EPA’s Major Shift on New Source Review Permitting Policy By Tokesha Collins-Wright On December 7, 2017, the Environmental Protection Agency (“EPA”) released a memorandum entitled, “New Source Review Preconstruction Permitting Requirements: Enforceability and Use of the Actual-to-Projected-Actual Applicability Test in Determining Major Modification Applicability.”[1] In the NSR memo, EPA announced its intention to drop its long-standing position that the Agency can use its own projections of a facility’s potential future emissions in order to determine whether a major source’s proposed modification triggers Clean Air Act (“CAA”) New Source Review (“NSR”) requirements. View Full Post
By Erin L. Kilgore It’s been a busy end of February.  For employers, the past two weeks have included several notable decisions: Dodd-Frank Does Not Protect In-House Whistleblowers Last Wednesday, on February 21, 2018, the United States Supreme Court unanimously held that the anti-retaliation provision of the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) does not apply to employees who report alleged violations internally.  View Full Post
Misclassifying Employees as Independent Contractors could Violate the NLRA By Zoe Vermeulen Deciding whether to classify workers as employees or independent contractors is an ongoing issue for companies. Misclassifying employees as independent contractors can draw the ire of federal and state agencies – including the Internal Revenue Service, the Department of Labor, and state workers’ compensation agencies – and can subject employers to back taxes, penalties, lawsuits under the Fair Labor Standards Act, and more. View Full Post
Fifth Circuit Reaffirms Difficult Burden of Proving Contra Non Valentem By Blake Crohan In Griffin v. Hess Corporation, 2017 WL 5125657 (5th Cir. Nov. 3, 2017) (unpublished) the U.S. 5th Circuit reaffirmed the difficult burden of proving that prescription should be excused under the Louisiana jurisprudential exception of contra non valentem non currit preaescriptio. View Full Post
Court Denies Temporary Restraining Order to Halt Construction of Bayou Bridge Pipeline By Matthew Smith After contesting the construction of the Dakota Access pipeline, environmental advocacy groups have turned their attention to the proposed Bayou Bridge pipeline in South Louisiana. The Bayou Bridge pipeline is a 162-mile-long, 24-inch-wide proposed pipeline which will cross the Atchafalaya Basin to connect facilities in Lake Charles, Louisiana to crude oil refineries in St. View Full Post
  In Voces v. Energy Resource Technology, GOM, LLC, et al. the United States Court of Appeals for the Fifth Circuit reviewed the longstanding general rule in Louisiana known as the independent contractor defense, which provides that a principal is not liable for the negligent acts of an independent contractor acting pursuant to the contract. View Full Post
5th Circuit Provides Bright-line Rule for 30-day Removal Clock After Receipt of Deposition Transcript By Alex Rossi The 5th U.S. Circuit Court of Appeals “adopt[ed] a bright-line rule [on January 11, 2018]: Section 1446(b)(3)’s removal clock begins ticking upon receipt of the deposition transcript” as opposed to running from the date of the deposition testimony. View Full Post
Fifth Circuit Provides Guidance on Removability of Mass Actions under CAFA By Lou Grossman On January 9, 2008, a split panel of the United States Fifth Circuit Court of Appeals affirmed an order from the district court, denying a motion to remand a matter removed under the Class Action Fairness Act (“CAFA”). View Full Post
Dilly Dilly on Infringement Demand By Sonny Chastain In its recent campaign, Bud Light recognizes true friends of the Crown by raising a cold adult malted beverage and chanting Dilly Dilly.  The marketing slogan was created apparently coming out of nonsense and fun.  In its campaign, Bud Light seems to want people to celebrate with a lighthearted toast of Dilly Dilly and escape the Pit of Misery. View Full Post
General Mills Not Cheery about TTAB Ruling By Sonny Chastain General Mills filed an application to register the color yellow appearing as the uniform background on a box of Cheerios.   It contended that consumers have come to identify the color yellow specifically with Cheerios, when used in connection with the goods.  View Full Post
International Trade Update: Unreasonable Deviation Precludes COGSA Limitation By Stephen C. Hanemann The Carriage of Goods by Sea Act (“COGSA”) provides that it shall “apply to all contracts for carriage of goods by sea to or from ports of the United States in foreign trade.” In matters involving international trade, contracts for carriage – involving goods shipped to or from the United States via a foreign seaport – are those covered by a bill of lading or any similar document of title. View Full Post