Nossaman LLP

Should You Participate in the IRS Offshore Voluntary Disclosure Program?

2014 marked a significant increase in the enforcement efforts by the IRS and Department of Justice against non-compliant U.S. taxpayers who failed to report their off-shore bank accounts and earnings.  Grand Jury proceedings…more

Criminal Prosecution, DOJ, Enforcement Actions, FBAR, IRS

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The American Board of Obstetrics and Gynecology Reverses Its Unlawful Ban on Treating Male Patients

In September of 2013, the American Board of Obstetrics and Gynecology adopted a policy of excluding obstetrician/gynecologists from eligibility for Board certification and recertification if they treated any male patients. The…more

Healthcare, OB-GYN, Patients, Specialty Healthcare

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California Needs to Spend $853 Billion for New Infrastructure

California is the most populous state in the Country; if it were a country it would have the world’s 8th largest economy. So it’s probably no surprise to hear that a new study has found California needs to spend $853 billion to…more

Critical Infrastructure Sectors, Infrastructure, Public-Private Partnerships, Revenue

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Impact to Calif. Employers From Hobby Lobby Ruling

On June 30, 2014, the U.S. Supreme Court handed down its decision in the Burwell v. Hobby Lobby case, holding that closely held corporations could refuse to provide contraceptive coverage mandated by U.S. Department of Health…more

Affordable Care Act, Burwell v Hobby Lobby, Contraceptive Coverage Mandate, Contraceptives, Employer Group Health Plans

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Notice-and-Comment is Not Required for Changes Made to Interpretive Rules

On March 9, 2015, Justice Sotomayor, writing on behalf of the majority, overturned the Paralyzed Veterans doctrine, which requires federal agencies to use a notice-and-comment process before making a significant revision to an…more

Administrative Procedure Act, Notice and Comment, Paralyzed Veterans Doctrine, Perez v Mortage Bankers Assoc, Rulemaking Process

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Contract Award for Riverside Extension of SR-91 Express Lanes

On May 8th, 2013, the Riverside County Transportation Commission (RCTC) approved a $632 million dollar design-build contract for the SR-91 Corridor Improvement Project. The design-builder is a joint venture between Atkinson…more

Construction Contracts, Highways, Joint Venture

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Best Practices for Public Building P3 Projects: What Works and What Doesn’t?

The Performance Based Building Coalition (PBBC) and the National Council for Public-Private Partnerships (NCPPP) together hosted the P3s for Public Buildings Summit in Miami on November 17 and 18, 2014. One of the panels…more

Canada, Construction Industry, P3s, Public Projects, Public-Private Partnerships

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Technology Companies: When a Product Complaint Arises, Will Your Insurance Cover the Claims?

- Sometimes, technology products contain flaws. - Purchasers may complain to the manufacturer about the flawed products, and some complaints become multi-million dollar liabilities. - After receiving such a claim,…more

Commercial Insurance Policies, Emerging Technology Companies, Errors and Omissions Policy, Manufacturers, Notice Requirements

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North Carolina Achieves Financial Close on State’s First Highway Public-Private Partnership

North Carolina, acting through the North Carolina Department of Transportation (NCDOT), reached a major milestone on May 20, 2015 when financial close was achieved on the I-77 Express Lanes Project – the first highway…more

Department of Transportation, DRAM, Highways, Infrastructure, Land Developers

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IRWA Professionals Keenly Interested in Design-Build Issues

Identifying and allocating the risks associated with right-of-way acquisition in design-build projects was a hot topic for the standing-room only crowd at last week’s annual Education Conference of the International Right of Way…more

Construction Industry, Design-Build, DOT, Eminent Domain, Highways

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Davis v. Electronic Arts: Another Right of Publicity Loss for Media Companies

On January 6, 2015, Electronic Arts, Inc. (“EA”), maker of Madden NFL video games, lost its appeal to dismiss claims by approximately 6,000 retired professional football players in Michael Davis, et. al v. Electronic Arts, Inc.,…more

Athletes, College Athletes, Davis v. Electronic Arts, Digital Media, Football

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Chromium 6: From the Code to the Courts… and Back Again

This past summer, with a little prodding from the Alameda County Superior Court in Natural Resources Defense Council, Inc. v. California Department of Health, the California Department of Public Health met the California…more

Chromium-6, Department of Health, Legislative Agendas, Water Resources Control Board

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Preferred Offeror Named on Marion County Consolidated Justice Center Project

City of Indianapolis Mayor Greg Ballard announced today that WMB Heartland Justice Partners was selected as the Preferred Offeror to design, build, finance, operate and maintain the new Marion County Consolidated Justice…more

Public Projects

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Lawsuit Filed Over State Water Board’s Temporary Modification of Water Quality Objectives

Consistent with Governor Brown’s Drought Proclamation and Executive Orders, the U.S. Bureau of Reclamation (USBR) and the California Department of Water Resources (DWR) sought and obtained a temporary modification of certain…more

Bureau of Reclamation, Central Valley, Delta Smelt, Department of the Interior, Department of Water Resources

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Electronic Health Records Donations: Proposed CMS And OIG Rules Revise Stark Exception And Anti-Kickback Safe Harbor

On April 10, 2013, the Centers for Medicare & Medicaid Services (‘‘CMS'') and the Office of the Inspector General of the Department of Health and Human Services (‘‘OIG'') published twin proposed rules that amend and extend the…more

