House Passes $25B Water Resources Development Bill
June 27, 2022 —
Tom Ichniowski - Engineering News-RecordA key federal infrastructure bill advanced with approval in the House of a measure providing $25.3 billion to help finance 22 Army Corps of Engineers storm and flood protection, ecological restoration, harbor dredging and other projects around the country.
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Tom Ichniowski, Engineering News-Record
Mr. Ichniowski may be contacted at ichniowskit@enr.com
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140 Days Until The California Consumer Privacy Act Becomes Law - Why Aren't More Businesses Complying?
September 09, 2019 —
Kyle Janecek and Jeff Dennis – Newmeyer DillionCalifornia, for better or for worse, has a reputation as being a trendsetter, and has taken the lead in the United States by passing the "California Consumer Privacy Act," or "CCPA." This massive law has been on the books since 2018, but hasn't taken effect yet. However, the timeframe for businesses to be in compliance is rapidly diminishing. Currently, there are less than five months for businesses to (a) familiarize themselves with what the law requires; (b) determine how and if they are affected by the law; and (c) determine how to be in compliance with the law's demands. Right now, companies aren't making a rush to become CCPA compliant, but this is a mistake. Below are a few of the misconceptions that businesses have, as well as the realities.
MISCONCEPTION 1: It doesn't apply to my company.
For many businesses, it will apply. The baseline of the CCPA is: (1) does the business do anything with California residents (including employees); (2) is it for-profit; and (3) it either has $25 million annual revenue, "sells" 50,000 pieces of personal information or receives 50% or more of its revenue from personal information.
It does not matter if the business is in Nevada, Arizona, Texas or Delaware. So long as there is some connection to Californian residents, exists to make a profit, and otherwise satisfies either the profit, volume, or revenue percentage requirements, it applies. On that note, even if a business does not sell personal information, it does not mean it does not "sell" personal information under the law, as it includes any exchange of personal information for valuable consideration, such as the exchange of consumer data between companies, or the sale of information to a University for study.
MISCONCEPTION 2: The Federal Government will stop it.
One of the main reasons we have the CCPA is because the Federal Government has not acted on this issue. Furthermore, there is a high likelihood that any Federal law will not be substantially different from the CCPA, keeping the core principles in place. It's also unlikely that such a law will take effect and be passed in the remaining five months before the CCPA begins enforcement. Companies must accept that ideals of transparency, choice, consent and reasonable security as they relate to consumers' personal information are here to stay.
MISCONCEPTION 3: California is still changing the law, so I should wait.
California is still in the process of fine-tuning the CCPA, but this is no reason to wait. Fixes to questions arising regarding the CCPA have come out piecemeal, and continued changes, including expansions are likely. For example, employees were previously not addressed specifically within the CCPA, but are being addressed in the planned AB 25, excluding employees from some of the CCPA's protections. Conversely, there have also been planned provisions to expand on the protections and enforcement mechanisms of the CCPA, including a broad and expansive private right of action to permit individuals to sue for technical violations of the statute, like having to wait too long for a response to the demand, even if no actual damage is suffered. Again, the foundational requirements of the CCPA will not change via amendment – so companies should act now.
MISCONCEPTION 4: It's too expensive.
Actually no. Many of the basic actions are not cost-prohibitive, and are actions a business would want to do anyways: (a) Employee training to avoid data breaches and how to respond to user requests; (b) data mapping to quickly find, access, and arrange protections for consumer data; and (c) ensuring you have reasonable cyber security. This can even be turned into a competitive advantage, as consumers increasingly value companies that share their interests, including their privacy.
A compliance mistake could be extraordinarily costly. Currently, a violation for statutory violations of the CCPA can carry a penalty between $2,500 to $7,500 per individual violation. Furthermore, there is a private right of action with statutory damages of $100 to $750 per individual violation that could quickly balloon to exceed $5 million at a minimum, and invites class action/lawsuits for a data breach.
While this is true of almost every legal risk, an ounce of prevention is worth a pound of cure. The penalties on the higher end of the spectrum are for willful violations, and attempts to comply with the law can act to curb potential risks.
What Should I Do?
If you feel CCPA compliance is important to your business, and decide to prepare for the CCPA with us, our firm has created a 90-day CCPA compliance program where our team will collaborate with you to determine a scalable, practical, and reasonable way for you to meet your needs, without breaking the bank. Let us provide you a free initial consultation to see if our CCPA compliance program works for you.
Kyle Janecek is an associate in the firm's Privacy & Data Security practice, and supports the team in advising clients on cyber related matters, including policies and procedures that can protect their day-to-day operations. For more information on how Kyle can help, contact him at kyle.janecek@ndlf.com.
Jeff Dennis is the head of the firm's Privacy & Data Security practice. Jeff works with the firm's clients on cyber-related issues, including contractual and insurance opportunities to lessen their risk. For more information on how Jeff can help, contact him at jeff.dennis@ndlf.com.
About Newmeyer Dillion
For 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that align with the business objectives of clients in diverse industries. With over 70 attorneys working as an integrated team to represent clients in all aspects of business, employment, real estate, privacy & data security and insurance law, Newmeyer Dillion delivers tailored legal services to propel clients' business growth. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California and Nevada, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.newmeyerdillion.com.
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DC Metro Extension’s Precast Supplier Banned from Federal Contracts
November 16, 2020 —
Jim Parsons - Engineering News-RecordStowe, Pa.-based Universal Concrete Products, which supplied hundreds of defective precast panels for the $2.7 billion Silver Line light rail extension in northern Virginia, has received a three-year ban on participating in federally financed transportation projects. Imposed by the Federal Transit Administration, the ban makes Universal ineligible for contracts, grants, loans or other financial assistance from agency of the federal government until the end of 2023.
