MG+M Boston Attorneys Eric Skelly and Christos Koutrobis successfully obtained dismissals for two clients in James T. Casey, Jr. v. Apax Partners et al., 1:18-cv-11211-DJC, a case that was pending at the U.S. District Court for the District of Massachusetts. On behalf of MG+M’s foreign client, a motion to dismiss for improper service and lack of personal jurisdiction was granted by Judge Casper. MG+M navigated a voluntary dismissal for its other client through the discovery process by demonstrating, based on the evidence, that the client was not liable for the product at issue.

Plaintiff alleged in his lawsuit that he was ordered to wear an electronic monitoring bracelet as part of his pre-trial probation. In his complaint, he stated that the bracelet wrongfully indicated that he was outside of the approved geographic area, which resulted in two days of imprisonment. As such, he brought forth claims against the defendants under the Massachusetts’ consumer protection laws as well as claims for design defect and negligence.

In its decision on defendant’s motion to dismiss, the Court highlighted Plaintiff’s allegation that the defendant, a foreign entity, was liable because its unidentified affiliate assumed the rights and liabilities of the former manufacturer of the electronic monitoring bracelet. The Court noted that even if the Plaintiff established that this affiliate conducted activities in Massachusetts that would subject it to the Court’s jurisdiction, Plaintiff still would need to prove that the affiliate’s conduct could be imputed to the foreign entity by “piercing the corporate veil.” Under Massachusetts law, corporations are presumed to be separate entities. To ignore corporate separateness a party must demonstrate: 1) “active and direct participation by the representatives of one corporation, apparently exercising some form of pervasive control, in the activities of another and there is some fraudulent or injurious consequence of the intercorporate relationship;” or 2) “a confused intermingling of activity of two or more corporations engaged in a common enterprise with substantial disregard of the separate nature of the corporate entities, or serious ambiguity about the manner and capacity in which the various corporations and their respective representatives are acting.” My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614, 619 (1968). Plaintiff attempted to satisfy these requirements through evidence that suggested the foreign entity merely advised its unidentified affiliate during the acquisition of the electronic monitoring business. The Court, however, held that this evidence fell short of the threshold to disregard corporate separateness and “pierce the corporate veil.” Accordingly, the Court held that it did not have personal jurisdiction over the foreign entity.

This decision reinforces the long-standing principle of corporate separateness and should be beneficial to foreign defendants challenging personal jurisdiction in the future.

In December 2017, the EPA approved revisions to the Louisiana State Implementation Plan (“SIP”) addressing regional haze. Neither environmental groups—Sierra Club and National Parks Conservation Association—nor affected utility companies—Entergy and Cleco—are satisfied with the EPA’s rule, and they are now petitioning the Fifth Circuit as intervenors on behalf of the EPA. Both sides filed briefs on October 30, 2018.

By way of background, Congress added regional haze provisions to the Clean Air Act (“CAA”) in 1977. The Act requires pollution sources that emit any air pollutant that may reasonably be anticipated to cause or contribute to visibility impairment to operate with the best available retrofit technology (“BART”).

In evaluating BART, the CAA requires states to balance cost with 1) the energy and non-air quality environmental impacts of compliance; 2) existing pollution control technology in use at the source; 3) the source’s remaining useful life; and 4) the visibility improvements that may reasonably be anticipated to result from the use of such technology.

The EPA issued BART Guidelines in 2005. The Guidelines help states determine whether BART applies to a particular source of pollution. In June 2008, Louisiana submitted its first Regional Haze SIP. The EPA did not approve the plan because it relied on the Clean Air Interstate Rule, which was judicially invalidated before the EPA ruled on the plan. The EPA also found deficiencies in BART determinations for four non-electrical generating units.

Louisiana submitted a revised SIP in July 2017, which the EPA approved in December 2017. The revised SIP was based on analysis conducted by the EPA and Entergy. The Fifth Circuit litigation primarily addresses the BART for Entergy’s Nelson power plant and Cleco’s Brame Energy Center, which both emit large amounts of sulfur dioxide. Continue Reading Utilities and Environmental Groups Spar over EPA’s Approval of Louisiana’s Plan to Address Regional Haze

In September 2018, Governor Jerry Brown signed a series of bills aimed at drastically reshaping California’s approach to claims of discrimination and harassment amidst the “#MeToo” Movement. Among the legislation is Senate Bill 1300 which clarifies and expands employee rights under the California Fair Employment and Housing Act (“FEHA”). SB 1300, which was met with both opposition and support, became effective January 1, 2019. In addition to Senate Bill 1300, Gov. Brown also signed into law a series of bills on issues relating to workplace harassment, gender equality and human trafficking.

