the employer to pay the employee a meal period premium of one hour’s wages at the employee’s “regular rate of compensation”. (Cal. Lab. Code § 226.7) Last week, the California Supreme Court heard oral argument centering on the meaning of “the regular rate of compensation” with respect to meal and rest period premiums.

Conn. Appellate Court Overturns Jury Verdict, Holding Plaintiff’s Sole Remedy for Injuries Arising From Open Manhole Was State’s Highway Defect Statute

Recently, in Dobie v. City of New Haven, 2021 Conn. App. LEXIS 162 (App. Ct. May 1, 2021), the Connecticut Appellate Court overturned the trial court’s denial of a municipal defendant’s post-trial motion to dismiss. The court held that even though the plaintiff attempted to assert allegations of negligence against the defendant municipality, Connecticut’s highway defect statute was the plaintiff’s exclusive remedy.

CFPB Targets Payment Processors

On March 3, 2021, the Consumer Financial Protection Bureau filed a lawsuit that has significant implications for the payment processing industry. The complaint alleges that BrightSpeed Solutions, Inc. and its founder and former chief executive officer, Kevin Howard, knowingly processed payments for companies that purported to offer technical-support services and products over the internet, but actually tricked consumers into purchasing expensive and unnecessary software or services.

Biden Administration Solicits Comments on Reinvigorating Social Cost of Greenhouse Gases Metrics

The Office of Management and Budget (OMB), acting on behalf of other White House offices and the Interagency Working Group (IWG) on the Social Cost of Greenhouse Gases (GHG), is requesting comments on a new Technical Support Document that would substantially increase the numerical values used to calculate estimates for the Social Cost of GHG.

New York State Enacts Groundbreaking HERO Act

After a year’s worth of various executive orders addressing worker safety issues arising from the COVID-19 pandemic, as of May 6, 2021, New York has adopted novel legislation designed to protect employees. The stated goal of the New York Health and Essential Rights Act, or NY HERO Act, is to provide support for workers and give them the tools to keep themselves and their families safe.

Businesses, Be Aware: Environmental Justice Enforcement is Serious

In late April 2021, the Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA) issued two memoranda that shed light on how the agency will implement President Biden’s directives on environmental justice in environmental enforcement actions. The memoranda describe a significant shift in EPA’s enforcement focus, moving beyond traditional actions against noncompliance to a new emphasis on mitigating harm and delivering benefits to communities affected by environmental non-compliance, including reparation for past harm.

California Adds New Residential Remodeling Contractor License Classification, Effective June 1, 2021

On June 1, 2021, the California Contractors State License Board (CSLB) will start accepting applications for a new classification of licensees – Class B-2 Residential Remodeling. The CSLB will continue to offer the Class B General Building license classification.

Biden Administration Repeals Trump-Era Independent Contractor Rule, Signals Change to Joint Employer Rule

This week, the Department of Labor (DOL) repealed the Trump Administration’s independent contractor rule under the Fair Labor Standards Act (FLSA). The DOL has also proposed the rescission of the Trump Administration’s joint employer rule and sent a new proposed regulation to the White House Office of Information and Regulatory Affairs (OIRA) for review. Both moves signal a return to standards more likely to find an employment relationship.

In a Controversial Decision Certain to be Contested, Ninth Circuit Says FAAAA Does Not Preempt Enforcing A.B. 5 Against California Trucking Industry

In a decision with wide-ranging implications for the California trucking industry, the Ninth Circuit Court of Appeals ruled this week that the Federal Aviation Administration Authorization Act of 1994 (the FAAAA) does not preempt the ABC employment test adopted under A.B. 5.

Florida Supreme Court Adopts Federal Summary Judgment Standard, Substantially Conforming Florida’s Rule 1.510 to Federal Rule 56

Effective May 1, 2021, the Florida courts will transition to a new summary judgment standard meant to “align Florida’s summary judgment standard with that of the federal courts and of the supermajority of states that have already adopted the federal summary judgment standard.” Consistent with this amendment, Florida Rule of Civil Procedure 1.510 has been amended to adopt the federal summary judgment rule, with exceptions for timing-related issues.

Registration for Restaurant Revitalization Act Grants Begins April 30

The Small Business Administration (SBA) is moving forward to implement an application process for tax-free COVID-19 relief grants to restaurants, bars, and food-service establishments. In the latest developments, the SBA portal will open at 9:00 a.m. ET on April 30, 2021 for applicants to register, and applications will be accepted starting Monday, May 3, at noon.

Philadelphia City Council Passes Ordinance Banning Pre-Employment Testing for Marijuana

As a result of a new ordinance passed by Philadelphia City Council, employers, labor organizations, and employment agencies in Philadelphia may not require a prospective employee to submit to testing for the presence of marijuana in the person’s system as a condition of employment.

SEC to Regulated Companies: Be Prepared for ESG Scrutiny

In actions announced by the Securities and Exchange Commission (SEC) over the past two months, the SEC is sharpening its focus on climate-related disclosures in public company filings. The emphasis is on how public companies address disclosures of actual and material impacts that climate change has on a company’s business and whether they comply with obligations under the federal securities laws.

Chief Judge Janet DiFiore Announces Return to Full Staffing Levels in New York Courts

On April 19, Chief Judge of the Court of Appeals and of the State of New York Janet DiFiore released a message to the legal community announcing the New York State Unified Court System’s plans for returning to full staffing levels. In the announcement, Chief Judge DiFiore stated that, effective Monday, May 24, all judges and court staff will be required to return to work, noting, “It is time to return to our normal and full courthouse staffing levels in order to support the fuller resumption of in-person operations, including jury trials and other proceedings in our courts.”

One Step Closer: SBA Activates Website, Releases Sample Form for Restaurant Revitalization Act Grant Program

On Saturday, April 17, the Small Business Administration (SBA) activated a new website and released a sample application form for the Restaurant Revitalization Act grant program established under the American Rescue Plan Act of 2021. Although applications are not yet being accepted, the limited funding available for this tax-free grant program and its first-come-first-served approach mean that applicants should lose no time in completing the new form so they can submit it at the earliest possible opportunity.

Illinois Limits Employers’ Use of Criminal Conviction Records with Amendment to IHRA

On March 23, 2021, Governor J.B. Pritzker signed Senate Bill 1480 into law, amending the Illinois Human Rights Act (IHRA) by restricting the use of criminal conviction records. A covered employer is now required to follow certain procedures, including engaging in an interactive process with the applicant or employee, if it seeks to disqualify the individual based on a record of criminal conviction.

Coming Soon: New Tax-Free COVID-19 Relief Grant Program for Restaurants & Bars

Restaurants and bars, among the businesses hit hardest by the COVID-19 pandemic, will soon be able to apply for a new tax-free grant program enacted as part of the recently enacted American Rescue Plan Act of 2021, signed into law on March 11, 2021. The Restaurant Revitalization Fund (RRF) will provide $28.6 billion in grants for eligible restaurants and bars that can certify they need the funds to support ongoing operations of the business.

Millions of Dollars at Issue in BIPA Appeal to Seventh Circuit

The Illinois Biometric Information Privacy Act (BIPA or the Act) provides for statutory damages of $1,000 for each negligent violation and $5,000 for each reckless or intentional violation of the Act. An unsettled question is whether a plaintiff can “stack” alleged violations for a windfall recovery. The Seventh Circuit Court of Appeals is about to weigh in.

California Contractors: New CSLB Procedure Requires Non-California Corporations to Associate All Officers With Their Contractor’s License

As of July 1, 2020, “[e]very person who is an officer, member, responsible manager, or director of a corporation or limited liability company seeking licensure under this chapter shall be listed on the application as a member of the personnel of record,” and they must match those officers listed on California Secretary of State’s (SOS) records. This is a deviation from the Contractors State License Board’s (CSLB) past practice of requiring foreign corporations to associate as personnel of record only their president, in contrast to requiring domestic corporations to associate their president, secretary, and treasurer. 

The Illinois Equal Pay Act – New Requirements for Employers

The Illinois Equal Pay Act (IEPA) has been amended to create significant new requirements for Illinois employers. Governor J.B. Pritzker signed Senate Bill 1480 (SB 1480) into law on March 23, 2021, effective immediately.

New York City Expands Protections Under Its Ban the Box Law for Applicants and Employees

The New York City Human Rights Law (NYCHRL) is considered to be one of the most progressive discrimination laws in the nation. Earlier this year, the New York City Council passed a bill which expands the scope of the New York City Fair Chance Act (FCA), more commonly known as the “ban-the-box” law. The FCA prohibits most New York City employers from inquiring about an applicant’s criminal history until after the employer extends a conditional offer of employment. The amended FCA expands protections for both applicants and employees with criminal backgrounds, including convictions, charges and arrests. The amendments go into effect on July 28, 2021.

Plain Text: United States Supreme Court Narrowly Interprets Definition of Automatic Telephone Dialing System in Closely-Watched Facebook TCPA Decision

On April 1, 2021, the U.S. Supreme Court unanimously reversed the Ninth Circuit Court of Appeals' interpretation of the definition of “automatic telephone dialing system” (ATDS), or autodialer, under the Telephone Consumer Protection Act (TCPA). The Court held that a “necessary feature” of an ATDS “is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” 

U.S. Supreme Court Rejects Manufacturer’s Arguments on Specific Jurisdiction

On March 25, 2021, the United States Supreme Court ruled in Ford Motor Co. v. Montana Eighth Judicial District Court that the connection between the Montana and Minnesota plaintiffs’ claims and Ford’s activities in those states is close enough to support specific jurisdiction. Thus, an auto manufacturer can be sued in a state over injuries from vehicle accidents occurring in the state despite the vehicles in question being manufactured and originally sold elsewhere.

Seventh Circuit Holds Employers May Be Required Under USERRA to Pay For Military Leave

The Seventh Circuit Court of Appeals (which covers Illinois, Indiana, and Wisconsin) has held that an employer may be required to pay for all or part of a Uniformed Services Employee Reemployment Rights Act (USERRA) covered military leave. USERRA protects servicemembers by mandating that employers provide leave to accommodate military leaves of absence and re-employ servicemembers who timely return to work after their service.

Employee Retention Tax Credit Can Significantly Reduce Employer Payroll Taxes

Added to federal tax law by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) and since expanded, the Employee Retention Tax Credit (ERTC) can significantly reduce an employer’s federal employment (payroll) taxes. Employers can use the ERTC to offset dollar-for-dollar employer payroll taxes they otherwise must deposit with the IRS.

Terminated Employees Now Eligible for Fully Subsidized COBRA Premium Payments Under American Rescue Plan Act of 2021

Under the American Rescue Plan Act of 2021 (ARPA), assistance eligible individuals (AEIs) are entitled to have their COBRA premium payments fully subsidized for the period between April 1, 2021 and September 30, 2021 (the “subsidy period”). The subsidy applies to group medical, dental, and vision benefit plans but not healthcare flexible spending arrangements (health FSAs). Employers will be fully reimbursed for all COBRA premiums they front under ARPA through a tax credit on their quarterly payroll tax filings.

States Allowing Borrowers to Deduct Business Expenses Paid with Forgiven PPP Loan Proceeds

In determining their taxable income for federal income tax purposes, borrowers of Payroll Protection Program (PPP) loans now can deduct qualifying business expenses they paid with forgiven PPP loan proceeds. The new law provides that no deduction is denied, no tax attribute is reduced, and no basis increase is denied because of the exclusion from income of the recipient’s forgiven PPP loan. The change is effective for tax years ending after March 27, 2020 (tax year 2020 for calendar year taxpayers).

EU Sustainable Finance Disclosure Regulation Goes Into Effect, with Wide Implications for Businesses

On March 10, 2021, a new set of sustainability disclosure requirements went into effect in the European Union, in the form of its Sustainable Finance Disclosure Regulation (SFDR or EU Regulation). While the measure is complicated, essentially it imposes new obligations on investment funds, requiring disclosures of environmental, social, and governance (ESG) risk factors in materials that are provided to investors and made available on asset companies’ websites and in their periodic reports.

Illinois Lawmakers Propose Amending State’s Biometric Information Privacy Act

Illinois lawmakers have advanced a bill that would materially amend the state’s Biometric Information Privacy Act (BIPA) and provide significant relief to Illinois employers, who have faced a wave of BIPA class action lawsuits in the last three years. Over 850 BIPA class actions have been filed in Illinois.

COVID-19 Response: California Governor Signs Retroactive Paid COVID-19 Sick Leave Bill

On March 19, 2021, California Governor Gavin Newsom revived and expanded the COVID-19 related supplemental paid sick leave (SPSL) law that expired on December 31, 2020. Senate Bill 95 codifies SPSL through newly enacted Labor Code sections 248.2 and 248.3, which place additional requirements on employers beyond existing paid sick leave requirements, apply retroactively, and require employers to provide back payments to their employees.

Louisiana Supreme Court Holds Public Policy Prohibits Application of “Regular Use” Exclusion in UM Policy

The Louisiana Supreme Court, reversing multiple lower circuit court decisions, has now invalidated the “regular use” exclusion in an Uninsured/Underinsured Motorist (UM) policy based on Louisiana public policy. In Higgins v. La. Farm Bureau Cas. Ins. Co., No. 2020-01094 (La. 3/24/21), the plaintiff, Charles Higgins, was injured in an automobile accident while operating a truck owned by his employer, AT&T.

Recent Delaware Chancery Decision Addresses Dissolution Based on LLC Deadlock

A recent Delaware Court of Chancery decision provided an exemplary analysis of when a deadlock in an LLC might be the basis for a dissolution. In Mehra v. Teller, C.A. No. 2019-0812-KSJM (Del. Ch. Jan. 29, 2021), the court analyzed case law, statutes, and learned commentary that it synthesized in a careful application to the facts of this case

Texas Supreme Court Finds Payment of Appraisal Award Does Not Absolve Insurer of Statutory Liability

The Texas Supreme Court recently published its long-awaited decision in the Hinojos v. State Farm Lloyds. In it, the court affirmed its holding in Barbara Technologies, finding that payment of an appraisal award does not absolve an insurer of statutory liability when the insurer accepts a claim but pays only part of the amount it owes within the statutory deadline, and a policy holder can proceed with an action under the Texas Prompt Payment of Claims Act.

CFTC Establishes Climate-Risk Unit, Echoing Other Biden Administration Agency Themes

On March 17, the Commodity Futures Trading Commission (CFTC or Commission) joined other federal agencies led by Biden Administration appointees in ramping up consideration of climate-related risks in matters under the Commission’s jurisdiction. Stressing the need for a climate-resilient financial system, the CFTC’s new Climate-Risk Unit (CRU) will focus on “the role of derivatives in understanding, pricing, and addressing climate-related risk and transitioning to a low-carbon economy."

SEC Comment Solicitation on Forthcoming Disclosure Requirements Creates Opportunities for Publicly Traded Companies

Following previous steps to enhance its focus on climate-related disclosures, the Securities and Exchange Commission (SEC) announced on March 15, 2021 that it was accepting public comment on climate change disclosure requirements for public company filings. Acting Chair Allison Herren Lee opened a 90-day comment period on whether current disclosure requirements provide investors with adequate information on climate-related impacts and, if not, what additional rules should be considered.

New York’s App. Div., Second Dept. Addresses Policy Exhaustion Issue, But Doesn’t Resolve Lower Court Split

New York’s Appellate Division, Second Department recently issued a decision in Alleviation Medical Svcs. v. Allstate Ins. Co., 2021 N.Y. Slip Op. 08159 (App. Div., 2nd Dept. 2/24/21), which was anticipated to specifically address the issue of whether an insurer would be required to pay in excess of the $50,000 policy limit if a court or arbitrator determined that a previously denied claim should have been paid.

California Supreme Court Disapproves of Rounding Meal Period Time Punches, Articulates Rebuttable Presumption

A recent decision from a unanimous California Supreme Court provides further warning to employers against utilizing rounding policies with respect to timekeeping systems. Specifically, the court held that: (1) employers cannot engage in the practice of rounding time punches in the meal period context; and (2) time records showing noncompliant meal periods raise a rebuttable presumption of meal period violations, including at the summary judgment stage.

Missouri Asbestos Litigation Reform: New Bill Seeks to Establish Robust Disclosure Obligations

Missouri State Senator Eric Burlison is reviving attempts to reform asbestos litigation in the State of Missouri through the introduction of SB 331. This bill was pre-filed on December 29, 2020 and first read on January 6, 2021. The bill establishes disclosure procedures for claimants in asbestos-related lawsuits. 

UPDATE: In-Person Jury Trials to Commence in Kings County on March 22

As an update to our previous alerts regarding the commencement of in-person jury trials in New York City, Lewis Brisbois' Trial Team has been informed, per a letter from the Honorable Lawrence Knipe, Administrative Judge for Civil Matters, that in-person jury trials will begin in Kings County (Brooklyn) as of March 22, 2021

DOL Rule on Independent Contractor Classification Delayed Until May 2021

Today, the United States Department of Labor’s (DOL) newly enacted rule concerning the classification of independent contractors was scheduled to go into effect. However, under direction from the Biden Administration, the DOL recently announced a delay of the effective date until May 7, 2021. The rule consists of a multifactor test intended to clarify the analysis that determines whether individuals are independent contractors or employees.

COVID-19 Courthouse Restrictions Remain, Even as In-Person Trials Begin to Resume in New York & Nationwide

Lewis Brisbois’ New York trial team continues to monitor COVID-19 courthouse restrictions, even as the courts begin reopening for jury trials. We remain heavily engaged in preparing for trials within the parameters of the restrictions that remain in place and are continuously evolving. Currently, our New York office has two federal trials scheduled to commence within the next three weeks.

Rhode Island Courts Resume Jury Trials On Limited Basis

Jury trials have resumed on a limited basis in Rhode Island’s state courts. At this time, they are only being held in Providence County Superior Court. Further, no jury trial is scheduled without the express, written authorization of the Presiding Justice of the Superior Court where a constitutional, statutory, or otherwise highly critical need has been demonstrated. Currently, jury trials that proceed are held in-person, rather than virtually. The Superior Court has updated its jury trial process, effective September 2020, in the interests of the health and safety of all jurors, court personnel, litigants, and court users.

Back to Virtual and In-Person Jury Trials: Update on New York & New Jersey Courts

Although we are still in the middle of the COVID-19 pandemic, this has not stopped the steady flow of litigation faced by the court system. And with many court houses and in-person legal proceedings on hold as a result of the pandemic, states are seeing massive trial calendar backlogs. Different states have sought different solutions to this problem. In New York and New Jersey, the courts briefly sought to resume in-person jury trials, despite the various shut down orders across both states.

Kentucky Court of Appeals Affirms Jury Award of Zero Damages Even After Finding Defendant at Fault, But Grants Mistrial

On February 5, 2021, the Kentucky Court of Appeals issued an opinion in Allen v. Wheeler, 2021 Ky. App. Unpub. LEXIS 95, 2021 WL 406308, that raised several interesting issues affecting personal injury actions. The heart of the appeal was whether to affirm a jury verdict awarding the plaintiff zero damages, after determining the defendant was at fault for his injuries.

COVID-19 Response: HHS/OIG Announces New Audits, Evaluations of Telehealth Services During Pandemic

Telehealth was on the rise even before COVID-19 arrived on scene. Prior to this expansion, telehealth was already a focus of investigations for possible fraud and so it should not be a surprise that on January 26, 2021, the Department of Health and Human Services, Office of Inspector General (HHS/OIG) gave notice that it was adding a new audit and evaluation project, known as the HHA Telehealth Project, focused on the implementation of various telehealth waivers by home health agencies as a result of the pandemic. 

