Given the ongoing worldwide economic concerns and discussion of another recession, it is hard to believe that major provisions of the 2009 Stimulus Act impacting employers have yet to be fully implemented ...
Imagine the effect on the privatization effort and the stability of the workers’ compensation insurance market in West Virginia if the standard workers’ compensation insurance policy1 was held to give an insured employer coverage for “deliberate intent” claims even though the insured employer did not inquire about, request, or pay for such coverage.2 Imagine the risk management implications and the effect on premiums for workers’ compensation insurers ...
A creation of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. Law 111-203 ("Dodd-Frank Act"), the Consumer Financial Protection Bureau ("CFPB") is charged with regulating consumer lending activities of financial institutions and, in partnership with state attorneys general, enforcing numerous federal consumer protection laws ...
Last quarter, we focused on the available defenses to West Virginia Consumer Credit and Protection Act, W. Va. Code § 46A-1-101 et seq. (“WVCCPA”) claims. This article, we will focus on the potential damages that a consumer can recover - actual damages, statutory penalties, and attorney’s fees. First, a consumer would be entitled to actual damages – physical and/or emotional – that a creditor’s or debt collector’s alleged violations of the WVCCPA may have caused the consumer ...
Subsidiary guaranties, also commonly known as upstream guaranties, are instruments used for the benefit of lenders and borrowers alike. Upstream guaranties benefit borrowers and lenders because they enable borrowers to obtain more favorable terms and enable lenders to lend based upon a larger asset pool to secure debt ...
Unfortunately, as we all know, foreclosures are necessary. But foreclosures, by their nature, involve a certain degree of unpleasantness and challenges. A particularly thorny set of challenges arises when the foreclosure involves income producing property, especially residential rental property. The Problem. Imagine this all too familiar real world scenario: as security for a loan, the borrower grants the bank a deed of trust lien against the borrower’s apartment building ...
There has been considerable activity at the state and federal level over the past few months regarding when companies must “aggregate” emissions from operations to determine whether they are subject to the more stringent “major source” permitting requirements under the New Source Review (“NSR”) and Title V provisions of the Clean Air Act (“CAA”) ...
On December 10, 2011, West Virginia Governor Earl Ray Tomblin issued a proclamation calling for a special session of the Legislature for the purpose of considering and acting upon legislation regarding horizontal natural gas well operations. The bill presented by the governor (SB 4001; HB 401) drew heavily from the draft legislation developed by the Joint Select Committee on Marcellus Shale ...
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2011 saw steady increases of production throughout the Marcellus Shale play, a heavy emphasis on strengthening and expanding pipeline infrastructure, and a boom in the level of activity in the Utica Shale play ...
On November 15, 2011, existing facilities subject to the federal Spill Pollution Control and Countermeasure Rule (“SPCC Rule”), 40 C.F.R. Part 112, were required to finalize and implement a plan—known as an “SPCC plan”—detailing the equipment, workforce, procedures and steps to be taken to prevent, control and provide adequate countermeasures to a discharge of oil to navigable waters of the United States or adjoining shorelines ...
In this day and age it is commonplace for employers to issue communication devices such as Blackberries, iPhones and Androids (collectively “PDAs”) to employees. These devices allow employees to work and respond to emails and other communications without being tethered to their desks. They are beneficial to both the employer and employee – PDAs help the employer by increasing employee productivity and help the employee by allowing greater work flexibility ...
President Obama announced on January 4, 2012, that he would use his power of recess appointment to fill three vacancies on the National Labor Relations Board (NLRB). All three appointees had been formally nominated by the President for their positions but the Senate Health, Education, Labor, and Pensions Committee had not yet acted on any of the nominations. The new members are Sharon Block (D), Terence F. Flynn (R), and Richard Griffin (D) ...
The Department of Labor’s Wage and Hour Division is proposing changes to the regulations that govern the Family and Medical Leave Act (the “FMLA” or the “Act”). The proposed changes include provisions relating to an employer’s ability to opt to use different increments of FMLA under certain circumstances and clarify an employer’s responsibility to reinstate an employee after FMLA leave in situations where it may be impossible, as opposed to inconvenient, to reinstate an employee mid-shift ...
On February 21, 2012, in Anshutz Exploration Corp. v. Town of Dryden, a New York court upheld a municipality’s effort to restrict production of oil and natural gas within city limits. The case arose from the Town of Dryden’s effort to ban horizontal-well fracking by amending a zoning ordinance to prohibit all activities related to exploration for, production and storage of oil and natural gas. Anshutz challenged Dryden’s ordinance, arguing that it was preempted by state law ...
Hot off the presses from our United States Supreme Court is a decision decided February 21, 2012 affirming a broad construction of the Federal Arbitration Act (“FAA”). While the decision, Marmet Healthcare Center, Inc. v. Clayton Brown, 565 U.S. – (2012) No. 11391, would appear to be a case of narrow import – it reverses a decision of the West Virginia Supreme Court of Appeals that held arbitration provisions in nursing home contracts to be invalid – the language is far reaching ...
The anti-retaliation provision in Section 215(a)(3) of the Fair Labor Standards Act (“FLSA”) makes it unlawful for an employer to “discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding.” On March 22, 2011, the Supreme Court of the United States decided Kasten v ...
Home Care Service providers may need to review how they pay many of their employees as a long-standing overtime exemption is slated to be eliminated by the Department of Labor (“DOL”). The DOL has published a Notice of Proposed Rulemaking to revise the regulations pertaining to companionship and live-in domestic workers, with a 60-day public comment period set to close in the near future ...
On December 20, 2011, President Barack Obama, Vice President Joe Biden, Deputy Defense Secretary Ashton B. Carter, and Army General Martin E. Dempsey, chairman of the Joint Chiefs of Staff, welcomed home the final group of United States troops from Iraq. After more than twenty years and two wars with Iraq, this long-awaited homecoming symbolized the end of an era for many ...
On February 1, 2012, the West Virginia Department of Environmental Protection (“DEP”) and its Office of Oil and Gas (“OOG”) conducted what it named the “Natural Gas Horizontal Well Control Act Industry Workshop” at the Marriott Town Center in Charleston, West Virginia (“Workshop”). For those of you who may have missed all or a portion of the Workshop, the following is a summary of the presentations by the various DEP speakers ...
Bankers confront the bankruptcy world regularly. It can be a world of somewhat unfamiliar, if not confusing, concepts and terms. Unfortunately, it can also be a world fraught with risk associated with taking actions (or not taking actions) that run afoul of the rules or jeopardize the bank’s rights against the borrower. Here are a few of the “truths” that bankers need to keep in mind in the bankruptcy world. 1. The automatic stay is, well, automatic ...
A creation of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. Law 111-203 (“Dodd-Frank Act”), the Consumer Financial Protection Bureau (“CFPB”) is charged with regulating consumer lending activities of financial institutions and, in partnership with state attorneys general, enforcing numerous federal consumer protection laws ...
On Wednesday, March 22, the United States Supreme Court ruled that a compliance order issued under EPA’s Clean Water Act enforcement authority to individuals for allegedly filling part of their property without the necessary “dredge and fill” permit could be challenged in federal district court. The ruling marks a major loss for EPA’s enforcement practices under the Clean Water Act ...
In the 2012 regular session of the West Virginia Legislature, several resolutions were passed with potential future impact on the shale gas industry. Below is a summary of those significant resolutions. Senate Concurrent Resolution No. 52 This resolution requests the Joint Committee on Government and Finance to study the viability of increasing severance tax rates on shale gas ...
