With the spotlight recently cast upon it by the burgeoning Marcellus and other shale reserve developments, the oil and gas (“O&G”) industry has found itself increasingly the object of regulatory scrutiny ...
The U. S. House of Representatives overwhelmingly passed the JOBS (Jumpstart Our Business Startups) Act Tuesday, March 27, after receiving it from the Senate. The President signed the bill April 5, 2012. The JOBS Act is best known for its crowdfunding provisions, which I will address shortly, but it also is a boon to many community banks. Community banks often are formed with many investors ...
Over the past decade, arbitration under the Federal Arbitration Act1 (“FAA”) has been the subject of much debate and discussion among courts across the United States, including both the West Virginia Supreme Court of Appeals (“the WVSCA”) and the Supreme Court of the United States (“the Supreme Court”). Historically, the Supreme Court has ardently favored the resolution of disputes through arbitration,2 while the WVSCA has been more cautious to embrace arbitration in the place of litigation ...
Agreements to compel the resolution of most employment related disputes are enforceable under the Federal Arbitration Act (FAA). The courts, including the United States Supreme Court, have mandated the enforcement of arbitration agreements in employment cases under the FAA provided the agreements are fair, provide due process, and enable employees to preserve all the rights and remedies that they would have been entitled to in a court of law. See Circuit City Stores Inc. v. Adams, 532 U.S ...
A religious organization has a constitutional right to make decisions about the hiring and firing of its “ministers” under the First Amendment. In a recent U.S. Supreme Court decision, Hosanna-Tabor Evangelical Church and School v. E.E.O.C., 132 S.Ct. 694, 2012 WL 75047 (2012), the Supreme Court ruled that religious organizations can assert the “ministerial exception” under the First Amended to bar employment discrimination suits by those who can be considered “ministers” of the organization ...
The U.S. Equal Employment Opportunity Commission (EEOC) has long contended that when employers use criminal histories to make employment decisions, they run the risk of violating Title VII of the Civil Rights Act by basing their decision on information that has an unfair impact on minorities. The EEOC recently stepped up its enforcement efforts and publicly settled with Pepsi for $3.13 million over the beverage company’s use of a blanket exclusion policy of people with criminal records ...
On May 26, 2011, in Chamber of Commerce of the United States of America et al. v. Michael B. Whiting et al., 131 S.Ct. 1968 (2011), the Supreme Court of the United States upheld states’ rights to mandate use of the employment verification program (E-Verify) organized by the United States Department of Homeland Security (DHS) and Social Security Administration (SSA) ...
If you are in the oil and gas industry and you’ve experienced the recent onslaught of enforcement actions, particularly in the Appalachian basin, by the U. S. Environmental Protection Agency (“EPA”) you may take comfort in the aphorism: “You’re not paranoid if they really are out to get you!” A simple Google search of “EPA III Enforcement” and a click on the “Natural Gas Extraction/Marcellus Shale” link at the EPA Region III website should cause any company concern ...
On June 11, 2012, Ohio Governor John Kasich signed Senate Bill 315 (“S.B. 315”) into law. S.B. 315 addresses a wide array of issues and substantially revises the sections of Revised Code 1509 and Revised Code 4906. S.B ...
In what has been described as a “sweeping victory” for the U.S. Environmental Protection Agency the United States Court of Appeals for the District of Columbia Circuit issued a decision on June 26, 2012 in lawsuits that challenged various aspects of the Agency’s regulatory scheme for greenhouse gases (GHGs). EPA’s challenged actions stem from a decision by the U. S. Supreme Court in 2007 in the case of Massachusetts v ...
On July 26, 2012, the Pennsylvania Commonwealth Court issued its decision in Robinson Township, et al. v. Commonwealth of Pennsylvania, involving the challenge brought by seven townships and boroughs to the Act 13 provision preempting local regulation involving oil and gas operations, codified at 58 Pa. C.S. Section 3304 ...
On July 2, 2012, the North Carolina Senate and House of Representatives voted to override Governor Perdue’s veto of Senate Bill 820, known as the Clean Energy and Economic Security Act (the “Act”), legalizing hydraulic fracturing and horizontal drilling within the State but delaying permitting until the General Assembly takes additional legislative action to allow it ...