Anti-Corruption, Anti-Kickback Statute, CMS, Electronic Medical Records, HHS

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EPA and USACE Issue Clean Water Rule

Last week, the U.S. Environmental Protection Agency ("EPA") and the U.S. Army Corps of Engineers ("USACE") released the final Clean Water Rule, which is intended to clarify regulatory confusion over which streams and wetlands…more

Clean Water Act, EPA, Federal Jurisdiction, Permits, US Army Corps of Engineers

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Looming Right of Way Certification Deadline Threatens Butte County Project

Right of Way Certification is a key project milestone; not only does it mean a project is ready for advertising but obtaining certification by a certain date is often a prerequisite for funding. Tying certification to dollars…more

Eminent Domain, Municipalities, Public Projects

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The "ABCs" Of California Booze Law

Do you want to be part of the booze business in California? Or do you already have a liquor license but are unclear on what you're allowed to do? We're here to help. Originally Published in Krost, Baumgarten, Kniss &…more

Liquor, Wine & Alcohol

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Insurers Pay to Avoid a Precedent Finding CGL Coverage for a Cyberbreach – the Zurich v. Sony Settlement

It was reported today that the widely-watched data breach case, Zurich American Ins. Co., et al  v. Sony Corp. of America (N.Y. Sup. Ct. Feb. 21, 2014), has been settled before the New York appellate court could issue an…more

Commercial General Liability Policies, Data Breach, Invasion of Privacy, Policy Exclusions, Sony

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Will We See A Trend For Direct Pension Fund Investment In US Greenfields Infrastructure?

Although historically the investment profile for pension funds has focused on established brownfields assets, the Canadian Pension Plan Investment Board (CPPIB) has recently invested $525 million AUD into the greenfields…more

Australia, Canada, Investment Funds, Pension Funds, Pensions

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Toll Road Use on the Rise

Drivers in the U.S. are seeing the benefits of toll roads, according to a new report published by the International Bridge, Tunnel and Turnpike Association (IBTTA). The 2015 Report on Tolling in the United States (June 30,…more

Federal Highway Administration, Infrastructure, Roads, Tolls, Transportation Corridor

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The American Board of Obstetrics and Gynecology Reverses Its Unlawful Ban on Treating Male Patients

In September of 2013, the American Board of Obstetrics and Gynecology adopted a policy of excluding obstetrician/gynecologists from eligibility for Board certification and recertification if they treated any male patients. The…more

Healthcare, OB-GYN, Patients, Specialty Healthcare

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Did You Know…Amendments to California’s Mandatory Paid Sick Leave Law Effective Immediately

Significant amendments to California’s new Paid Sick Leave Law, the Healthy Workplace, Healthy Families Act of 2014, went into effect immediately upon Governor Brown’s signature on July 13, 2015. The amendments include the…more

Compliance, Employee Benefits, Employment Policies, Healthy Workplaces Healthy Families Act 2014, Non-Exempt Employees

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VP Biden Calls for Greater Investment in Port Infrastructure

On November 12, during a keynote address at the annual convention of the American Association of Port Authorities in Houston, Vice President Biden issued a call to action for greater investment in U.S. port facilities…more

Infrastructure, Joe Biden, P3s, Ports, Public-Private Partnerships

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The Texas Department of Transportation and Lane-Abrams Joint Venture Reach Agreement on the State Highway 360 Project

On May 15, 2015, the Texas Department of Transportation (TxDOT) and Lane-Abrams Joint Venture (DB Contractor) entered into a design-build contract (DBA) and associated comprehensive maintenance agreement (COMA) for the…more

Construction Contracts, Construction Industry, Design-Build, Highways, Infrastructure

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Agencies Cannot Make Conditional Final Offers of Just Compensation in Condemnation Actions

In California eminent domain cases, a property or business owner is entitled to recover litigation expenses (attorneys' fees and expert costs) when the public agency's final offer of compensation is unreasonable and the property…more

Appeals, Business Ownership, Eminent Domain, Litigation Fees & Costs, Offers

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New 2015 Fundraising Restrictions on California Lobbyists and Limits on California Lobbying Firms

Lobbyists subject to new fundraising restrictions in 2015 - Effective January 1, 2015 lobbyists and their cohabitants are prohibited from hosting fundraising events for candidates and elected officials (for which the…more

Amended Regulation, Campaign Contributions, Fundraisers, Lobbyists, Political Campaigns

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Another Reason to Review Government Vendor Agreements: Government Agencies Can Be Held Liable for Patent Infringement Claims

Two recent court decisions serve as reminders of government liability for patent infringement claims: IRIS Corp. v. Japan Airlines Corp., Case No. 10-1051 (Fed. Cir., Oct. 21, 2014) (Prost, J.) and SecurityPoint Holdings, Inc…more

Federal Contractors, Governmental Liability, Japan Airlines, Patent Infringement, Patent Litigation

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Court of Appeal Strikes Down 2011 S.F. Charter Requirement that SFERS Be "Fully Funded" Before Vested Supplemental COLAs May be Granted

In a March 27, 2015 opinion, the First District Court of Appeal unanimously declared a voter-approved amendment to the Charter of the City and County of San Francisco (City) to be unconstitutional as applied to current City…more

Appeals, City Charters, COLA, Public Employees, Retirement

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Redevelopment By Any Other Name Would Still Be Redevelopment…

It appears the state assembly is trying to get California back on the redevelopment wagon…again. (For a brief history lesson on redevelopment, see below.) Assembly Bill 2 (AB2), which passed the assembly earlier this month,…more

Pending Legislation, Redevelopment

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The Secret Is Out: The Documentary Transfer Tax Will Now Be Part of Public Record

The Documentary Transfer Tax Act allows each county and city to impose a tax on each deed, instrument, or writing by which any real estate is sold within the county at the time the document is recorded. Assembly Bill No. 1888…more

Documentary Stamp Tax, Public Records, Real Estate Transfers, Realty Transfer Taxes

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Did Koontz Stop Illegal Development Exactions?

