In its recent decision in Grace Ranch, L.L.C. v. BP America Production Company, et al., No. 20-30224 (5th Cir. Feb. 24, 2021), the United States Court of Appeals for the Fifth Circuit addressed a question that has increasingly become a sticking point in Louisiana “legacy” cases: whether claims brought under a Louisiana citizen suit provision for alleged violations of state environmental regulations can be heard in federal court. This decision is likely to have far-reaching consequences for Louisiana legacy litigation, where courts have seen a recent uptick in claims by landowner-plaintiffs brought under the citizen suit provision of Louisiana Revised Statute 30:16, seeking to have their property remediated due to alleged contamination by historical oil and gas operations. Continue Reading
Top 10 Labor and Employment Issues in Bankruptcy
The next phase in the ever evolving COVID-19 and coronavirus crisis are the upcoming bankruptcies. This year was already shaping up to be an interesting year, but the coronavirus rapidly accelerated bankruptcy declarations. One article estimates that approximately 100,000 businesses have permanently closed and another article states that more than 57 million people have filed for unemployment since the crisis began. These numbers are hellacious, and the impact of the crisis is not over. Continue Reading
Louisiana Appellate Court Affirms Summary Judgment in Asbestos Case
On February 3, 2021, the Fourth Circuit Court of Appeal affirmed a trial court’s ruling that granted a summary judgment motion finding plaintiffs failed to submit specific evidence of asbestos exposure necessary to create a genuine issue of material fact. Steib v. Lamorak Ins. Co., et al., 20-0424 (La. App. 4 Cir. 2/3/21). In 2018, Charles Steib (“Mr. Steib”) filed a petition for damages against approximately forty defendants, alleging that he contracted mesothelioma as a result of his exposure to asbestos-containing products during work he performed on various premises while employed by various employers across Louisiana as a pipefitter. Particularly, Mr. Steib alleged he was exposed to asbestos while employed by Parsons Government Services, Inc. (“Parsons”) from 1975 through 1977 when he worked on the initial construction of Marathon Petroleum Company LP’s (“Marathon”) oil refinery in Garyville, Louisiana. Mr. Steib passed away just a few months after filing suit. His surviving spouse and three adult children (collectively the “Plaintiffs”) then substituted themselves as plaintiffs and asserted survival and wrongful death claims. Continue Reading
Uncertainty About Migratory Bird Treaty Act “Takes”: The Biden Administration Delays the Effective Date of the Final Regulations Governing Take of Migratory Birds
On February 5, 2021, the Fish Wildlife Service (“FWS”), under the Biden administration, announced that it was delaying the effective date of a rule promulgated by the Trump administration regarding “incidental takes” and the Migratory Bird Treaty Act (“MBTA”). On January 7, 2021, the Trump administration published a final rule interpreting the MBTA as not prohibiting incidental takes, and this rule was set to take effect on February 8, 2021. The Biden administration delayed the effective date until March 8, 2021, and it has requested additional public comments on the rule through March 1, 2021. 86 Fed. Reg. 8716, published February 9, 2021. Continue Reading
Ethical Obligations in Technology Assisted Review
Technology Assisted Review (TAR), also known as predictive coding or computer-assisted review, has been defined as “[a] process for prioritizing or coding a collection of documents using a computerized system that harnesses human judgments of one or more subject matter expert(s) on a smaller set of documents and then extrapolates those judgments to the remaining document collection.” Maura R. Grossman and Gordon V. Cormack, “The Grossman-Cormack Glossary of Technology Assisted Review,” 7 Fed. Courts L. Rev. 1 (2013). If used correctly, TAR can result in drastic savings for clients in document-intensive cases and provide more accurate results. However, as the use of TAR expands, practitioners must be mindful of the relevant ethical pitfalls that may ensue.
Louisiana Climate Initiatives Interim Report Highlights Goals for Developing Actions to Reduce Greenhouse Gas Emissions
Governor Edwards’ Climate Initiatives Task Force published the Louisiana Climate Initiatives Interim Report earlier this month, which outlines the process by which the Task Force plans to develop climate actions to reduce greenhouse gas emissions in Louisiana. Continue Reading
Order Directing Rotation of Customers Subject to Curtailment of Service Under EEA3
Texas Public Utility Commission orders all TDUs in the ERCOT region to rotate customers such that no such customer is subjected to an electricity outage of more than 12 hours. Continue Reading
Congress Passes the Corporate Transparency Act to Require Beneficial Ownership Disclosure
The Corporate Transparency Act, adopted as part of the 2021 National Defense Authorization Act (the “Act”), will require certain business entities (defined as “reporting companies”) to disclose to the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) the identities of their beneficial owners and applicants. FinCEN will use these disclosures to create a national database to combat terrorism and money-laundering schemes which have used business entities to hide the identity of their owners. Reporting will not begin until the Treasury adopts regulations, which the Act mandates must be done by January 1, 2022. Reporting companies formed after the adoption of the regulations will be required to report this information as they are filing for formation. Existing businesses will have two years from the adoption date to file to report and identify their beneficial owners. Reporting companies will need to update beneficial ownership information with FinCEN within one year of any change in the reported information. While the Act lets us know that these reports will now have to be made at some point, many questions remain unanswered pending the release of the full regulations by the Treasury.
Riding to the Danger Zone: U.S. Fifth Circuit Panel Considers the Zone-of-Danger Test for Maritime Emotional Distress
In In re Deepwater Horizon, No. 20-30300, 2021 WL 96168, a three-judge panel of the U.S. Fifth Circuit Court of Appeal held that fishermen who intentionally came upon the scene of the wreckage of the Deepwater Horizon failed to state a claim of negligent infliction of emotional distress under general maritime law. The district court dismissed their case under Federal Rule of Civil Procedure 12(b)(6). On January 11, 2021, the Fifth Circuit panel affirmed. Continue Reading
Supreme Court Punts on Important Arbitrability Question
On January 25, 2021, the United States Supreme Court dismissed, as “improvidently granted,” a writ of certiorari it had previously granted on a petition asking it to consider “[w]hether a provision in an arbitration agreement that exempts certain claims from arbitration negates an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator.” Henry Schein, Inc. v. Archer & White Sales, Inc., 592 U.S.___ (2021) (“Henry Schein II”). The petitioner in Henry Schein II argued that the Fifth Circuit erred in holding that the carve-out in the parties’ arbitration provision negated the parties’ delegation of the question of arbitrability to an arbitrator, stating the decision “defies common sense” and “deepens a conflict among” the courts that will encourage and reward forum shopping. The Supreme Court’s rare dismissal of a previously granted cert petition means that the justices have declined to reconsider the Fifth Circuit’s decision refusing to send the underlying dispute to arbitration. Therefore, litigants and practitioners in the Fifth Circuit should continue to look to the Fifth Circuit’s decision for guidance in determining “who” decides whether a claim is arbitrable. Continue Reading
