Understanding the California Consumer Privacy Act
March 02, 2020 —
Kevin Bonsignore - Wilke FleuryThe recently enacted California Consumer Privacy Act (“CCPA” or the “Act”) goes into effect on January 1, 2020 and with it comes enhanced consumer protections for California residents against businesses that collect their personal information. Generally speaking, the CCPA requires that businesses provide consumers with information relating to the business’ access to and sharing of personal information. Accordingly, businesses should determine whether the CCPA will apply to them and, if so, what policies and procedures they should implement to comply with this new law.
Application of the CCPA
Importantly, the CCPA does not apply to all California business. The requirements of the CCPA only apply where a for-profit entity collects Consumers’ Personal Information, does business in the State of California, and satisfies one or more of the following: (1) has annual gross revenues in excess of twenty-five million dollars ($25,000,000); (2) receives for the business’s commercial purposes, sells, or shares for commercial purposes the personal information of 50,000 or more consumers, households, or devices; or (3) derives 50 percent or more of its annual revenues from selling consumers’ personal information. (California Code of Civil Procedure § 1798.140(c)(1)(A)-(C).) Thus, as a practical matter, small “mom and pop” operations will likely not be subject to the CCPA, but most mid-size and large companies should review their own books or consult with an accountant to determine whether the CCPA applies to their business.
Rights Granted to Consumers
“Consumers,” as the term is used in the CCPA, means “any natural person who is a California resident…” (California Code of Civil Procedure § 1798.140(g).) This broad definition makes no carve-outs or exclusions for a business’s employees and, despite the traditional definition of the term “consumer,” does not seem to require that the resident purchase any goods or services. This definition seems intentional and was likely designed to prevent businesses from attempting to circumvent the requirements of the CCPA by arguing that the personal information they collect does not belong to “consumers” under the traditional meaning of the word.
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Kevin Bonsignore, Wilke FleuryMr. Bonsignore may be contacted at
kbonsignore@wilkefleury.com
American Arbitration Association Revises Construction Industry Rules and Mediation Procedures
April 08, 2024 —
Dennis Cavanaugh & Larry Grijalva - Construction Law ZoneThe American Arbitration Association (AAA), one of the longest-standing and experienced alternative dispute resolution (ADR) administrators, has unveiled a significant update to its Construction Industry Rules and Mediation procedures. This update, last revised in 2015, became effective March 1, 2024. Changes to the AAA Construction Industry Rules are significant as these rules are incorporated by default in American Institute of Architects standard construction forms, which are widely used in the industry.
Advancements in remote access technology drive a substantial number of new changes. Others are designed to streamline the arbitrator appointment process and certain prehearing procedures and to make arbitration more cost-efficient by enhancing the arbitrator’s case management authority. Some of the more notable changes are:
Fast Track
F-1: The limit for cases eligible for AAA’s Fast Track Procedures has been increased from $100,000 to $150,000 so long as no claim or counterclaim exceeds that amount.
Reprinted courtesy of
Dennis Cavanaugh, Robinson & Cole and
Larry Grijalva, Robinson & Cole
Mr. Cavanaugh may be contacted at dcavanaugh@rc.com
Mr. Grijalva may be contacted at lgrijalva@rc.com
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White House Proposal Returns to 1978 NEPA Review Procedures
November 15, 2021 —
Karen C. Bennett - Lewis BrisboisWashington, D.C. (October 15, 2021) - 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.
Phase I proposes to reinstitute 1978 definitions for key terms used to determine the scope of review and the range of alternatives required when undertaking any major federal action. Phase II is expected to be an extensive rewrite of the 2020 regulations to incorporate climate change and environmental justice objectives. Businesses with projects, now or in the future, that require federal authorizations will need to pay close attention to these regulatory revisions.
The 2020 update rule intended to scale back the time and cost of producing NEPA analyses by focusing agency resources on evaluating effects that are within the agency’s ability to control and studying only those alternatives that would meet the project purpose. CEQ’s proposal eliminates these efficiencies.
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Karen Bennett, Lewis BrisboisMs. Bennett may be contacted at
Karen.Bennett@lewisbrisbois.com
Is Construction Defect Litigation a Cause for Lack of Condos in Minneapolis?
September 17, 2015 —
Beverley BevenFlorez-CDJ STAFFAccording to Peter Callaghan writing for the Minn Post, while multi-family residential real estate is “hot” right now, most developers are building apartments rather than condos. Four developers spoke on the topic during Minneapolis City Council Member Lisa Goodman’s monthly “Lunch with Lisa” program. The developers stated that financing is more difficult for condos than it is for apartments, and millennials and baby boomers seem to prefer renting over buying. However, some developers stated that “the 10-year liability exposure for construction defects” was another reason to avoid condo building.
However, not all developers avoid condo building in Minneapolis. Jim Stanton, owner of Shamrock Development, said that he still is building condos. Stanton declared that he “has a good relationship with his lender,” and “he hasn’t been sued a lot and has never had a suit reach court.”
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Los Angeles Is Building a Future Where Water Won’t Run Out
February 28, 2022 —
Brian Eckhouse & Laura Bliss - BloombergA helicopter whisks off a rooftop in downtown Los Angeles, climbs above a thin layer of haze and soars over barren mountains past the city’s edge. Soon, scars of climatic stress are evident to L.A. Mayor Eric Garcetti and Martin Adams, general manager and chief engineer of the city’s water and power department, as they peer out the windows. Trees torched years ago by wildfire. Flats parched by sun and little precipitation.