Much was written by law school professors and property rights groups following the U.S. Supreme Court's 5-4 decision in Koontz v. St. John's River Water Management District (2013), which found that land-use permit requirements…more

Eminent Domain, Koontz v St John's River Water Management, Land-Use Permits, SCOTUS, Takings

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Limited Liability Companies Forced into Compliance

California limited liability companies and foreign limited liability companies (LLCs) registered in California must file a Statement of Information with the California Secretary of State within 90 days after the articles of…more

LLC, Notice Requirements, Statement of Information

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A Closer Look At T-Mobile V. Roswell

On Jan. 14, the U.S. Supreme Court issued its long-awaited decision in T-Mobile South LLC v. City of Roswell, holding that the city violated the "in writing" requirement of the Federal Telecommunications Act of 1996, 47 U.S.C. §…more

Cell Towers, Municipalities, Operational Permits, SCOTUS, Substantial Evidence Standard

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Co-Tenancy Breaches And Remedies: What's Next For Landlords And Tenants After Grand Prospect Partners

Last month, the California Fifth Appellate Court issued a ruling concerning the enforceability of co-tenancy provisions in commercial leases. Grand Prospect Partners, L.P. v. Ross Dress for Less, Inc., et al…more

Commercial Bankruptcy, Commercial Leases, Cotenancy Provisions, Discount Retailers, Mervyns

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Should California Eliminate USPAP as its Sole Standard of Valuation Practice for Real Estate Appraisers?

Six weeks ago, I wrote about California Assembly Bill 624 and the Appraisal Institute’s effort to change California law that presently requires all licensed appraisers to comply with the Uniform Standards of Professional…more

Appraisal, Ethics, FIRREA, Pending Legislation, USPAP

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Did You Know…PAGA Waivers Unenforceable in California Courts

The United States Supreme Court recently declined to review the California Supreme Court’s decision in Iskanian v. CLS Transportation Los Angeles, LLC. In Iskanian, the California Supreme Court held that the Federal Arbitration…more

AT&T Mobility v Concepcion, Class Action, Class Action Arbitration Waivers, Federal Arbitration Act, Iskanian

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A Good Health Plan or an Uzi?

It was open enrollment for health benefits at Nossaman last week, and the conference room was filled with employees waiting to be briefed. Having spent the better part of the last few years of my professional life being…more

Essential Health Benefits, Healthcare

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House Transportation & Infrastructure Committee's Panel on Public-Private Partnerships Release Recommendations

On September 17, the House Transportation & Infrastructure Committee’s Panel on Public-Private Partnerships (P3s) released its report and recommendations. The group, empaneled in February of this year, was tasked with examining…more

Infrastructure, Jurisdiction, P3s, Public-Private Partnerships

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Financing and an Extended Lease Term Now Required For Enforceable Lease-Leasebacks in California

On June 1, 2015, a California Court of Appeal held that in order for a lease-leaseback arrangement to be enforceable, the lease must be “genuine”, containing both a financing component and a lease term that extends beyond the…more

Appeals, Commercial Leases, Construction Project, Contractors, Financing

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Developer Selected to Build U.S.’s Longest Cable Stayed Bridge in Corpus Christi, Texas

The Texas Transportation Commission has conditionally awarded a comprehensive development agreement to Flatiron/Dragados for the longest cable stayed bridge in the United States. The new Corpus Christi Harbor Bridge will allow…more

Bridges, Department of Transportation, Land Developers, Public Projects, Texas

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California Public Utilities Commission Proceeding Updates Affecting the California Biogas Industry

Two pending proceedings at the California Public Utilities Commission ("CPUC") will substantially influence market opportunities for instate biogas producers. The CPUC initiated a rulemaking last week to address a number of…more

Biofuel, CPUC, Renewable Energy

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Bankruptcy Court Decides That The Bankruptcy Code Preempts California State Pension Laws

In a February 4, 2015 opinion, the bankruptcy judge presiding over Stockton, California's Chapter 9 municipal bankruptcy case approved Stockton's bankruptcy plan of adjustment. In re City of Stockton, 2015 Bankr. LEXIS…more

Bankruptcy Court, CalPERS, Chapter 9, City of Stockton, Municipalities

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Notice-and-Comment is Not Required for Changes Made to Interpretive Rules

On March 9, 2015, Justice Sotomayor, writing on behalf of the majority, overturned the Paralyzed Veterans doctrine, which requires federal agencies to use a notice-and-comment process before making a significant revision to an…more

Administrative Procedure Act, Notice and Comment, Paralyzed Veterans Doctrine, Perez v Mortage Bankers Assoc, Rulemaking Process

