Vinci Will Build $580M Calgary Project To Avoid Epic Flood Repeat
June 20, 2022 —
Scott Van Voorhis - Engineering News-RecordVinci Construction has begun work on a giant flood control project in Alberta designed to prevent a repeat of one of the most devastating natural disasters in Canadian history.
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Scott Van Voorhis, Engineering News-Record
ENR may be contacted at enr@enr.com
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DC Circuit Approves, with Some Misgivings, FERC’s Approval of the Atlantic Sunrise Natural Gas Pipeline Extension
December 02, 2019 —
Anthony B. Cavender - Gravel2GavelThe U.S. Court of Appeals for the DC Circuit decided the case of Allegheny Defense Project, et al. v. Federal Energy Regulatory Commission on August 2, 2019. In a Per Curiam opinion, the court denied petitions challenging the Commission’s orders permitting the Transcontinental Gas Pipe Line Company’s expansion of an existing natural gas pipeline which extends from northern Pennsylvania across the Carolinas into Alabama. The expansion is called the “Atlantic Sunrise Project.” In February 2017, FERC approved the expansion, and denied various petitions, filed by environmental organizations and affected landowners, who then challenged the decision in the DC Circuit. However, the court concluded, on the basis of the administrative record, that these challenges “cannot surmount the deferential standards of agency review and binding DC Circuit precedent.” Under the law, the Commission must consider whether the projected pipeline project meets a market need, and whether the public benefits outweigh the harms. If both criteria are satisfied, FERC will, as in this instance, issue a certificate authorizing the pipeline’s construction, and that certificate also empowers the certificate holder to exercise eminent domain authority under to the Natural Gas Act when necessary. It was the latter consequence of the FERC’s determinations that caused several Pennsylvania landowners to file their objections with the Commission and seek to stay construction.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
No Duty to Defend Additional Insured for Construction Defects
November 23, 2016 —
Tred R. Eyerly – Insurance Law HawaiiThe Eleventh Circuit found there was no duty to defend the contractor additional insured for the costs of repairing and replacing roofing installed incorrectly by the subcontractor insured. Core Constr. Servs. Southeast v. Crum & Forster Spec. Ins. Co., 2016 U.S. App. LEXIS 17575 (11th Cir. Sept 28, 2016).
After the condominium project was completed, Hurricane Wilma damaged several roofs in the development. The association and its insurer, Empire Indemnity Insurance Company, discovered that the roof had been installed incorrectly by Patnode Roofing, Inc. Empire paid for the damages and the association assigned its claims against Core Construction and its subcontractors, including Patnode, to Empire. Empire then sued Core Construction, Patnode and other subcontractors.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
The Little Ice Age and Delay Claims
January 24, 2018 —
Wally Zimolong - Supplemental ConditionsMuch of the Eastern United States is just now emerging from a historic two week cold snap. In much of the Northeast and Mid-Atlantic, the temperature stayed below freezing for 15 days straight. Cities recorded the lowest temperatures in a quarter century. Winter Storm Grayson reeked havoc along the Eastern Coast bringing snow to places like Charleston and a crippling blizzard to Boston.
The record cold snap also impacted the construction industry. Delivery delays, the inability to apply weather sensitive applications (like cast in place concrete), and the unavailability of labor are just a few things that extreme weather can cause on a construction project. If they happen at the wrong time, delays can destroy project schedules and make previous delays even worse. Delays cost money and can mean the difference between a profitable project from both the owner and contractors perspective.
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Wally Zimolong, Zimolong LLCMr. Zimolong may be contacted at
wally@zimolonglaw.com
DoD Testing New Roofing System that Saves Energy and Water
October 08, 2014 —
Beverley BevenFlorez-CDJ STAFFBuilder reported that the Department of Defense (DoD) is hosting a new “dynamic roofing system, installed at the Security Forces Building at Goodfellow Air Force Base in San Angelo, Texas,” which “uses a combination of technologies that heat and cool air and water, produce electricity, and collect rainwater.” If the project is successful, it “could be replicated at thousands of DoD buildings throughout the country in the near future.”
Builder described the process: “A retrofitted metal roof is installed over the existing roof, which creates a cavity between the existing and new roofs. Within that cavity insulation, solar thermal heating systems and cooling of air and water for the building can be installed. The roofing, insulation, hydronic solar thermal systems, engineered air pathways, and photovoltaic cells are designed to work symbiotically.”
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Florida Decides Against Adopting Daubert
January 28, 2019 —
Rahul Gogineni - The Subrogation StrategistIn Delisle v. Crane Co., 2018 Fla. LEXIS 1883, 43 Fla. L. Weekly S 459, the Supreme Court of Florida reaffirmed that the appropriate test for admissibility of an expert opinion about new or novel scientific evidence is the “Frye” test, not the “Daubert” test.
As result of developing mesothelioma, Richard Delisle sued sixteen defendants, including Crane Company (Crane) and R.J. Reynolds, claiming that each exposed him to asbestos, which is a leading cause of mesothelioma. At trial, Crane and R.J. Reynolds sought to preclude the expert opinions of Mr. Delisle’s causation experts. The trial denied the motions and the jury awarded Mr. Delisle $8 million.