CALIFORNIA SENATE BILL 1300: HEIGHTENED EXPOSURE FOR EMPLOYERS

SB 1300 intends to close loopholes in the law that discourage or prevent victims from speaking out, and allow employers to avoid sexual harassment and discrimination laws and leave employees vulnerable to sexual harassment at work. In an attempt to aid these efforts, SB 1300 provides the following enhancements, further described below: 1) a new “single occurrence” standard for sexual harassment cases; 2) increases the challenges of recovering litigation costs for defendants; 3) potentially holds employers liable for third-party harassment; 4) prohibits release of both claims and non-disparagement agreements; and 5) provides for workplace accommodation and bystander training.

“SINGLE OCCURRENCE” STANDARD

One highly significant implication of SB 1300 is that it now makes a single instance of sexually harassing conduct a potentially triable sexual harassment claim by statute. Under FEHA, action was required to be so “severe or pervasive” so as to create a hostile work environment before it was actionable. However, the term “severe or pervasive” was subjective, leaving room for interpretation as to what conduct would be significantly severe or pervasive to support a claim under the existing law. For example, in Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000), the Ninth Circuit Court of Appeals found that an employee touching another employee’s chest under her sweater was not significant enough to rise to the level of “severe or pervasive,” and, thus, granted the employer’s motion for summary judgment.

SB 1300 narrows the definition of “severe or pervasive” by clarifying that a single incident of harassing conduct is sufficient to create a triable issue, so long as the conduct limited the employee’s work performance or created a hostile work environment. The Legislation specifically rejects the court’s holding in Brooks and states that the case opinion shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of the FEHA.

Of significance to litigation resulting from employment claims, SB 1300 affirms the court’s opinion in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243. In Nazir, the Plaintiff filed a lawsuit against his former employer, United Airlines, and his former supervisor (“Defendants”). Defendants filed a motion for summary judgment/summary adjudication, seeking adjudication of 44 issues. The appellate court found that hostile work environment cases involve issues that are “not determinable on paper.” SB 1300’s reference to the finding in the Nazir case that employment issues are too complex for motions for summary judgment may be a threat to the validity of future motions for summary judgment in employment law cases which has been a common and successful defense tactic. Continue Reading California Enacts Legislation to Combat Discrimination and Harassment

In a recent decision, the Rhode Island Superior Court ruled that claims brought against a dissolved entity’s insurers are barred pursuant to R.I. General Laws § 27-7-2.  This statute bars direct actions against insurers of alleged tortfeasors absent very limited exceptions.

In Shirley D’Amico, et al. v. A.O. Smith Corp., et al. (C.A. PC12-0403), the Rhode Island Superior Court examined whether one of those exceptions to R.I. General Laws § 27-7-2, which allows direct actions against the insurers of a bankrupt entity, similarly permits a direct action against the insurers of a dissolved entity.  The underlying facts of the case were straightforward.  Plaintiff alleged that her husband, Frank D’Amico, died from malignant mesothelioma proximately caused by occupational exposure to asbestos.  This exposure, according to Plaintiff, took place during Mr. D’Amico’s service in the United States Navy and his subsequent employment at various golf courses.  Plaintiff filed the original complaint on January 25, 2012.  After multiple amendments, Plaintiff filed a fifth amended complaint on June 11, 2015, to include Grover S. Wormer Company (“Wormer”) as a defendant.  In accordance with Michigan Corporate Code, [1]Wormer was dissolved as of January 10, 2008.  As such, on February 28, 2018, the Court dismissed Plaintiff’s claims against Wormer, finding they were barred by the laws of State of Michigan.

Continue Reading Rhode Island Court Bars Direct Claim Against Insurers of Alleged Tortfeasor

Florida courts have historically relied on the standards set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (“Frye”) to determine the admissibility of expert opinions and testimony.  Though the Florida Supreme Court adopted Frye in the mid-1980s, Florida courts had applied this standard long before then. See Bundy v. State, 471 So. 2d 9 (Fla. 1985); Bundy v. State, 455 So. 2d 330 (Fla. 1984). However, in April 2013, the Florida Legislature stirred things up when it passed a bill that amended Florida Statute § 90.702 to replace the longstanding Frye standard with the standard used in Federal Courts, as announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“Daubert”). Since the amended statute came into effect, some members of the Florida bar have challenged its validity and advocated that the Florida Legislature overstepped its bounds and infringed on the Florida Supreme Court’s rule-making authority. These challenges resulted in a five-year long debate as to the appropriate standard in Florida to determine whether expert testimony is admissible: Frye or Daubert?

Under the Frye standard, expert opinion and testimony is admissible if it is based on new or novel scientific principles and methodologies that are generally accepted in the scientific community. Whereas under Daubert, general acceptance is not a prerequisite for admissibility. Rather, a trial judge acts as the gatekeeper and determines the admissibility for “any and all scientific testimony or evidence” that is relevant and reliable. While there has been a clear divide within Florida’s legal community between those who are pro-Frye versus pro-Daubert, the five-year-long debate over which standard should be the law and is the law in Florida is finally over.

Continue Reading Frye Makes a Strong Comeback in Florida