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New Non-profit Donor Disclosure Takes Effect July 1, 2014 for California Elections

On May 14, 2014, Governor Jerry Brown signed Senate Bill 27 (S.B. 27), increasing the disclosure requirements that non-profit "multipurpose" organizations are subject to when engaging in California elections. This legislative…more

Charitable Donations, Charitable Organizations, Citizens United, Donor Lists, Non-Profits

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Presidio Parkway Opens in San Francisco

The long-awaited Presidio Parkway opened for the first time to Bay Area motorists on July 12th, ahead of schedule and to local and national praises. The $1.1 billion Presidio Parkway replaces Doyle Drive – an outdated and…more

Construction Contracts, DOT, Infrastructure, P3s, Project Finance

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Service Begins on Houston METRO Green and Purple Lines

Houston residents enjoyed free rides on Saturday, May 23, 2015 as part of the Metropolitan Transit Authority of Harris County (METRO’s) opening of the Green (East End) and Purple (Southeast) light rail lines. The two new lines…more

Infrastructure, Railways, Transit Authority

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Changes To California Pregnancy Disability Regulations To Take Effect By Year End

Amendments to California’s pregnancy disability regulations proposed by the California Fair Employment and Housing Commission have been formally approved by the Office of Administrative Law. The amendments, which go into effect…more

Medical Leave, Pregnancy Disability Leave Law

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FHWA's Expanded Application of Buy America to Utility Relocations Causes Consternation, Delays

As we have previously reported, the Federal Highway Administration (FHWA) has issued guidance holding that "Buy America applies to any utility work that is accomplished as a result of a Federal-aid highway project", unless the…more

Buy American Act, Delays, Federal Highway Administration, NEPA, Utilities Sector

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Court of Appeal Strikes Down 2011 S.F. Charter Requirement that SFERS Be "Fully Funded" Before Vested Supplemental COLAs May be Granted

In a March 27, 2015 opinion, the First District Court of Appeal unanimously declared a voter-approved amendment to the Charter of the City and County of San Francisco (City) to be unconstitutional as applied to current City…more

Appeals, City Charters, COLA, Public Employees, Retirement

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Arizona Department of Transportation Shortlists Three Teams for the South Mountain Freeway P3 Project

The Arizona Department of Transportation (“ADOT”) announced today it has shortlisted three developer teams vying for the $1.9 billion design-build-maintain contract for the Loop 202 South Mountain Freeway Project. The three…more

Construction Industry, Design-Build, Highways, Infrastructure

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What Every California LCC Needs To Know About California's New Revised Uniform Limited Liability Company Act

New changes to California's limited liability company law affect many of the rules governing operation of limited liability companies ("LLCs"). These changes include the default provisions that automatically apply when the…more

Business Formation, Fiduciary Duty, Indemnification, LLC, RULLCA

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The U.S. Supreme Court Invalidates EPA's Power Plant Mercury Emissions Regulation

On June 29, 2015, the U.S. Supreme Court in Michigan v. Environmental Protection Agency invalidated the U.S. Environmental Protection Agency's Mercury and Toxic Air Standards (MATS) regulation by a 5 to 4 vote, finding that EPA…more

Chevron Deference, Chevron v NRDC, Clean Air Act, EPA, MATS

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An Insurer Is Bound By a Default Judgment Resulting From Its Failure to Defend

An insurance company must defend its insured if there is a mere potential that the lawsuit against the insured is covered, and there are serious consequences when an insurer refuses to do so. In California, if a default…more

Default Judgment, Duty to Defend, Insurers

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University of California Issues Draft RFP for UC Merced 2020 Project

The Regents of the University of California, on behalf of the University of California, Merced, issued a draft Request for Proposals (RFP) for the UC Merced 2020 Project on May 7, 2015. The draft RFP was provided to the three…more

Construction Industry, Educational Institutions, Real Estate Development, Request for Proposals, UC Merced

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The Secret Is Out: The Documentary Transfer Tax Will Now Be Part of Public Record

The Documentary Transfer Tax Act allows each county and city to impose a tax on each deed, instrument, or writing by which any real estate is sold within the county at the time the document is recorded. Assembly Bill No. 1888…more

Documentary Stamp Tax, Public Records, Real Estate Transfers, Realty Transfer Taxes

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Co-Tenancy Breaches And Remedies: What's Next For Landlords And Tenants After Grand Prospect Partners

Last month, the California Fifth Appellate Court issued a ruling concerning the enforceability of co-tenancy provisions in commercial leases. Grand Prospect Partners, L.P. v. Ross Dress for Less, Inc., et al…more

Commercial Bankruptcy, Commercial Leases, Cotenancy Provisions, Discount Retailers, Mervyns

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Agencies Cannot Make Conditional Final Offers of Just Compensation in Condemnation Actions

In California eminent domain cases, a property or business owner is entitled to recover litigation expenses (attorneys' fees and expert costs) when the public agency's final offer of compensation is unreasonable and the property…more

Appeals, Business Ownership, Eminent Domain, Litigation Fees & Costs, Offers

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Guidance for Managing NEPA-Related Risks and Other Risks in Project Delivery - National Cooperative Highway Research Program (NCHRP)

In This Issue: - AUTHOR'S ACKNOWLEDGMENTS - GUIDANCE FOR MANAGING LEGAL RISKS IN THE NEPA PROCESS ..Early Identification and Assessment of Legal Risks ..Methods for Managing Legal Risks ..Legal Risk…more

