Breazeale, Sachse & Wilson, L.L.P. RSS Feed Jan 2020 00:00:00 -0800firmwise Rescinds Major Provisions in Obama-Era RMP Rule28 Jan 2020 00:00:00 -0800 <p>The Trump administration has rescinded and modified several major provisions in the Risk Management Program (RMP) rule that was added in the closing days of the Obama administration.</p> <p>The Obama administration initiated the amendments to the RMP rule in the wake of the April 2013 West Fertilizer Co. explosion in West, Texas. President Obama issued Executive Order 13650, which called for enhanced information collection and sharing and modernization of rules and regulations. Following the issuance of the Executive Order, the EPA proposed amendments to the RMP rule in March 2016. After the proposal, the Bureau of Alcohol, Tobacco, Firearms and Explosives concluded the West Fertilizer Co. explosion was not an accident but caused by arson. Nevertheless, the EPA moved forward, finalizing the amendments in January 2017.</p> <p>Several petitions for reconsideration of the amended rule were filed, most notably by the RMP Coalition, the Chemical Safety Advocacy Group and several state governments. Under the Trump administration, the EPA proposed a rule to address the Obama-era amendments and recently finalized that rule, calling it the RMP Reconsideration Rule. Essentially, the finalized rule acts on and addresses the various grounds included in the reconsideration petitions.</p> <p>In the RMP Reconsideration Rule, the EPA rescinded four key provisions. First, the agency rescinded the requirement to hire a third-party for conducting a compliance audit following a reportable accident. The EPA found that this provision was not necessary, as it already had the general authority to require such audits.</p> <p>Second, the EPA rescinded the requirement to assess theoretically safer technology and alternative risk management measures applicable to the elimination or reduction of risk from process hazards. To support this rescission, the EPA noted the RMP rule&rsquo;s existing provisions already encourage facilities to implement safer technologies by requiring periodic reevaluation of process hazards; the amendments did not require the implementation of any technologies considered, so a rescission would not result in an impact on safety; and it was the costliest of the amended provisions at $70 million.</p> <p>Third, the EPA rescinded the requirement to conduct and document a root cause analysis after a reportable accident or near-miss in order to maintain consistency with the OSHA Process Safety Management standard.</p> <p>Finally, the EPA rescinded the requirement to make information, which was very broadly defined, available to the public on request, citing one agency&rsquo;s warning that releasing information of this nature could assist terrorists in selecting targets and/or increase the severity of an attack. Specifically, the EPA rescinded the requirement for an owner or operator to provide specified chemical hazard information for all regulated processes within 45 days of receiving a request by any member of the public. The final rule clarified that local emergency responders can obtain information necessary for developing and implementing local emergency response plans.</p> <p>The EPA also retained many provisions and modified others. One important provision retained with modifications was the requirement a facility must hold a public meeting within 90 days of an accident. This provision was modified to require a public meeting after an incident that has off-site impacts, as contrasted with accidents having only on-site impacts.</p> <p>As expected, following the issuing of the RMP Reconsideration Rule, environmental groups and trade union organizations filed a petition for review in the D.C. Circuit Court of Appeals. Although the petition does not set forth the grounds for the challenge, they are likely to address the adequacy of the EPA&rsquo;s legal justifications for reversing the course set by the Obama administration. For now, the Trump administration&rsquo;s revisions are in effect.</p> The Americans with Disabilities Act: How to Handle the Troll Under the Bridge14 Jan 2020 00:00:00 -0800 <p>Many of us are aware of the story of the Troll under the Bridge. This story portrays a Troll that lives under a bridge and requires a toll from all who want to use the bridge. This classic fable carries with it some painful truths for those who want to conduct a business and come into contact with an Americans with Disabilities Act (&ldquo;ADA&rdquo;) lawsuit.</p> <p>Just like the troll under the bridge, there are individuals and groups who demand a toll to do business: an ADA lawsuit. These tolls come in the form of cookie-cutter lawsuits filed in the thousands across the country alleging violations of the Americans with Disabilities Act, the Federal law designed to protect disabled individuals from discrimination based on accessibility to a business. The LA Times reports that almost 5,000 ADA lawsuits were filed in the first six months of 2018 and projected 10,000 total for the year. The evidence suggests that the number will be larger in 2019 and 2020. In an effort to make businesses equally accessible to all individuals regardless of disability, this Act has unfortunately also created the opportunity for individuals to take advantage of businesses by filing trivial ADA lawsuits in the thousands&mdash;many against hotel properties.