Biden Administration Focus on Environmental Justice Raises Questions for Industry

The Biden Administration has left no doubt that it intends to prioritize environmental justice (EJ) in implementing energy and environmental policy. President Biden has announced plans for elevating EJ by designating new Cabinet level offices, intensifying enforcement, and advocating for Congressional action. Given the likelihood of serious impacts from these sweeping changes, industry will need to step up engagement as these concepts are integrated into regulatory decisions and U.S. positions globally.

COVID-19 Response: Executive Order 13999: Enhancement of COVID-19-Related Workplace Safety Requirements

 President Biden has signed 28 Executive Orders as of February 2, 2021, but there is one that stands out to employment lawyers – Executive Order 13999. Titled “Protecting Worker Health and Safety,” the Order addresses workplace safety. It sets out instructions, primarily to the Secretary of Labor and Assistant Secretary of Labor for Occupational Safety and Health, for establishing and issuing a set of guidelines under the Occupational Safety and Health Act.

Ninth Circuit CAFA Decision Places Greater Jurisdictional Burden on Employers

A recent decision issued by the U.S. Court of Appeals for the Ninth Circuit makes it harder for employer defendants to remove class actions to federal court under the Class Action Fairness Act of 2005 (CAFA). In remanding a putative class action back to California state court, the Ninth Circuit held that the removing defendant failed to submit competent evidence showing that the amount in controversy exceeded the $5 million jurisdictional threshold required to invoke federal jurisdiction.

Biden Administration Changeover in Financial Regulators Will Mean Regulatory Ramp-Up and Aggressive Enforcement

It is clear the Biden Administration plans big changes in the leadership of the Office of the Comptroller of the Currency (OCC), the Federal Deposit Insurance Corporation (FDIC), and the Consumer Financial Protection Bureau (Bureau or CFPB).

"Ongoing Storm" Rules for the Northeast (Connecticut, Massachusetts, New Jersey, New York & Rhode Island)

As we move through the remainder of this snowy season, it is important for businesses to understand their legal obligations concerning snow removal and the defenses that are available to them in the event that an injury occurs on their premises. This alert summarizes the ongoing storm rules in Connecticut, Massachusetts, New Jersey, New York, and Rhode Island, and analyzes property owners’ snow removal responsibilities as well as related premises liability issues under these states’ laws.

FTC Announces 2021 Changes to HSR Filing Thresholds

On February 1, 2021, the Federal Trade Commission (FTC) announced the annual changes to the Hart-Scott-Rodino (HSR) Act notification thresholds. The FTC is required by law to revise the jurisdictional thresholds annually, based on the change in gross national product (GNP).

Biden Administration’s Emphasis on Climate Change Continues to Shake Things Up

In addition to actions already taken on his first day in office, which included rejoining the Paris climate agreement and revoking the Keystone XL oil pipeline’s permit, on January 27, 2021, President Biden released several new initiatives that represent a major shift in climate policy (see our previous alert from January 19).

Fifth Circuit Eliminates “Conditional Certification” Process in FLSA Cases

On January 12, 2021, the United States Court of Appeals for the Fifth Circuit articulated a new framework for collective actions under the Fair Labor Standards Act (FLSA), eliminating the current “conditional certification” process.

Illinois Legislature Enables Pre-Judgment Interest in Personal Injury Cases

On January 13, 2021, the Illinois General Assembly passed HB 3360, which will enable pre-judgment interest of 9% in personal injury cases. If signed by the governor, personal injury actions in Illinois will be subject to 9% per annum pre-judgment interest accruing “on the date the defendant has notice of the injury from the incident itself or a written notice."

Biden Administration Climate Change Policies Likely to Boost Sustainable Investing

President-Elect Biden is expected to shift executive branch climate policy dramatically, assigning priorities to incentives for renewable energy, support for carbon pricing, and other aggressive measures aimed at reducing greenhouse gas emissions. The new Administration’s goals include increased attention to sustainable investing, standardization of corporate disclosures, and environmental, social and governance (ESG) criteria. These changes create opportunities, but also challenges, for businesses open to the potential for competitive advantage.

2020 Illinois, Indiana, and Michigan Labor & Employment Law Year-End Review

In contrast to years past, the COVID-19 pandemic has resulted in fewer changes to employment laws in Illinois, Indiana, and Michigan. The alert contains a summary of the major employment law developments of the past year in those three states.

2020 Kansas and Missouri Labor & Employment Law Year-End Review

Thsi alert contains a summary of the most noteworthy judicial decisions and legislative changes related to employment law that took place in Kansas and Missouri in 2020, including changes to the Kansas Human Rights Commission, the expansion of Missouri's whistleblower law, and COVID-19 updates for both states.

2020 New York and New Jersey Labor & Employment Law Review

2020 was certainly a year for the books. While the international community experienced shut downs and standstills as the COVID-19 pandemic swept the globe, everyone had to adjust to a “new normal.” Although many New York and New Jersey businesses closed their doors, and court operations went virtual starting in March, that did not stop new legal developments from paving the path to a new pandemic-centric landscape. 

Florida Adopts Less Stringent Summary Judgment Standard

On New Year’s Eve, Florida’s Supreme Court issued an amendment to essentially apply the federal summary judgment standard to cases in Florida state courts starting on May 1, 2021.

2020 Minnesota, North Dakota, and Wisconsin Labor & Employment Law Year-End Update

Unlike most states, it was a relatively quiet year in terms of legislative updates and judicial opinions in the employment law context in Minnesota, North Dakota, and Wisconsin. This alert provides a summary of the major legal updates in each of these states in 2020.

2020 Pennsylvania Labor & Employment Law Review

With the conclusion of 2020, Pennsylvania employers should be aware of three significant employment law changes that took effect during the year.

DOL Announces Final Rule on Standard for Employees vs. Independent Contractors Under FLSA

The US Department of Labor (DOL) announced this morning, January 6, its final rule clarifying the standard for employee versus independent contractor under the Fair Labor Standards Act (FLSA), reaffirming an “economic reality” test and identifying five factors to guide the analysis.

2020 California Labor & Employment Year-End Update

In addition to bringing a global pandemic, 2020 was an unprecedented year filled with important judicial rulings and legislative changes throughout the Golden State. This alert contains a summary of the most critical legal updates affecting employers and employment litigation in California

A State-by-State Guide to Litigation Financing Disclosure

Due to the overwhelming response to our earlier alert regarding the process for uncovering litigation funding in New York State, we now share an overview of similar procedures for determining whether a plaintiff has taken out a loan in 12 other states.

Litigation Funding in New York: Critical Resource for Defendants Unveiled

In 2019, the first detailed analysis of the commercial litigation finance industry in the United States was released, showing a staggering $2.3 billion industry growth measured in just one year. The consumer-litigation portion of that industry deals primarily with personal injury claims and small claims in which a plaintiff is typically not well-funded. New York has become a hub for this industry, which poses great challenges to defending personal injury claims, as the use of such funding in lawsuits is far from transparent to defendants and the courts.

COVID-19 Response: Federal Guidance for Employers Concerning COVID-19 Vaccination Programs

Given the current COVID-19 vaccine distribution plans, it may be some time before most private employers (outside of those that employ healthcare or other essential workers) have to grapple with adopting and applying policies for employee vaccinations, including a possible mandatory vaccination policy. Nevertheless, many employers have already begun to prepare for how to deal with employees who may be hesitant about being inoculated with the COVID-19 vaccines recently approved by the FDA. 

Washington Trial Court Narrows Definition of First Party Claimant, Clarifies Available Causes of Action in Commercial Property Loss Context

The law in the State of Washington, albeit clear on issues regarding first party claimants, was recently challenged in the matter of Eye Associates Northwest, P.C. v. Sedgwick et. al.

DOJ Announces Its First Criminal Indictment for Wage Suppression

The Antitrust Division of the Department of Justice delivered on its stated intention to criminally prosecute collusion in labor and employment markets when it announced on December 10, 2020 its first criminal wage-fixing prosecution, charging the former owner of a Texas home healthcare staffing agency with violating Section 1 of the Sherman Act by participating in a conspiracy to suppress rates for physical therapists and physical therapy assistants.

COVID-19 Response: Phase II of Colorado’s Healthy Families and Workplaces Act Set to Begin on January 1, 2021

In light of the ongoing COVID-19 pandemic, on July 14, 2020, Colorado Governor Jared Polis signed into law SB20-205, the “Healthy Families and Workplaces Act,” which provides new sick leave benefits for workers in Colorado.

Proposed Rule Addresses “De-Banking” and Politically Driven Lending Practices

On November 20, 2020, the Office of the Comptroller of the Currency (OCC) published a Notice of Proposed Rulemaking aimed at ensuring fair access to banking services and eliminating  politically-driven, “de-banking” practices used to deny access to financial services to disfavored industry sectors based on ideology rather than quantifiable risk-based factors.

COVID-19 Response: California Occupational Safety and Health Standards Board Implements Sweeping New Regulations to Prevent COVID-19 in the Workplace

On November 19, 2020, the California Occupational Safety and Health Standards Board (OSHSB) proposed sweeping and significant new emergency standards to reduce employee exposure to COVID-19.

Illinois Supreme Court Amends Supreme Court Rule 23 to Allow Citation of Unpublished Opinions for Persuasive Purposes

On November 20, 2020, the Illinois Supreme Court amended Supreme Court Rule 23 to allow unpublished Rule 23 orders issued on or after January 1, 2021 to be cited for persuasive purposes.

No “Double Recovery” of Unpaid Wages and Premiums for Non-Compliant Rest Break

In an uncharacteristically employer-friendly decision, the California Court of Appeal, Third Appellate District, held that employees could not recover both unpaid minimum wages and one-hour premiums for unpaid rest break claims.

New York Appellate Decision May Ease Defense Access to Social Media Accounts

 In the matter of Abedin v Osorio, decided on November 12, 2020, New York’s Appellate Division, Second Department granted the defendants’ motion for access to the plaintiff’s Facebook, Snapchat, and Instagram accounts on the ground that such discovery was “reasonably likely to yield relevant evidence.” 

Important Non-Election News for Illinois Employers: Sexual Harassment Training Deadline Approaching

We are now less than two months out from the December 31, 2020 deadline for Illinois employers to ensure that all employees have completed mandatory sexual harassment training. Employers who have not yet complied should immediately arrange for such training, as companies that are not in compliance will be subject to civil penalties.

COVID-19 Response: Illinois Supreme Court Issues Order Allowing Remote Jury Selection in Civil Cases

In response to the COVID-19 emergency, on October 27, 2020, the Illinois Supreme Court issued Order M.R. 30370 expanding its Rules 45 and 241 to include remote jury selection for trials in civil cases. The Order is an attempt by the court to safely balance the continual need for access to justice for the citizens of Illinois with the necessity of protecting the Seventh Amendment right to a jury in civil matters.

“Friends Don’t Let Friends Drive Drunk” Takes on New Meaning in New Jersey

The New Jersey Supreme Court has emerged as the first court in the country to fill a longstanding gap in the matrix of liability for underage drinking and driving.

Recent New York Appellate Victories

Lewis Brisbois' Appellate Team continues to secure significant appellate victories on behalf of our clients. This alert includes two recent wins from the New York Appellate Division, Second Department.

Long Overdue: EEOC Bolstering the Conciliation Process

In an extremely positive, long overdue development, the Equal Employment Opportunity Commission (EEOC) recently proposed amendments to its procedural rules to increase the effectiveness of its conciliation process after the federal agency finds reasonable cause on an administrative charge of discrimination.

Georgia’s Highest Court Allows Juries to Apportion Fault to Plaintiffs in Strict Products Liability Cases

On October 19, 2020, the Supreme Court of Georgia ruled in Johns v. Suzuki Motor of America, Inc. that a jury can apportion fault to a plaintiff in strict products liability cases.

New York State’s In-Person Jury Trial Pilot Program Continues, With Jury Trials Resuming Across the State

On September 9, 2020, Chief Judge of the State of New York Janet DiFiore began a week-long jury trial pilot program across the state. According to Judge DiFiore, it was expected that jury trials would commence in New York City by mid to late-October, with jury summonses already going out to prospective jurors in the City. As of the writing of this alert, we are pleased to inform you that it appears jury trials are now being conducted throughout New York City and the Greater Metro Area.

More Changes for New York City Employers: Amendments to Earned Safe and Sick Time Act

On April 3, 2020, New York State enacted a new paid sick leave law as part of a comprehensive budget bill. As this newly-enacted law did not replace or diminish city or county paid sick leave laws, it presented certain compliance challenges for New York employers with employees located in New York City or Westchester County, which have their own paid safe and sick leave provisions. To address some of these compliance issues, New York City recently passed amendments to the Earned Safe and Sick Time Act.

COVID-19 Response: California Enacts Statutes Establishing Rebuttable Presumption of Workplace Injury, New Notice Requirements for COVID-19 Exposure

Recently, California Governor Gavin Newsom signed Senate Bill 1159 (SB 1159) and Assembly Bill 685 (AB 685), which introduce new measures to address COVID-19 in the workplace, including the creation of a rebuttable presumption of a workplace injury and new notice requirements for employers in the event of a potential COVID-19 exposure. 

Regulators Exempt Banks from Patriot Act Compliance for Premium Finance Loans

The 2001 Patriot Act imposed rigorous customer identification program rules on financial institutions that were designed to prevent terrorist financing and money laundering. In September 2018, federal banking regulators created an exemption from these rules to facilitate premium finance lending for commercial customers. On October 5, 2020, regulators issued an Order expanding this exemption to include loans extended by banks and their subsidiaries to all customers to facilitate purchases of property and casualty insurance policies.

California Legislature Expands California Family Rights Act

California Governor Gavin Newsom recently signed legislation that greatly expands the scope and application of the California Family Rights Act (CFRA). This legislation goes into effect on January 1, 2021, so employers should prepare now to comply with the new requirements.

New Addition to New Jersey Court Rules Impacts More Than Trial Practice

On September 1, 2020, New Jersey adopted a brand-new rule of procedure, Rule 4:25-8, which properly defines motions in limine. On its face, the new rule prohibits, broadly, filing motions in limine that may have a dispositive effect on the case. Most notably, the rule expressly eliminates the ability to move, on motion in limine, to bar expert testimony in matters in which such experts are required to sustain a party’s burden of proof.

Governor Cuomo Ends Tolling & Suspension of Civil Legal Deadlines as of November 3, 2020

The legal community in New York State has been following closely Governor Cuomo’s ongoing series of Executive Orders since the onset of the COVID-19 pandemic in March 2020, tolling statutes of limitations and other civil legal deadlines. In the latest Executive Order, No. 202.67, dated October 4, 2020, the Governor announced that such tolling will end on November 3, 2020.

COVID-19 Response: Change of Ownership Transactions Involving PPP Borrowers - New Rules Apply

With the closure of the loan application phase of the Paycheck Protection Program (PPP) and attention shifting to loan forgiveness, another issue has emerged: how PPP borrowers should handle PPP indebtedness when a PPP borrower wants to transfer some or all of its ownership interests.

BIPA Continues Its Devastating Impact on Illinois Businesses

On September 18, 2020, in a closely watched Illinois Biometric Information Privacy Act (BIPA) case of first impression, the Illinois First District Court of Appeals ruled that BIPA claims for statutory damages by employees against their employers are not preempted by the exclusive remedy provision of the Illinois Workers Compensation Act (IWCA).

COVID-19 Response: California Expands Supplemental Paid Sick Leave

On September 9, 2020, California Governor Gavin Newsom signed Assembly Bill 1867 (AB 1867), which provides COVID-19-related supplemental paid sick leave of up to 80 hours to food sector workers, employees of companies with over 500 employees nationwide, and employees of healthcare providers and emergency responders.

Slurpees For Everyone! 7-Eleven Beats Franchisee Misclassification Suit in Massachusetts

In August 2017, five individual convenience store franchisees filed suit in federal court for violations of the Massachusetts Independent Contractor Law (Massachusetts ICL), the Massachusetts Wage Act, and the Massachusetts Minimum Wage Law against their franchisor, 7-Eleven, Inc. The franchisees alleged that they, and all other franchisees in the Commonwealth of Massachusetts, were employees of 7-Eleven under state law.

Trust, But Verify: Oregon Court of Appeals Upholds Order For New Trial Due To Withholding of Bankruptcy Claim Documents

On August 26, 2020, the Oregon Court of Appeals upheld a trial court’s decision to order a new trial and vacate a judgment in the asbestos case, Golik v. CBS Corp., 306 Or App 202 (2020). After the jury returned a $3.9 million verdict, the defendant premises owner discovered various bankruptcy form documents, including a work affidavit detailing alternative asbestos exposures, which had not been produced in discovery.

DOL Provides Clarification for Employer FLSA Compliance in Recent Opinion Letters

Recently, the Department of Labor (DOL) Wage and Hour Division (WHD) issued four new opinion letters addressing several compliance issues related to the Fair Labor Standards Act (FLSA).

Hurricane Guidance for Employers in 2020: Wage & Hour Considerations

As the 2020 hurricane season peaks, companies impacted by this year’s hurricanes, including Hurricane Laura, face a host of employment law concerns, including significant challenges maintaining compliance with wage and hour laws. This alert provides general guidance about those issues under the Fair Labor Standards Act (FLSA).

Calif. Governor Newsom Approves Modifications to AB 5

On September 4, 2020, California Governor Gavin Newsom approved legislation modifying Assembly Bill 5 (AB 5), California’s worker misclassification law, to allow more individuals to be classified as independent contractors.

Governor Cuomo’s Latest Executive Order Extends Tolling of Civil Legal Deadlines to October 4, 2020

Since the COVID-19 crisis began, the New York legal community has been following Governor Cuomo's Executive Orders on a monthly basis with respect to the tolling of legal deadlines due to the statewide emergency caused by the pandemic.

Pennsylvania Considers Amending Human Relations Act To Protect Hairstyles, Traits Historically Associated With Race From Discrimination

Identical legislation pending in the Pennsylvania Senate (SB 964) and House of Representatives (HB 2725) seeks to amend the definition of “race” in the Pennsylvania Human Relations Act to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” 

Ohio Court of Appeals Reaffirms Vicarious Liability Analysis

In a recent opinion, the First Appellate District of the Ohio Court of Appeals reaffirmed the way in which Ohio courts address issues relating to claims arising from vicarious liability and negligent hiring, supervision, or retention.

Getting the ‘Drift’: Maryland Adopts Daubert Standard

In a recent decision, the Court of Appeals of Maryland ended the state's use of the century-old Frye-Reed general acceptance standard in favor of the relevance/reliability standard first enunciated by the Supreme Court of the United States in Daubert v. Merrell Dow Pharmaceuticals, Inc. Maryland is now the 40th state to adopt Daubert.

New York Trial & Appellate Team Secures Reversal of Jury Verdict in Dram Shop Case - Plaintiff Must Prove Alcohol Was Served to a "Visibly Intoxicated Person"

New York Appellate Partner Nicholas P. Hurzeler and New York Trial Partner James Whalen recently obtained a reversal on appeal of a jury verdict in a Dram Shop case.

COVID-19 Response: School Reopening Plans - Leave Management Considerations for Employers in the “New Normal”

Various states and school districts are taking different approaches with regard to how schools will reopen in the fall. What does this mean for employers? We have prepared the following FFCRA Frequently Asked Questions and Answers to help employers anticipate and navigate leave management issues that may arise related to school or place of care closures and/or the unavailability of childcare for reasons related to COVID-19. This alert has been updated to reflect recent changes from the Department of Labor.