Department of Transportation, Environmental Review, Federal Highway Administration, Highways, NEPA

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Chromium 6: From the Code to the Courts… and Back Again

This past summer, with a little prodding from the Alameda County Superior Court in Natural Resources Defense Council, Inc. v. California Department of Health, the California Department of Public Health met the California…more

Chromium-6, Department of Health, Legislative Agendas, Water Resources Control Board

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Cannot Say Enough – Customs' Enforcement Efforts – Antidumping And Countervailing Duty Laws

In September 2011 we published an article entitled Enforcement of Antidumping and Countervailing Duties – Know the Products You Import…more

Antidumping Duties, Commodities, Countervailing Duties, Customs and Border Protection, False Claims Act

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University of California Issues Draft RFP for UC Merced 2020 Project

The Regents of the University of California, on behalf of the University of California, Merced, issued a draft Request for Proposals (RFP) for the UC Merced 2020 Project on May 7, 2015. The draft RFP was provided to the three…more

Construction Industry, Educational Institutions, Real Estate Development, Request for Proposals, UC Merced

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Guidance for Managing NEPA-Related Risks and Other Risks in Project Delivery - National Cooperative Highway Research Program (NCHRP)

In This Issue: - AUTHOR'S ACKNOWLEDGMENTS - GUIDANCE FOR MANAGING LEGAL RISKS IN THE NEPA PROCESS ..Early Identification and Assessment of Legal Risks ..Methods for Managing Legal Risks ..Legal Risk…more

Department of Transportation, Environmental Review, Federal Highway Administration, Highways, NEPA

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Did You Know…Court Confirms Employees on Medical Leave Must Still Comply With Existing Company Policies

In Richey v. Autonation, Inc., Case No. S207536 (January 29, 2015), the California Supreme Court confirmed that an employee who is on medical leave does not have a greater right to reinstatement or to other benefits and…more

Arbitration, Automotive Industry, CA Supreme Court, Car Dealerships, CFRA

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Remember Bonds on Preliminary Injunctions

Intellectual property litigation, particularly litigation involving trade secrets and Lanham Act claims for trademark and false designation of origin, often if not usually involves seeking a preliminary injunction. As a general…more

Injunction Bonds, Lanham Act, Preliminary Injunctions, Trademark Litigation

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Planning for Breach Notification Requirements in Your Customer Contracts

At the San Francisco “Exchange” Data Privacy and Cyber Security Forum on April 26, a spirited debate arose whether a federal breach notification law will/should be enacted to bring uniformity to the patchwork of breach…more

Best Practices, Cybersecurity, Data Breach, DOJ, Federal Breach Notification Standard

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New 2015 Fundraising Restrictions on California Lobbyists and Limits on California Lobbying Firms

Lobbyists subject to new fundraising restrictions in 2015 - Effective January 1, 2015 lobbyists and their cohabitants are prohibited from hosting fundraising events for candidates and elected officials (for which the…more

Amended Regulation, Campaign Contributions, Fundraisers, Lobbyists, Political Campaigns

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Finding Win-Win Outcomes For Conservation And Utilization

The Magnuson-Stevens Fishery Conservation and Management Act, or MSA, governs marine fisheries management in federal waters of the United States. The statute's purpose is to conserve and manage fisheries resources to rebuild…more

Conservation, Environmental Policies, National Marine Fisheries Service, Waters of the United States

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New DOT Rules Close Unintended Gap Regarding ADA Obligation To Modify Operating Practices

The U.S. Department of Transportation ("DOT") has issued new rules effective July 13, 2015 requiring transportation entities to modify their operating practices in certain circumstances to accommodate disabled passengers…more

ADA, Department of Transportation, Disability, DOT, Duty to Accommodate

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Hexavalent Chromium: Is the Maximum Contaminant Level a Done Deal?

The California Department of Public Health Submits Its Final Regulation Package on Hexavalent Chromium: Is the Maximum Contaminant Level a Done Deal?…more

Chromium-6, Contamination, Department of Health, Health Safety, Natural Resources Defense Council

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The Inevitable Cyber Break In: Are You Protected?

The prevalence of cyber data breach over the years has not only grown in number, but has also grown in size. Perhaps the most well-known example of a large-scale data breach is that suffered by Target Corp. occurring at the end…more

Cyber Attacks, Cyber Insurance, Cybersecurity, Data Breach, Data Protection

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New Developments on Interplay between Whistleblower Actions and Other Attacks on Hospital Discipline

Hospitals and their medical staffs may consider it time to dust off their bylaws, in consideration of a recent legal development in a peer review proceeding. Last year, the California Supreme Court held that Mark T. Fahlen,…more

CA Supreme Court, Eisenhower Medical, Health and Safety, Healthcare, Hiring & Firing

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U.S. Fish & Wildlife Service: Polar Bear Unlikely to Survive a Warming Climate

On July 6, 2015, the U.S. Fish & Wildlife Service (Service) published a Draft Polar Bear (Ursus maritimus) Conservation Management Plan (Polar Bear Plan). The Polar Bear Plan identifies the continuing loss of sea-ice habitat as…more

Compliance, Endangered Species, Endangered Species Act, Fish and Wildlife Service, Global Warming

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Ninth Circuit Holds Critical Habitat Designations Not Subject to Cost-Benefit Analysis