</p> <p>This article will discuss the basics of the Americans with Disabilities Act and the three main areas of troll litigation under the ADA, how these troll litigators typically operate, and what companies can do to minimize the likelihood of being caught in one of these lawsuits.</p> <h4>Basics of the ADA</h4> <p>The Americans with Disabilities Act, enacted in 1990, seeks to ensure equal access to employment, services of public entities, and public accommodations for private entities. The standard target for these cookie-cutter troll lawsuits is generally involves an allegation that some public accommodation is not equally accessible to people with certain disabilities. The ADA does not provide damages for these violations, but the real financial concern is that the Act requires the losing party to pay the victor&rsquo;s attorney&rsquo;s fees, which often amounts to thousands of dollars for plaintiff&rsquo;s attorneys.</p> <p>The real area of litigation involves three types of lawsuits, (1) barriers to access to the public accommodation such as an office, hotel room, or restaurant table; (2) inaccessibility of the website for a specific disabled person, most commonly someone who has a visual or audio impairment; and (3) service animals.</p> <p>One major area of litigation by these troll lawsuits alleges barriers to access to the public accommodation. The ADA Accessibility Guidelines (ADAAG) provide specific guidelines for a public accommodation to satisfy in order to be sufficiently accessible under the ADA. These Guidelines provide such specific details as the height of the coat hook in the handicapped restroom, the height of the bathroom sink from the floor, the pressure required to open a door, and many others. If a business fails to satisfy these guidelines, there is a strong presumption that they are in violation of the ADA. It is no small task for a business to follow all of these Guidelines, and there are expert architects and contractors who make it a business to confirm that publicly accessible companies comply with the guideline measurements.</p> <p>Unfortunately for many companies, however, by the time they are aware of a violation of the Guidelines, it is already too late. There is no requirement to tell a company about the violation before filing the lawsuit, and so most companies first find out about the violation in the complaint filed with the lawsuit. So before the company even knows about the problem, it is too late to avoid being caught up in litigation.</p> <p>A second major area of troll litigation is website accessibility. This area of litigation is growing more and more in the digital age, where people are interacting with businesses entirely online without requiring a physical location. Recently, the Ninth Circuit Court of Appeals held in <i>Robles v. Domino&rsquo;s Pizza, LLC </i>that the ADA applied to websites and mobile applications because the ADA mandates that places of public accommodation provide auxiliary aids and services to make visual materials available to individuals who are blind. Robles, a blind man, sued Domino&rsquo;s Pizza alleging that he could not order a customized pizza from Domino&rsquo;s website and app utilizing his screen-reading software. The Ninth Circuit held that the inaccessibility of Domino&rsquo;s website and app impeded access to the goods and services of the restaurant, and so the ADA applied. The Ninth Circuit also held that Domino&rsquo;s Pizza&rsquo;s constitutional challenge was without merit. The United States Supreme Court declined to consider the Ninth Circuit&rsquo;s decision, and so companies should consider the ADA as applicable to websites.</p> <p>Lawsuits involving website accessibility are worse in many ways to those involving physical accessibility, because there are no clear guidelines established to ensure that a website is in compliance with the ADA. The Department of Justice has issued the Web Content Accessibility Guidelines, which are often cited to as the standard for compliance for website accessibility, but these guidelines are complex and are not formally recognized as the standard. Some of the Web Guideline requirements include providing &ldquo;alternate text&rdquo; to every image in a website to allow visually impaired people to understand the context of the images, captions for audio content, and high-contrast color schemes for the visually impaired.