In Case You Missed It (December 2024)
Bradley Arant Boult Cummings LLP
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Our attorneys regularly publish relevant legal and business articles, by way of our Bradley blog network, to help inform readers and keep you up to date on the latest business trends and issues. This newsletter serves as a space to revisit or discover blog posts you might have missed over the course of the last month.
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No. 9 The Particulars on OSHA Violations: How Much Notice is Enough?
Just what does an OSHA citation have to include? Section 9(a) of the Occupational Safety and Health Act requires that citations
“describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated.”
This statutory mandate is designed to ensure that OSHA properly informs employers of alleged violations so they can correct hazards promptly and avoid unnecessary litigation. Read more.
High Stakes and Political Blazes: Top 10 Cannabis Trends of 2024
2024 was a banner year for cannabis lawmakers and business operators. From Kamala Harris advocating for marijuana reforms to California’s clash of titans between hemp and marijuana markets, there was no shortage of drama in the cannabis industry. Vice President Harris vocally championed marijuana legalization on various platforms, emphasizing its importance for social justice. Meanwhile, California’s hemp regulations sparked controversy in an already thriving marijuana market. Political figures and states continually reshaped the cannabis landscape. Even rapper Fat Joe met with the White House on cannabis reform… In this continually evolving industry, here’s a deep dive into the top 10 cannabis stories that made waves in 2024. Read more.
Lost Productivity Damages in Construction: The Modified Total Cost Method
Here at Bradley we frequently represent clients pursuing or opposing claims for lost productivity on construction jobs. The gist of those claims is that something happened which decreased productivity and thereby increased costs. That something can be just about anything.? Differing site conditions.?Unreasonable or conflicting instructions. A global pandemic.?Lost productivity claims seek to reallocate costs from the party who incurred them to the party who caused them or otherwise bears that risk under the contract. While identifying the cause of lost productivity can be relatively straightforward, quantifying its impact can be tricky and often requires expert testimony.?A Montana federal court recently addressed expert testimony requirements for quantifying a lost productivity claim in Exxon Mobil Corporation v. AECOM Energy, 2024 WL 5137523 (D. Montana, Dec. 17, 2024). Read more.
Navigating Recovery Allocation Provisions: Insights from National Union Fire Insurance v. RealPage
Well-established law requires that an insured be made whole before recoveries benefit an insurer.?When an insured’s losses exceed policy limits, any additional recovery made by the insured should inure to the benefit of the insured to offset losses above policy limits. Only after the insured is made whole is the insurer entitled to reimbursement. But what happens when an insurance company covers only a part of an insured’s losses, and the insured later recovers additional funds? Is the insurer entitled to reimbursement from the insured’s recovery of uncovered losses? Read more.
Untangling the Web: SDNY Looks at ADA Internet Accommodations
Wait — why is my favorite employment law blog detouring into the world of website accessibility? If your business has a website, keep reading.
If you read our blog regularly, you probably recall a few posts about website accessibility lawsuits and where the courts stand on whether a website is a “place of public accommodation.” These cases often land on an employment lawyer’s desk because they are brought under the Americans with Disabilities Act and employment lawyers regularly work with the ADA. Read more.
The Best of Intentions: State Law Protections for Employee Cannabis Use May Not Protect Them After All
While not enough blogs these days quote Toad the Wet Sprocket lyrics, a recent decision from a federal appellate court holding that a would-be employee can suffer negative employment consequences for cannabis use even when state law says exactly the opposite reminded me of this one. Read more.
CFPB Announces Final Rule Closing “Overdraft Loophole” Created by TILA?
On December 12, 2024, the Consumer Financial Protection Bureau (CFPB) announced its final rule, redefining overdraft fees as finance charges in order to limit overdraft fees. The final rule seeks to regulate how overdraft fees are charged and collected in an effort to save consumers money. The CFPB believes the new rule will save consumers $5 billion annually.?The final rule marks another step in the CFPB’s efforts to eliminate “junk fees,” though its ultimate impact on consumers remains uncertain.?Read more.