It’s another July scorcher, days after California Governor Gavin Newsom asked residents to conserve amid one of the worst droughts on record. The crisis spans across the southwestern U.S. Outside Las Vegas, the enormous Lake Mead reservoir that feeds the Golden State as well as Nevada and Arizona plunged in June to its lowest level since 1937. In August, federal officials ordered the first-ever water cuts on a Colorado River system that sustains about 40 million people. Even after pounding holiday storms, 64% of the land in Western states was still experiencing severe to exceptional drought in January, which is on track to be the driest on record in some parts.
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Brian Eckhouse, Bloomberg and
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1st District Joins 2nd District Court of Appeals and Holds that One-Year SOL Applies to Disgorgement Claims
June 14, 2021 —
Garret Murai - California Construction Law BlogWe’re beginning to see a trend.
This past year, the 2nd District Court of Appeals, in Eisenberg Village of the Los Angeles Jewish Home for the Aging v. Suffolk Construction Company, 53 Cal.App.5th 1201 (2020), held for the first time that a one (1) year statute of limitations period beginning upon substantial completion of a project applies to disgorgement claims under Business and Professions Code section 7031. In San Francisco CDC LLC v. Webcor Construction L.P., the 1st District Court of Appeals became the second Court of Appeals in the state to hold that a one (1) year statute of limitations beginning upon completion or cessation of work on a project applies to disgorgement claims under Business and Professions Code section 7031.
The San Francisco CDC LLC Case
The Defect Action
In September 2005, San Francisco CDC LLC entered into a $144 million construction contract with Webcor Construction, Inc. doing business as Webcor Builders to build the InterContinental Hotel in San Francisco, California.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
My Employees Could Have COVID-19. What Now?
March 23, 2020 —
Amy R. Patton, Leila S. Narvid, Matthew C. Lewis, Robert Tadashi Matsuishi & Sarah J. Odia - Payne & FearsUpdated Guidance as of March 19, 2020.
You are concerned about potentially sick employees in the workplace. One employee is off work sick for a couple of days, and then wants to return to work. Another plans to return to work after a week of travel. Another appears to be sick at work. They are coughing, sneezing, and appear to be short of breath. You are concerned they may have COVID-19. What can you do? You're not the only one concerned -- your other employees are, too.
Your public-facing employees want to wear masks to protect themselves. One employee tells you he doesn’t want to touch anything that others in the office have touched. What are your obligations to these employees?
Below, we address questions relating to keeping employees safe from COVID-19 in the workplace without violating the Americans with Disabilities Act (ADA) or employee privacy laws.
Can I require an employee returning from days away from work due to illness to report the symptoms the employee was experiencing that kept him/her out of work?
Short answer: yes, so long as the questions are limited to whether the employee has had flu-like symptoms. Though the ADA prohibits asking employees questions related to an employee disability, COVID-19 (like the seasonal flu) likely does not rise to the level of a disability, so asking an employee about flu-like (or COVID-19-like) symptoms is unlikely to elicit information related to a disability. The Equal Employment Opportunity Commission (EEOC) has taken the position that an employer may ask if an employee is experiencing flu-like symptoms if the employee reports being ill during a pandemic.
Reprinted courtesy of Payne & Fears attorneys
Amy R. Patton,
Leila S. Narvid,
Matthew C. Lewis,
Robert Tadashi Matsuishi and
Sarah J. Odia
Ms. Patton may be contacted at arp@paynefears.com
Ms. Narvid may be contacted at ln@paynefears.com
Mr. Matthew may be contacted at mcl@paynefears.com
Mr. Robert may be contacted at rtm@paynefears.com
Ms. Odia may be contacted at sjo@paynefears.com
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Constructive Change Directives / Directed Changes
June 06, 2018 —
David Adelstein - Florida Construction Legal Updatesrime contracts typically contain a constructive change directive clause. A constructive change directive also goes by the acronym CCD (and for purposes of this article, such changes will be referred to as a CCD), however it can also be known as a Work Change Directive, Interim Directed Change, or Directed Change, depending on the type of contract beign utilized. An owner can order a CCD, versus issuing the contractor a formalized change order, as a mechanism to direct the prime contractor to perform work if there is a dispute as to contract amount, time, or scope. Just because an owner issues a CCD does not mean the owner is conceding that it owes the contractor a change order. Rather, the owner is ordering the CCD as a mechanism to keep the project moving forward notwithstanding a disagreement with the contractor as to the price or time impact. Standard form construction agreements such as the AIA, EJCDC, or ConsensusDocs, will have a standard provision dealing with change directives where the owner can order the contractor to proceed with work in the absence of a change order. In the federal government context, most construction contracts will contain a changes clause that authorizes the government to formally direct changes; and, there is authority for contractors to equitably pursue a constructive change based on certain directives or instructions issued by the government. Naturally, from the contractor’s perspective, this CCD provision is an important consideration as it could likely require the contractor to finance a change to the owner’s project, particularly if there is a scope dispute where the owner does not believe the contractor is entitled to any change order.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
