On June 13, 2019, the Department of Labor, the Department of Health and Human Services, and the Department of Treasury (the “Departments”), published final regulations which significantly broaden the types of health plans that may be integrated with a health reimbursement arrangement (“HRA”). More specifically, beginning January 2020, the finalized rules allow HRAs to be integrated with certain qualifying individual health plan coverage and/or Medicare. The final rules reverse current guidance which requires HRAs to be integrated with only qualifying group health plan coverage. Practically speaking, this means that employers, beginning in 2020, will be allowed to subsidize employee premiums in the individual health insurance market and/or Medicare using pre-tax dollars, provided certain conditions are met. The final rules also allow certain HRAs to reimburse participants for certain premiums paid for excepted benefits. To achieve these results, the final rules create two new types of HRAs.
Texas Supreme Court to Review $500 Million Verdict in Case Involving Formation of Partnership to Construct Crude Oil Pipeline
Last week the Texas Supreme Court granted review in Energy Transfer Partners, L.P. v. Enterprise Products Partners, L.P., a case concerning Texas partnership law. Energy Transfer Partners has garnered significant amicus support on both sides of the “v.” and has been closely followed by the energy industry.
SCOTUS Decides Dutra Group v. Batterton
Today the United States Supreme Court issued its decision in this landmark case concerning punitive damages. The six justices in the majority opinion reversed the Ninth Circuit and resolved a circuit split on this issue. The question presented was whether punitive damages may be awarded to a Jones Act seaman in a personal injury suit alleging a breach of the general maritime duty to provide a seaworthy vessel. Justice Alito wrote the majority opinion, joined by Chief Justice Roberts, Justices Thomas, Kagan, Gorsuch, and Kavanaugh. Justice Ginsburg dissented, joined by Justices Breyer and Sotomayor.
Supreme Court Holds State Wage and Hour Laws are Inapplicable to Offshore Drilling Platforms
In a decision that could have far-reaching implications, the United States Supreme Court issued a June 10 opinion holding that California’s wage-and-hour laws do not apply to workers on oil and gas platforms located in open water on the Outer Continental Shelf. The plaintiffs in Parker Drilling Management Services, Ltd. v. Newton, were offshore rig workers who filed a class action asserting that their employer violated California’s minimum wage and overtime laws by failing to pay them for stand-by time while they were on the drilling platform. Both parties agreed that the platforms were governed by the Outer Continental Shelf Lands Act (“OCSLA”), but they disagreed regarding whether the California’s wage-and-hour laws were incorporated into OCSLA and therefore applicable to workers on the platform. Continue Reading
Latest Guidance on Fiduciary Duties
The June 5 Releases
Today we focus on the new SEC interpretative release on the fiduciary duties of investment advisers and provide a brief summary of its contents (“The Fiduciary Duty Release”).[1] This Release is part of a package of new rules and interpretations adopted by the SEC on June 5, 2019. In total, there are four new rules and interpretations:
- Regulation Best Interest (“BI”);
- Form CRS, a new form for advisers and brokers;
- the Fiduciary Duty Release; and
- the Release on the “solely incidental” investment adviser exclusion.[2]
Together these four Releases total a mammoth 1336 pages and define and differentiate the duties owed by brokers and investment advisers.
Privilege Claw-Back Provision Upheld by Delaware Courts
In Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, 80 A.3d 155 (Del. Ch. 2013), the Delaware Court of Chancery clarified that under Delaware law the privilege for pre-merger communications passes to the surviving company after a merger is consummated. The privilege transfer would include the privilege for pre-closing communications regarding the merger itself. The communications at issue in Great Hill were the sellers’ pre-closing communications with the target company’s outside counsel that were in buyer’s possession post-close. The Court urged merger parties to consider the need for contractual provisions that would protect against a privilege transfer should a different result be desired, the so-called privilege claw-back provision, which was absent from the Great Hill merger agreement.