Drug Test Woes: State Law Protections for Employee Cannabis Use May Not Protect Them After All
The changing landscape of the cannabis industry is keeping employers on their toes nationwide. As more and more states expand the legalization of cannabis products, we are also seeing a trend in the cannabis statutes for protections of workers who use them. If cannabis is legal in your state and an employee tests positive for it, can you still terminate based on your drug-free workplace policy? A new decision out of the Third Circuit Court of Appeals, Zanetich v. Wal-Mart Stores East, et al., suggests that courts may not necessarily enforce worker protections in state statutes that do not expressly set out a remedy for the worker to seek in court.?Read more.
DOJ and CFPB Issue Joint Letter Reminding Financial Institutions of the SCRA Interest Rate Protections for Servicemembers
On December 5, 2024, the Department of Justice (DOJ) and the Consumer Financial Protection Bureau (CFPB) issued a joint letter directed at financial service providers to reinforce the importance of interest rate protections under the Servicemembers Civil Relief Act (SCRA). The letter underscores the necessity of compliance with these protections while offering practical guidance to ensure servicemembers benefit fully from the law. Read more.
Private Company Minority Investors Look Ahead: New Year’s Resolutions for Success in 2025 and Beyond
Investments in private companies should continue to flourish in 2025 in light of the revenue and EBITDA growth they delivered this year, and this rosy financial outlook is also confirmed by company leaders. According to a KPMG report in September, 90% of leaders they surveyed in U.S. private companies reported strong optimism about their future growth prospects. For investors, the private company sector remains attractive, but these are not risk-free opportunities. This post reviews three resolutions for investors to consider to limit their downside in pursuing private company investments in 2025. Read more.
250 Whistleblower Tips: DOJ Official Discusses New Programs with Incentives for Dropping a Dime on Corporate Crime
On December 6, 2024, Principal Associate Deputy Attorney General Marshall Miller provided an update on the Justice Department’s (DOJ) corporate criminal enforcement efforts during his keynote address at the Practicing Law Institute’s White Collar Crime 2024 Program. Among other topics, Miller addressed ongoing efforts to combat corporate crime using self-disclosure policies and whistleblower programs when he said, “We’ve given good actors more avenues to help us go after the bad guys – through innovative whistleblower programs and consistent, transparent, and predictable voluntary self-disclosure policies. And we’ve made clearer than ever before what we expect from companies cooperating with government investigations to accelerate investigations of wrongdoers.” Read more.
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Future of Fair Access to Banking: Will 2025 See Federal Action?
The start of the second Trump administration is fast approaching, and it raises prospects of a renewed push for federal-level fair access to banking requirements. The first Trump administration came close to enacting such a regulation in its last weeks, but the rule was halted by the Biden administration. The financial services industry should not be surprised if congressional leaders and the Trump administration restart efforts on this front next year. Read more.
Preparing for a Future ICE Storm??Steps Employers Can Take to Prepare for Expected Increase in Immigration Enforcement
With each new presidential administration, prognosticators attempt to forecast coming enforcement priorities. President-elect Donald Trump’s return to the White House is no exception, and theories abound regarding the manner and degree of changes his inauguration will bring. While such predictions vary in conviction, one anticipated change seems almost inevitable: a significant increase in the number of worksite investigations initiated by Immigration and Customs Enforcement (ICE). As the new administration prepares to take office, employers should expect a shift in immigration policy and enforcement tactics and prepare for the impact on employees and the company. Read more.
CBCA and ASBCA Issue 2024 Annual Reports
The?Civilian Board of Contract Appeals (CBCA)?recently published its?annual report, providing key statistics on cases filed at and adjudicated by the CBCA in Fiscal Year (FY) 2024.
Of note, the CBCA found in favor of the contractor, either in whole or in part, in 43% of its decisions on the merits in FY 2024. This is consistent with the board’s FY 2023 sustain rate, which was 45%, and represents a trend upward from FY 2022 where the board sustained only 21% of the appeals decided on the merits. The board for the last three FYs had consistently resolved between 40 to 50 cases on the merits.?Read more.
Cannabis & Trademarks: Protecting Your Stash
Trademark law protects businesses’?brand identities and helps prevent consumer confusion. The U.S. trademark system operates at both federal and state levels. Federal registration through the United States Patent and Trademark Office (USPTO) gives nationwide protection and the right to use the coveted ? symbol, along with crucial benefits such as constructive notice of ownership throughout the country and presumptive validity of the mark. Federal registration also enables trademark holders to enforce their rights in federal courts and can serve as a basis for securing trademark protection in foreign countries. Read more.
