On March 29, 2019, Alaska Federal District Court Judge Sharon Gleason granted summary judgment in favor of plaintiff environmental groups in League of Conservation Voters v. Trump, 3:17-00101. The case stems from Executive Orders issued under the Obama Administration in 2015 and 2016 which withdrew certain areas in the Arctic and Atlantic regions from exploration and development under the offshore oil and gas leasing program. President Trump issued an Executive Order in 2017 which revoked the Obama withdrawals. The Court’s summary judgment ruling vacated certain portions of the 2017 Trump Executive Order and concluded that the prior Obama Orders would remain in place. In effect, the ruling removes the areas in the Arctic and the Atlantic covered in the Obama Orders from the five-year leasing program proposed by the Trump Administration.
Continue Reading Alaska District Court Vacates Trump Executive Order On Offshore Leasing
City of New Orleans Sues Oil and Gas Companies for Allegedly Damaging Coastal Wetlands
On Friday, March 29, 2019, the City of New Orleans filed a lawsuit in Civil District Court against eleven oil and gas companies seeking damages for alleged harm to Louisiana’s coastal wetlands. Introducing its lawsuit with statements that “New Orleans is imperiled” and its “people are in danger,” the City contends that the defendants’ failure to maintain access canals, spoil banks, and earthen pits created in the course of exploration and production has destroyed the coastal zone. The City’s allegations mirror those levied in recent years by the parishes of Plaquemines, Jefferson, and St. Bernard, among others: that the defendants’ activities constitute coastal “uses” under the Louisiana State and Local Coastal Resources Management Act (“SLCRMA”) and that they violate coastal use permits issued pursuant to that statute. The City has requested a trial by jury, from which it seeks damages, “restoration costs,” restoration of “disturbed areas,” sanctions, costs, attorneys’ fees, and/or declaratory and injunctive relief.
Continue Reading City of New Orleans Sues Oil and Gas Companies for Allegedly Damaging Coastal Wetlands
Liskow & Lewis Celebrates 15th Annual Black History Month Program with Ruby Bridges and Judge Brian Jackson
Liskow & Lewis celebrated Black History Month with Ruby Bridges, the first African-American child to integrate an elementary school in the South, and Judge Brian Jackson of the United States District Court for the Middle District of Louisiana (and a former Shareholder at Liskow & Lewis). While practicing at Liskow, Judge Jackson initiated the firm’s first formal celebration of Black History Month, a tradition which is now in its 15th year.
Judge Jackson first learned of Ruby Bridges’ story through Norman Rockwell’s historic painting “The Problem We All Live With.” The painting captures the bravery of the six-year-old girl who was advised by U.S. marshals to “walk straight ahead, and don’t look back” as she integrated William Frantz, an all-white elementary school in New Orleans. Judge Jackson met Ruby when he reconnected her with one of the U.S. marshals depicted in the painting.Continue Reading Liskow & Lewis Celebrates 15th Annual Black History Month Program with Ruby Bridges and Judge Brian Jackson
Admiralty Professor Haycraft Reports from the Courthouse Steps on the Dutra v. Batterton Supreme Court Argument
This morning I attended oral argument at the United States Supreme Court in the maritime case of Dutra Group v. Batterton.[1] The question in the case is whether a Jones Act seaman may recover punitive damages on an unseaworthiness claim. Former Solicitor General Seth Waxman argued for Petitioner Dutra Group and David Frederick argued for Respondent Christopher Batterton.
Waxman began his argument by explaining that Miles v. Apex set boundaries constraining what common law admiralty courts can do when Congress has legislated as it has in the Jones Act. He was quickly interrupted by Justice Sotomayor who noted that the Jones Act was enacted to supplement, not restrict, remedies available to a seaman. Justices Ginsberg and Kagan also pressed Waxman, with Kagan questioning why unseaworthiness doctrine has evolved over the past few decades, becoming more favorable to the seaman, if the Jones Act in 1920 constrained the common law admiralty courts?Continue Reading Admiralty Professor Haycraft Reports from the Courthouse Steps on the Dutra v. Batterton Supreme Court Argument
Opportunity to Minimize the New Tax on 501(c)(3) Exempt Organization Employee Parking
Due to the Tax Cuts and Jobs Act (“TCJA”) passed by Congress in December 2017, starting in 2018 many 501(c)(3) Exempt Organizations (“EOs”) are required to treat the cost of employer-paid qualified transportation and parking benefits as unrelated business taxable income (“UBTI”) to the EO. Though EOs have until May 15, 2019 to file their 2018 returns and remit any taxes owed to the federal government, there is a time-limited opportunity for some EOs to change their parking policy prior to March 31, 2019 and minimize the amount of parking tax owed.