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Rahul Gogineni, White and WilliamsMr. Gogineni may be contacted at
goginenir@whiteandwilliams.com
White and Williams LLP Secures Affirmation of Denial to Change Trial Settings Based on Plaintiffs’ Failure to Meet the Texas Causation Standard for Asbestos Cases
July 06, 2020 —
Christian Singewald & Rochelle Gumapac - White and Williams LLPThe Delaware Supreme Court, in a rare split opinion, affirmed the trial court’s denial of Plaintiffs’ Request to Change Trial Settings in favor of all defendants, including a major automotive manufacturer represented by White and Williams LLP, in a mesothelioma case with a young decedent who had an alleged economic loss claim exceeding $9,000,000, in Shaw v. American Friction, Inc. et al., No. 86, 2019. This decision operates to dismiss all of Plaintiffs’ claims based on their failure to meet Delaware’s strict expert deadlines and establish a prima facie case under Texas law.
Plaintiffs’ Complaint invoked the application of Texas substantive law and alleged that multiple manufacturers were negligent and strictly liable for failing to warn the decedent of the alleged dangers posed by the use of asbestos-containing products. Plaintiffs’ alleged asbestos exposures from defendants’ products caused Mr. Shaw’s disease and subsequent death.
In 2007, Texas instituted its now well-known causation requirement, which requires the “dose” of asbestos exposure from each defendant’s products to be quantified by an expert. Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 773 (Tex. 2007). Prior to decedent’s death, Plaintiffs’ counsel deposed decedent and his father for product identification purposes. During the depositions, Plaintiffs’ counsel failed to obtain the necessary factual information from his clients for an expert to be able to opine as to alleged exposure doses from any defendant’s product. Despite lacking the requisite information for a prima facie case under Texas law, Plaintiffs sought and were given placement in an expedited trial setting, which had strict, defined deadlines.
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Christian Singewald, White and Williams LLP and
Rochelle Gumapac, White and Williams LLP
Mr. Singewald may be contacted at singewaldc@whiteandwilliams.com
Ms. Gumapac may be contacted at gumapacr@whiteandwilliams.com
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CCPA Class Action Lawsuits Are Coming. Are You Ready?
March 23, 2020 —
Daniel Schneider & Jeffrey Dennis – Newmeyer DillionThe only certainties in life used to be death and taxes. In 2020, it would be safe to add California Consumer Privacy Act (CCPA) class actions to that "distinguished" list. On February 3, Barnes v. Hanna Andersson, LLC, N.D. Cal., Case No. 20-cv-00812, was filed in the Northern District of California, setting in motion the certainty that CCPA class actions are on their way, if not already here.* Filed on behalf of all California residents, the Barnes complaint alleges that between September and November 2019, clothing retailer Hanna Andersson and Salesforce, its online payment services provider, failed to properly safeguard the personally identifiably information (PII) of its customers after hackers stole customers' private information and posted it to the dark web for sale.
What You Need to Know
- Under the CCPA, a data breach is any unauthorized access, theft or disclosure of a consumer's non-encrypted and non-redacted personal information that results from a company's failure to implement and maintain "reasonable" security procedures and practices. Here, the complaint alleges that the defendants failed to maintain reasonable security procedures and practices in order to protect the consumers' PII.
- Although the CCPA is largely viewed as new law related to California consumers' privacy rights (and placement of subsequent obligations to companies doing business in California), the CCPA includes potentially draconian damages for a data breach permitted by unreasonable cybersecurity. Under the new law, an individual need not show any actual harm caused by a data breach, yet he/she may seek statutory fines of up to $750 per incident per individual in the event of a breach. Plaintiffs estimate that at least 10,000 California residents could have been affected by this breach, thereby exposing defendants to up to $7.5 million dollars in damages if proven true.
- There exists a duty to monitor and ensure that third party organizations are properly safeguarding a company's data. During the course of the investigation into the breach, it was discovered that the Salesforce ecommerce platform was infected with malware which allowed the hackers to steal consumers' PII from Hanna Andersson's website.
- The CCPA went into effect on January 1, 2020, yet enforcement by the California Attorney General is not allowed until July 2020. However, no such delay is required for private litigation under the data breach portion of the CCPA. Interestingly, although the complaint alleges that the data breach occurred in 2019, the court could choose to apply the CCPA but that is still yet to be determined.
While Barnes may be the first class action lawsuit to mention violation of the CCPA, it certainly will not be the last. In fact, numerous class actions lawsuits have been filed in the new year which either mention the CCPA or utilize CCPA-like language to style particular claims. As such, it is evident that the Plaintiffs' bar sees the CCPA as a potential for extensive class action litigation. Expect to see an ongoing deluge of class action litigation in California under the data breach portions of the CCPA. In addition, although the Barnes' plaintiffs may not be able to invoke the CCPA due to the data breach occurring in 2019 (before the CCPA took affect), Barnes serves as a stark reminder that implementing and maintaining reasonable data security is vital to defend a business against CCPA claims. Newmeyer Dillion can assist companies analyze their cyber risk profile, and provide access to experienced forensic teams which can ensure reasonable security exists in your organization.
*While Barnes does not yet expressly state a cause of action under the CCPA, relying upon violations of the California Unfair Competition Law in its place, we anticipate that an amendment will soon be filed to include a CCPA claim.
Daniel Schneider is a Partner in Newmeyer Dillion's Privacy & Data Security group. Focused on advocating on behalf of clients when cyber threats inevitably happen, Dan also advises on best practices to help protect the company and mitigate future concerns. Dan can be reached at daniel.schneider@ndlf.com.
Jeff Dennis (CIPP/US) 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 achieve client objectives in diverse industries. With over 70 attorneys working as a cohesive team to represent clients in all aspects of business, employment, real estate, environmental/land use, privacy & data security and insurance law, Newmeyer Dillion delivers holistic and integrated legal services tailored to propel each client's success and bottom line. 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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