Supreme Court Validates Employer’s Right to Require Class and Collective Action Waivers in Employment-Related Arbitration Agreements

The United States Supreme Court ruled today that contracts requiring individualized arbitration of employment-related disputes are enforceable and do not violate Section 7 of the National Labor Relations Act (NLRA).

Background

Some employers require their employees to enter into agreements binding the parties to arbitrate employment-related disputes.  In recent years, many of those employers have drafted their mandatory arbitration agreements to prohibit employees from pursuing class or collective actions, which can be costly and eliminate the informality and speed of arbitration.  For example, the plaintiffs in the three cases decided by the Supreme Court today agreed not to pursue unpaid overtime claims under the Fair Labor Standards Act (FLSA) on behalf of other employees in class or collective actions. Continue Reading

Federal Circuit Holds U.S. Army Corps of Engineers Not Liable for Hurricane Katrina Flood Damage

The United States Court of Appeals for the Federal Circuit recently issued a significant opinion in a case in which a takings claim was asserted to redress Hurricane Katrina-related flood damage.  On April 20, 2018, it reversed a decision of the United States Court of Federal Claims (“Claims Court”), which had held the U.S. Army Corps of Engineers liable under the Tucker Act for flood damage to the Plaintiffs’ properties.

In 1968, the Corps completed construction of the Mississippi River Gulf Outlet (“MRGO”) in New Orleans.  The purpose of this navigation channel was to increase commerce between the port of New Orleans and the Gulf of Mexico.  Around the same time, Congress authorized funding for flood control through the Lake Pontchartrain and Vicinity Hurricane Protection Project (“LPV”).  This project was instituted to reduce the risk of flooding in New Orleans, and it resulted in the construction of levees and floodwalls along the banks of MRGO. Continue Reading

Third Circuit Issues Long-Awaited Ruling in OPA Liability Case

On March 29, 2018, the United States Court of Appeals for the Third Circuit issued its ruling in In re: Petition of Frescati Shipping Co., Ltd., as Owner of the M/T ATHOS I, Nos. 16-3552, 16-3867 & 16-3868 (3d Cir. Mar. 29, 2018).  ATHOS I had its genesis in a 2004 vessel allision and oil spill on the Delaware River between New Jersey and Pennsylvania.  The decision has particular relevance to the types of defenses that may be maintained against reimbursement claims brought by the United States Oil Spill Liability Trust Fund (OSLTF) to recover funds expended in responding to an oil spill. Continue Reading

Fifth Circuit Throws Out DOL Fiduciary Rule

The United States Fifth Circuit Court of Appeal vacated the entire DOL Fiduciary rule in a split decision on March 15, 2018, U.S. Chamber of Commerce v. DOL, No. 17-10238 (5th Cir. 3/15/2018).  Two other circuits have upheld the DOL rule (the Tenth and the District of Columbia Circuits).  This ruling will not become immediately applicable as it is subject to rehearing and appeal to the Supreme Court.  Accordingly, advisers should continue to follow applicable DOL fiduciary rule policies and procedures.  It may be several months before whether we know the impact of this decision. Continue Reading

FBA Provides Update on Maritime Developments in New Orleans and the Lower Mississippi River Region

I attended a great meeting yesterday at the Port of New Orleans hosted by the FBA Admiralty Law Committee. Here are some bullets and takeaways, which are certainly of interest to anyone in the maritime industry along the lower Mississippi River.  I am especially grateful that the following people were able to speak with us:

  • Patricia Krebs, Chair of the Admiralty Law Committee of the New Orleans Chapter of the Federal Bar Association
  • Robert “Rusty” Barkerding, Jr., Chairman of the Port of New Orleans Board of Commissioners
  • Ronald Wendel, Vice President- Finance & Administration (CAO/CFO) of the Port of New Orleans
  • Aaron C. Smith, President & CEO of OMSA (Offshore Marine Service Association)

It’s wonderful to have people at such a high level take time out of their day to share the latest and greatest of what’s going on locally in our industry. Continue Reading