In Building Industry Association of the Bay Area v. U.S. Department of Commerce, a decision with significant implications for property owners, the building industry, and the development community at large, the U.S. Court of…more

Administrative Procedure Act, Conservation, Construction Industry, Critical Habitat, Land Developers

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Did You Know…The Guiding Light on Employer Handbooks — Sort of

Most employers already know they cannot forbid employees from criticizing management, workplace conditions, or discussing salaries in person or on the Internet.  Employers cannot forbid employees from posting comments — both…more

Employee Handbooks, Employment Policies, NLRA, NLRB, Section 7

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Recent Surface Transportation Board Preemption Decisions of Note

In the last several months, the Surface Transportation Board (STB or Board) has issued a number of decisions further defining the scope of federal preemption. As the primary agency tasked with the economic regulation of the…more

CEQA, EPA, High-Speed Rail, Preemption, Railroads

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Seventh Circuit Restricts the Reach of U.S. Antitrust Laws on Foreign Component Manufacturers

Background-Seventh Circuit Issues Important Decision for Foreign Manufacturers - In a precedent-setting antitrust decision, a federal appellate court handed a significant victory to Nossaman client AU Optronics in its…more

Antitrust Litigation, Antitrust Provisions, Foreign Corporations, Manufacturers

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Sea Level Rise Guidance For Agencies, Cities

In 2008, former Gov. Arnold Schwarzenegger signed an executive order calling for the development of a statewide strategy and ordered state agencies to plan for sea level rise impacts. And Oct. 14, following Gov. Jerry Brown's…more

Coastal Real Estate, Sea Levels, State and Local Government

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New California Privacy Law AB 1710: Data Security Requirements Just Got Broader

California has been a pioneer in enacting legislation designed to protect privacy. AB 1710, which was signed into law on September 30, 2014 by Governor Brown, is the latest example. It extends liability to businesses that…more

Breach Notification Rule, Data Breach, Data Protection

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Lessons On Peer Review For Calif. Hospitals And Physicians

On June 6, 2013, the California Supreme Court ruled unanimously in El-Attar v. Hollywood Presbyterian Medical Center that the delegation of a peer-review matter to the hospital's governing board did not violate a physician's…more

Board of Directors, Corporate Governance, Due Process, Healthcare Professionals, Hospitals

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CalPERS’ Commitment to Infrastructure (Real Assets Annual Program Review, November 2014)

On November 17, 2014, the California Public Employees’ Retirement System (CalPERS), the largest U.S. public pension fund with approximately $300 billion in assets, conducted its annual real assets program review. CalPERS’ real…more

CalPERS, Infrastructure, Pensions, Tangible Property

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California High-Speed Rail Authority Announces Apparent Best Value Proposer

The California High-Speed Rail Authority recently announced that a joint venture composed of Tutor Perini, Zachry Construction and Parsons has provided the apparent best value proposal for the initial design-build construction…more

High-Speed Rail, Valuation

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Chairmen of U.S. Congressional Environmental Committees Criticize EPA’s Failure to Consult Regarding the Potential Impacts of Proposed Clean Power Plan

On June 15, 2015, Senator James Inhofe (R-Okla.), Chairman of the U.S. Senate Committee on Environment and Public Works, and Congressman Rob Bishop (R-Utah), Chairman of the U.S. House Committee on Natural Resources, sent a…more

Carbon Emissions, Clean Power Plan, Climate Change, Coal-Fired Plants, Critical Habitat

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Service Begins on Houston METRO Green and Purple Lines

Houston residents enjoyed free rides on Saturday, May 23, 2015 as part of the Metropolitan Transit Authority of Harris County (METRO’s) opening of the Green (East End) and Purple (Southeast) light rail lines. The two new lines…more

Infrastructure, Railways, Transit Authority

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Expanding Your View of Takings Law

As an eminent domain attorney, when I think about a “takings” claim, I always think about a claim involving someone’s real property. Has the government trespassed onto private property, has it imposed regulations that deny the…more

Agricultural Marketing Agreement Act of 1937, Crops, Eminent Domain, Fair Market Value, Farms

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District Court Declines to Provide Injunctive Relief for Emergency Drought Salinity Barrier in the California Bay-Delta

On June 18, 2015, the U.S. District Court for the Eastern District of California denied a motion for a temporary restraining order and preliminary injunction, finding the plaintiff failed to establish that an emergency salinity…more

Delta Smelt, Department of Water Resources, Drought, Endangered Species Act, ESA

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EPA Presents WIFIA Listening Sessions in Los Angeles

The Environmental Protection Agency (EPA) is currently holding a roadshow of listening sessions across the US to provide information on the Water Infrastructure Finance and Innovation Act (WIFIA) and its proposed five-year pilot…more

Environmental Policies, EPA, Infrastructure, Water, Water Supplies

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Liable for not Learning from Target Data Breach?