</p> <p>Another significant area for heavy ADA litigation is the allowance of service animals. One major issue that arises regarding the use of service animals is whether an alleged service animal is actually an emotional support animal and not covered by the ADA. The ADA specifically excludes animals that are used for comfort from the definition of &ldquo;service animal,&rdquo; but certain mental health issues, such as anxiety, Post-Traumatic Stress Disorder, and others can be addressed by a specifically trained animal and would thus fall under the definition of service animal. Therefore, although this area of litigation is the most clearly defined by the ADA, it is still an area that businesses should be especially cautious of, because an increasing number of patrons are attempting to categorize their emotional support animals as service animals and are suing businesses based on a misunderstanding of the ADA, which can lead to increased costs and headaches for businesses.</p> <h4>How the Troll Lawsuits Work</h4> <p>Troll lawsuits operate by alleging that an individual has a disability and that the current business, whether the physical location or website, is preventing them from accessing its services because it fails to follow the applicable guidelines. The individual does not even need to actually be harmed by the barrier, as long as he alleges he could not access the accommodation. For example, a disabled individual who enters a hotel or restaurant bathroom and measures that the sink is too low for him to access with a disability can file, and likely win, an case based on this trivial violation of the ADA.</p> <p>Because the plaintiff does not need to notify the company before filing, the first notice the company receives is the complaint initiating the lawsuit. At this point, because of the ambiguities in the ADA discussed above and the heavy amount of facts involved in any case under the ADA, the plaintiff knows that the company will not be able to get out of this case easily, and is now stuck &ldquo;between a rock and a hard place.&rdquo; If there is any violation at all, it is likely that the company will be required to pay the attorney&rsquo;s fees, which grow with every step forward in the case. Even if there is absolutely no violation, the company still will have to prove its innocence by presenting evidence in the case, which will cost time and money.</p> <p>For this reason, the plaintiff knows that there will be a high likelihood of settlement. That is why these troll plaintiffs file a high number of cases&mdash;the more cases they have, the greater the likelihood of receiving settlement amounts.</p> <p>There are several examples of these troll litigation schemes, but on of the most famous operations came out of Arizona, where a single attorney filed almost 2,000 cases in two years and intended to file at least 8,000. The alleged violations for these cases included trivial issues, such as minor height violations for handicap accessibility signs, or slight variations in measurements in other areas. The documents filed in each of these cases were the exact same, down to the same typographical errors. It became so severe that Arizona businesses called for change, and the Arizona Attorney General&rsquo;s office sought to dismiss over 1,000 of these cases and alleged that this attorney be sanction. The court dismissed the lawsuits, and some also granted sanctions against the attorney and the plaintiff.</p> <p>Unfortunately, this was not before the attorney received settlement funds from many of these lawsuits. Such lawsuits generally seek no less than $5,000 in attorney&rsquo;s fees. Many businesses, especially those who budgeted for litigation settlements pay the settlement as a &ldquo;nuisance&rdquo; simply to have the threatened lawsuit be concluded, but some small businesses were not as willing to pay up, and sought the Arizona Attorney General&rsquo;s assistance.</p> <p>Although this story ends with the Arizona businesses finding a resolution to these serial lawsuits, countless serial litigants are still patrolling businesses and asking for tolls under the guise of ADA suits; but there are some things that companies can do to avoid being caught on the proverbial bridge of an ADA lawsuit.</p> <h4>What You Can Do</h4> <p>Because of the vast number of lawsuits, most businesses have either been involved in a lawsuit like this or know a business that has, so there is no avoiding these lawsuits in general, even if the business is in full compliance, thanks to the ambiguities in both the ADA and in the guidelines. The best way to minimize the likelihood of getting caught in these lawsuits is by ensuring that your company complies with the applicable guidelines under the ADA, the ADA Accessibility Guidelines, last updated in 2010, and the Web Content Accessibility Guidelines, which is currently on version 2.1. Although there are companies that offer compliance reviews for both of these guidelines, a first step is to review the guidelines as a company and confirm that there are no major issues likely to be caught by a potential litigant making its rounds of local businesses. If a company finds that there are several issues that do not comply with the ADA guidelines, it is best to contact a professional architect, contractor, and/or IT firm to ensure that the business is in complete compliance with the necessary guidelines.