Mr. Musk Goes (Unhappily) to Delaware (Again): Takeaways From Musk’s Legal Saga for Private Company Owners
Delaware Chancellor Kathaleen McCormick held again last week that the pay package that Tesla’s board of directors awarded to Elon Musk in 2018 suffers from “fatal flaws,” and it was therefore rejected. This was the second time Judge McCormick reached this same result, and she issued her new ruling despite the fact that, after she tossed out Musk’s compensation plan back in January, the Tesla shareholders then voted overwhelmingly in June (by more than 70%) to approve the full stock award that the company’s board had granted to Musk. There is little doubt that Musk is a unique figure, and it is also significant that Tesla is a public company, but looking under the hood of the Musk/Tesla compensation battle provides some valuable lessons for non-public companies and their majority owners. Read more.
Community Banks and BSA/AML Compliance: The OCC’s Consent Order with Clear Fork Bank Proves Regulators Aren’t Only Focused on Large Financial Institutions
On October 10, 2024, the financial services community was stunned by the $3.1 billion settlement between the federal government and TD Bank over Bank Secrecy Act (BSA) and anti-money laundering (AML) violations. TD Bank’s criminal guilty plea to conspiracy to launder hundreds of millions of dollars in drug cartel cash overshadowed a contemporaneous enforcement action involving Clear Fork Bank, a community bank based in Albany, Texas. The October 8, 2024, Consent Order (AA-ENF-2024-82) between the Office of the Comptroller of the Currency (OCC) and Clear Fork Bank reminds the industry that community banks are equally subject to BSA/AML regulations and must maintain adequate financial crime compliance programs.?Read more.
Put Up or Shut Up: Court Grants Summary Judgment for Steel Sub in Price Escalation Clause Dispute
An Illinois federal court ruled in favor of steel subcontractor Nucor in its contract dispute with Direct Steel.?The project involved the construction of pre-engineering metal buildings for the Army Corps of Engineers.?The general contractor, Direct Steel, subcontracted with Nucor for the supply of steel materials.?The contract included a “Must Ship By Date” of May 29, 2021, that was not a delivery deadline but was for price protection only. Read more.
Goin’ Down South: How the Southeastern U.S. Became the Current Hotbed of Cannabis Activity
Part of the reason we started a Cannabis Industry team at a Southeastern-based law firm before any Southeastern state had adopted a marijuana program was because we had a hunch that the expansion of cannabis would eventually make its way to our neck of the woods. And we guess it was just kind of a slow day around the office.
It turns out that our hunch – which even we are modest enough to admit was pretty much obvious and inevitable – turned out to be true. In the last seven years, there has been an explosion of cannabis activity and controversy in the Southeast. Read more.
Sexual Harassment Is Serious Business: A Reminder from the OFCCP
Harassment prevention is still a top priority for federal agencies (which means it should be a priority for all employers). Last spring, we blogged about the EEOC’s guidance on this issue, and now the OFCCP has issued its own guidance, this time focusing on harassment in the construction industry. Read more.
O-H-N-O: Big Trouble in Little Columbus?
On November 7, 2023, Ohio approved an adult-use marijuana measure that allows individuals age 21 and older to grow marijuana and possess up to 2.5 ounces of marijuana in non-extract form and 15 grams of marijuana extract. A few days ago, the Ohio State House of Representatives recently chose Matt Huffman to be its next House Speaker. How are these things related, you ask? Read more.
Department of Homeland Security Updates UFLPA Entity List: 29 Chinese Companies Added to List for Ties to Use of Forced Labor
On November 22, 2024, the Department of Homeland Security (DHS) updated the Uyghur Forced Labor Prevention Act (UFLPA) Entity List to add 29 companies based out of the Peoples Republic of China bringing the total number of listed companies to 107. As we previously posted here and here, companies included on the UFLPA Entity List are effectively barred from importing goods into the United States. U.S. Customs will apply a “rebuttable presumption” that goods imported from listed entities are produced using forced labor in violation of U.S. law. Read more.
Federal Court Rules That Illegal Acts Are Legal Because They Are Illegal: Cannabis Law in a Nutshell
I would love to hear from our award-winning readers if they are aware of a scenario when doing something illegal is legal because it’s illegal.?
Another federal court in California ruled last week that the dormant Commerce Clause in the United States Constitution does not apply to federally illegal marijuana businesses.?Read more.
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