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Jim Parsons, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
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Pennsylvania “occurrence”
December 30, 2013 —
Scott Patterson — CDCoverageIn Indalex Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, 2013 WL 6237312 (Pa. Super. 2013), insured Indalex was sued in multiple underlying actions, filed in states other than Pennsylvania, alleging that Indalex defectively designed or manufactured windows and doors resulting in leaks causing damage beyond the Indalex product, including mold, wall cracks, and personal injuries. The complaints included strict liability, negligence, breach of warranty, and breach of contract causes of action. After Indalex’s primary CGL policies exhausted, Indalex filed a declaratory judgment action against its umbrella insurer National Union.
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Scott PattersonScott Patterson can be contacted at cdcoverage.com
Colorado Supreme Court Grants the Petition for Writ of Certiorari in Vallagio v. Metropolitan Homes
June 22, 2016 —
David M. McLain – Colorado Construction LitigationWe have previously reported on the Vallagio v. Metropolitan Homes case, in which the Colorado Court of Appeals upheld a provision in an association's declaration of covenants, conditions, and restrictions, which required declarant consent before an arbitration provision could be amended out of the document. To read the past articles on the case, please review
Vallagio v. Metropolitan Homes: The Colorado Court of Appeals' Decision Protecting a Declarant’s Right to Arbitration in Construction Defect Cases and
The Vallagio HOA Appeals the Decision from the Colorado Court of Appeals.
Today, the Colorado Supreme Court granted the association's petition for writ of certiorari, en banc, on the following reframed issues:
Whether the court of appeals erred by holding as a matter of first impression that Colorado’s Common Interest Ownership Act (“CCIOA”) permits a developer-declarant to reserve the power to veto unit owner votes to amend common interest community declarations.
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David M. McClain, Higgins, Hopkins, McLain & Roswell, LLCMr. McClain may be contacted at
mclain@hhmrlaw.com
Court of Appeals Expands Application of Construction Statute of Repose
December 29, 2020 —
Jonathan Schirmer - Ahlers Cressman & Sleight PLLCA recent decision by Division I of the Washington Court of Appeals in Puget Sound Energy, Inc v. Pilchuck Contractors, Inc.[1] demonstrates the broad application of the construction statute of repose to work performed by contractors.
The construction statute of repose[2] bars certain legal claims based on construction activity if the alleged harm caused by the activity does not occur within a specific timeframe. The claims covered by the construction statute of repose include:
all claims or causes of action of any kind against any person, arising from such person having constructed, altered, or repaired any improvement upon real property, or having performed or furnished any design, planning, surveying, architectural or construction or engineering services, or supervision or observation of construction, or administration of construction contracts for any construction, alteration or repair of any improvement upon real property.[3] Read the court decisionRead the full story...Reprinted courtesy of
Jonathan Schirmer, Ahlers Cressman & Sleight PLLCMr. Schirmer may be contacted at
jonathan.schirmer@acslawyers.com
In Supreme Court Showdown, California Appeals Courts Choose Sides Regarding Whether Right to Repair Act is Exclusive Remedy for Homeowners
August 10, 2017 —
Garret Murai - California Construction Law BlogEarlier, we wrote about an appellate court split concerning the Right to Repair Act (Civil Code sections 895 et seq.) which applies to construction defects in newly constructed residential properties including single-family homes and condominiums (but not condominium conversions) sold after January 1, 2003.
The California Court of Appeals for the Fourth District, in Liberty Mutual Insurance Company v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98, held that the Right to Repair Act does not provide the exclusive remedy when pursing claims for construction defects involving “actual” property damage (e.g., a defectively constructed roof causing actual physical damage due to water intrusion as opposed to a defectively constructed roof that while constructed improperly does not cause actual physical damage). However, the California Court of Appeals for the Fifth District, in McMillin Albany LLC v. Superior Court (2015) 239 Cal.App.4th 1132, which is currently pending before the California Supreme Court, held that the Right to Repair Act does in fact provide the exclusive remedy when pursuing claims for construction defects whether they involve “actual” property damage or merely “economic” damages. For homeowners, they would prefer the option of pursuing remedies under either or both the Right to Repair Act (which includes detailed pre-litigation procedures and statutory construction standards) or under common law claims such as negligence (which do not include pre-litigation procedures and have more flexible standards of care).
The California Court of Appeals for the Third District has now thrown its hat into the ring . . . on the side of McMillan.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
New Jersey’s Governor Puts Construction Firms on Formal Notice of His Focus on Misclassification of Workers as Independent Contractors
May 24, 2018 —
Kevin J. O'Connor & Joseph M. Vento - Peckar & Abramson, P.C.We have written quite a bit about the mounting threat to employers, both nationally and locally, of claims of misclassification of workers as independent contractors rather than employees. New Jersey’s new Gov. Phil Murphy signed an executive order last week that establishes a task force on employee misclassification to punish contractors who commit fraud by classifying their employees as independent contractors.
In the words of Governor Murphy: “I am signing this order to crack down on unscrupulous contractors who commit 1099 fraud to exploit workers and rob them of family and medical leave and safe workplace protections that the law provides,” Murphy said. “The employer gives themselves an unfair business advantage and this practice is illegal. This is a question of enforcing what is already on the books.” He has vowed that any employer caught misclassifying workers will either be brought into compliance or put out of business. The task force will foster compliance with the law and conduct a comprehensive review of existing practices.
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Kevin J. O'Connor, Peckar & Abramson, P.C. and
Joseph M. Vento, Peckar & Abramson, P.C.
Mr. O'Connor may be contacted at koconnor@pecklaw.com
Mr. Vento may be contacted at jvento@pecklaw.com
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