Pepper Hamilton LLP

Drilling Deeper: The Intersection of Producer Bankruptcies and Gathering Agreements

The issue of whether gathering agreements are subject to rejection in bankruptcy as executory contracts and whether certain provisions of those agreements run with the land and survive rejection will impact ongoing bankruptcy…more
| Bankruptcy, Commercial Law & Contracts, Energy & Utilities

New York Establishes a Super IC Misclassification-Plus Task Force

Yesterday, New York Governor Andrew Cuomo signed Executive Order No. 159 expanding the existing Joint Enforcement Task Force on Employee Misclassification into a Joint Enforcement Task Force on Worker Exploitation and Employee…more
| Construction Law, Elections & Politics, Labor & Employment Law, Transportation

Federal Claims Court Holds that Government’s Actual Knowledge of Contractor’s Delay and Acceleration Excuses Technical Non-Compliance with Time Limit for Providing Notice of Constructive Change

Nova Group/Tutor-Saliba v. United States, 125 Fed. Cl. 469 (Fed. Cl. Mar 16, 2016) - The United States Naval Facilities Engineering Command (the “Navy”) contracted with the joint venture of Nova Group and Tutor-Saliva (the…more
| Construction Law, Government Contracting, Military Law

Section 355 Guidance: More Clarity and New Tests on Device, Active Trade or Business and Distribution of Control

The recent guidance under section 355 is a significant attempt by the IRS to clarify in a formal way what it historically has been able to do on a case-by-case basis through the private letter ruling process…more
| Business Organizations, Commercial Law & Contracts, Securities Law, Taxation

Western District of Virginia Confronts Several Legal Issues That Frequently Impact Multi-Party Construction Disputes – Economic Loss, Damage to Other Property, Third Party Beneficiary Status, Warranties, Subrogation, and Third-Party Joinder

Allstate Insurance Company v. Structures Design/Build, LLC, 2016 U.S. Dist. LEXIS 34349 (WD VA March 17, 2016) - This construction dispute case arises from a failed pipe connector that caused water damage to a facility and…more
| Commercial Law & Contracts, Construction Law, Insurance, Real Estate - Commercial

Federal Circuit Finds That Use of a Contract Manufacturer Does Not Trigger the On-Sale Bar Provision

The court’s decision provides insight into which activities trigger the on-sale bar provision. On July 11, in The Medicines Co. v. Hospira, Inc., No. 14-1469 (Fed. Cir. July 11, 2016), the U.S. Court of Appeals for the…more
| Civil Procedure, Intellectual Property, Science, Computers, & Technology

Status Quo At The PTAB For Now: Supreme Court Makes No Changes to IPR Practice

Recently, the Supreme Court declined to make any changes to IPR procedure in its opinion in Cuozzo Speed Technologies, LLC v. Lee, 579 U.S. ___ (2016). Relying primarily on statutory language and concepts of agency rulemaking…more
| Administrative Law, Civil Procedure, Intellectual Property, Science, Computers, & Technology

Materiality Is the New Condition of Payment: The Implied False Certification Theory After Escobar

The Supreme Court has made it clear that, even at the pleadings stage, relators (or the government) must plead facts to support materiality with plausibility and particularity. For False Claims Act (FCA) defendants who were…more
| Civil Procedure, Government Contracting, Health

Supreme Court's Rejection Is Not the End of the Road for Madden v. Midland Funding

Regardless of whether or not Midland’s case is successful at the district court, there are a number of reasons why the Second Circuit’s Madden decision is not as disastrous as some have portrayed it to be. On June 27, the…more
| Civil Procedure, Communications & Media Law, Finance & Banking

OSHA Rulemaking Increases Reporting Obligations

Beginning in 2017, employers will be required to affirmatively submit to OSHA whatever injury/illness information and forms they were already required to compile…more
| Labor & Employment Law

The "Lien-Ability" of Field Change Directives Under Typical Construction Lien Laws?

Consider this scenario taken from an actual project dispute: The contractor has entered into an agreement with the owner for a project of any size. During the course of the project, the owner directs the contractor to perform…more
| Civil Remedies, Commercial Law & Contracts, Construction Law

Court of Federal Claims Rules Contracting Officer’s Failure to Exercise Independent Business Judgment Renders Partial Termination for Conveniencea an Abuse of Discretion and Breach, but Holds Subsequent Termination for Cause of Remainder of Contract to Be Appropriate

Securiforce Int’l America, LLC v. United States, 125 Fed. Cl. 749 (March 21, 2016) - Plaintiff Securiforce International America, LLC (“Securiforce”) was awarded a contract by the Defense Logistics Agency Energy (“DLA…more
| Civil Procedure, Commercial Law & Contracts, Construction Law, Military Law

June 2016 Independent Contractor Misclassification and Compliance News Update

The poster children of IC misclassification cases dominated the news in June: Uber, Lyft, GrubHub, FedEx, an exotic dance club, and a trucking transport company. It was not a good month for any of them, yet as we have…more
| Civil Procedure, Commercial Law & Contracts, Labor & Employment Law, Transportation

Federal Court in Maryland Denies Summary Judgment, Holding That Subcontract Provision Placing Responsibility for Property Damage on Subcontractor Would Likely Trump Prime Contract Waiver of Subrogation Incorporated by Reference

Turner Constr. Co. v. BFPE Int’l, Inc., No. JKB-15-368, 2016 U.S. Dist. LEXIS 39161 (D. Md. Mar. 25, 2016) - The University of Maryland Medical Center (“UMMC”) entered into a contract (the “Prime Contract”) with Turner…more
| Civil Procedure, Commercial Law & Contracts, Construction Law, Insurance

Status Quo at the PTAB for Now: Supreme Court Makes No Change to IPR; Judicial Review and Claim Construction Standard Remain the Same

The Supreme Court’s decision will not likely change much in the near term — especially in light of the fact that it made no express changes to PTO procedure for and regulations governing IPR. Last week, the U.S. Supreme…more
| Administrative Law, Civil Procedure, Intellectual Property, Science, Computers, & Technology
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