</p> <p>As to physical barriers, the Company should do an audit with the guidelines to ensure that they meet the requirements. Once the Company confirms that the business meets the guidelines, it is likely that it will be passed up by any potential litigants. For websites, some general tips for avoiding these lawsuits include (1) having an accessibility policy posted on the footer of the main page; (2) providing accessible alternatives, such as a staffed telephone line or an online chat function, for individuals to access your services; (3) having your primary webpages regularly audited using a variety of screen readers, operating software, and hardware; and (4) designating a person within your organization to be your accessibility coordinator.</p> <p>Concerning service animals, the Company should train their employees to ask two questions when interacting with a potential service animal or emotional support animal: 1) does this animal serve a disability and 2) what specific function does the animal provide. Any other questions can lead to potential technical violations of the ADA. If the animal is only for emotional support, the Company is under no obligation under the ADA to allow the animal on the premises.</p> <h4>Conclusion</h4> <p>The Americans with Disabilities Act creates several potential issues for companies trying to provide services to the public, but by following the steps provided above, your business can minimize the likelihood of being caught on the bridge by a troll litigant, seeking its toll.</p> <p>Fred Preis and Philip Giorlando represent numerous hospitality industry clients throughout the United States in labor and employment matters and have effectively counseled numerous businesses in handling Americans with Disabilities Act issues. Fred is a charter member of the AHIA.</p> Don't Get Your Legal Advice from the News14 Jan 2020 00:00:00 -0800 <p>I came across an article this week regarding some common misconceptions regarding an employer&rsquo;s obligation to accommodate a pregnant employee that I thought would be of interest.</p> <p>A CBS morning show recently stated that: &ldquo;[U]nder the current federal law, while employers are prohibited from firing or refusing to hire pregnant workers, they aren&rsquo;t always required to make any on-the-job accommodations, such as offering more bathroom breaks or temporary desk jobs.&rdquo;</p> <p>As you probably know, CBS&rsquo;s take on the law is not entirely accurate. The US Supreme Court has held that an employer must offer a reasonable accommodation to a pregnant employee if it offers reasonable accommodations to other employees with similarly disabling conditions. The EEOC adopted the rationale of the Supreme Court and updated its guidance on pregnancy discrimination.</p> <p>The bottom line for employers when dealing with the need to accommodate a female employee because of pregnancy is that they must provide the same accommodations to pregnant workers as to other workers with similarly disabling medical conditions.</p> <p>When faced with a request for an accommodation by a pregnancy employee, an employer should ask itself:</p> <ul> <li>Have we ever provided light duty to expedite the return-to-work of an employee with a work-comp claim?</li> <li>&nbsp;</li> <li>Have we ever provided light duty to an employee as an ADA reasonable accommodation?</li> <li>&nbsp;</li> <li>Have we ever allowed a lifting or standing restriction to an employee as an ADA reasonable accommodation?</li> <li>&nbsp;</li> <li>Have we ever provided time off to an employee as an ADA reasonable accommodation? (Keep in mind your obligations under both the FMLA and LSA-R.S. 23:342)</li> </ul> <br /> <p>If an employer answers &ldquo;yes&rdquo; to these or similar questions, then it cannot deny providing the same accommodations to a pregnant worker.</p> 2020: Time to Protect Your Louisiana Business with Non-Compete Agreements02 Jan 2020 00:00:00 -0800 <p><b>WHY ACT NOW?&nbsp;</b>2020 is here. In today&rsquo;s competitive marketplace, non-compete agreements serve as a valuable tool. Businesses in Louisiana often use them to protect themselves from employees learning the business and leaving to compete with their ex-employer. Preparing now for such eventuality is critical to the long-term success of your business. What&rsquo;s stopping you from utilizing non-compete agreements?</p> <p><b>WHAT'S THE LAW?