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.

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.

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).

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.

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.

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. 

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.

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.

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.

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).