New Tax on Employee Parking
EOs pay federal income taxes on their UBTI at a 21% rate. Generally, UBTI is the income generated by an EO’s activity which is unrelated to the organization’s exempt purpose. The TCJA changed this definition so that certain amounts spent by an EO on qualified transportation fringe benefits (e.g. employee parking) are treated as UBTI. The IRS detailed their reasoning as to the types of taxable parking in IRS Notice 2018-99, which may be relied upon by EOs until the IRS issues regulations.Continue Reading Opportunity to Minimize the New Tax on 501(c)(3) Exempt Organization Employee Parking
U.S. Supreme Court Addresses Circuit Split Regarding “Bare Metal” Defense in Products Liability Action Under General Maritime Law
In Air & Liquid Systems Corp. v. Devries, No. 17-1104, — S. Ct. —, 2019 WL 1245520 (U.S. March 19, 2019), the U.S. Supreme Court resolved a circuit split regarding maritime law and the “bare metal” defense, namely whether manufacturers have a duty to warn when their bare metal product requires later incorporation of a dangerous part in order for the integrated product to function as intended. Justice Kavanaugh wrote the opinion for a 6-3 court, with Justices Gorsuch, Thomas, and Alito dissenting.
“Bare Metal” Products at Issue
In Air and Liquid Systems Corp v. Devries, the defendant manufacturers produced shipboard equipment such as pumps, blowers, and turbines for various Navy ships on which the plaintiffs, two Navy veterans, were employed. The equipment required asbestos insulation or asbestos parts to function as intended. However, the defendant manufacturers did not always incorporate the asbestos into their products; they delivered much of the equipment to the Navy without asbestos. The defendants’ equipment was delivered in a condition known as “bare metal,” and the Navy later added the asbestos to the equipment.Continue Reading U.S. Supreme Court Addresses Circuit Split Regarding “Bare Metal” Defense in Products Liability Action Under General Maritime Law
New U.S. Supreme Court Decisions Clarify the Courts’ Authority to Compel Arbitration
Commercial and employment agreements often include provisions requiring arbitration of disputes between the parties. Some of these agreements contain “delegation clauses” requiring the arbitrator (as opposed to a court) to decide whether the dispute is subject to arbitration. Despite such provisions, one party may sue the other because it perceives an advantage to proceeding in court or wants to test the outer limits of the arbitration provision. The first battle in these suits is over who—the court or an arbitrator—decides whether the dispute must be arbitrated. In unanimous decisions issued over the last week, the Supreme Court addressed two scenarios where the parties fought over this question, despite having delegated questions of “arbitrability” to an arbitrator. Read together, the Court’s decisions clarify that a court should first decide whether the Federal Arbitration Act (“FAA”) applies to the parties’ agreement. If so, the court must honor the delegation clause and refer the matter to arbitration.Continue Reading New U.S. Supreme Court Decisions Clarify the Courts’ Authority to Compel Arbitration
Louisiana’s Third Circuit (Again) Affirms the Applicability of the Subsequent Purchaser Doctrine to Mineral Leases
While oil and gas company-defendants—and several courts alike—have deemed the applicability of the subsequent purchaser doctrine to mineral leases a settled issue of law, plaintiff-landowners have continued to argue otherwise. In a unanimous opinion issued July 18, 2018 in Grace Ranch, LLC v. BP America Production Company, et al., the Third Circuit not only provides yet another example of the uniform application of the doctrine in cases involving mineral rights under Louisiana law, but expressly and thoroughly rejects the numerous arguments on which plaintiffs-landowners have continued to rely.
Continue Reading Louisiana’s Third Circuit (Again) Affirms the Applicability of the Subsequent Purchaser Doctrine to Mineral Leases
The Coastal Zone Management Act Litigation Removed to Federal Court (Again)
On or about May 23, 2018, several Defendants in the Coastal Zone Management Act (“CZMA”) Litigation filed Notices of Removal in 42 lawsuits filed against 212 oil and gas companies by six different parishes (Plaquemines, Jefferson, Cameron, Vermilion, St. Bernard, and St. John the Baptist), removing the cases to federal court. The timing of the removal was based on Plaintiffs’ expert report, which was produced on April 30, 2018. In their Notices of Removal, Defendants allege that Plaintiffs’ expert report purportedly identifies state “permitting violations,” which revealed for the first time in the CZMA Litigation that Plaintiffs’ claims primarily attack activities undertaken before the state permitting law at issue was effective and that were instead subject to extensive and exclusive federal direction, control, and regulation.
Continue Reading The Coastal Zone Management Act Litigation Removed to Federal Court (Again)
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 Supreme Court Validates Employer’s Right to Require Class and Collective Action Waivers in Employment-Related Arbitration Agreements