Hurricane Laura: Implications for Insurers in Louisiana

Just two days before the 15th Anniversary of Hurricane Katrina, Category 4 Hurricane Laura made landfall near Cameron, Louisiana. Preliminary estimates for insured losses from storm surge, flooding, and winds range from $8 to $12 billion for residential and commercial properties. Insurers providing residential or commercial property insurance in Louisiana should keep the following statutory claims handling requirements in mind.

COVID-19 Response: Presidential Payroll Tax Deferral - Availability and Employer Responsibilities

On August 28, 2020, the United States Department of the Treasury and the Internal Revenue Service issued guidance implementing the Presidential "Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster (August 8, 2020)." In this alert, we describe the availability of this tax deferral to employers, defined in the Notice as "Affected Taxpayers." We also point out responsibilities of employers who choose to defer eligible payroll taxes.

Eastern District of Louisiana Guidance on Whether Requirement of Naming Additional Insured on “All Policies” Extends to Entire Tower, With Late Notice/Prejudice as Lagniappe

The U.S. District Court for the Eastern District of Louisiana recently issued judgment in a BP Oil Spill-related suit that may impact claims for additional insured status arising from contractual agreements, and establishes bases for denial of defense and indemnity due to late notice/prejudice and violation of contract requirements.

DOL Issues Guidance Summarizing Employers’ Obligation to Use Reasonable Diligence When Tracking Remote Employees’ Hours of Work

Although there are many advantages associated with remote work arrangements, wage & hour compliance is not one of them. It is one of the reasons this type of work arrangement has been adopted more broadly for exempt rather than non-exempt employees. Not surprisingly, however, COVID-19 has dramatically changed how employees work.

Kansas Human Rights Commission Concurs With U.S. Supreme Court Bostock Decision Regarding LGBTQ Sex Discrimination

Last Friday, August 21, 2020, the Kansas Human Rights Commission (KHRC) Board met to consider the U.S. Supreme Court’s decision in Bostock v. Clayton Cty., 140 S. Ct. 1731, 1734 (2020) and its impact on the KHRC’s interpretation of the Kansas Act Against Discrimination (KAAD).

Nassau County, N.Y. Courts Announce Phase 4 Reopening Plans, Return to In-Person Operations for Trials

Lewis Brisbois’ New York trial attorneys are looking forward to resuming trials and defending their clients’ interests in the courtroom, as courts within Nassau County and across the State of New York continue to implement protocols that will allow in-person proceedings and trials to move forward.

COVID-19 Response: New Administrative Appeal Process for PPP Loans – Some Questions Answered and Others Not

On August 11, 2020, the Small Business Administration released a major new procedural framework for legal challenges to its rulings on loan eligibility and forgiveness under the Paycheck Protection Program (PPP), which has approved more than 5.1 million loans and dispensed more than $520 million to small businesses suffering economic losses from the COVID-19 pandemic.

In Extraordinary Session, Missouri Legislature Attempts to Expand Whistleblower Law to Allow Punitive Damages

Significant new whistleblower legislation is coursing its way through a special session of the Missouri Legislature and, if passed, will drastically broaden the definition of employer to expose businesses and government entities to whistleblower suits claiming punitive damages. House Bill 21 (HB 21) purports to be an emergency clause bill, which would go into effect immediately upon passage.

COVID-19 Response: Presidential Payroll Tax Deferral – Knowns & Unknowns

On August 8, 2020, President Trump directed the U.S. Secretary of the Treasury “to use his authority to defer certain payroll tax obligations with respect to the American workers most in need." Presidential Memoranda: Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster (August 8, 2020).

New Jersey Appellate Division Reinforces No Legal Malpractice Successor Liability When Prior Attorney Fails to Properly File Tort Claims Act Notice

Following a recent panel hearing comprised of Judges Fisher, Accurso, and Rose, the Appellate Division of the Superior Court of New Jersey issued a published opinion in Eileen McNellis-Wallace, et al. v. Joseph Hoffman, Jr., Esq., et al., 2020 N.J. Super. LEXIS 195 (App. Div. 2020), regarding successor liability in a legal malpractice action.

COVID-19 Response: Schools, Returning to Work, and the FFCRA

With the school year commencing, a common question is whether distance or online learning constitutes a school closure under the Families First Coronavirus Response Act (FFCRA), which provides paid leave for covered employees who are unable to work due to certain COVID-19 related reasons.

Calif. Supreme Court Limits Interference Claims With At-Will Contracts, Applies Rule of Reason to Contracts Restricting Trade Between Businesses

On August 3, 2020, the Supreme Court of California (the Court) ruled that in order to state a claim for interference with an at-will contract, the plaintiff must allege that the defendant engaged in an independently wrongful act. Ixchel Pharma, LLC v. Biogen, Inc., 2020 Cal. LEXIS 4876, *1.

COVID-19 Response: Proposed SAFE TO WORK Act May Provide COVID-19 Related Immunity to Certain Employers

The SAFE TO WORK Act pending in the United States Congress would create a sea change as to potential liability for COVID-19 related claims as it would create broad immunity for healthcare providers, businesses and schools from claims related to COVID-19.

The EEOC Is Back: Lawsuits Expected, Plus New ADA Guidance on Opioids

After a noticeable pause in activity in many offices across the country, the Equal Employment Opportunity Commission (EEOC) announced this week that it will re-commence issuing Notice of Right to Sue letters, a process that was suspended for four months because of the COVID-19 pandemic.

Get Ready Philadelphia Employers – Enforcement of the Wage Equity Ordinance Begins September 1, 2020

The Philadelphia City Council has passed the Wage Equity Ordinance in an attempt to narrow the gender wage gap. According to the Ordinance, a 2015 United States Census Bureau report found that women in Pennsylvania were paid seventy-nine cents for every dollar a man earned.

National Labor Relations Board Sets Clear Standard for Punishing Abusive Conduct from Union Employees

On July 21, 2020, the National Labor Relations Board (NLRB) consolidated the standard used to evaluate whether discipline of an employee’s abusive conduct violates the National Labor Relations Act (NLRA).

COVID-19 Response: More Uncertainty Ahead for Employers – NY Federal Court Invalidates Several Features of the DOL FFCRA Final Rule

In response to the coronavirus pandemic, Congress passed the Families First Coronavirus Response Act (FFCRA), which provides two different types of paid leave for employees who are unable to work due to COVID-19 related reasons.

COVID-19 Response: NYS Legislature Trims Back Emergency Disaster Treatment Protection Act, Exposing Liability for Non-COVID-19 Treatment

On July 23, 2020, the New York State legislature voted to narrow the scope of the Emergency Disaster Treatment Protection Act (the Act), exposing nursing homes and other medical providers to liability for treatment unrelated to COVID-19.

Calif. Court of Appeal: Vertical Exhaustion of Scheduled Primary Policies Triggers Excess Coverage

The other shoe has dropped on the issue of vertical and horizontal exhaustion with respect to triggering excess coverage under California law.

U.S. Supreme Court Gives Grace to Religious Employers

In 2012, the United States Supreme Court decided Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171, and first recognized a “ministerial exception”.

FINRA Adopts Amendments to Reduce Conflict and Confusion with SEC’s Reg BI

As we discussed in a previous client alert, in June 2019, the Securities and Exchange Commission (SEC) adopted Regulation Best Interest (Reg BI) as the new standard of care among brokers and dealers to become effective June 30, 2020.

COVID-19 Response: Governor Cuomo Extends Tolling and Suspension of Civil Litigation Deadlines in New York for Another 30 Days

In Governor Cuomo’s latest Executive Order, No. 202.48, dated July 6, 2020, the Governor extended the suspension and tolling of civil litigation deadlines and statutes of limitations for another 30 days, through August 5, 2020.

Oregon Employers Must Implement New Anti-Discrimination Policy By October 1, 2020

Following its own sexual harassment scandal, the 2019 Oregon legislature enacted dramatic changes to the state’s anti-discrimination laws.

Illinois Appellate Court Holds Defendant Must Produce Insurer’s Documents Related to Controlled Expert Witnesses

In Grant v. Rancour, 2020 IL App (2d) 190802 (June 12, 2020), the Second District Appellate Court in Illinois approved the trial court’s order requiring the defendant to produce her automobile insurer’s documents related to controlled expert witnesses previously retained by that insurer in unrelated cases.

COVID-19 Response: Federal Reserve Moves Closer to Opening Main Street Lending Program

On June 24, 2020, we provided updated information on the Paycheck Protection Program and the Main Street Lending Program (MSLP), which continues to evolve before its upcoming launch. Since then, the Federal Reserve (FRB) has revised its frequently asked questions document further to provide more direction to lenders and borrowers who want to take advantage of the MSLP.

COVID-19 Response: PPP Loans and Main Street Lending Program - Current State of Play

The CARES Act created two major loan programs, the Paycheck Protection Program (PPP) and the Main Street Lending Program. This update provides an overview of current developments involving these programs. Borrowers should continue to closely monitor the changing requirements for these programs, which can have important implications for borrower eligibility and maximization of benefits, and seek expert counsel as needed.

COVID-19 Response: Kansas Businesses Provided Broad Immunity From Liability in Response to COVID-19 Claims

On June 4, 2020, the Kansas legislature passed House Bill No. 2016, creating the COVID-19 Response and Reopening for Business Liability Protection Act. Under this Act, many Kansas businesses are “immune from liability in a civil action for a COVID-19 claim if such person was acting pursuant to and in substantial compliance with public health directives applicable to the activity giving rise to the cause of action when the cause of action accrued.” 

California Court of Appeal Deals One-Two Punch to Employers Seeking to Compel Arbitration

In Jarboe v. Hanlees Auto Group, et al, California’s First District Court of Appeal recently handed employees two lifelines in their battle against being compelled to arbitrate employment disputes.

New California Law Requires Insurers to Determine If Claimants Owe Child Support

At the start of 2020, a new statute went into effect in California requiring insurers, under certain circumstances, to take steps to determine if a claimant is in arrears on a child support obligation.

“The Answer is Clear”: U.S. Supreme Court Outlaws LGBTQ+ Employment Discrimination. What’s Next?

On June 15, 2020, the United States Supreme Court held that Title VII, the federal employment law that prohibits discrimination “because of sex,” bars discrimination based on an individual’s sexual orientation and transgender status. This alert discusses the landmark 6-3 decision, background on the cases involved, and what employers should consider going forward.

In Missouri, Inevitable Revisions to Punitive Damages Statutes and Standards - Part II

Last month, the Missouri legislature passed Senate Bill 591 (SB 591), making important changes to the state’s punitive damages laws, civil procedure, improper healthcare laws, and its consumer protection statute, the Missouri Merchandising Practices Act (MMPA). Part II of this two-part alert discusses the effects of the bill on the MMPA and actions based on improper healthcare.

Illinois Supreme Court Reaffirms New Due Process Limitations for Personal Jurisdiction Over Nonresidents

On June 4, 2020, the Illinois Supreme Court handed down an opinion in the joint actions Christy Rios et al., Appellees, v. Bayer Corporation et al., Appellants and Nichole Hamby et al., Appellees, v. Bayer Corporation et al., Appellants (Docket Nos. 125020, 125021), which again recognized new U.S. Supreme Court due process limitations for personal jurisdiction over nonresident defendants.

Lewis Brisbois Successfully Uses WC Exclusivity Provisions Defense to Bar Bus Driver Claim Against Affiliated Company

Suffolk Supreme Court Justice Carmen Victoria St. George recently granted summary judgment in favor of a Lewis Brisbois transportation client in a personal injury suit brought by a bus driver. The court found that the plaintiff’s bodily injury complaint must be dismissed based on the exclusivity provisions contained in New York's Workers’ Compensation Law. New York Partner James M. Strauss explains

Governor Cuomo Again Extends the Tolling of Civil Laws and Deadlines

On June 6, 2020, Governor Cuomo signed Executive Order 202.38, which continues until July 6, 2020, the tolling of civil deadlines in response to the COVID-19 crisis.

The COVID-19 Impact: Navigating the Legal Landscape’s New Normal

For the past couple of months, most litigation cases have largely been put on pause in the courts and at administrative agencies. However, as we adjust to what is clearly a new normal in both our lives and the legal landscape as we know it, cases will begin to pick up speed again, albeit with new strategies and challenges to keep in mind.

In Missouri, Inevitable Revisions to Punitive Damages Statutes and Standards - Part I

Last month, the Missouri legislature passed Senate Bill 591 (SB 591), making important changes to the state’s punitive damages laws, civil procedure, improper healthcare laws, and its consumer protection statute, the Missouri Merchandising Practices Act (MMPA). Part I of this two-part alert discusses the reforms SB 591 makes to punitive damages in Missouri.

California Court of Appeal Provides Clarity on What Triggers Supplemental Analysis Under California Environmental Quality Act

In a recent ruling, California’s Sixth District Court of Appeal clarified the need for supplemental environmental analysis under the California Environmental Quality Act (CEQA).

COVID-19 Response: Recent Executive Orders Present Opportunities for Businesses Seeking Regulatory and Enforcement Relief and Expedited Project Development

Two recent Executive Orders (EO) aimed at promoting economic recovery from the COVID-19 crisis offer regulatory and enforcement relief and encourage agencies to expedite infrastructure project approvals.

COVID-19 Response: Tax Update - PPP Flexibility Act Decouples Loan Forgiveness and Deferral of Federal Payroll Taxes

Signed into law by President Trump on June 5, 2020, the Payroll Protection Program Flexibility Act (HR 7010) increases the benefits of Payroll Protection Program (PPP) loans both prospectively and for persons who have already borrowed. This alert highlighst how this legislation significantly enhances a particular tax aspect of PPP loans.

COVID-19 Response: New Legislation Adds Flexibility to PPP Loan Program

The Paycheck Protection Program (PPP), created by the CARES Act to provide forgivable, low-interest loans to small businesses struggling to meet payroll and other basic costs in the wake of the COVID-19 crisis, has distributed more than $500 billion in funds.

COVID-19 Response: New York Employers, Teleworkers May Obtain COVID-19 Relief from State Income Tax and Withholding Requirements – A Harbinger for Other States?

In normal times, many employees of New York businesses commute to and from their jobs in New York State from other states including New Jersey, Connecticut, and Pennsylvania. Because these nonresident commuters perform services in New York, their employers are generally required to withhold New York income taxes from their paychecks.

Understanding and Defending Foodborne Illness Litigation

Recent highly publicized outbreaks of foodborne illness have lead to an upsurge in foodborne illness lawsuits through the United States.

COVID-19 Response: Combating Price Gouging During the Pandemic and Other Emergencies

The private sector is showing creativity in combating price gouging during the COVID-19 era. Companies like Amazon and 3M successfully have defended their brands in the name of the public good.

Only Fix What’s Broke: A Guide to the Proposed 2020 Amendments to FRCP 30(b)(6)

On October 23, 2019, the Judicial Conference Advisory Committee on Civil Rules proposed amendments to Federal Rule of Civil Procedure (FRCP) 30(b)(6) that will increase the amount of work required to get a corporate designee to speak on behalf of a company.

COVID-19 Response: New Considerations for Liability Policies

Dubbed “essential” by the government powers-that-be, many manufacturers are being called on to continue operations as a core component of our nation’s response to the COVID-19 pandemic.

New York Allows Filing of New Non-Essential Lawsuits

On May 20, 2020, Chief Administrative Judge Lawrence K. Marks issued a memorandum order under which New York’s court system will allow electronic filing of new non-essential lawsuits starting on Monday, May 25, 2020.

COVID-19 Response: Long-Awaited PPP Loan Forgiveness Guidance Answers Some Questions, Raises Others

Late on May 15, 2020, the Small Business Administration published information on the Paycheck Protection Program (PPP) loan forgiveness process, including the Forgiveness Application and some much needed clarification on questions that have perplexed borrowers since the PPP debuted in the CARES Act on March 27, 2020.

New York Child Victims Act Ruled Constitutional by State Court Judge

A New York State judge has denied a motion by a Nassau County diocese to dismiss 44 complaints filed against it under New York’s Child Victims Act (CVA), rejecting the church’s argument the law violates the Due Process Clause of New York’s constitution.

New York State Enacts Permanent Paid Sick Leave Law

On April 3, 2020, Governor Andrew Cuomo signed into law the Fiscal Year 2021 New York State budget. Of great significance for all New York employers is the amendment this budget makes to the state’s Labor Law to include a new permanent requirement for sick leave.

PPP Eligibility: New Guidance May Require Another Look at Headcount Calculations for Firms with Employees Outside the United States

If your business has employees outside the United States, and you applied for and received Paycheck Protection Program (PPP) loan funds on the basis of the U.S. employee head count, you may want to consider checking your math.

Governor Cuomo Issues Newest Executive Order Extending the Tolling of Civil Laws and Deadlines

On May 7, 2020, Governor Cuomo signed Executive Order 202.28, which continues until June 6, 2020, the tolling of civil deadlines in response to the COVID-19 crisis.

Ohio Supreme Court: Misrepresentation in Auto Insurance Application Renders Auto Policy Void "Ab Initio"

This week, in Nationwide Mut. Fire Ins. Co. v. Pusser, 2020-Ohio-2778, the Ohio Supreme Court held that an insured’s misrepresentation in an auto insurance application rendered the auto policy void ab initio (i.e. from the beginning).

Seventh Circuit Confirms Article III Standing in Federal Court BIPA Cases

On May 4, 2020, the Seventh Circuit joined the Ninth Circuit in ruling that a plaintiff alleging violations of the informed consent provisions of the Illinois Biometric Information Privacy Act (BIPA), 740 ILCS 14/15(b) has Article III standing to sue in federal court.

COVID-19 Response: CARES Act Borrowers Beware - Prosecutions Are Beginning

As expected, investigations into potential fraud and abuse are already underway in the award of massive stimulus funds under the CARES Act Paycheck Protection Program (PPP). On May 5, the Justice Department announced its first prosecution, charging two Rhode Island businessmen with fraudulently seeking more than a half million dollars in forgivable PPP loans.

COVID-19 Response: Is a Bankrupt Small Business Eligible for a Small Business Loan Under the Paycheck Protection Program?

On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which established the Paycheck Protection Program (PPP). Under the PPP, the U.S. Small Business Administration can temporarily authorize and guarantee small business loans designed to incentivize small businesses to keep their workers on the payroll and help small businesses survive the pandemic.

Supplemental vs. Amended Bill of Particulars: If Challenged, New York Courts Will Closely Examine Such Filings Post-Note of Issue

On April 30, 2020, the New York’s Appellate Division, First Department, issued a decision in Silber v. Sullivan Properties, L.P., affirming the trial court’s denial of a plaintiff’s post-Note of Issue motion to file an Amended Bill of Particulars, which charged the defendant with violating a section of the building code that had never been previously alleged. 

Texas Supreme Court Recognizes Collusive Fraud Exception to Eight-Corners Rule

On May 1, 2020, the Texas Supreme Court adopted an exception to the State’s eight-corners rule, a vital tenet of Texas insurance law that governs the determination of an insurer’s duty to defend.

COVID-19 Response: Federal Reserve Board Expands Scope and Eligibility of Main Street Lending Program But Still Provides No Start Date

In response to more than 2,000 public comments to its initial term sheets, the Federal Reserve Board (FRB) on April 30, 2020 unveiled changes to its previously announced $600 billion Main Street Lending Program (Program), although it still did not reveal when lending will get underway.

COVID-19 Response: Safety Measures Briefing – Returning to Work, Part II

In the first part of this alert on taking employees’ temperatures, we explained some of the obligations created under discrimination laws, occupational safety and health standards, and data privacy regulations. In this second part, we emphasize the newest guidance around temperature screenings, COVID-19 testing, and returning to work.