Has the standard of care for retailers handling consumer data shifted in the last 9 months? As analysts compare the recent Home Depot data breach to the data breach of the credit card processing system at Target last December,…more

Cybersecurity, Data Breach, Data Protection, Hackers, Home Depot

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Court of Appeal Says Communications on Personal Communicating Devices are Exempt from Disclosure under Public Records Act

Reversing a Superior Court ruling that had caused quite a splash a few months ago, in City of San Jose v. Superior Court (H039498, March 27, 2014), the Sixth District of the Court of Appeal has held that communications to and…more

Disclosure Requirements, Electronic Devices, Exemptions, Mobile Devices, Public Records Act

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Financing and an Extended Lease Term Now Required For Enforceable Lease-Leasebacks in California

On June 1, 2015, a California Court of Appeal held that in order for a lease-leaseback arrangement to be enforceable, the lease must be “genuine”, containing both a financing component and a lease term that extends beyond the…more

Appeals, Commercial Leases, Construction Project, Contractors, Financing

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ESA Roundup – Legislation, Listings, and Litigation

Whether dealing with water or with endangered species directly, there have been a numbers of recent developments that are worth keeping on your radar.  July 16, 2015 – The House of Representative, in a largely partisan…more

Bureau of Reclamation, Central Valley, Distinct Population Segment, Drought, Endangered Species

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The Texas Department of Transportation Shortlists Three Development Teams for the Grand Parkway Segments H, I-1 and I-2 Project

On July 31, 2014, the Texas Department of Transportation (TxDOT) issued a Request for Qualifications (RFQ) soliciting qualifications from teams interested in entering into a design-build contract and a comprehensive maintenance…more

Construction Contracts, Construction Industry, Design-Build, Highways, Public Projects

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U.S. Supreme Court Holds in Favor of Cell Tower Siting Applicants

On January 14, the U.S. Supreme Court in T-Mobile South, LLC v. City of Roswell, held that the City of Roswell ("City") violated the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(B)(iii) (the "Telecommunications Act"),…more

Cell Phones, Municipalities, Operational Permits, Permits, SCOTUS

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North Carolina Achieves Financial Close on State’s First Highway Public-Private Partnership

North Carolina, acting through the North Carolina Department of Transportation (NCDOT), reached a major milestone on May 20, 2015 when financial close was achieved on the I-77 Express Lanes Project – the first highway…more

Department of Transportation, DRAM, Highways, Infrastructure, Land Developers

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Federal Transit Administration Proposes New State Safety Oversight Rule

On February 27, 2015, the Federal Transit Administration ("FTA") published a Notice of Proposed Rulemaking ("NPRM") in the Federal Register requesting comment on a proposed rule that the FTA believes would strengthen State…more

Comment Period, DOT, Federal Transit Administration, MAP-21, NPRM

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Did You Know…SCOTUS Saves the Affordable Care Act (Again)

The U.S. Supreme Court handed down its much-anticipated King v. Burwell decision on June 25, and (again) gave the Obama administration a huge victory by safeguarding its signature legislation, the Affordable Care Act…more

Affordable Care Act, Chevron Deference, Health Insurance, Health Insurance Exchanges, Individual Mandate

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Nossaman’s Eminent Domain Practice Group Attending the Transportation Research Board’s 94th Annual Meeting In Washington D.C.

The Transportation Research Board’s 94th Annual Meeting is well under way in Washington D.C. (January 11-15, 2015).  The meeting, which has attracted over 12,000 attendees and 300 exhibitors this year, provides an opportunity…more

Eminent Domain, Infrastructure, Professional Conferences, Surface Transportation

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What is Your Privacy Worth?

$29 per month, according to AT&T. The telecommunications giant launched its high-speed internet service, GigaPower, in Cupertino, California this week.  GigaPower boasts network speeds so fast that users can “download 25…more

AT&T, Data Mining, GigaPower, Online Advertisements, Telecommunications

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New DOT Rules Close Unintended Gap Regarding ADA Obligation To Modify Operating Practices

The U.S. Department of Transportation ("DOT") has issued new rules effective July 13, 2015 requiring transportation entities to modify their operating practices in certain circumstances to accommodate disabled passengers…more

ADA, Department of Transportation, Disability, DOT, Duty to Accommodate

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Historic Calif. Groundwater Bills are Dry on Specifics

On Aug. 29, 2014, the California Legislature cast the final votes necessary to move three companion groundwater management bills to Gov. Jerry Brown's desk. If signed by Gov. Brown, the bills will establish the Sustainable…more

Drought, Groundwater, Water, Water Resources Control Board

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Procurement Issues: One-on-One Meeting Procedures

Experience with innovative procurements indicates that holding one-on-one meetings with proposers is beneficial whenever selection is based on a “best value” evaluation of competitive proposals—whether the procurement…more

Client Meetings, Department of Transportation, FAR, Federal Acquisition Regulations, Federal Procurement Systems

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Cities and State Legislature Organizations come together in Washington to Tout P3s during Infrastructure Week, 2015

As part of Infrastructure Week, 2015, several interested organizations banded together for an afternoon meeting on Monday, May 11, that focused on public-private partnerships as a way out of the infrastructure crunch. Projects,…more

Critical Infrastructure Sectors, Infrastructure, P3s, Public Projects, Public-Private Partnerships

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Getting Healthy Together

Originally Published in The Recorder, September 4, 2012. A whole lotta conjunctions goin' on with California health care system players, an exceptional surge of large acquisitions and consolidations, some with surprising…more

ACOs, Affordable Care Act, Healthcare, HMOs, Hospitals

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EPA and USACE Issue Clean Water Rule

Last week, the U.S. Environmental Protection Agency ("EPA") and the U.S. Army Corps of Engineers ("USACE") released the final Clean Water Rule, which is intended to clarify regulatory confusion over which streams and wetlands…more