Motion to Remand Granted in One Coastal Zone Management Act Case But Federal Appellate Options Remain Viable
On May 28, 2019, United States District Judge Martin Feldman issued a sixty-four page Order and Reasons which granted motions to remand filed by Plaquemines Parish and the State of Louisiana in The Parish of Plaquemines v. Riverwood Production Co., et al. That case is one of forty-two Coastal Zone Management Act (“CZMA”) cases that were removed to Federal court in May 2018. Those cases generally allege that more than 200 oil and gas companies violated Louisiana’s State and Local Coastal Resources Management Act of 1978 (“SLCRMA”) by either failing to obtain or violating state coastal use permits. The cases were removed to Federal court by Defendants pursuant to 28 U.S.C. § 1442 (the federal officer removal statute) and 28 U.S.C. § 1331 (the federal question statute) on the basis that Plaintiffs’ claims (1) implicate wartime and national emergency activities undertaken at the direction of federal officers, and (2) necessarily require resolution of substantial, disputed questions of federal law. In response, Plaintiffs filed motions to remand. In those motions, Plaintiffs argued that (1) the removal was not timely because Defendants had notice of the grounds alleged in the removal notice more than thirty days before the cases were removed, (2) the Defendants could not satisfy the elements of the jurisdictional test for “federal officer” removal jurisdiction, and (3) Defendants could not satisfy the test for substantial federal question jurisdiction set forth by the United States Supreme Court.
5th Circuit Grants En Banc Rehearing to Address Federal Officer Removal
After years of inconsistent rulings, the Fifth Circuit is poised to address a removal issue with significant ramifications for Louisiana tort cases. The previous version of 28 U.S.C. § 1442 authorized removal to federal court of a suit against a federal officer “only when the state suit was ‘for any act under color of such office.’” The Fifth Circuit, interpreting this language, held that the removing party must show a causal connection between its actions and the plaintiff’s claims. The causal connection requirement demands more than “mere federal involvement[;] instead, the defendant must show that its actions taken pursuant to the government’s direction or control caused the plaintiff’s specific injuries.”
Louisiana Supreme Court Limits Effect of Collateral Source Rule in Personal Injury Cases
On May 9, 2019, the Louisiana Supreme Court issued an important opinion restricting application of the collateral source rule in personal injury lawsuits. In Simmons v. Cornerstone Investments, LLC, et al., 2018-CC-0735 (La. 5/8/19), the Court held the collateral source rule inapplicable to medical expenses charged above the amount actually paid by a workers’ compensation insurer pursuant to the workers’ compensation medical fee schedule.
Liskow Obtains Victory for the Oil and Gas Industry in the Louisiana Third Circuit
In a victory for the oil and gas industry, the Third Circuit rendered a decision rejecting attempts by the Louisiana Department of Revenue to impose severance taxes on crude oil production based on index pricing. The Third Circuit reaffirmed that severance taxes should be based on the “gross proceeds” obtained in an arm’s length sale at the lease. The Department had sought additional severance taxes from numerous Louisiana producers that sold crude oil in arm’s length sales at the lease. The contracts provided that the sales price of the crude oil was based on index pricing, less an amount sometimes designated as a “transportation differential” or simply as a deduction. The Department argued that this “differential” or deduction must be “disallowed” when computing severance taxes, effectively imposing severance taxes on the index pricing. The Louisiana Board of Tax Appeals, faced with numerous cases raising this same issue, heard a “test case” involving Avanti Exploration, LLC. The BTA held that the Department’s theories were invalid, and severance tax properly was based on the actual “gross receipts” received by the producer in an arm’s length sale. In a decision issued on April 17, 2019, the Louisiana Third Circuit Court of Appeal affirmed, holding that, pursuant to the Louisiana Constitution, the severance tax statutes, and the Department regulations, in the absence of any “posted field price,” severance taxes must be based on the actual “gross receipts” received by the producer in an arm’s length sale at the lease.