COVID-19 Response: Tax Update - IRS Disallows Tax Deductions for Expenses Paid from Forgiven Payroll Protection Loans

If a recipient of a Payroll Protection Program (PPP) loan uses the money to pay eligible expenses, then the borrower stands to reap two benefits.

Convictions Handed Down in $31.7 Million Trip-And-Fall Criminal Fraud Scheme

In May of 2019, three defendants were convicted following a three-week trial in New York federal court, Southern District, in connection with a fraudulent scheme to concoct phony lawsuits.

COVID-19 Response: New Jersey Amends Leave Laws in Response to COVID-19 Pandemic

On April 14, 2020, New Jersey Governor Phil Murphy signed into law Senate Bill 2374. This bill amends the New Jersey Family Leave Act (NJFLA), the New Jersey Family Leave Insurance law (NJFLI), and the New Jersey Temporary Disability Law (NJDTL) to address COVID-19 related leave issues. Remarkably, it provides a do-over in light of amendments passed hurriedly only two weeks earlier. Please note that the amendments are retroactive to March 25.

COVID-19 Response: Healthcare Provider Funding Update

The President signed into law the fourth COVID-19 bill. In it, an additional $484 billion has now been allocated by the federal government to assist in the relief efforts. The lion’s share of the funding, $380 billion is to extend the Paycheck Protection Program, to enable processing of additional applications.

U.S. Supreme Court Creates New Clean Water Act “Functional Equivalent” Test: Help or Hindrance?

Seeking to address a longstanding environmental law question of what circumstances require a Clean Water Act (CWA) permit from a “point source,” the U.S. Supreme Court’s decision on April 23, 2020 in County of Maui v. Hawaii Wildlife Fund established a new test that even the Court realized may result in greater confusion rather than less.

COVID-19 Response: What the EEOC Wants Employers to Know About Disability Accommodation Requests, Harassment, and Returning to Work in the Current COVID-19 Landscape

Recently, the United States Equal Employment Opportunity Commission (EEOC) updated its recommendations for employers endeavoring to comply with the Americans with Disabilities Act (ADA) and other employment laws amidst the challenges posed by the COVID-19 pandemic. Most saliently, the guidance includes a new section on returning employees to the workplace.

COVID-19 Response: California Governor and Cities Expand COVID-19 Paid Sick Leave

As part of the federal government’s efforts to address employment concerns relating to COVID-19, President Trump signed the Families First Coronavirus Response Act (FFCRA) into law last month, requiring employers to provide paid time off to their employees for reasons related to the virus.

COVID-19 Response: New Jersey Amends Its Mini-WARN Act in Light of the Coronavirus Pandemic

New Jersey had recently amended its Mini-WARN Act to expand the protections available for employees whose employers engage in mass layoffs or termination of operations effective July 19, 2020. Most notably, New Jersey had become the first state in the nation to mandate severance payments (one week’s pay for each year of service).

COVID-19 Response: CARES Act 3.5 Provides Additional Funding for Small Business and Healthcare Relief Programs

The Paycheck Protection Program (PPP) and Health Care Enhancement Act, signed into law on April 24, 2020, provides $484 billion of additional funding for small business loan programs and direct benefits to health care providers for COVID-19 response and testing.

COVID-19 Response: Tax Update - Businesses Can Claim Tax Refunds and Revisit Previous Tax Elections Based on CARES Act

In initially analyzing the tax provisions of the CARES Act, we identified some opportunities for businesses to claim refunds of federal taxes paid for tax years preceding 2020. See "COVID-19 Response: Tax Update - Using CARES to Conserve or Generate Cash, and Other Changes to Federal Tax Law”.

COVID-19 Response: Treasury Department Guidance on Small Business Loan Program: Well-Financed Borrowers Need Not Apply

The Treasury Department released new guidance on April 23, 2020 regarding the Paycheck Protection Program (PPP) in an effort to curtail the fallout from news that publicly traded companies and financially secure universities obtained millions of dollars from the program meant to provide a financial lifeline to struggling small businesses.

COVID-19 Response: CARES Act Borrowers Beware - The Past is Prologue

With more than $349 billion distributed in the Small Business Administration (SBA) Paycheck Protection Program (PPP) (and more being appropriated this week), plus $1 trillion to be allocated in Federal Reserves Main Street Lending funds under Title IV of the CARES Act, the stage is set for both mistakes and fraud.

Louisiana Supreme Court Concludes Collateral Source Rule Does Not Apply to Medical Expenses Written Off Under Workers’ Compensation

In Simmons v. Cornerstone Invs., LLC, 282 So.3d 199 (La. 2019), the Louisiana Supreme Court evaluated whether the lower courts had erred in prohibiting a plaintiff from introducing the full amount of medical expenses billed as well as limited evidence of the amount actually paid by the employer through workers’ compensation.

COVID-19 Response: Illinois Business Coalition Files Suit Against State's WC Commission Over Emergency Amendment

On April 22, 2020, a coalition of Illinois businesses, including the Illinois Manufacturers’ Association and the Illinois Retail Merchants Association, filed suit in Sangamon County alleging that the Illinois Workers' Compensation Commission (IWCC) exceeded its rule-making authority when it passed an Emergency Amendment stating that workers in essential categories who become ill with COVID-19 are presumed to have contracted the virus in the workplace, thus making them eligible for workers’ compensation benefits.

After-Acquired Evidence Can Bar Liability Entirely in ADA Cases

The after-acquired evidence doctrine is an affirmative defense in employment litigation that employers can assert and prove at trial. In a recent decision, the Ninth Circuit tweaked this rule as it pertains to disability discrimination claims under the Americans with Disabilities Act (ADA), permitting a complete bar to liability in certain circumstances.

No Rest For The Weary – New Jersey Appellate Division Abrogates the Ongoing Storm Rule

A recent decision by New Jersey’s Appellate Division has expanded the duties of a commercial landowner to remediate a weather-related, dangerous condition. In doing so, the opinion, written by the Presiding Judge, dismantled what it deemed to be misplaced reliance on nearly 100 years of jurisprudence.

COVID-19 Response: Pennsylvania Businesses That Are Permitted to Maintain In-Person Operations During the COVID-19 Pandemic Must Comply with Additional Protocols

In a further attempt to stem the spread of COVID-19, Pennsylvania now requires those businesses that are considered life-sustaining and therefore permitted to continue operating - other than healthcare providers - to follow additional social distancing, mitigation, and cleaning protocols.

Environmental Protection Agency and Army Corps Finalize Clean Water Rule

On April 21, 2020, the Environmental Protection Agency and U.S. Army Corps of Engineers finalized the Navigable Waters Protection Rule, which defines “Waters of the United States," effective June 22, 2020.

COVID-19 Response: Safety Measures Briefing - Taking Employees’ Temperatures, Part I

In “ordinary” times, employers should tread carefully when taking employees’ temperatures. While a seemingly simple step to ensure workplace safety during the COVID-19 epidemic, there are numerous potential legal implications associated not only with the act of measuring body temperature, but also with regard to how this information is documented, stored, used, disseminated, and ultimately, destroyed.

COVID-19 Response: Key Funding Provisions for Healthcare Providers in the Coronavirus Response

Now that the Coronavirus Aid, Relief, and Economic Security (CARES) Act and other related provisions have been signed into law, there are significant questions from many healthcare providers on what funding they are eligible for and how to get that money flowing.

Illinois Appellate Court Expands Duty of Ordinary Care to Cover “Frequent Trespassers”

The First District Appellate Court (Chicago) in Epple v. LQ Management, LLC (2019 ILL App 180853) overruled a Cook County trial court’s decision granting summary judgment for a national hotel chain.

COVID-19 Response: The Federal Reserve and Treasury Announce $1.1 Trillion in COVID-19 Relief Loan Programs for Small & Mid-Size Businesses, and States & Municipalities

The Federal Reserve and the Department of the Treasury announced two new loan programs on April 9, 2020, under the spending authority granted by the CARES Act. First, the Main Street Lending Program (MSLP), which has two variations, will facilitate loans to small and mid-size businesses by providing up to $600 billion in funding.

COVID-19 Response: Tips for Effective "Virtual" Mediations

Faced with obstacles such as social distancing and stay-at-home orders, normal litigation tasks, such as mediation, are either not being considered, or pushed off indefinitely. However, for certain cases, parties and their counsel should give consideration to conducting a mediation “virtually” through the use of technology.

An Update on NYS Courts from Lewis Brisbois' New York Trial & Appellate Team

On April 6, 2020, Chief Judge Janet DiFiore announced a plan to expand remote operations currently in place for essential court matters to the court system's non-essential cases, in a video posted on the New York State Court of Appeals' website.

SEC Confirms Regulation Best Interest Deadline Remains in Place

On April 2, 2020, Securities and Exchange Commission (SEC) Chairman Jay Clayton issued a statement that the June 30, 2020 compliance deadline for Regulation Best Interest (Reg BI) remains in place. The statement further indicated that the SEC would not grant industrywide extensions. 

COVID-19 Response: CARES Act Paycheck Protection Program for Small Business Loans - Slightly New Guidance on the Affiliation Rules

As small business borrowers and their counsel scramble to understand the rules governing eligibility for the low interest small business loans in the CARES Act, questions on how the “affiliation rules” will apply have come up over and over again.

COVID-19 Response: CARES Act Paycheck Protection Program for Small Business Loans - New Guidance for Key Provisions

Rules of the road for the $349 billion loan program continue to change as small business borrowers eager for 1.0% loans with significant forgiveness potential began submitting loan applications on April 3, 2020. 

COVID-19 Response: Pennsylvania Amends Unemployment Compensation Law in Response to COVID-19 Pandemic

In response to the economic impact caused by the COVID-19 pandemic, including the closing of businesses across Pennsylvania, Governor Wolf signed a bill amending Pennsylvania’s Unemployment Compensation Law to make it easier for employees affected by the pandemic to apply for and receive unemployment benefits.

COVID-19 Response: New York - Limiting Construction Risk from the COVID-19 Outbreak Through Force Majeure Clauses

Many in the construction industry are concerned about the widespread effects of COVID-19 as it relates to fulfilling their contractual duties and obligations.

COVID-19 Response: What New Jersey Employers Need to Know About Coronavirus-Era Operations

In the short time since the pandemic arrived, and as we have been reporting, the federal government and the states have adopted a variety of new statutes, regulations, and guidance with which employers must become conversant. This alert focuses on key new developments for New Jersey employers.

COVID-19 Response: Obtaining Injunctive Relief During the Coronavirus Pandemic - Challenging But Not Impossible

With the courts around the country cancelling jury trials and issuing special or emergency orders that severely limit in-person hearings during this time of the “social distancing” and shelter-at-home orders, many businesses are worried that if they need to obtain injunctive relief, they may not be able to get it. 

COVID-19 Response: State of Washington Office of Insurance Commissioner Issues “Special Data Call” to All Authorized Commercial Property and Casualty Insurers

On March 25, 2020, the State of Washington Office of Insurance Commission issued a letter to all authorized property and casualty insurers titled “Special Data Call Relating to Business Interruption and Related Commercial Coverage Written in Washington State.”

COVID-19 Response: The Potential Application of Force Majeure, Frustration of Purpose, and Impossibility of Performance Defenses to Retail Leases

As a result of the COVID-19 outbreak, commercial landlords and tenants find themselves in an unprecedented situation fraught with uncertainty. Government mandated business closures and wide spread shelter in place orders have caused substantial disruptions to both the economy and the way we live.

COVID-19 Response: Coloradans to Stay at Home in Response to COVID-19

On March 25, 2020, Governor Polis issued Executive Order D 2020-017, ordering Coloradans to stay at home due to the presence of COVID-19 in the State.

COVID-19 Response: Tax Update - Using CARES to Conserve or Generate Cash, and Other Changes to Federal Tax Law

Signed into law by President Trump on March 27, 2020, the Coronavirus Aid, Relief, and Economic Security Act (CARES) (Public law No. 116-36) amends numerous provisions of federal tax law affecting both businesses and individuals. Many of the changes aim to help taxpayers conserve or generate cash, either prospectively or by amending prior years’ tax returns. 

COVID-19 Response: The PREP Act and Liability Immunity During the Coronavirus Outbreak

The Public Readiness and Emergency Preparedness (PREP) Act authorizes the Secretary of Health and Human Services (HHS) to issue a declaration to provide liability immunity to certain individuals and entities against any claim of loss caused by, arising out of, relating to, or resulting from the manufacture, distribution, administration, or use of medical countermeasures, except for claims involving “willful misconduct.”

COVID-19 Response: SEC Extends Conditional Exemptions From Reporting and Proxy Delivery Requirements for Public Companies, Funds, and Investment Advisers Affected by Coronavirus

On March 25, 2020, the Securities and Exchange Commission (SEC) issued Order (Release No. 34-88465) extending the filing periods and proxy delivery requirements covered by its previous Order issued on March 4, 2020, due to the coronavirus, or COVID-19.

COVID-19 Response: CARES Act Provides Immediate Lifeline for Small Businesses

Passed by the United States Senate on March 25 and the House of Representatives on March 27, the Coronavirus Aid, Relief and Economic Security Act, or CARES Act, H.R. 748, provides approximately $2 trillion in federal relief for individuals and businesses coping with the COVID-19 pandemic.

COVID-19 Response: The Latest Development for New York Employers - New Sick Leave Law & State Executive Orders

On March 18, 2020, New York Governor Andrew Cuomo signed a new law to provide New York State employees job-protected leave and benefits during precautionary or mandatory quarantine or isolation due to COVID-19.

COVID-19 Response: Essential Business Operations: a High-Stakes Question Under Proliferating “Stay at Home” Orders

An ever-expanding number of states and local government authorities are issuing “shelter in place” or “stay at home” orders that restrict the movement of employees of non-essential businesses. 

California Supreme Court Holds Employees Who Settle & Dismiss Their Individual Claims Do Not Lose Standing to Pursue Claims Under PAGA

In Kim v. Reins International California, Inc. the California Supreme Court held employees do not lose standing to pursue a claim under the Labor Code Private Attorneys General Act of 2004 (PAGA) if they settle and dismiss their individual claims for Labor Code violations.

COVID-19 Response: Shelter-in-Place and Non-Essential Business Closure Orders – What Employers Need to Know Now, Part II

The evolving response to COVID-19 brings daily legal and public health developments. Businesses, already struggling under immense economic pressures, now face new and unprecedented questions regarding how Shelter-in-Place (or Stay-at-Home) and Non-Essential Business Closure Orders (Orders) will impact their operations and workforces. Part II reviews the leave management, furlough, and lay-off considerations facing employers, particularly in light of new federal leave requirements under the federal Families First Coronavirus Response Act (FFCRA).

COVID-19 Response: Shelter-in-Place and Non-Essential Business Closure Orders – What Employers Need to Know Now, Part I

On March 19, 2020, shortly after several California counties issued “shelter-in-place” orders, California Governor Newsom issued an Executive Order that, effective immediately, required all California residents to comply with the state Department of Public Health order requiring all residents to stay at home in an effort to slow or reduce the spread of the novel coronavirus (COVID-19). Since then, over 21 states and numerous other local jurisdictions have issued similar orders which restrict the movement of residents and/or close public or in-person operations of non-essential businesses.

“But For” vs. “Motivating” - Now Two Similar Anti-Discrimination Laws Have Different Proofs of Causation

On March 23, 2020, the Supreme Court (Court) issued its opinion regarding the case, Comcast Corporation v. National Association of African American-Owned Media. Justice Gorsuch delivered the opinion of the Court.

COVID-19 Response: Closings or Layoffs in Response to Coronavirus May Trigger the Federal WARN Act Notice Requirement

As the novel coronavirus (COVID-19) continues to spread, requiring businesses to close their offices and locations, employers must determine whether the elimination of jobs and facilities trigger notice requirements under the Federal Worker Adjustment and Retraining Notification (WARN) Act.

COVID-19 Response: Oregon Issues “Stay Home, Save Lives” Order Closing Many Businesses

On March 23, 2020, Oregon’s Governor issued a "Stay Home, Save Lives" order, which closes much business, but allows others to continue operations if they take certain steps. This alert answers to some of the most fundamental questions about the impact of the order on business operations within Oregon.

United States Supreme Court Declines To Extend the Bivens Doctrine

In Bivens v. Six Unknown Fed. Narcotics Agents, the United States Supreme Court allowed for the creation of a private cause of action for damages arising from violations of the Fourth Amendment to the United States Constitution. This was novel because there was neither a statute nor provision in the Constitution for a cause of action for damages.

COVID-19 Response: Tax Update - IRS Filing & Payment Deadlines Postponed Until July 15

Reversing a distinction previously made, the Internal Revenue Service (IRS) on March 21 postponed until July 15 deadlines for both paying and filing federal income taxes normally due April 15. The postponed deadlines cover only federal income tax.

FDIC Proposes Roadmap for Fintechs to Become Insured Banks

The term “fintech” is used to describe the application of new technology to improve the delivery and use of financial services and products in a more cost-effective way than is available in the traditional financial marketplace.

COVID-19 Response: The EEOC Chimes In Concerning How to Navigate the Americans with Disabilities Act in a Pandemic Context

The Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for enforcement of the employment discrimination laws. The Commission has issued two publications to assist employers and employees in interpreting the Americans with Disabilities Act (ADA) in the context of  dealing with pandemics.

COVID-19 Response: Temporary Suspension of Cal-WARN Act 60-Day Advance Notice Requirement Amid COVID-19 Crisis

On March 17, 2020, California Governor Gavin Newsom signed Executive Order N-31-20, which temporarily suspends Cal-WARN’s 60-day notice requirement for covered employers conducting mass layoffs, plant closures or terminations during this emergency crisis.

Texas Supreme Court Shuts Down Policy Language Exception to Eight-Corners Rule

On March 20, 2020, the Texas Supreme Court issued its greatly anticipated decision in Richards v. State Farm Lloyds, the case that examined whether an exception to the eight-corners rule existed. As most insurance practitioners expected, the answer was a resounding “No.”

COVID-19 Response: Important Updates for the Healthcare Industry: Long-Term/ Skilled Nursing Care, Healthcare Providers, and Dialysis Centers

Recently, the federal Centers for Medical & Medicaid Services (CMS) and Center for Disease Control and Prevention (CDC) announced new guidance to further protect those working in nursing homes, long-term care facilities, dialysis centers, and other healthcare facilities, in light of the coronavirus pandemic.

COVID-19 Response: Federal Aid Package Presents Opportunities for American Businesses Impacted by Coronavirus

The ongoing coronavirus (COVID-19) crisis is precipitating an unprecedented federal response as Congress and the Administration grapple with how to address the economic downturn resulting from efforts to contain the spread of the virus. Numerous industries have been adversely affected, with even stronger impacts on small businesses. In response, Congress and the Executive Branch are negotiating a large financial stimulus package to ease the economic pain.

COVID-19 Response: OSHA and the Coronavirus

In response to possible exposure to COVID-19, the United States Occupational Safety and Health Administration (OSHA) recently issued guidance for employers on how to handle the COVID-19 pandemic. OSHA’s guidelines rely in large part on previously issued guidance from the Center for Disease Control .

COVID-19 Response: The Families First Coronavirus Response Act Passes, Creating Significant New Rights to Paid Employee Leave

The Families First Coronavirus Response Act was approved by the U.S. Senate and signed by President Trump on March 18, 2020. The Act requires that covered employers grant up to 12 weeks of emergency family medical leave and 80 hours of sick leave to employees impacted by the coronavirus.

