Month: April 2020
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Seven Tips for Preparing an Effective Reservation of Rights Letter
An insurer’s reservation of rights letter is often one of the most important documents in insurance coverage litigation. Insurers too often do not prepare coverage position letters that most effectively protect their interests. In a routine, low-value claim, this may not matter much. But in complex or potentially expensive cases, insurers should take extra care to prepare reservation of rights ... Read More
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OSHA Issues General and Industry-Specific Guidance For Operating During the COVID-19 Public Health Emergency
As businesses look to adapt their workplaces to provide for safer operation during this public health emergency, the Occupational Safety and Health Administration has released industry-specific guidance to help the construction, manufacturing, package delivery, and retail industries protect their workers and customers from the spread of coronavirus (COVID-19). The guidance builds on OSHA’s previously issued 10 Steps All Workplaces Can ... Read More
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SCOTUS Opinion: Court’s Dismissal of Gun Rights Case as Moot Sparks Lengthy Dissent
New York City enacted a law preventing the transport of firearms. Gun owners challenged that law on the basis that it prohibited them from moving firearms to a second home or shooting range outside the city in violation of the Second Amendment. The lower courts denied relief, and the U.S. Supreme Court granted certiorari. In response, the city amended its ... Read More
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SCOTUS Opinion: Court Narrows Eligibility of Lawful Permanent Immigrants to Avoid Removal
Andre Barton was a green-card holder who was convicted of several crimes, including a firearms offense and certain drug offenses. The government decided that it wanted to remove Barton based on those convictions. Barton applied for cancellation of removal, which has certain strict requirements including an initial seven years of continuous residence. The residency requirement would be cancelled, however, if ... Read More
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SCOTUS Opinion: Court Refashions Clean Water Act’s Permit Requirement
Under the Clean Water Act, a party must obtain a permit before adding any “pollutant,” broadly defined from “any point source” to “navigable waters.” In County of Maui, Hawaii v. Hawaii Wildlife Fund, Maui’s sewage plant was pumping millions of gallons of partially treated sewer water into the ground each day, which eventually wound up in the Pacific Ocean. Environmental ... Read More
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SCOTUS Opinion: Profits Can Be Awarded In Trademark Infringement Case Without Willfulness
Section 1117(a) of the U.S. Code requires proof that a trademark infringer acted willfully in order for a court to award lost profits for trademark dilution under Section 1125(c) of the Lanham Act, but does not mention trademark infringement. In Romag Fasteners, Inc. v. Fossil Group, Inc., Romag sued Fossil for trademark infringement under Section 1125(a). The jury did not ... Read More
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Client Alert: Sorting Through The Various COVID-19 Relief Programs and Conflicting Guidance on Loan Forgiveness
Small businesses and charities may be sorting through the various programs recently enacted and signed into law, trying to figure out which one is best. While each business or charity is unique and no one option is best for all, bets can be hedged and more than one program may be utilized. The Paycheck Protection Program (“PPP”) enacted through the ... Read More
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Client Alert: The Supreme Court of Ohio Ruling in Lubrizol Advanced Materials, Inc. v. National Union Fire Insurance Company of Pittsburgh
The Supreme Court of Ohio agreed to accept the matter of Lubrizol Advanced Materials, Inc. v. National Union Fire Insurance Company of Pittsburgh, Pa., Case No. 1:17-cv-01782-DAP (N.D. Ohio) on certified question as to whether an insured is permitted to seek full and complete indemnity under a single policy providing coverage for “those sums” when the property damage occurred over ... Read More
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Emergency COVID-19 Legislation Requires D.C. Employers to Comply with New FMLA and Sick Leave Requirements
While much attention has been paid to leave benefits made available under the federal Families First Coronavirus Response Act (“FFCRA”), the corresponding legislation enacted by the Council of the District of Columbia has gone largely unnoticed. However, the District’s orders contain a different set of requirements, and failure to comply could have serious implications for D.C. employers. D.C. employers should be ... Read More
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No Visitors Allowed: Potential Legal Ramifications of Restricted Visitors Policies In the Midst of COVID-19
The novel Coronavirus, COVID-19, has wreaked havoc on the nation and has had far-reaching effects across the globe. The trail of destruction left in its wake will no doubt have lasting implications on multiple industries for the foreseeable future and none has felt the impact more than the healthcare industry. Doctors, nurses, healthcare professionals, and non-medical related staff remain on ... Read More
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SCOTUS Opinion: Court Upholds EPA’s Superfund Cleanup Plan Against Challenge
For decades, a copper smelter in Montana contaminated approximately 300 square miles of land with arsenic and lead. The Environmental Protection Agency, working with the current owner of the smelter, instituted a cleanup plan under Superfund. Unhappy with the plan and its progress, nearby landowners filed suit in state court, lodging common law claims for damage to their properties, as ... Read More
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SCOTUS Opinion: Court Rejects Judicial Review Of USPTO Inter Partes Determinations
By statute, the U.S. Patent and Trademark Office can be asked to conduct an inter partes review to reconsider the validity of an earlier-granted patent claim. However, 35 U.S.C. sec. 315(b) requires that a request for inter partes review must be brought within one year after suit against the requesting party for patent infringement. The Office’s determination of whether to ... Read More