Louisiana Third Circuit Issues Decision on the Procedure for Settlements in Cases Governed by Act 312

In a decision issued today, the Louisiana Third Circuit Court of Appeal issued the first appellate court opinion addressing the procedure for approval of settlements in cases governed by Act 312 (La. R.S. 30:29).  Britt v. Riceland Petroleum Corp., is a “legacy” lawsuit in which landowners sued Riceland Petroleum Company and BP America Production Company—the current and former operators on a certain tract of plaintiffs’ property.  Riceland and BP ultimately chose to settle all of the claims that Plaintiffs brought against them, and as part of the settlement they agreed to remediate the landowners’ property to the necessary state standards.  The settling parties then complied with the express mandates of Act 312 as they:  (1) provided notice of the settlement to the Department of Natural Resources (“LDNR”) and Attorney General (“AG”); (2) allowed the LDNR at least thirty days to review the settlement and provide any comments to the trial court; and, (3) sought and obtained the trial court’s approval of the settlement. Continue Reading

Louisiana Supreme Court Upholds Expropriation of Commercial Venture

In a decision announced this week, the Louisiana Supreme Court ruled on the constitutionality and method of compensation for the expropriation by a governmental body of property owned by an ongoing commercial venture.   In St. Bernard Port, Harbor & Terminal District v. Violet Dock Port, Inc., LLC, the St. Bernard Port, Harbor & Terminal District (the “Port”), a government-owned public cargo facility, sought to expand its operations along the Mississippi River. The Port unsuccessfully negotiated the purchase of 75 acres of property owned by Violet Dock Port, Inc., LLC (the “Landowner”) which utilized the property to layberth and service oceangoing ships for the United States Navy.  The Port subsequently expropriated the property under the quick-take expropriation provisions of LA. R.S. 19:141, et seq., for a purported compensation of $16 million.  Continue Reading

Ninth and Fifth Circuits Split on Issue of Punitive Damages Under Maritime Law

The stage appears to be set for intervention by the United States Supreme Court following the Ninth Circuit’s recent panel decision in Batterton v. Dutra Group, No. 15-56775 (9th Cir. Jan. 23, 2018).  In Batterton, the Ninth Circuit expressly disagreed with the Fifth Circuit in holding that an injured seaman may recover punitive damages in a claim for unseaworthiness against a vessel owner under the general maritime law.  Compare McBride v. Estis Well Service, 768 F.3d 382 (5th Cir. 2014) (en banc).  The circuit split, which follows disagreement among the lower courts, hinges on differing views of the impact of the Supreme Court’s decision in Miles v. Apex Marine Corp., 498 U.S. 19 (1990) on this area of law. Continue Reading

The Dusky Gopher Frog is Heading to the United States Supreme Court

In July 2017, Weyerhaeuser Company, a Louisiana landowner and timber lessee, filed a Petition for a writ of certiorari asking the United States Supreme Court to overturn the U.S. Fish and Wildlife Service’s (“FWS”) designation of private land in St. Tammany Parish, Louisiana as “critical habitat” for the endangered dusky gopher frog.  The FWS made this “critical habitat” designation under the Endangered Species Act.  Weyerhaeuser Company argues that the property has not been a habitat for the gopher frog since the 1960s, the land lacks certain habitat features for the gopher frog to survive in the area, and the designation drastically reduces the value of the property by preventing certain commercial development projects.  (A prior article posted on The Energy Law Blog discussing the Petitioner’s writ of certiorari is available here). Continue Reading

U.S. Fifth Circuit Issues CAFA Opinion in Mass Action Addressing Two Issues of First Impression

In Warren Lester, et al. v. Exxon Mobil Corp., et al., No. 14-31383, ___ F.3d ___ (5th Cir. 1/9/2018), the U.S. Fifth Circuit Court of Appeals issued an opinion addressing two issues of first impression involving the Class Action Fairness Act of 2005 (“CAFA”).[1] A full copy of the opinion can be accessed here. Continue Reading

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