COVID-19 Response: HHS Announces Telehealth Expansion Measures in Response to Pandemic

In response to the COVID-19 emergency, the U.S. Department of Health & Human Services (HHS) has advised of certain measures that it is taking in the area of telehealth so that providers and patients may connect with ease. 

COVID-19 Response: U.S. Department of Labor Issues FAQs Regarding the FLSA and FMLA During Public Health Emergencies

The United States Department of Labor has issued frequently asked questions for coronavirus-related workplace issues under the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA). We discuss some of the key points for employers to be mindful of in this difficult time. 

COVID-19 Response: New Jersey Assembly Passes Legislature Regarding COVID-19 and Business Interruption Claims

As a follow up to our prior alert, the New Jersey Assembly has passed 29 measures intended to protect New Jersey residents, small businesses, and local governments during the coronavirus crisis. The State Senate would need to pass the bills and Governor Murphy would have to sign them before they become law. 

COVID-19 Response: Environmental Compliance Worries in the Time of Coronavirus

Earlier this week, a rumor made the rounds that a forthcoming Presidential Executive Order would impose a nationwide mandate that all employees work remotely. While the rumor proved baseless, it raised questions about manufacturers’ abilities to comply with environmental permit obligations in the event of a COVID-19 precipitated operational shutdown due to federal or state mandates or workforce depletion resulting from widespread illness.

COVID-19 Response: Tax Implications

Congress and the Trump Administration have been moving swiftly to provide income tax relief to workers coping with the COVID-19 outbreak. It is a quickly moving target – here's what we now know.

COVID-19 Response: The Families First Coronavirus Response Act Creates Significant New Rights to Paid Employee Leave

The Families First Coronavirus Response Act was approved by the U.S. House or Representatives on March 13, 2020 (the Act). The Act would require that covered employers grant up to 12 weeks of emergency family medical leave and 80 hours of sick leave to employees impacted by the coronavirus. 

COVID-19 Response: New Jersey Legislature Considering Bill Regarding COVID-19 Business Interruption Claims Expressly Excluded by ISO "Virus" Exclusion

As a follow up to our earlier alert regarding the March 10, 2020 “Call for Special Report” letter issued by the New York State Department of Financial Services, it has been reported that the New Jersey legislature will begin discussion on March 16, 2020 of a draft bill that will force insurers to pay COVID-19 business interruption claims expressly excluded by ISO’s “Virus” exclusion.

COVID-19 Response: Antitrust Considerations for Competitor Collaboration in the Face of Disruptions Caused by the Coronavirus Outbreak

With worldwide supply chains disrupted because of the COVID-19 global pandemic, companies facing significant effects on demand as well as input supply shortages should consider whether an industry-wide response is available. While collective efforts among competitors must proceed carefully to address and minimize antitrust risk, these approaches can produce efficiencies and meet important public health and societal needs.

COVID-19 Response: NYDFS Issues Call for Special Report on Interrupted Business Coverage from All Authorized Commercial Property & Casualty Insurers

New York's Department of Financial Services (DFS) issued a letter on March 10, 2020, titled "Call for Special Report Pursuant to Section 308, New York Insurance Law: Business Interruption and Related Coverage Written in New York." This letter instructs each authorized property/casualty insurer to provide certain information regarding the commercial property insurance it has written in New York and details on the business interruption coverage provided in the types of policies for which it has ongoing exposure. 

COVID-19 Response: A Quick Guide for Oregon Employers

There are many questions brewing about the impact of coronavirus/COVID-19 on employers. Below, we address a few (of the many) frequently asked questions by Oregon employers regarding COVID-19-related attendance issues:

COVID-19 Response: Federal Regulators Issue Pandemic Preparation Guidance to Banks

Illustrating another impact of the COVID-19 outbreak, on March 6, 2020, the Federal Financial Institutions Examination Council (FFIEC), an interagency council of federal financial regulators, issued a guidance document advising banks how to minimize a pandemic’s potential adverse effects on financial institutions.

WARNING! New Jersey Radically Expands WARN Act

On January 21, 2020, New Jersey Governor Philip Murphy signed widespread amendments to the Millville Dallas Airmotive Plant Job Loss Notification Act (the NJ-WARN Act) into law that go into effect July 19, 2020. The most important and widely remarked-upon change is that, in certain instances, employers must pay severance of one week’s pay for every full year of employment. 

COVID-19 Response: Key Legal Considerations for Event Cancellations

Every passing day brings stark new reports of novel coronavirus (COVID-19) cases and increasing numbers of cancelled conventions, concerts, and other major events. Both the hospitality and travel industry on the one hand, and organizations that are canceling events on the other, are scrambling to understand the legal consequences of these costly terminations. 

COVID-19 Response: CMS Issues Memo Regarding Spread of Coronavirus in Nursing Homes

On March 4, 2020, the Centers for Medicare & Medicaid Services (CMS) issued a memo to State Survey Agency Directors regarding the spread of coronavirus (COVID-19) in nursing homes.

Proposed Illinois Law Would Ban Intrastate Forum Non Conveniens, Likely Increasing Forum Shopping

On February 13, 2020, Madison County, Illinois-area representative Jay Hoffman (D-Belleville) sponsored House Bill 5044, which would abolish the doctrine of intrastate forum non conveniens.

California Supreme Court Holds Employees Must Be Compensated for Mandatory Exit Searches

Last week, in Frlekin v. Apple Inc., the California Supreme Court held that employees must be compensated for employer-mandated exit searches of packages, bags, and personal technology devices. In arriving at this conclusion, the Court developed a new four-factor test to be used when analyzing on-site, employer-controlled activities.

Not So Fast: Uber and Postmates’ Request for Preliminary Injunction to Block California’s New Independent Contractor Law Is Denied

On February 10, 2020, the Central District of California denied a request for preliminary injunction filed by Uber and Postmates to block enforcement of California Assembly Bill 5 (AB 5). AB 5, which took effect on January 1, 2020, is a controversial bill that makes it harder for workers to be classified as independent contractors.

Pennsylvania Supreme Court: Fair Share Act Does Not Preempt Common Law When Apportioning Liability

On February 19, 2020, the Pennsylvania Supreme Court issued a long awaited opinion in the matter of Roverano v. John Crane, Inc., No. 26 EAP 2018, No. 27 EAP 2018 (Pa. 2020). The Court’s opinion is a must-read for anyone involved in asbestos litigation in Pennsylvania.

Texas Supreme Court Considers Fraud Exception to Duty to Defend

On February 26, 2020, the Texas Supreme Court will hear an insurer’s argument that it should create an exception to Texas’ "eight corners rule" in Loya Insurance Company v. Osbaldo Hurtado Avalos et al.

California Expands Penalties for Late Wage Payments

In October 2019, Governor Gavin Newsom signed Assembly Bill 673 into law, broadening the scope of California Labor Code (Labor Code) section 210 to permit recovery of statutory penalties for late wage payments by affected employees.

California Court Finds Employer Violated Labor Code By Using Unregistered Acronym For Fictitious Business Name on Wage Statements

California’s Third Appellate District recently held that an acronym for an out-of-state fictitious business name does not comply with section 226(a)(8) of the state’s Labor Code.

These Shoes Aren’t Made For Walkin’: New Jersey Court Declines to Extend In Personam Jurisdiction to Internet Seller of Classic Car

In the first quarter of 2019, 11% of all retail sales in the United States, or more than $146 billion, were internet-based transactions. Recently, the New Jersey Appellate Division approved for publication an opinion confirming that a person-to-person transaction over the internet will not automatically confer personal jurisdiction on the seller when the buyer is a New Jersey resident.

California Federal Judge Grants Preliminary Injunction, Preserving Employers’ Right to Use Mandatory Arbitration Agreements

As previously reported, on December 29, 2019, Judge Kimberly Mueller of the United States District Court for the Eastern District of California granted a temporary restraining order preventing the enforcement of AB 51, which was set to go into effect on January 1, 2020. 

Colorado 2019 Labor & Employment Law Updates

2019 was an active year for Colorado labor law, with the legislature and courts making many changes that will impact employers in the state. This alert is a brief summary of those changes along with some new items to watch for as we head into 2020, so that employers can start the new year off on the right foot.

FTC Announces 2020 HSR Filing Thresholds & Interlocking Directorates Thresholds

The Federal Trade Commission (FTC) recently announced the annual revisions to the jurisdictional thresholds applicable to the Hart Scott Rodino Antitrust Improvements Act of 1976 (HSR Act) pre-merger notification program and to Section 8 of the Clayton Act which prohibits certain interlocking directorates.

In California, the New Year Brings New Minimum Wage Requirements

The State of California has a history of increasing its minimum wage, with wage increases occurring at the start of both 2019 and 2018. This new year is no different, with California again increasing its state minimum wage at the start of 2020. 

New Jersey Supreme Court Declines to Hold Landlord Responsible for Property Over Which Tenant Maintained Control

A recent case decided by the New Jersey Supreme Court draws a significant line between what care and service of property, and the resulting liability therefrom, can and cannot be delegated by a landlord. While it represents a departure from historic notions of a landlord’s duty, the Court was not willing to completely separate from prior rulings, running the analysis under the existing framework as well.

Southern District of Texas Holds Professional Services Exclusion Applies to Preclude Duty to Defend

In Project Surveillance, Inc. v. Travelers Indemnity Company, No. 4:19-CV-03324, 2020 WL 292247 (S.D. Tex. Jan. 21, 2020), the court held that the professional services exclusion in the insured’s commercial general liability policy precluded Travelers’ duty to defend. 

California Contractors, Do You Have a Backup Plan For Your License Qualifier?

Pursuant to California’s Contractors License Law, all license classifications must have a qualifier or qualifying individual. This alert discusses what is required if your qualifier is leaving and some possible delays you may face when replacing your qualifier.

Facebook Settles BIPA Class Action Suit for $550 Million

In a significant development in the ever-expanding universe of Illinois Biometric Information Privacy Act (BIPA) litigation, on January 29, 2020, Facebook agreed to pay $550 million to settle a BIPA class action that was filed in the Northern District of California.

EPA Takes Aim at 160+ PFAS Chemicals for New Reporting Requirements, Spotlights Many Potentially Affected Industries

On December 4, 2019, the Environmental Protection Agency published an Advance Notice of Proposed Rulemaking that seeks comments on which of the approximately 600 per- and polyfluorinated chemical substances (PFAS) currently active in U.S. commerce should be added to environmental reporting requirements under the Toxics Release Inventory. 

2019 False Claims Numbers Show Healthcare Remains High Priority for DOJ Civil Division

The numbers are in – the Department of Justice (DOJ) recently published its annual breakdown of false claims litigation undertaken by its Civil Division. The report show new matters filed by year, the DOJ's recoveries through judgments and settlements, and the share of the recoveries by relators in qui tam litigation. For healthcare providers, here are some quick takeaways.

California Contractors – You Should Know That Section 7141.5 May Be Your Golden Ticket

Under California’s Contractors’ State License Law, Cal. Bus. & Prof. Code §§ 7000 et seq., all contractors’ and subcontractors’ licenses expire two years from the last day of the month in which the license issued, or two years from the date on which the renewed license last expired.

Billion-Dollar Trial Given Greenlight After Facebook Loses in Supreme Court on Illinois BIPA Statute

On January 21, 2020, the U.S. Supreme Court denied Facebook’s petition for a writ of certiorari to review whether a group of potentially millions of Facebook users have constitutional standing to pursue claims brought under the Illinois Biometric Information Privacy Act (BIPA) for alleged violations of the statute’s notice and consent mandates.

Things are About to Change, What this Means for a California Contractor’s License

If you are contemplating purchasing or selling a business entity that is a licensed California contractor or even simply changing the type of business entity under which you operate as a licensed California contractor, you must carefully consider and understand the implications and consequences.

Administration Proposal to Overhaul Environmental Review Under the National Environmental Policy Act Creates New Opportunities for Project Development

On January 10, 2020, the Council on Environmental Quality (CEQ) published a notice of proposed rulemaking to update regulations for implementing the National Environmental Policy Act (NEPA).

Southeast Employment Law Update

A review of recent major labor and employment law developments in Alabama, Florida, and Tennessee.

The 9-1-1 for California Contractors on Personnel of Record With the CSLB

California’s Contractors’ State License Law, Cal. Bus. & Prof. Code §§ 7000 et seq., requires licensees to provide various pieces of information to the Contractors State License Board (CSLB) both in the application for an original contractors license and “within 90 days” of a triggering event. 

Kentucky & Ohio Supreme Courts Address Police, Government Liability for Damage Caused During Vehicle Pursuits

Two recent decisions, one from the Supreme Court of Kentucky and the other from the Supreme Court of Ohio, addressed the issue of liability for police officers and political subdivisions, respectively, following claims that arose from motor vehicle accidents caused during suspect vehicle pursuits. The two courts took opposing views, with one expanding liability and the other limiting it. This alert provides a summary of these cases.

2019 Missouri, Kansas, and Oklahoma Employment Law Year End Review

Missouri legislators were silent on employment and labor law in 2019, neither presenting nor enacting any legislation in the area. The Missouri Supreme Court, on the other hand, actively handed down rulings in labor and employment.

New York Trial Partner Successfully Defends Damages-Only Trial Involving Cervical Fusion, Limiting Award to Only $148,000

New York Partner Alecia Walters-Hinds obtained a very favorable verdict after a two-week damages-only trial in Queens Supreme, limiting a potential multimillion-dollar verdict to a jury award of less than $150,000.

Court Grants Temporary Restraining Order Preventing Enforcement of AB 51

In October, we reported on California’s passage of AB 51, a law which prohibits mandatory arbitration agreements for nearly all types of employment law claims.

Continued PFAS Action Likely in 2020

Action on per- and polyfluoroalkyl (PFAS) substances continued until the last days of 2019 and shows no chance of slowing in 2020. Congress vigorously debated federal regulation of PFAS compounds throughout 2019 and at year’s end agreed on a major PFAS-related compromise in must-pass defense legislation.

2019 Pennsylvania Employment Law Review

As employers are aware, the FLSA requires the payment of a minimum wage for all hours worked and overtime for hours worked in excess of 40 hours per week. Pursuant to the FLSA, employers may utilize the fluctuating workweek method to calculate overtime compensation when a non-exempt employee receives a fixed weekly salary but works hours that varies from week to week.

2019 Illinois, Indiana, Michigan, and Wisconsin Employment Year in Review

A review of the most important labor and employment law updates of the past year from Illinois, Indiana, Michigan, and Wisconsin.

Washington Employment Law Review For 2019

As we all get ready to relax and spend time with our family and friends to celebrate the holidays and the coming of a new year, it is a good time to look back at the changes in Washington law that have occurred over the past year, and the changing landscape that Washington employers will face in the next decade. 

California Enacts Statutes Which Will Make Discovery More Costly

Beginning in 2020, two new California statutes, signed into law by Governor Gavin Newsom earlier this year, will increase the cost and burden of discovery on litigants and their attorneys, particularly business entity defendants.

Interest in Critical Minerals Grows as Federal Government Seeks to Counter Reliance on Foreign Imports

For some time, the Administration and Congress have expressed concern about U.S. overreliance on foreign sourcing for critical, or strategic, minerals that are essential to U.S. defense and technology production.

New York Trial Team Obtains Defense Verdict in Multimillion-Dollar Sidewalk Trip & Fall

New York Trial Partner Joelle T. Jensen obtained a defense verdict on December 5, 2019, ending a two-week jury trial held in Manhattan’s Supreme Court, New York County.

Lewis Brisbois New York Team Settles TBI Case for $15K in Wake of Favorable Kings County Ruling

New York Partners Nicholas P. Hurzeler and Sheryl S. Fyffe recently settled a traumatic brain injury (TBI) case for $15,000, following the filing of a notice of appeal by plaintiff’s counsel in a matter where plaintiff’s counsel demanded $7.5 million throughout the litigation

California Court of Appeal Holds Service Charges May Be Considered Gratuity

Last month, in O’Grady v. Merchant Exchange Productions, Inc., the California Court of Appeal held that a mandatory “service charge” may be considered a “gratuity” for purposes of Labor Code section 351.

A Guide to Holiday Gift Giving & Receiving in the Healthcare Industry

It's that time of year again when we show our appreciation for those who have contributed to our success in the past year, but those in the healthcare industry must be extremely careful when making gifts to referral sources, or even receiving gifts from vendors and others.

Washington Supreme Court Expands Scope of Consumer Protection Act

In order to prevail in an action against an insurer for violation of the Washington Consumer Protection Act (CPA), a plaintiff must prove an unfair or deceptive act which “causes injury to the plaintiff’s business or property.”

New York Employment Law Update for the Holiday Season

One might quip that the season of giving is in full swing in Albany and New York City based on their year-end enactments of new laws protecting employees, but the reality is that we have seen similar significant changes throughout 2019 at both the State and City levels.

Updates to Kings & Bronx County Supreme Court ADR Processes

The Kings County and Bronx County Supreme Courts have recently implemented formalized early alternative dispute resolution (ADR) for civil cases. This alert reviews the upcoming changes in Kings Supreme, and the changes in Bronx Supreme from this past September.

Implementing Executive Orders on Agency Guidance: What Businesses Should Know

On October 31, 2019, the Office of Management and Budget, Office of Information and Regulatory Affairs (OIRA), published a memorandum (the OIRA memo) instructing the regulatory agencies on how to implement an October 9, 2019 Executive Order, EO 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents.”

Common Billing Patterns Resulting in a False Claims Act Investigation & Litigation

Data mining allows government investigators to review a healthcare provider over time and relative to healthcare providers across the local, state, and regional levels. Though not necessarily indicative of fraud, a healthcare provider whose billing practice suggests one of the following trends is very likely to be investigated.

PFAS in Foods: Another Dimension to the Issue

Multiple federal agencies have recently taken steps to assess and regulate per- and poly-fluoroalkyl substances (PFAS), based on evolving science and concerns about potential human health and environmental impacts from historic or future releases of PFAS chemicals.

Massachusetts AG Announces Landmark Settlement with “Gig” Economy Company

Massachusetts Attorney General Maura Healy recently announced that her office has reached a “landmark settlement” with a Boston-based “gig” economy company.

2019 California Labor & Employment Law Updates

The 2019 California legislative session was another busy year with numerous employment-related bill signed into law. Notably, the legislature enacted many statutes to combat sexual harassment in both the public and private sectors.

FTC to Hold Hearings on the Antitrust and Consumer Protection Impact of Employee Non-Competes

The Federal Trade Commission (FTC) will hold a workshop to examine the antitrust and consumer protection effects of employee non-competes on labor markets. Of particular interest, whether such restrictions inhibit job mobility and, by implication, depress wages and innovation.

Environmental Protection Agency Implements Major Clean Water Act Regulatory Changes

This alert provides an update on steps the Environmental Protection Agency (EPA) has taken under Executive Orders (EO) promoting President Trump’s deregulatory agenda.

Federal Action Accelerates on PFAS Regulation

Federal agencies and Congress are taking aggressive new steps to regulate and fund additional research on per- and poly-fluoroalkyl substances (PFAS).

An Early Challenge to Chicago’s Fair Workweek Ordinance

On November 1, 2019, the Building Owners & Managers Association of Chicago (BOMA) filed a lawsuit in federal court against the City of Chicago challenging the recently passed Chicago Fair Workweek Ordinance (the Ordinance).