Clean Water Act, EPA, Federal Jurisdiction, Permits, US Army Corps of Engineers

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Governments Eager to Help Market for Cyber Insurance Develop

Have you heard about cyber insurance? It is predicted to be the next big thing in insurance coverage. In the aftermath of the Home Depot and Target data breaches, it’s easy to see why companies doing business over the internet…more

Cyber Insurance, Cybersecurity, Data Protection, Home Depot, Popular

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Notice-and-Comment is Not Required for Changes Made to Interpretive Rules

On March 9, 2015, Justice Sotomayor, writing on behalf of the majority, overturned the Paralyzed Veterans doctrine, which requires federal agencies to use a notice-and-comment process before making a significant revision to an…more

Administrative Procedure Act, Notice and Comment, Paralyzed Veterans Doctrine, Perez v Mortage Bankers Assoc, Rulemaking Process

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Don’t Overlook the Potential Value Added By Green Buildings

It is increasingly important for buildings to be energy efficient. So-called “green buildings” can not only lead to more efficient energy use, but can also result in significant cost savings over time. Indeed, green buildings…more

Commercial Property Owners, Commercial Real Estate Market, Commercial Tenants, Construction Industry, Energy Efficiency

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Ninth Circuit Critical Habitat Decision Casts Shadow On Habitat Conservation Plan “No Surprises” Assurances

In a decision that casts a shadow on the enforceability of contractual assurances in habitat conservation plan (“HCP”) agreements, the U.S. Court of Appeals for the Ninth Circuit rejected various Endangered Species Act (“ESA”)…more

Endangered Species Act, Fish and Wildlife Service, Habitat Conservation Plan, NEPA

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Court of Appeal Strikes Down 2011 S.F. Charter Requirement that SFERS Be "Fully Funded" Before Vested Supplemental COLAs May be Granted

In a March 27, 2015 opinion, the First District Court of Appeal unanimously declared a voter-approved amendment to the Charter of the City and County of San Francisco (City) to be unconstitutional as applied to current City…more

Appeals, City Charters, COLA, Public Employees, Retirement

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Insurers Pay to Avoid a Precedent Finding CGL Coverage for a Cyberbreach – the Zurich v. Sony Settlement

It was reported today that the widely-watched data breach case, Zurich American Ins. Co., et al  v. Sony Corp. of America (N.Y. Sup. Ct. Feb. 21, 2014), has been settled before the New York appellate court could issue an…more

Commercial General Liability Policies, Data Breach, Invasion of Privacy, Policy Exclusions, Sony

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Wolves, Salamanders, and Snakes – Oh My!

On July 1, 2015, the U.S. Fish and Wildlife Service (Service) published notice of its 90-day findings on petitions to list 31 species under the Endangered Species Act (ESA). Of these 31 species, all of which occur in the United…more

Center for Biological Diversity, Endangered Species, Endangered Species Act, Fish and Wildlife Service

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Orange County Transportation Authority Issues Request for Qualifications for the I-405 Improvement Project

On October 27, 2014, the Orange County Transportation Authority (OCTA) issued a Request for Qualifications (RFQ) soliciting statements of qualifications (SOQs) from qualified firms interested in submitting proposals for the…more

Construction Industry, Construction Project, Design-Build, Highways, Infrastructure

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CEQA Reform – Legislature Balks In 2012: What is the Starting Point for Working Group Discussions and 2013 Legislation?

In recognition of the complexity and political rancor surrounding CEQA reform, Governor Jerry Brown quipped this week that CEQA reform was "the Lord's work." Concurrent with his comments, major CEQA reforms were being debuted…more

CEQA, CEQA Reform, Environmental Impact Report, SB 317

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Governor Brown Nominates Two for Fish and Game Commission

Governor Brown has announced the nomination of Eric Sklar and Anthony Williams to serve on the California Fish and Game Commission (Commission). The five-member Commission is established under article IV, section 20 of the…more

Department of Fish & Game, Endangered Species Act, Jerry Brown, Nominations

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Appellate Court Upholds Santa Maria Groundwater Judgment & Physical Solution

On November 21, 2012, the California Court of Appeal (Sixth District) handed down its lengthy and long-awaited ruling in the Santa Maria groundwater litigation, which commenced in 1997. Although it reverses the Judgment on one…more

Groundwater, Physical Solutions, Water Overdraft

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U.S. Fish and Wildlife Service to Survey Habitat Conservation Banks

On July 24, 2015, the U.S. Fish and Wildlife Service (Service) published a notice seeking authorization from the Office of Management and Budget to evaluate habitat conservation banks established under the Endangered Species Act…more

Critical Habitat, Department of the Interior, ESA, Fish and Wildlife Service, Habitat Conservation Plan

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Strategies For Businesses Protecting Electronic Data Within California: Part Three

In Parts One and Two of this e-alert series, we discussed the federal Computer Fraud And Abuse Act ("CFAA") and its California corollary the California Computer Data Access And Fraud Act (CDAFA). In Part Three, we provide a…more

Data Breach, Electronically Stored Information, Risk Mitigation, Stored Communications Act

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DBIA seeks industry comment on revised Design-Build Best Practices

As long time participants in the alternative delivery sector know, the Design-Build Institute of America has from its earliest days sought to set forth guiding principles that would be universally applicable across all…more

Design-Bid-Build

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