California Bullet Train Clears Federal Environmental Approval
June 30, 2014 —
Michael B. Marois – BloombergThe U.S. Federal Railroad Administration has approved an environmental review needed to begin building a portion of a $68 billion California high-speed rail line that has been mired in lawsuits.
The agency, part of the Transportation Department, said in a release that it cleared a 114-mile (183-kilometer) stretch of the project in the Central Valley.
The California High-Speed Rail Authority has been blocked from selling bonds to begin construction of the first U.S. bullet train until a court decides whether details of the financing were adequately disclosed.
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Michael B. Marois, BloombergMr. Marois may be contacted at
mmarois@bloomberg.net
Insurer Must Defend Claims of Alleged Willful Coal Removal
June 21, 2017 —
Tred R. Eyerly - Insurance Law HawaiiThe court found that the insured was entitled to a defense against claims for its alleged willful removal of coal from third parties' land. Liberty Mut. Fire Ins. Co. v. Bizzack Constr, 2017 U.S. Dist. LEXIS 70285 (W.D. Va. April 27, 2017).
The Virginia Department of Transportation (VDOT) contracted with Bizzack to perform work in widening U.S. Route 460. VDOT notified coal owners that it had been "necessary to remove certain coal" from their land during the construction of Route 460. Some of the coal owners sued Bizzack, seeking compensation for lost coal. They alleged Bizzack had illegally removed and sold their coal, and "damaged the remaining coal in place on the property."
Bizzack sought coverage from Liberty Mutual. Liberty Mutual filed suit seeking a declaration that it had no duty to defend or indemnify Bizzack. Cross-motions for summary judgment were filed. Liberty Mutual argued: (1) there was no "occurrence"; (2) exclusion j (5) applied; and (3) the "expected or intended injury" exclusion applied.
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Tred R. Eyerly - Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Fourth Circuit Confirms Scope of “Witness Litigation Privilege”
November 21, 2018 —
Anthony B. Cavender - Gravel2GavelOn October 26, in the case of Day v. Johns Hopkins Health Sys. Corp., divided panel of the U.S. Court of Appeals for the Fourth Circuit affirmed the District Court’s ruling that the common law “Witness Litigation Privilege” protects an expert witness in a Black Lung Benefits Act benefits proceeding against civil claims that allege a federal RICO violation and Maryland state law claims for fraud, tortious interference, negligent misrepresentation and unjust enrichment attended the testimony of the expert witness.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Break out the Neon: ‘80s Era Davis-Bacon “Prevailing Wage” Definition Restored in DOL Final Rule
August 21, 2023 —
A. Scott Hecker & Ted North - The Construction SeytOn August 8, 2023, the U.S. Department of Labor (DOL)
announced its
final rule related to the Davis-Bacon Act (the “Act”), entitled “Updating the Davis-Bacon and Related Acts Regulations.” However, the official final rule must be published in the Federal Register – likely by week’s end – before going into effect 60 days after publication.
DOL issued its notice of proposed rulemaking (“NPRM”) in March 2022 and received more than 40,000 comments from interested stakeholders. Evaluating and addressing those comments took the better part of a year, as DOL did not send the rule to the Office of Information and Regulatory Affairs (“OIRA”) for White House approval until December 16, 2022. After languishing for months, OIRA has now concluded its review, allowing DOL to move forward with its final rule.
Reprinted courtesy of
A. Scott Hecker, Seyfarth and
Ted North, Seyfarth
Mr. Hecker may be contacted at shecker@seyfarth.com
Mr. North may be contacted at enorth@seyfarth.com
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Construction Picks Up Post-COVID and So Do Claims (and A Construction Lawyer Can Help)
September 12, 2022 —
Christopher G. Hill - Construction Law MusingsI’m a construction attorney and proud to be one. Over the past couple of years, my expertise (and that of my fellow members of the Virginia construction bar) has been challenged by everything from COVID-related shutdowns to supply chain issues to unanticipated price increases. With each of these obstacles placed in front of my clients and friends in the Virginia construction industry, I have gotten calls and questions as to how to best handle the various issues facing the construction world.
Needless to say, changes in price or material availability occurring between the date of a contract’s signing and the (likely delayed) start or completion of the contractual scope of work have caused some consternation and claims. Many of these claims did not come forward or reach my, or others, desk until after the world reopened post-COVID and construction began to speed up and money started to be owed. While one “easy” answer, particularly for those “upstream” in the payment chain, is “tough luck, you gave me a fixed price, signed a contract, and we expect you to honor it,” this may not be the best and most practical way to get the job done.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Big Bertha Lawsuits—Hitachi Zosen Weighs In
January 31, 2018 —
John P. Ahlers – Ahlers Cressman & Sleight PLLCIn a recent article published by
Seattle Business Magazine, the Japanese manufacturer of the much-maligned tunnel machine (nicknamed “Bertha”) provided its version of events and its position to the public. The interview took place after executives from Hitachi Zosen were not invited to the ceremony celebrating Bertha’s breakthrough at the end of its two-mile journey underground Seattle. Ultimately, apparently, Seattle Tunnel Partners (“STP”), the general contractor for the project, and Washington State Department of Transportation (“WSDOT”) agreed that Hitachi Zosen executives could attend the event, but they were not allowed to stand with other dignitaries on a specially-built viewing platform. The $3.2 billion Alaska Way Viaduct replacement project is embroiled in a number of legal controversies. Now that the tunnel is finished, Hitachi Zosen has finally decided to tell its side of the story.
Hitachi’s problems started on December 5, 2013, three days after the tunnel-boring machine (“TBM”) hit a 120-foot long, eight-inch diameter steel well casing (the project DRB has determined that the pipe was a differing site condition), the TBM overheated and ground to a halt. The project was shut down almost two years while the TBM was being repaired. According to Hitachi Zosen, it always worked hard to get the job done. “We wanted to finish the tunnel and make Seattle happy with the results,” said Hidetoshi Hirata, the general manager for Hitachi Zosen.
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John P. Ahlers, Ahlers Cressman & Sleight PLLCMr. Ahlers may be contacted at
john.ahlers@acslawyers.com
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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NTSB Faults Maintenance, Inspection Oversight for Fern Hollow Bridge Collapse
March 19, 2024 —
Jim Parsons - Engineering News-RecordThe City of Pittsburgh’s failure to act for more than a decade on repeated maintenance and repair recommendations regarding the Fern Hollow Bridge was the probable cause for the structure’s dramatic 2022 collapse, the National Transportation Safety Board (NTSB) said at its Feb. 21, 2024, meeting. The city is the owner of the bridge.
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Jim Parsons, Engineering News-Record
ENR may be contacted at enr@enr.com
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