Analysis: New Jersey’s New Aid-in-Dying Law – Implications for Physicians, Estate Planning & Malpractice Attorneys

The State of New Jersey recently passed the Medical Aid in Dying for the Terminally Ill Act (MAID Act), which allows a physician to assist in the suicide of a terminally ill patient following three requests to do so by the patient, one of which must be written

Attention Healthcare Providers: Upcoming Priorities for the HHS Office of Inspector General

As an attendee at the 2019 American Health Lawyer’s Association (AHLA) Conference on Fraud and Compliance earlier this year, I had the opportunity to hear directly from Joanne Chiedi, the Acting Inspector General in the Office of Inspector General at the Department of Health and Human Services (OIG/HHS).

California Enacts Statutes Expanding Scope of Employee Lawsuits & Restricting No-Rehire Provisions in Settlement Agreements

This month, Governor Newsom approved two new employee-friendly bills which extend the statute of limitation for claims under the Fair Employment and Housing Act (FEHA), and prohibit employers from including “no-rehire” provisions in settlement agreements. Below, we discuss the substance of these new laws and their effects.

California Attempts to Bar Mandatory Employment Arbitration Agreements

On October 10, 2019, California Governor Gavin Newsom signed into law AB 51, which prohibits mandatory arbitration agreements for nearly all types of employment law claims in California.

California Expands Its Lactation Accommodation Requirements

On October 10, 2019, Governor Newsom approved Senate Bill 142, thereby broadening the scope of existing accommodations for lactating employees. For some employers, this development will require considerable changes to existing policies and practices governing lactation in the workplace. 

The False Claims Act & Why It Matters to Healthcare Providers

The False Claims Act (FCA) is designed to deter abuse and fraud of government benefits or contracts by private parties. Whenever a person or company contracts to provide services to the government or government beneficiaries, the FCA imposes liability on any contractor or business that knowingly presents or causes to be presented a false or fraudulent claim for payment or approval.

California Consumer Privacy Act Amendments Offer Brief Reprieve to Employers

In the final days of the legislative session, the California Assembly passed and Governor Newsom signed into law a number of amendments to the California Consumer Privacy Act (CCPA), two of which will impact California employers and provide at least a slight reprieve from compliance with some of the more onerous aspects of the CCPA.

Eleventh Circuit: Expert Disagreement with Clinical Judgment of Care Provider Not Necessarily an Indication of Fraud

The Eleventh Circuit’s recent decision in United States v. Aseracare, Inc., No. 16-13004 (11th Cir. Sept. 9, 2019) makes clear that reasonable minds can disagree in the exercise of clinical judgment without constituting actionable fraud in medical certifications for reimbursement by Medicare.

New White House & Agency Initiatives on Guidance Create Opportunities for Federally Regulated Businesses

On October 9, 2019, the White House issued two Executive Orders (EOs) that clarify how federal agencies can use guidance documents. These new presidential directives follow the release of new policies issued on August 6 by the Environmental Protection Agency’s Assistant Administrator for the Office of Water that also take aim at informal or draft policy documents.

In California, Meal and Rest Period Premiums Can Be Paid as Straight Time Wages, at Least for Now

In California, all non-exempt employees are generally allowed to take an uninterrupted thirty minute meal period and two rest periods during an eight hour shift. If an employee is unable to take a compliant meal or rest period, then California law requires the employer to pay the employee a premium of one hour’s wages at the “regular rate of compensation”. 

Wash. Supreme Court: Employee Claims Adjusters Cannot Be Held Individually Liable for Bad Faith, CPA Violations

On October 3, the Washington State Supreme Court issued a narrow victory to insurers with its 5-4 decision in In Keodalah v. Allstate Ins. Co. and Tracey Smith, 95867-0 (Wn. App. 2018), holding that employee claims adjusters cannot be held individually liable for bad faith or violations of Washington’s Consumer Protection Act.

Real Renter’s Insurance: The Graves Amendment & Rental Vehicle Liability

If a company is merely a leasing service for any type of vehicle, it typically cannot be held personally liable for accidents caused by the renters of such vehicles. This is because, on August 10, 2005, President Bush signed into law the “Safe, Accountable, Flexible and Efficient Transportation Equity Act of 2005,” colloquially referred to as the Graves Amendment.

Labor Department Approves a New Final Rule Altering FLSA Exempt Status, Extending Overtime Eligibility

On September 24, 2019, the United States Department of Labor’s Wage and Hour Division issued its long awaited Final Rule modifying the regulations contained in 29 C.F.R. Part 541, which pertains to the “white collar” exemptions to the Fair Labor Standards Act.

Appellate Decision May Lead to More Unified Trials Across New York’s Second Department

A recent appellate decision in Castro v. Malia Realty may lead to more unified trials in New York’s Second Department, a large venue that encompasses Brooklyn, Queens, Long Island, Staten Island, and several Upstate New York counties. 

Codifying Dynamex, California Dramatically Alters Employee v. Independent Contractor Classification Standard

California recently enacted Assembly Bill 5, which dramatically alters the legal standard for evaluating whether a worker is an employee or an independent contractor.

Why Every Healthcare Provider Should Be Concerned About Potential Healthcare Fraud Allegations

Recent trends show that federal and state governments and the private insurance industry are all very concerned about the reduction of healthcare fraud, abuse, and waste, and are engaged in aggressive enforcement actions against healthcare providers alleged to have engaged in fraudulent activities.

New York Appellate Court Upholds Only $250K for Cervical Fusion Pain and Suffering Award

In Chung v. Shaw, 2019 NY Slip Op 06468 (2d Dept. 2019), decided on September 11, 2019, New York’s Appellate Division, Second Department, increased a jury award for past and future pain and suffering from $25,000 to $250,000. The total pain and suffering award is notably low for a fusion surgery in New York appellate jurisprudence on the question of sustainable “reasonable compensation.”

New York Court of Appeals: Defendants Can Now Obtain Medical Records for Injuries Not Alleged in Bill of Particulars

We are pleased to report a significant Court of Appeals decision on the scope of the physician-patient privilege in New York that we anticipate will impact discovery disputes and cross-examination at trial going forward. This successful appeal was handled by New York Trial & Appellate Partners Nicholas P. Hurzeler and Sydney S. Sanchez.
 

California Delays Expanded Sexual Harassment Training Requirement to January 1, 2021

It’s not often that we get to advise on reasonable compliance developments out of California. So, we are happy to report that on August 30, 2019, Governor Newsom signed Senate Bill 778 into law which delays the expanded sexual harassment training requirements applicable to employers with five or more employees in California.

Hurricane Guidance for Employers: Wage and Hour Considerations

As hurricane season begins and Florida braces for Hurricane Dorian, companies impacted by this year’s hurricanes face a host of employment law concerns, including significant challenges maintaining compliance with wage and hour laws. This alert provides general guidance about those issues under the Fair Labor Standards Act (FLSA).

Ninth Circuit Affirms Class Certification, Standing in Illinois Biometric Information Privacy Act Suit Against Facebook

A three-judge panel of the Ninth Circuit U.S. Court of Appeals has held that Illinois Facebook users may bring claims for privacy violations under state law for the use and storage of biometric information on the company’s platforms and servers. 

Update: New York’s Child Victims Act In Effect From Today

New York’s Child Victims Act (CVA) takes effect today after having been signed by Governor Cuomo on February 14, 2019. The CVA makes it much easier for childhood sexual assault survivors to file suit by, among other things, allowing victims the right to file suit against sexual assault perpetrators and their institutional employers, based upon a theory of negligence or intentional conduct.

Summer 2019 – Never a Dull Moment in New Jersey Employment Law

The weather down the shore is not the only thing heating up in the Garden State. New Jersey remains active on the legislative front with respect to laws impacting all employers active in the state. We discuss below several recent developments.

New York City Public Accommodations Requirements: New Entrance Ramps Requirements

The New York City Council has passed a bill that imposes new requirements for existing portable entrance ramps available for use by disabled persons.

California Court Holds that On-Duty Meal Periods Must Be At Least 30 Minutes in Length

On July 31, 2019, the California Court of Appeal provided much needed guidance on an exception to Industrial Welfare Commission (IWC) Wage Order 5 that allows employers to provide “on-duty” meal periods to employees.

Third Time’s the Charm: Maryland Bans Non-Compete Agreements for Low Wage Workers

Maryland has been attempting to limit the use of non-compete agreements within the state since 2016. On May 25, 2019, the Maryland legislature was finally successful in passing a bill that prohibits the use of non-compete agreements for employees who earn $15/hour or $31,200 annually or less.

Oregon Employers Beware: New Technical Requirements for Non-Compete Enforcement

On May 14, 2019, Oregon Governor Kate Brown signed House Bill (HB) 2992, amending the existing non-compete statute to now require employers to provide employees with a signed, written copy of their non-competition agreements within 30 days after the termination of employment.

FINRA Arbitrators Issue $3 Million Dollar Sanctions for Failure to Comply with Discovery Order

A three-person FINRA panel in Miami ordered Morgan Stanley Smith Barney LLC (Morgan Stanley) to pay Puerto Rico bond investors $3 million in sanctions for failure to produce documents related to the termination of a broker. 

Chicago Passes Fair Workweek Ordinance

After more than two years of negotiations, on July 24, 2019, the Chicago City Council, in a unanimous vote and with Mayor Lori Lightfoot’s support, passed the Fair Workweek Ordinance (FWO).

Maine Drastically Restricts the Use of Non-Compete Agreements

Earlier this month, Maine passed the Act to Promote Keeping Workers in Maine (the Act), banning non-compete agreements with employees who earn less than 400% of the federal poverty line ($49,960 per year for 2019).

New Hampshire Bans Non-Compete Agreements for Low Wage Employees

On July 10, 2019, the Governor of New Hampshire, Chris Sununu, signed a bill that prohibits non-competition agreements for employees who make 200% or less of the federal minimum wage, which translates to $14.50/hour.

California Amends FEHA, Broadens Scope of Race Discrimination Claims to Include Discrimination Based on Hairstyle

This month, California Governor Gavin Newsom approved an amendment to the state’s Fair Employment and Housing Act (FEHA), which significantly broadens the scope of race discrimination claims. 

California Court of Appeal Rules that Employers are Not Required to Reimburse Employees for Slip-Resistant Shoes

California Labor Code section 2802 requires an employer to reimburse employees “for all necessary expenditures” incurred by them as a direct result of the discharge of their job duties.

New York’s Child Victims Act Provisions Will Likely Lead To A Significant Increase In Civil Suits Arising Out Of Childhood Sexual Abuse

On February 14, 2019, New York State Governor Andrew Cuomo signed into law the Child Victims Act (CVA), which greatly expanded the right of childhood sexual assault survivors.

Obesity Is 'Always' a Disability in Washington, Washington Supreme Court Rules

The Washington Supreme Court recently ruled that obesity is “always” a disability under the Washington Law Against Discrimination (WLAD) in a decision that seems problematic in its analysis and troubling in its consequences.

New York State Dramatically Expands Its Discrimination Laws

The New York State legislature has adopted, and it is anticipated that Governor Cuomo will soon sign, new legislation that makes the state one of the most pro-employee states in the country. The dates on which particular legislative provisions take effect are staggered, but many of the most drastic changes take effect within 60 days after the legislation is adopted.

Illinois Legislative Update – New Challenges for Employers

A marathon legislative session that spilled into overtime saw the Illinois Legislature pass multiple bills with important impacts on employment law in the Prairie State, including bills legalizing recreational marijuana, proscribing employers from requesting job applicants’ salary history, and instituting new limitations on the use of artificial intelligence, among others.

Louisiana Supreme Court Finds Collateral Source Rule of Evidence Does Not Apply to Medical Expenses Charged But Not Paid by Workers’ Compensation Carrier

In Simmons v. Cornerstone Investments, LLC, et al, 2018-0735 (La. 05/08/19), a tort case involving a third party tortfeasor, the Louisiana Supreme Court recently held that the amount of medical expenses charged by a provider above the amount actually paid by a workers’ compensation insurer does not qualify as a collateral source under Louisiana evidentiary law, and thus, the “written off” amounts are admissible at trial.

Hold the Arbitration - Washington Appellate Court Finds Pizza Delivery’s Arbitration Policy Unenforceable.

In a recent reported decision, a Washington appeals court addressed the requirements of enforcing an arbitration policy that is an employment handbook. The court’s reasoning provides a number of reminders for employers who want to arbitrate employment claims.

New York Legislature Alters Civil Jurisprudence With Passage of Several Important Measures

The New York legislature recently passed several important measures that will alter civil jurisprudence in New York State and are expected to be signed by Governor Cuomo. Our New York office is committed to keeping all our clients advised of these important changes to New York law, and our attorneys will be ready to litigate the new rules as soon as they take effect.

New York Court of Appeals Affirms Insurers May Withhold Payment for Fraudulent Incorporation Without Proving Actual Fraud

On June 11, 2019, the New York Court of Appeals finally affirmed that no-fault insurers are not required to pay providers who do not operate in accordance with New York law in terms of licensing and incorporating, regardless of whether they prove the elements of common law fraud at trial. 

Enhanced Federal Regulation of PFAS Teed Up for U.S. Senate Action

Per- and polyfluoroalkyl (PFAS) substances took center stage this week in the United States Senate with consideration of a bipartisan compromise that would mandate stronger new federal PFAS regulations.

Oregon’s Updated Anti-Discrimination Law Extends Statute of Limitations on Claims, Restricts Use of Confidentiality Agreements & Mandates Expanded Workplace Policies

Riding the “me too” wave, and in reaction to its own sexual harassment scandal, the Oregon legislature passed Senate Bill 726, known as the “Oregon Workplace Fairness Act.” Governor Kate Brown signed the bill into law on June 11, 2019, and parts of it take effect as early as this fall. These changes apply to every employer in Oregon and are not limited to sexual harassment claims.

Beginning 2021, Colorado’s Equal Pay for Equal Work Act Will Impose New Requirements on Employers’ Hiring, Promoting, and Record-Keeping Practices

On Wednesday, May 23, 2019, Colorado Governor Jared Polis signed into law Senate Bill 19 085, which imposes new, stringent obligations on Colorado employers as to hiring practices, promotion procedures, and record-keeping requirements.

Starting September 1, 2019, Colorado Will “Ban the Box” That Inquires Into Job Applicant Criminal History

Colorado Governor Jared Polis signed into law House Bill 19-1025 (the Act), making Colorado the latest state to prohibit certain employers from inquiring into a prospective employee’s criminal history on a job application. Starting September 1, 2019, certain employers will no longer be able to ask job applicants to disclose prior criminal history on job applications, but employers are explicitly permitted to perform a publicly available criminal background check at any point in the hiring process.

SEC Adopts “Regulation Best Interest” for Broker-Dealers and Interpretive Rules of Conduct for Retail Customers

On June 5, 2019 the Securities and Exchange Commission (SEC) adopted a package of regulatory items in four parts intended to “substantially enhance” the standards of conduct for financial professionals.

Colorado Supreme Court Rules Judge-Made Economic Loss Rule Does Not Bar Recovery for Concurrent Civil Theft, Breach of Contract Claims

Colorado Supreme Court recently issued an important ruling to address whether litigants may pursue a civil theft claim (including theft or unauthorized use of trade secrets) where such acts also constitute a breach of contract. Colorado civil theft, codified in C.R.S. § 18-4-405, awards the rightful owner of stolen property the greater of $200 or three times the loss suffered.

Beginning in 2020, Willful Failure to Pay Wages Will Be a Criminal Offense in Colorado

On May 16, 2019, Governor Jared Polis signed into law bipartisan House Bill 19-1267 (the Act), which creates criminal liability for employers that intentionally refuse to pay, or that underpay, their employees. Starting January 1, 2020, employers could face criminal charges of petty offense, misdemeanor, or felony, depending on the amount of unpaid or underpaid wages. This means that employers or their agents could face imprisonment of up to a maximum of 24 years and a fine of up to $1 million for the most egregious offenses.

Florida Legislature Grapples with Economic Damages Issue

In the state of Florida, defendants often fall victim to inflated verdicts. Laws currently allow a plaintiff to present evidence of medical expenses that do not accurately reflect a plaintiff’s actual economic damages. This can result in significantly unfair verdicts. The Florida legislature attempted to address this issue in their last session.

Common Signs Your B2B Invoice Will Not Get Paid

Cash flow is the life blood of every business. Companies rely on receiving timely payments from B2B customers to keep a positive cash flow and to smoothly and profitably operate their businesses. Commercial clients and customers who fail to pay for goods and services can negatively impact your company, including the ability to pay your own bills or grow your business.

Fraudulent Concealment of Prior Medical Treatment Proves Costly

Recently, New York Partner David L. Rosenthal secured the dismissal of spinal fusion case that came with a $3 million settlement demand, based upon the plaintiff’s failure to disclose prior treatment.

'What are the Meds?': How Medicals Impact Case Settlements & Jury Arguments

“What are the meds?” This is a common question when valuing a personal injury case. The question is critically important because plaintiffs are unlikely to settle their cases before getting their medical bills paid. Further, in order to cultivate large awards, plaintiffs employ a variety of methods to artificially inflate the value of the medical care.

Aggressive Interest in Federal PFAS Regulations Continues to Mount

Pressure for tough federal action to regulate per- and polyfluoroalkyl substances (PFAS) continues to grow, with two Congressional hearings, multiple legislative proposals, the issuance of a new scientific report, and EPA’s release of expected dates for particular PFAS regulations all making news in the last two weeks. This heightened focus and the unusually aggressive proposals for regulating these chemicals leave little question that there is an increasing business risk for current and former manufacturers of PFAS chemicals and products containing them. 

New EEO-1 Pay Data Reporting Requirements Impose Additional Burdens On Employers.

The Equal Employment Opportunity Commission (EEOC) requires that private employers with over 100 employees and certain federal contractors with 50 or more employees provide data regarding the number of employees by job category, race, ethnicity, and sex in EEO-1 Reports. Following a recent United States District Court opinion and subsequent statements by the EEOC, these employers must now provide additional data related to hours worked and pay data for 2017 and 2018 by September 30, 2019.

Texas Supreme Court Issues Opinion Curtailing Gross Negligence Claims

On April 26, 2019, the Texas Supreme Court issued an opinion that should greatly curtail the ability of plaintiffs to sustain gross negligence claims in transportation cases by reinforcing the extremely high burden plaintiffs must meet to establish gross negligence.

Ninth Circuit Rules the Dynamex ABC Test Applies Retroactively and to Franchisors

Last year, the California Supreme Court held in Dynamex Operations v. Superior Court that the “ABC test” determines whether a worker should be classified as an independent contractor or an employee, replacing the more lenient Borello test. 

New Windows Vulnerability Discovered

Microsoft recently announced a critical vulnerability in its Windows operating systems so serious that it is issuing a patch for even unsupported, older versions of Windows. The vulnerability allows for remote code execution in Remote Desktop Services with no authentication at all. In fact, there is no user interaction of any kind required for a malicious actor to exploit the vulnerability.

In a Historic Move, Washington Bans Non-Competes for Employees Making Less Than $100,000

Following the White House’s “call to action” in 2016, many states sprang into action and attempted to reign in the use of non-compete agreements in their states to even the playing field between employers and employees. Enveloped in this wind of change, on May 8, 2019, Washington State signed into law its own non-compete statute that establishes a black-and-white compensation test for workers who can be required to sign a non-compete agreement and those who cannot.

Consumer Financial Protection Bureau Moves to Regulate Debt Collection

In a surprise move a day before a scheduled “town hall” on debt collection, the Consumer Financial Protection Bureau released its long-awaited proposed debt collection rule. Key elements of the proposal include call caps (limits on the number of times debt collectors can contact debtors), clarity on allowable use of electronic communications, and disclosure requirements on information to be communicated to consumers.