For employment lawyers, the elements of an employment discrimination lawsuit are second nature: a plaintiff must belong to a protected class,the employer must make an adverse employment decision, and the employermust act based on the plaintiff’s protected status. And, for the most part, employment lawyers have mastered the art of defending clients against these claims and advising on strategies and policies to avoid them altogether or minimize the likelihood of success ...
For employment lawyers, the elements of an employment discrimination lawsuit are second nature: a plaintiff must belong to a protected class, the employer must make an adverse employment decision, and the employer must act based on the plaintiff’s protected status. And, for the most part, employment lawyers have mastered the art of defending clients against these claims and advising on strategies and policies to avoid them altogether or minimize the likelihood of success ...
Despite the Commonwealth Court's recent decision striking down Act 13’s limits on municipalities enacting zoning ordinances more restrictive than the state’s uniform requirements, the Pennsylvania Public Utility Commission ("PUC") has begun enforcement of Act 13's impact fee provisions. Specifically, the PUC has started to review some municipalities' ordinances that seek to regulate drilling activity ...
As the U.S. involvement in conflicts around the world continues to draw down, hundreds of thousands of veterans are returning to the civilian work force. In fact, more than 100,000 troops are estimated to return to the workforce in the next three years. Many of these service members were employed in the private sector prior to their military service. The Uniform Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4301 et seq ...
The Centers for Disease Control has ranked West Virginia as having the third highest percentage of obese adults in the United States, and the percentage of obese adults in Virginia, North Carolina and Pennsylvania rival that of West Virginia. Such a high percentage of overweight adults renders the possibility that obesity could become a protected class, and thus could become an issue to all employers ...
The United States Supreme Court has recently armed employers with two new defenses while settling an issue that may otherwise have been of fairly limited direct interest to most employers. The Court resolved a recent circuit split – the issue was largely resolved until 2009 regarding whether pharmaceutical representatives qualified as outside salesmen under the Fair Labor Standards Act ...
Even a cursory review of relevant news stories today reveals that hydraulic fracturing (“fracking”) is one of the most hotly debated subjects in the energy sector. Both environmentalists and regulators are keeping concerns about fracking at the forefront of their agendas. Since late May of this year, there have been a number of key legal developments related to the issue that merit the attention of the oil and gas industry ...
Despite being home to the first natural gas well in the United States, the State of New York has prohibited the use of hydraulic fracturing within its borders. Since the election of Governor Andrew Cuomo, the question in the oil and gas industry is whether he will lift the ban. Shortly after his election, Governor Cuomo tasked the Department of Environmental Conservation with drafting rules to allow for hydraulic fracturing ...
Last summer, North Carolina adopted into law "An Act to Require Counties, Cities and Employers to Use the Federal E-Verify Program to Verify the Work Authorization of Newly Hired Employees" (the "Act"). What this means to private employers is that depending on the size of your workforce, you may be required to use the E-Verify program for all hiring. Effective October 1, 2012, all North Carolina employers with more than 500 employees must use the E-Verify program ...
According to a group of women who filed a lawsuit last week, Maybelline should pay up for making false claims about its “Super Stay” lipstick products. Filed in federal court in Manhattan, the complaint seeks declaratory relief and damages under several states’ consumer protection laws. From the defense perspective, this is the latest attempt at a “no injury” class action where no actual injuries or damages exist ...
On October 15, 2012, IOGA-WV, the Independent Petroleum Association of America (“IPAA”) and five other state-level oil and gas associations filed suit in the D.C. Circuit Court of Appeals challenging the U. S. Environmental Protection Agency’s (“EPA”) New Source Performance Standards (“NSPS”) promulgated for the oil and natural gas industry on August 16, 2012 ...
North Carolina’s banking laws have been comprehensively updated for the first time in 80 years and provide the state with one of one of the most modern banking systems in the country. Effective October 1, 2012, the bipartisan legislation is a product of compromise and joint effort on the part of legislators, banks and consumer advocates ...
In a time when foreclosures are all too common, many secured lenders end up taking title to the real properties securing their loans. One of the questions, then, is should a lender obtain an owner’s title insurance policy or is the loan title insurance policy sufficient?As we all know, title insurance reduces the risk of the insured owner or lender by insuring one or both against loss or damage arising out of defects to or liens on title ...