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SCOTUS Opinion: Court Abolishes Non-Unanimous Criminal Convictions
The Supreme Court had previously ruled in Apodaca v. Oregon, 406 U.S. 404 (1972), that the Sixth Amendment did not forbid non-unanimous verdicts in state criminal trials. Today, only Louisiana and Oregon still permit non-unanimous convictions. In Ramos v. Louisiana, a 6-3 majority of the Court, in an opinion by Justice Gorsuch, discarded that precedent and held that the Sixth ... Read More
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Client Alert for Commercial Landlords: “Control The Space” and Pre-Bankruptcy Contractual Termination of Lease
When the economy weakens, as with the unprecedented effects of the current COVID-19 pandemic, certain office and retail tenants will be unable to satisfy their lease obligations, vacate or file bankruptcy. Landlords should anticipate the consequences of these developments and some may choose to be proactive rather than reactive, and one way is to consider sending notices of default and ... Read More
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Client Alert: OSHA to Consider Employer Good Faith when Non-Compliance Results from COVID-19 (Coronavirus) or Restrictions Relating to COVID-19
On April 16, in a memorandum entitled Discretion in Enforcement when Considering an Employer's Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic, the Occupational Safety and Health Administration acknowledged that COVID-19 and the workplace restrictions imposed in response to the virus may present significant difficulties for employer compliance with OSHA standards. Accordingly, OSHA outlined when during this coronavirus ... Read More
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National Survey of COVID-19 Medical Malpractice Immunity Legislation (as of April 15, 2020)
The below survey of federal and state legislation, guidance, and executive action provides information regarding enacted and proposed legislation and executive orders issued to provide immunity protections for liability, in certain respects, to health care professionals, facilities, and volunteers in the course of their treatment of individuals during the course of the COVID-19 pandemic and the declared national and state ... Read More
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Client Alert: New CDC Guidance for Essential Employees Exposed to COVID-19
In an effort to ensure the continuity of essential operations while maintaining a safe work environment, the Centers for Disease Control issued guidance for when critical infrastructure employees may be permitted to work following a potential exposure to COVID-19. A potential exposure means household contact or non-household contact of six feet or less with a person with confirmed or suspected COVID-19, ... Read More
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Client Alert: Estate and Business Succession Planning During the Coronavirus Quarantine
As efforts to contain the coronavirus continue throughout the United States and across the globe, Jackson & Campbell remains committed to the safety and well-being of our clients, employees, and the communities in which we live and work. Although our physical office is closed to the public, we continue to service new and existing clients - not just by offering ... Read More
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Client Alert: OSHA Guidance on COVID-19 in the Workplace
As businesses deemed essential continue to operate during the coronavirus outbreak and other businesses make plans to reopen when conditions allow, it is important for employers to keep in mind the Occupational Safety and Health Administration’s recently issued Guidance on Preparing Workplaces for COVID-19, available here or at www.osha.gov. The guidance is not a standard or regulation. It creates ... Read More
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Client Alert: Additional Help For Individuals From The Tax Code
The COVID-19 pandemic was designated under the Stafford Act as a national emergency on March 13, 2020. By doing so, the federal government opened a new area for tax-free help to those impacted directly by the disease, or indirectly due to the shelter-in-place directives. Section 139, enacted after 9/11, allows employers, or really anyone so inclined, to provide “qualified disaster relief ... Read More
TAGGED: Tax Law, COVID-19, Families First Act, CARES Act, Stafford Act, Section 139, reimbursements
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SCOTUS Opinion: Court Stays District Court’s Order Affecting Wisconsin’s Election
Despite the ongoing danger of COVID-19, Wisconsin decided to go forward with its election on April 7. Since voters would be discouraged from arriving en masse at the polls, it was expected that absentee voting would surge. Various political groups filed suit to ease the burden of absentee voting. Although Wisconsin law required absentee votes to be received by 8 ... Read More
TAGGED: scotus, SCOTUS opinion, COVID-19
SCOTUS Opinion: Age Discrimination Need Not Be The But-For Cause To Be Actionable
In Babb v. Wilkie, a clinical pharmacist at a Veterans Affairs medical center alleged that he suffered various adverse personnel actions due to age discrimination. Under the Age Discrimination in Employment Act of 1967, personnel actions affecting individuals 40 and over must be made “free from any discrimination based on age.” The VA offered legitimate reasons for its actions and ... Read More
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SCOTUS Opinion: Court Permits Routine Stops Of Vehicles Whose Owners Have Revoked Licenses
While on routine patrol, a Kansas deputy ran the plate of a vehicle and discovered that its owner, Charles Glover, Jr., had a revoked driver’s license. On that basis alone, the deputy pulled over the vehicle, assuming, correctly, that Glover was driving it. Glover was charged with driving as a habitual violator and Glover appealed, arguing that the deputy lacked ... Read More
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Client Alert: The Families First Act, the CARES Act, and IRS Guidance for Employers
The Families First Coronavirus Response Act (FAMILIES FIRST ACT), Public Law No. 116-127 (March 18, 2020), and the Coronavirus Aid, Relief, and Economic Security Act (CARES ACT), Public Law No. 116-136 (March 27, 2020) provide relief to employees and employers (including nonprofits) during this pandemic. The relief provided by the FAMILIES FIRST ACT is in the form of additional paid ... Read More