Perfluorinated Chemicals: A Rapidly Evolving Regulatory and Legal Risk Issue for Businesses

A once obscure group of chemicals known as perfluorinated chemical substances (PFAS) have gripped national headlines in recent months, due to increasing concerns over potential health risks. PFAS have been used for many years in a wide variety of products, such as non-stick cookware, cleaning and coating solutions, paper, food packaging materials, fire-fighting foam, automotive applications, upholstery, and carpeting. These chemicals have been detected in groundwater and surface water across the country, and Congress, federal and state regulators, and litigants are all taking steps in response. 

California Court of Appeal Holds that Employers May Use Fictitious Business Names on Wage Statements

California Labor Code section 226(a) mandates nine categories of information to be displayed on wage statements issued to employees, including “the name of the legal entity that is the employer.” How California employers can meet this obligation has been the subject of heavy litigation over the years.

Spring Brings New Developments for New York and New Jersey Employers

An overview of recent important developments in New York and New Jersey labor and employment laws.

United States Supreme Court Holds That Class Arbitration Must Be Explicitly Authorized

On April 24, 2019, the United States Supreme Court issued its opinion in Lamps Plus Inc., v. Varela, ___ 587 U.S. ___ (2019), clarifying whether a court can compel class action arbitration when the arbitration agreement is ambiguous concerning class action arbitration. 

Premises Liability Cases: Know The Evidentiary Issues

Recently, in Melendez v. Spin Cycle Laundromat, LLC, 188 Conn. App. 807 (2019), the Connecticut Appellate Court affirmed a trial court's decision to deny a plaintiff's motion to set aside a jury verdict rendered in favor of a laundromat defendant in a premises liability case.

U.S. Supreme Court Rules Certain Businesses and Lawyers Are Not Debt Collectors Under the FDCPA

The federal courts are plagued by what we might charitably refer to as creative claims under the Fair Debt Collection Practices Act (FDCPA). Many of those law suits are filed against lawyers assisting their clients in debt collection-related matters. Happily for members of the bar, and for some businesses, the United States Supreme Court has unanimously ruled that certain activities by attorneys and their clients do not fall fully within the scope of the FDCPA.

Illinois Legislature Passes Bill Allowing Civil Suits Against Employers in Latent Injury Cases

On March 14, 2019, the Illinois legislature passed Senate Bill 1596, lifting the 25-year statute of repose for occupational disease lawsuits and allowing direct common law actions against employers in latent injury cases.

Claims Management: Reefer Trailer Madness! - Frozen Food Cargo Claims

In handling interstate cargo claims, it is likely that you will face claims for thawing damage to frozen food. This is especially true during summer months and in warm-weather states like Florida, as reefer trailer breakdown is more likely to occur under such conditions.

New York Trial & Appellate Victory Alert - April 2019

Our New York office has had another successful run of trial wins, appellate victories, and outstanding settlements. We have compiled some of the most interesting and important wins in this alert.

A New Target: Antitrust Division Takes Aim at Criminal Antitrust Violations in Public Procurement

The Antitrust Division (Division) of the Department of Justice (DOJ) investigations of public procurement bids has uncovered multiple criminal violations.

Georgia Court of Appeals Underscores Importance of Property Owners’ Knowledge of Prior Crime in Negligent Security Cases

A crime occurs in an apartment complex, a parking lot, or outside a business. The perpetrator vanishes without a trace and the victim files suit against the property owner claiming the criminal attack was foreseeable and would not have occurred but for the owner’s inadequate security measures. In Georgia, this basic fact pattern routinely gives rise to multi-million dollar jury verdicts against property owners and property management companies. 

Supreme Court Lorenzo Decision Expands Liability Under Rule 10b-5

On March 27, 2019, the Supreme Court issued its much-anticipated decision in Lorenzo v. SEC, 587 U.S. ____ (2019), which expands the category of conduct under which a private action can be brought pursuant to SEC Rule 10b-5. 

The Wait Is Finally Over – DOL’s New Proposed Overtime Rule Sets Federal Minimum Salary Level Threshold at $679/Week ($35,308/year)

On March 7, 2019, the U.S. Department of Labor (DOL) announced the long-awaited Notice of Proposed Rulemaking (NPRM) which proposes updates to the required salary amounts used to determine eligibility for certain exemptions from the FLSA overtime requirements.

California Court of Appeal Determines Employee’s Imprecise Evidence Can Result In Liability When Employer Fails To Keep Accurate Time Records

In Furry v. East Bay Publishing, the California Court of Appeal reversed a trial court’s decision denying a plaintiff relief for overtime and meal break claims.

New Jersey Employers Beware – Parts of Your Employment Agreements May Now Be Unenforceable

As of March 18, 2019, New Jersey employers may not include any provision in an employment contract that waives any substantive or procedural rights or remedies that relate to a claim of discrimination, retaliation or harassment. Any such provision is deemed unenforceable and against public policy. 

General Liability Coverage for the Explosion of Class Actions Under the Illinois BIPA Proliferation

The Illinois Biometric Information Privacy Act was enacted in 2008 to regulate the collection and storage of biometric information by private entities. The Act covers retina or iris scans, fingerprints, voiceprints, and scans of hand or facial geometry, and requires entities to have a written collection / storage / destruction policy in place, and to obtain a written release from a person for the collection and use of their information.

Texas Introduces Three Bills To Curb Application of Anti-SLAPP Statute in Non-Compete and Trade Secrets Litigation

The Texas Citizens Participation Act (TCPA), enacted by the legislature in 2011, has been wreaking havoc in business and employment disputes due to the statute’s overbroad language, confusing and conflicting interpretation by the various courts of appeals and federal courts, and defendants’ persistence in invoking the statute’s dismissal process in trade secrets and non-compete lawsuits.
 

Supreme Court Denies Oracle "Full Moon" Costs In Copyright Case

On March 4, 2019, the Supreme Court issued a unanimous decision overturning the Ninth Circuit Court's award of $12.8 million in costs in the copyright infringement matter Rimini Street, Inc. et al v. Oracle USA, Inc. et al. No. 17-1625, slip op. (U.S. Mar. 4, 2019).

Claims Management Update: Federal Court Removal Quandary in Florida

What if you determine that your company or insured has grounds to dismiss a state court complaint as well as a basis to remove the action to federal court? As the Eleventh Circuit noted in Yusefzadeh v. Nelson, Mullins, Riley & Scarborough, LLP, 365 F.3d 1244, 1246, litigating a state court action on the merits generally waives a defendant’s right to remove a state court action to federal court.

Ohio Workers’ Comp Program Proposes Major Rate Cut

Ohio is unique in its Workers’ Compensation laws. The state funded program has been effective over the years, but has not always been as employer-friendly as one might expect. Following on from former Governor John Kasich’s rebates in his last term, the state fund still appears to be overfunded. The Ohio Bureau of Workers’ Compensation has recognized this issue and is considering efforts to further reduce premiums across the board.

Third Party Liability in Distracted Driving Litigation

Litigation arising out of automobile crashes resulting from the use of smartphones and similar modern technology is on the rise. Recently, the Fifth Circuit Court of Appeals – which presides over Texas, Louisiana and Mississippi – ruled in a case of first impression that Apple was not liable for a driver’s neurobiological response to a smartphone notification which caused him to check his phone and cause an accident as the result of the distraction.

Philadelphia Employers Should Prepare For the Requirements of the Fair Workweek Ordinance

The Philadelphia Fair Workweek Employment Standards Ordinance (“Ordinance”) establishes work scheduling and pay requirements for certain employers in the retail, hospitality and food service industry. This article summarizes some of the pertinent provisions of the Ordinance, which is effective on January 1, 2020.

Department of Education Proposes Significant Changes to Title IX Regulations

The U.S. Department of Education has proposed new regulations that, if adopted, would significantly change the landscape of Title IX sexual misconduct investigations. Title IX, enacted in 1972, bars sex discrimination in schools and colleges (“recipients”) that receive federal funding. The proposed regulations add new due-process protections to respondents in Title IX investigations.

California Court of Appeal Establishes Classification of Domestic Caregivers as Employees or Independent Contractors

California’s approach to classifying independent contractors from employees has undergone significant developments over the past year. The Court’s most recent opinion on this line of issues is Duffey v. Tender Heart Home Care Agency, LLC. In Duffey, the California Court of Appeal addressed classification of workers under the Domestic Worker Bill of Rights (DWBR), which sets forth overtime pay obligations to for domestic caregivers. The Duffey Court held that the DWBR provides its own unique test for classifying domestic workers as employees or independent contractors, distinct from the ABC or Borello tests.

Post-Accident Photos Allowed Into Evidence Without Expert Testimony in Illinois

In Peach v. McGovern, 2019 IL 123156, the Illinois Supreme Court definitively established that post-accident photos will be allowed into evidence without accompanying expert witness testimony.
 

2019 HSR Filing Thresholds and Interlocking Directorates Thresholds Announced

On February 15, 2019, the Federal Trade Commission announced the revision of the jurisdictional thresholds for the mandatory notification of certain mergers and acquisitions prior to consummating the transaction pursuant to section 7(a) of the Clayton Act 15 U.S.C. § 18a.

New Governor Delivers on Campaign Promise: Illinois Passes Law to Raise Minimum Wage to $15/hr

On Tuesday, February 19, 2019, Illinois’ new Democratic Governor, JB Pritzker, signed a law that will raise the state’s minimum wage from $8.25/hour to $15/hour over the next six years. The $15/hour minimum wage was one of the issues championed by Pritzker during his campaign.

Ninth Circuit: Employers Must Use Separate FCRA & ICRAA Disclosure Forms When Conducting Background Checks

The Ninth Circuit Court of Appeals recently held in Gilberg v. Cal. Check Cashing Stores, LLC that employers are required to use two separate, standalone forms when conducting background checks on applicants, rather than combining both disclosures into a single document.

California Court of Appeal Ruling Requires Reporting Time Pay for On-Call Employees, Even When Not Physically Reporting to Work

On February 4, 2019, in the case of Ward v. Tilly’s Inc., a California Court of Appeal issued a ruling requiring employees who are subject to on-call scheduling to be paid reporting time pay of at least two hours – even when the employees do not have to physically report to work for a shift and simply need to place a short phone call to determine whether they are needed.

New York Enacts Statutes Impacting Admissibility of Certain Evidence at Trial

The New York legislature recently enacted two new statutes that became effective January 1, 2019. Notably, these statutory changes will have a significant impact on admissibility of certain evidence at trial.

Is the Wait Over? Proposed Changes to FLSA Overtime Exemption Regulations May Arrive as Early as March

As employers begin to develop their compliance agenda for 2019, one area of focus often is (and should be) reviewing and updating wage and hour practices to comply with legislative and regulatory developments. Employers have been faced with uncertainty, however, regarding the status of the proposed changes to the Federal Fair Labor Standards Act (FLSA) overtime exemption regulations.

Circumstantial Evidence in Slip & Fall Cases – A Broadening Definition in Illinois

The appellate courts in Illinois may be trending toward a broader definition of circumstantial evidence in slip and fall cases.

Illinois Supreme Court Issues Major BIPA Decision in Blow to Employers

In a unanimous decision issued January 25, 2019, the Illinois Supreme Court held in Rosenbach v. Six Flags Entertainment Corporation, et al. that an individual seeking redress for violations of Section 15(b) of the Biometric Information Privacy Act need not plead actual damages. 

New York’s Appellate Division, First Department Expands Discovery of Electronic Devices

On January 24th, New York’s Appellate Division, First Department rendered an important decision that expands the ability of litigators to obtain discovery from parties’ electronic devices, including email accounts and social media data, such as messaging apps content and even deleted materials.

An ADEA Victory for Employers Sued Under a Disparate Impact Theory in the Seventh Circuit

On January 23, 2019, the United States Court of Appeals for the Seventh Circuit, in an 8-4 decision, dealt a blow to older job applicants in a case brought pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., under a theory of disparate impact liability. 

Where’s the Evidence? - Illinois Premises Liability & The Notice Requirement

To prevail in a premises liability action in Illinois, a plaintiff must satisfy the “notice” requirement, proving that the defendant had either actual or constructive notice that a condition existed that posed an unreasonable risk of harm to others.

Pennsylvania Employers Now Have an Obligation to Protect Employees' Electronically Stored Information

The Pennsylvania Supreme Court, in Dittman v. UPMC, ruled that employers have a have a legal duty to exercise reasonable care to safeguard employees’ electronically stored personal information.The dispute arose after a data breach occurred at the University of Pittsburgh Medical Center, resulting in the personal and financial information of 62,000 UPMC employees being accessed and stolen from the UPMC computer systems.

Will Illinois Forgo the Natural Accumulation Rule in Favor of a Duty of “Reasonable Care”?

For many years Illinois has followed the “Massachusetts Rule” for snow and ice accumulations. Illinois Pattern Jury Instructions 125.04 codifies the “natural” accumulation rule and as been instrumental in allowing defendants to present strong defenses to slip and fall accidents that oftentimes result in very significant damages.

Supreme Court Holds Threshold Question of Arbitrability Is One of Contract and Valid Agreements to Submit Question to Arbitrator Will Be Enforced

Today, the U.S. Supreme Court in Henry Schein, Inc. v. Archer & White Sales, Inc. unanimously held that where parties agree in a contract to submit even the gateway question of arbitrability to an arbitrator, the Federal Arbitration Act and Supreme Court precedent compel federal courts to honor that contractual agreement even where the arbitration demand appears ‘wholly groundless.'

2018 Illinois, Indiana, and Wisconsin Employment Law Year in Review

Our summary of the most important labor and employment law developments from Illinois, Indiana and Wisconsin in 2018.

Seventh Circuit Rules Parents, Not Starbucks, Have Duty of Care to Protect Child From Harm While Playing Inside Store

In Roh v. Starbucks Corp., a federal appeals court dismissed a negligence lawsuit brought by parents against Starbucks, holding Starbucks was not responsible for injuries that led to the amputation of a 3-year old child's finger who was playing in the store, because the child's parents bore the duty of protecting the child from any harm arising from his play.

Antitrust Compliance – Proceed Cautiously When Sharing Information

Through recent enforcement actions, the Antitrust Division of the Department of Justice has shown its continuing vigilance in sanctioning information sharing that distorts the normal price-setting mechanisms for goods and services in the United States. 

Texas Supreme Court Lays out Process for Proving Employer’s Vicarious Liability

2018 New York Labor & Employment End of Year Review

Texas Supreme Court Clarifies Whether Bad Faith Liability May Exist in Absence of A Policy Breach

Washington Employment Law 2018 Year In Review

2018 Louisiana Employment Law Update: Louisiana’s Own Version of the WARN Act is Working Its Way Through The Legislature

Everyone is Doing It! Three More States Join the Bandwagon in Decriminalizing the Use of Medical and Recreational Cannabis

2018 Oregon Employment Law Update

Uber Eats and Accident Liability - Are Restaurants Liable For Ride-Share Food Delivery Services?

NYC’s Temporary Schedule Change Law is Now in Effect – Here’s What You Need to Know

California Appellate Court Casts Doubt Upon Enforceability of Contracts Prohibiting Solicitation of Co-Workers

California Court of Appeal Clarifies Application of the ABC Test for Independent Contractors

2018 Missouri, Kansas & Oklahoma Employment Law Update

2018 California Labor & Employment End of Year Review

DOL Gives Restaurant Employers a Huge Tip in Recent Opinion Letters

Westchester County, New York Adopts New Laws Impacting Employers

2018 Arizona Employment Law Update

California Court of Appeal Holds Individuals May Be Personally Liable for Labor Code Violations

California Enacts New Laws Expanding Lactation Accommodation Requirements, Other Paid Family Leave Benefits

California Enacts a Package of Legislation Aimed to Prevent Sexual Harassment in the Workplace

California Enacts a Package of Legislation Providing Limited Exceptions to Wage and Hour Laws for Specific Industries

Ninth Circuit Delimits Use of Tip Credit for Tipped Employees Engaging in Untipped Duties

Massachusetts Adopts Uniform Trade Secrets Act

New Legislation in Massachusetts Significantly Restricts the Ability of Employers to Utilize Noncompetition Agreements in Massachusetts

One-Year Time Bar to File an IPR Begins on Date Complaint Served Regardless of Post-Service Activities

Illinois Governor Vetoes Expanded Anti-Discrimination Statute

California Supreme Court Holds That Regular, Non-Trivial Time Worked “Off the Clock” is Compensable

ALERT: #MeToo Impacts New York Employers & Employees

The New Jersey Equal Pay Law Requires the Immediate Attention of All New Jersey Employers

Companies With No-Poaching Agreements Must Consider Whether They Are Worth the Risk

Tribal Sovereign Immunity Cannot Bar IPR Review: Federal Circuit

SEC Votes to Expand “Smaller Reporting Company” Definition

California Court of Appeal Upholds Jury Verdict Finding Twelve Instances of Verbal Mocking Severe and Pervasive Harassment

California’s Going and Coming Rule: Frequent Use of Your Car Throughout the Work Day Doesn’t Mean Your Employer Pays for Your Accidents

Supreme Court Finds Patent Owners Can Recover Foreign Lost Profits for U.S. Patent Infringement

New York Client Trial Alert

Business as Usual in Colorado

First Ruling on New Texas Insurance Code Provision

California Appellate Court Expands the Scope of the California Private Attorneys General Act

Fassbender v. Correct Care Sols., LLC, No. 17-3054, 2018 U.S. App. LEXIS 12556 (10th Cir. 2018)

2018 Mid-Year Non-Compete Update

U.S. Supreme Court Approves Use of Class Action Waivers in Employment Arbitration Agreements

California Supreme Court Adopts Stricter Test for Independent Contractor Status Under the Wage Orders

New Jersey Litigation Update

Texas Supreme Court Closes Loophole That Allowed Plaintiffs’ Attorneys to Inflate Medical Expenses

Sell Me Something Good – U.S. Supreme Court Finds Auto Service Works Are Exempt Under the FLSA

Texas Supreme Court Recognizes ‘Sham Affidavit Rule,’ Allowing Courts to Disregard Affidavits Contradicting Prior Deposition Testimony

Supreme Court Upholds Constitutionality of Inter Partes Reviews

Watching the Equal Pay Act: Ninth Circuit Rejects Prior Salary as a Basis for Setting Initial Pay

Colo. Supreme Court Weighs in on Deadline for Wage Claims

Washington Raises Mandatory Arbitration Limit to $100,000

“Blurred Lines” Copyright Ruling Leaves Answers Blurry

California Supreme Court Rejects Federal Regulation on How Overtime Is Computed on Non-Production Flat Sum Bonuses

USCIS Suspends Premium Processing for Fiscal Year 2019 H-1B Cap Petitions

Texas Court of Appeals Holds Punitive Damages Not Covered Under Personal Lines Auto Policy

DC Circuit Strikes Down FCC Order Regarding TCPA

New York Client Trial Alert

United States Department of Labor Announces New Wage Audit Program for Employers

California Federal Court Rules in California’s First “Gig Economy” Case that GrubHub Delivery Driver Was Properly Classified as an Independent Contractor

Effective Use of Examinations Under Oath in Pipe Freeze Claims

The Texas Supreme Court Rules Trial Courts Must Watch Video Evidence Before Deciding to Exclude; Finds Video Evidence Probative of “Soft Damages” in Personal Injury Cases

New York City to Require Employers and Landlords to Engage in New “Cooperative Dialogue” Process for Requests for Reasonable Accommodations

Kansas Public Speech Protection Act

Texas Attorney General Asserts State Regulation of HRAs ‘Likely’ Preempted by ERISA

California Labor Commissioner Opines that Employees May Not Be Required to Stay on Premises or Keep in Radio Communication During Rest Periods

New York Client Trial Alert

#MeToo and Time’s Up: The Focus on Sexual Harassment in the Workplace

U.S. Antitrust Enforcers Actively Targeting Agreements Between Competitors In Employment Markets That Restrict Competition For Employees

New Jersey Litigation Update

New York Client Alert

New Tax Cut Bill Gives Nod to #MeToo Movement

Louisiana: Updates Impacting Employers in 2018

California’s WARN Act: A Primer After NAASCO

“Backward or Forward” Where Will Missouri Supreme Court Go?

Oregon 2017 Employment Legislative Update

2017 Illinois Employment Law Update

Colorado: Updates Impacting Employers in 2018

2017 Missouri, Kansas, and Oklahoma Employment Law Update

2017 New York Employment Law Update

Yesterday’s Science Fiction, Today’s Reality: Biometrics for Illinois Employers

New York-Area Doctors Indicted in Fraud Scheme

2017 Texas Employment Law Update

2017 California Employment Law Updates

California Enacts a Quartet of Employment Laws Affecting Hiring Practices, Parental Leave, and Harassment Training

Third Circuit Imposes Daunting Standard To Prove Oligopolistic Price Fixing Via Circumstantial Evidence, But Manufacturers Must Still Tread Carefully When Setting Their Prices

Employment Law Changes Impacting Employee Handbooks

NY & NJ Trial and Appellate Team Update - October 2017

California Law Significantly Expands Labor Commissioner’s Authority to Investigate and Enforce Retaliation Claims

Federal Appeals Court Vacates a $147M Jury Award Based on Comity Principles

Texas Employers’ Guide to Classifying Workers

Washington Supreme Court Imposes RPC 1.7 Conflict Waiver Requirement on Insurance Defense Counsel Retained Subject to Reservation of Rights

2017 in Review: Changes to Non-Compete Laws Around the Country

Federal Government Warns That Anti-Poaching and Wage-Fixing Agreements May Violate Antitrust Laws. What Does This Mean for US Companies?

409A Issues in Executive Compensation Contracts and Employment Agreements

Missouri Bill SB 43 Goes into Effect

New Jersey Litigation Update

San Francisco Issues Lactation Accommodation Guidance for Employers

Illinois Court Ruling Reexamines Taxi Drivers & Transportation Drivers as Employees

On June 30, 2017, the Illinois Appellate Court reversed a trial court’s finding of summary judgment granted to a Chicago taxi company finding that there were “material questions of fact” as to whether the driver was the taxi company’s agent when he assaulted the female plaintiff passenger.

Ninth Circuit Holds Mortgage Underwriters Not Exempt Under the Administrative Exemption

On July 5, 2017, the Ninth Circuit, on appeal from the Eastern District of California, issued a ruling reversing the district court’s grant of summary judgment in favor of a defendant Bank, holding, contrary to the district court, that mortgage underwriters were not administratively exempt under the Fair Labor Standards Act.

First Federal Court Ruling That Retailer’s Website Violates Title III of the ADA

Introduction
Since our August 2016 article on the applicability of the Americans with Disabilities Act of 1990 (the “ADA”) to the Internet, litigation involving website violations of the ADA has been on the rise. To date, however, there remains a split among the circuit courts with regard to whether Title III of the ADA applies to websites. To further complicate the issue, the federal government has not yet formally adopted a set standard for website accessibility.

Watching the TCPA: Second Circuit Rules Consent Given as Part of Binding Contract may not be Revoked Under Telephone Consumer Protection Act

In a much-watched decision involving the hotbed issue of consent under the Telephone Consumer Protection Act (TCPA), the U.S. Court of Appeals for the Second Circuit has ruled that consent may not be revoked when it was originally provided as a term of a contract.

The United States Supreme Court Holds that the Lanham Act’s Disparagement Clause Violates the Free Speech Clause to the First Amendment, Opening Registration for Additional Marks and Potentially Preserving Additional Marks

On June 19, 2017, the United States Supreme Court invalidated a provision of the Lanham Act, 15 U.S.C. § 1052(a), which had prohibited the registration of trademarks “which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, . . . or bring them into contempt, or disrepute[.]”

California Court of Appeal Holds that Workers Are Entitled to Federal and California Wage and Hour Protections Regardless of Immigration or Work Authorization Status

Last week, on June 15, 2017, a California Court of Appeal reaffirmed the principle that individuals performing work for the direct benefit of an employer are entitled to wage and hour protections under the Federal Labor Standards Act (“FLSA”) and California law regardless of immigration or work authorization status.

What the DOL's New Fiduciary Rule Means to Employers, Agents, and Insurance Carriers

Effective June 9, 2017, the Department of Labor expanded the definition of fiduciary (the “Fiduciary Rule”) to include any professional, including but not limited to insurance agents and brokers, who makes covered investment advice, recommendations, or solicitations to a retirement plan, plan fiduciary, plan participant and beneficiary, Individual Retirement Account (“IRA”), or IRA owner in exchange for direct or indirect compensation.

Texas Amends Its Trade Secrets Statute, Making It the Most Comprehensive Trade Secrets Statute in the Nation

Texas Governor Greg Abbott recently signed House Bill 1995, which amends the four-year old Texas Uniform Trade Secrets Act (“TUTSA”).

New Expedited Appeals Process Regarding Petitions to Compel Arbitration in Elder Abuses Cases Goes Into Effect July 1, 2017

The California Legislature has created a new class of highly expedited time frames for appeals from an order denying a petition to compel arbitration in cases involving a claim under the Elder and Dependent Adult Civil Protection Act. The new rules go into effect July 1, 2017.

Bronx County Changes Trial Rules for Motor Vehicle Cases

For the past several years, there have been extensive delays in the Bronx County Supreme Court with respect to pending actions receiving final trial dates and proceeding to the commencement of jury selection. Recently, the administrators of the Bronx County Supreme Court implemented new rules specifically to accelerate to trial motor vehicle cases pending in the Bronx County Supreme Court. 

New Regulations Restricting California Employers’ Use of Applicant and Employees’ Criminal Conviction History

On January 10, 2017, the California Fair Employment & Housing Council (“FEHC”) approved regulations that identify a number of ways in which employers can face liability when using a job applicant or employee’s criminal conviction history to influence employment decisions. 

Rigid Progressive Disciplinary Practices and Long-Term Employment May Undermine an Employee’s At-Will Status

Many employers take comfort that their employees are at-will, meaning that either party may terminate employment at any time and for any reason, as long as the reason is not unlawful.

NASAA Releases Supplementary Commentary on Financial Performance Representations

Franchisors need to review their Franchise Disclosure Document (“FDD”) to ensure compliance with new commentary (“Commentary”) issued by the North American Securities Administrators Association (“NASAA”) regarding Financial Performance Representations (“FPR”).

New York City Freelancers Are Now Protected by the Freelance Isn’t Free Act

On May 15, 2017, New York City continued its rapid expansion of worker protection, this time creating greater security for independent contractors.

California Supreme Court Settles Unresolved Questions Regarding “Day of Rest” Requirements for Non-Exempt Employees, Affording Employers More Flexibility and Much Needed Guidance

On May 8, 2017, the California Supreme Court clarified several major points of ambiguity regarding the interpretation of the state’s obscure “day of rest” statutes.

Sue Tsunami: The Rising Tide of Verdicts and Settlements in California-Based Employment Litigation

Within weeks of each other, two California juries awarded eight-figure verdicts to individual plaintiffs in employment cases.

New York Appellate Team Update

The New York office of Lewis Brisbois maintains a full team of appellate specialists who are well versed in litigating pre-trial motions and post-trial appeals.

Employment Law Recovery – Blue Skies No More

In a boon for employers, on May 8, 2017, the Missouri House of Representatives passed Senate Bill 43, which dramatically alters Missouri’s state employment anti-discrimination statutes. The Bill previously passed the Senate.

New York City Bans Private Sector Employers From Seeking Salary History Information From Job Applicants

New York City has now joined the city of Philadelphia, the state of Massachusetts, and the commonwealth of Puerto Rico in prohibiting private sector employers from inquiring into the salary history of job applicants. 

Colorado Wage Theft Transparency Act Now Makes Wage Law Violations Subject to Public Disclosure

On April 13, 2017, Governor Hickenlooper signed the Colorado Wage Theft Transparency Act (House Bill 17-1021). 

Latest Executive Order Ban

United States District Court Judge William H. Orrick struck down President Trump’s executive order to penalize “sanctuary cities.” 

Form I-9 Alert: Social Security Numbers Scrambled on I-9 Forms Completed in November 2016!

The United States Citizenship and Immigration Services (USCIS) issued an alert this week warning employers of a technical glitch in its online system. 

New York Client Alert - April 2017

California Supreme Court Finds Arbitration Provision that Waives the Right to Pursue Public Injunctive Relief in Any Forum is Unenforceable

In McGill v. Citibank, N.A., the California Supreme Court tackled the validity of clauses in pre-dispute arbitration agreements which purport to waive an individual’s right to seek public injunctive relief in any forum such as in court.

California Supreme Court Limits Enforceability of Arbitration Provisions

 The Federal Arbitration Act (“FAA”) has been construed to liberally promote the use of arbitration provisions. However, in recent years, a sort of tug-of-war has played out between federal courts and California as to the enforceability of arbitration provisions governed by the FAA.

15-Month Prison Sentence Reminds That Spoliation Can Be A Crime Resulting In Serious Jail Time

Individuals instructed to preserve records in federal proceedings should not take their duties lightly. Avoid learning this lesson the hard way, as an IT director of a U.S. bus tour company recently did. For spoliating backup tapes, he has been sentenced to prison for 15 months.

USCIS Reaches H-1B Cap for FY 2018

U.S. Citizenship and Immigration Services announced this morning that it has reached the congressionally mandated 65,000 visa H-1B cap for fiscal year 2018. USCIS also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption, also known as the Master’s Cap. 

In Landmark Law, Seattle Might Soon Be the First City to Have Unionized Uber Drivers

Seattle is a city that likes to be friendly to its workers. It was one of the first to implement the $15 minimum wage law, a paid leave law, and even enacted an ordinance protecting hotel workers. 

New York & New Jersey Trial Team Update - March 2017

Hugs in the Workplace Can Get You Sued, Rules the Ninth Circuit

Can a supervisor who engages in excessive hugging and other seemingly innocuous conduct create a hostile work environment? The Ninth Circuit held that this question is one for the jury, and that a rule categorically excluding hugs and other common workplace behavior from creating an actionable hostile work environment would be improper.

Georgia Supreme Court Clarifies Conditions Allowed in Settlement Demands by Motor Vehicle Plaintiffs

On March 6, 2017, a divided Georgia Supreme Court issued its opinion on a ruling requested by the Eleventh Circuit Court of Appeals pertaining to a policy limits demand in a fatal 2014 motor vehicle accident.

California Court Holds that Employees Paid on Commission Are Entitled to Separate Compensation for Rest Periods

On February 28, 2017, the California Second Appellate District issued a decision in Vaquero v. Stoneledge Furniture LLC finding that an employer must separately compensate commissioned employees for rest periods.

California Court of Appeal Holds That a CBA Arbitration Provision Does Not Cover Statutory Wage and Hour Claims When Not Explicitly Stated

California and federal case law has established that a collective bargaining agreement (CBA) may necessitate arbitration of a statutory claim if, in an explicit waiver, it is clear and unmistakable that the parties intended to waive their right to proceed in a judicial forum for statutory claims. 

Showing It Can Embrace Progressive Causes, The City of Spokane, Washington Enacts Its Own Paid Leave Law

It came as some surprise to those of us who practice employment law in Washington that the City of Spokane followed the lead of Seattle and other progressive cities in enacting a paid leave law. Indeed, even Spokane’s mayor was surprised.

Right-To-Work Movement Claims Victory in Missouri

Organized labor suffered another significant setback on Wednesday, February 6, 2017, when Missouri Gov. (R) Eric Greitens signed SB19 into law, adding Missouri to the nation’s growing list of states to adopt right-to-work protections for its public and private sector employees.

Ninth Circuit Ruling Bars Liability Waivers in Employers’ FCRA Background Check Disclosure Forms

The Ninth Circuit recently became the first appellate court in the country to rule that an employer’s inclusion of a liability waiver in a background check disclosure is a willful violation of the Fair Credit Reporting Act 

Antitrust & Competition Law Client Alert - February 1, 2017

Each year, the Federal Trade Commission revises the thresholds that determine whether companies are required to notify the FTC and the Antitrust Division of the Department of Justice about the terms of a transaction (merger or acquisition of stock or assets) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. 

DHS Publishes Final International Entrepreneur Rule

The Department of Homeland Security today published a final rule to improve the ability of certain promising start-up founders to begin growing their companies within the United States and help improve our nation’s economy through increased capital spending, innovation and substantial potential for rapid growth and job creation.

Reversal of $340 Million Jury Award Shines Light on Evidentiary Requirements to Establish Anticompetitive Conduct

In December 2016, the Fifth Circuit Court of Appeals reversed a $340 million jury award in an antitrust, attempted monopolization case, ruling the verdict was not legally supported by the jury’s factual findings.

California Supreme Court Holds That On-Duty and On-Call Rest Periods Violate California Law

2016 Louisiana Employment Law Updates

In 2016, the Louisiana Legislature enacted numerous employment-related laws. Louisiana employers should take note of these new laws to ensure that their policies and procedures are in compliance.

Wang v. Nibbelink: A Landowner’s Immunity from Liability for Injuries Caused by a Recreational Activity Expanded to Uninvolved Persons on Adjacent Property

Supreme Court’s Decision Not to Hear Manufacturer’s Appeal of $156 Million Antitrust Award Reinforces that “Refusals to Deal” Can be a Minefield for Manufacturers

Federal Judge Grants Emergency Injunction Blocking DOL’s New Salary Basis Test for White Collar Exemptions

United States District Judge Issues Nationwide Injunction Forbidding the Implementation and Enforcement of the DOL’s Rule Increasing the Minimum Salary Level for Exempt Employees

The FCRA: A Little Planning Could Shield Employers from a Lot of Trouble

New York Client Alert: November, 2016

U.S. Antitrust Authorities Now Characterize Employee Wage-Fixing & No-Poaching Agreements Between Competitors as Criminal Behavior

California Insurance Code Does Not Trump Choice of Law Provision in ERISA Benefit Plans

Colorado’s New Personnel File Law Goes Into Effect In January: Steps You Can Take Now To Prepare

Oregon Court Affirms Duty To Indemnify Full Construction Defect Judgment, Despite Evidence That Some Damage Must Have Occurred Outside Policy Period

California Enacts Two Bills Strengthening Protections for Employees

Lewis Brisbois Attorneys Defeat $60 Million PAGA Case of First Impression

Cal-OSHA’s Web Portal Goes Live on October 3, 2016 – Appeals Just Got Easier!

Ignoring Changes to the New ‘Smart’ Form I-9 Will be Costly

New York City Broadens Its Already Expansive Human Rights Law

Does a New California Law Threaten Your Business? Has Your License Been Revoked? The Writ of Mandate is an Effective Tool to Challenge Government Action.

It is rare to find a business these days that is not subject to government regulation, especially in the State of California

New York & New Jersey Trial Team Update

Admissibility of Biomechanical Expert Testimony

San Diego Finalizes Amendments to the Earned Sick Leave and Minimum Wage Ordinance

California Supreme Court Holds that Arbitrator, Not Court, Decides Whether Arbitration Agreements Permit Class-Wide Arbitration

Accessibility 2.0: The Applicability of the ADA to the Internet as a Place of Public Accommodation

Post-Incident Drug Testing May Be Retaliation

OSHA Penalty Adjustments Take Effect August 1, 2016

SB 54 Aims to Oust Non-Trades Contractors From Refinery Construction Work

OSHA Turns Up the Heat in California

Employment & Labor Law Client Alert - June, 2016

Los Angeles Paid Sick Leave Ordinance Requirements

Intellectual Property Client Alert - June, 2016

Supreme Court Upholds AIA Trial Standard For Claim Construction

Intellectual Property Client Alert - June, 2016

Supreme Court Outlines New Standards For Attorneys’ Fees Awards In Copyright Cases

Employment & Labor Law Client Alert - June, 2016

Colorado Passes New Pregnancy Accommodation Law

Intellectual Property Client Alert - June, 2016

Supreme Court Rules That Enhanced Damages In Patent Cases Will Now Be Easier To Secure

Employment & Labor Law Client Alert - April, 2016

California Expands Personal Liability for Wage and Hour Violations and Enhances Labor Commissioner Enforcement Measures Under the New “A Fair Day’s Pay Act”

On October 11, 2015, Governor Jerry Brown signed into law the “A Fair Day’s Pay Act,” which expands liability for willful wage and hour violations to owners, directors, officers, and managing agents of the employer, as well as establishes new procedures the Labor Commissioner can use to enforce judgments from unpaid wages.

Brace Yourself for Winter Storms with Lewis Brisbois’ Polar Vortex of Litigation Booklet!

Brace yourself for the winter storms heading this way with the Lewis Brisbois Polar Vortex of Litigation booklet! This booklet features tips and tricks for defending and winning snow and ice cases.

Transportation Client Alert - August, 2015

Mayor de Blasio recently instituted changes to the traffic law as part of his “Vision Zero” plan to reduce the number of serious motor vehicle accidents in New York City.

Antitrust & Competition Law Client Alert - February 18, 2015

Superstorm Sandy Coverage Bulletin

Both the Federal and State Courts in New York and New Jersey recently issued decisions in disputes arising from Storm Sandy. The Eastern District of New York’s “express train” discovery schedule limiting and expediting discovery in Storm Sandy cases continues. The United States District Court for the District of New Jersey has followed suit. There are over 1,000 Storm Sandy cases alone pending in the Eastern District of New York.

Insurance News Flash - April, 2014

United States District Court Finds Defective Product That Caused Property Damage An “Occurrence” Under A Commercial General Liability Insurance Policy.

California Governor Jerry Brown Signs Into Law Senate Bill 255

Governor Jerry Brown signs into law Senate Bill 255, making it a crime to publish con-consensual "Revenge Porn."

New Jersey Insurance Coverage Alert - October, 2013

A recent New Jersey Supreme Court decision held that a policyholder or claimant must exhaust the policy limits of solvent insurance carriers in long-tail, continuous-trigger cases before seeking statutory benefits from the state Guaranty Association for an insolvent insurance carrier.

CA Appellate Court Expands Employer Liability For Vehicle Accidents Occurring During Daily Commutes

Three New Statutes in New Jersey Increase Employee Rights

Governor Brown Signed AB 499 and SB 776 Into Law on August 27, 2013

Plaintiff Must Exhaust Administrative Remedies in Labor Code Retaliation or Discrimination Actions

California Court Concludes that Piece-Rate Workers Be Paid an Hourly Wage for Non-Piece-Rate Work

Oregon Insurance Coverage Alert - July, 2013

Oregon Environmental Insurance Law Creates New Risks, Requirements & Restrictions

Employer Mandate To Provide Health Insurance Delayed Until 2015

U.S. Supreme Court Holds That Title VII Retaliation Claims Utilize Principles of “But-For” Causation

U.S. Supreme Court Narrowly Defines “Supervisor” for Purposes of Title VII Vicarious Liability

Supreme Court Defers to Arbitrator’s Decision to Allow Class Arbitration

Employers Must Give Employees Notice of Health Insurance Exchanges by October 1, 2013

The Department of Labor recently issued guidance on how and when employers are to notify employees about the availability of state-run health insurance exchanges, and provided sample notices for employers to provide to their employees. All employers must comply with this notification requirement whether or not the employer is obligated to provide health insurance or pay penalties.