&nbsp;</b>The validity of non-compete agreements in Louisiana is strictly controlled by a single statutory provision (La. R.S. 23:921) and its judicial interpretations. The statute begins with generally prohibiting any agreement where someone is restrained from exercising a lawful profession, trade, or business, unless one of the narrow exceptions to the general prohibition is satisfied. The list of exceptions to the general prohibition is, for the most part, based on relationships and includes:</p> <ul> <li>employee/employer relationship</li> <li>sale of the goodwill of a business</li> <li>dissolution of a partnership</li> <li>franchisor/franchisee relationship</li> <li>employer/computer employee relationship</li> <li>corporation/shareholder relationship</li> <li>partnership/partner relationship (without consideration of any possible dissolution)</li> <li>limited liability company/member relationship</li> </ul> <p>Louisiana has long had a strong public policy against non-compete agreements. Because these agreements are in derogation of the common right -- the right to work in your chosen field --Louisiana courts have narrowly construed the exceptions to the general prohibition.</p> <p>Once it is demonstrated that a particular non-compete agreement falls within one of the listed exceptions, most Louisiana courts require a valid non-compete agreement to contain an area of prohibition described by parishes, municipalities, or parts thereof, together with a term of no longer than two years from date of termination of the relationship. These requirements are derived from statutory language.</p> <p>While not contained within the statute, some Louisiana courts also require a valid non-compete agreement to define narrowly and accurately the business in which the individual is prohibited from competing. Other Louisiana courts deny the need for this additional non-statutory-based requirement. If the business is defined within the agreement, however, the definition must be narrow and accurate.</p> <p><b>WHAT SHOULD YOU BE DOING?</b>&nbsp;Preparing non-compete agreements that comply with Louisiana law is critical to their enforceability. Reviewing and updating your company's non-compete agreements annually is an additional good business practice. Doing this also serves as a constant reminder to your employees that they are subject to these agreements upon their termination of employment. It additionally allows consideration of any newly decided cases affecting the enforceability of these agreements. Using these agreements in 2020 is smart business.</p> <p><b>WHAT'S STOPPING YOU?</b></p> Management Update Newsletter Volume 9, Issue 101 Jan 2020 00:00:00 -0800 Louisiana Law on Non-Compete Agreements: A Question and Answer Approach19 Dec 2019 00:00:00 -0800 <p>Determining the validity of non-compete agreements under Louisiana law differs from most other states. The following are questions commonly asked about non-compete agreements under Louisiana law.</p> <p><b>Are non-compete agreements enforceable in Louisiana?</b></p> <p>Yes, if drafted correctly. The validity and enforceability of non-compete agreements in Louisiana is controlled by a single statute, La. R.S. 23:921. Failure to strictly adhere to its requirements invalidates a Louisiana non-compete agreement.</p> <p><b>Are there limits on the duration of non-compete agreements in Louisiana?</b></p> <p>Yes. Non-compete agreements in Louisiana can&rsquo;t be longer than two years. They can be shorter, but cannot be any longer than two years.</p> <p><b>Does reasonableness play any role in determining the validity of non-compete agreements in Louisiana?</b></p> <p>No. Louisiana law differs with most other states on this issue. The statutory requirements of La. R.S. 23:921 include no reasonableness analysis.</p> <p><b>What are the requirements of La. R.S. 23:921?</b></p> <p>The statute in the first sentence makes clear that non-compete agreements in Louisiana are unenforceable, unless the agreement fits into one of the exceptions to the general prohibition listed therein. The opening sentence provides:</p> <p style="margin-left: 40px;">&ldquo;[E]very contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade or business of any kind, <u>except as provided in this section</u>, shall be null and void.&rdquo; (Emphasis added.)</p> <p><b>What are the exceptions to the general prohibition on non-compete agreements in La. R.S. 23:921?</b></p> <p>There are eight listed exceptions to the general prohibition. Each is relationship based, meaning that a valid non-compete agreement under Louisiana law must be between parties listed in the eight exceptions. The eight relationship exceptions are the seller/buyer of goodwill of the business relationship; the employer/employee relationship; the partnership/partner relationship involving dissolution; the franchisor/franchisee relationship; the computer employer/employee relationship; the corporation/shareholder relationship; the partnership/partner relationship irregardless of dissolution; and the limited liability company/member relationship. In other words, an agreement between an employer and employee meets the employer/employee relationship exception.</p> <p><b>If a non-compete agreement does not fit into one of those eight listed relationships, can it be enforceable under Louisiana law?</b></p> <p>No.</p> <p><b>If an agreement meets one of the eight listed relationship tests, are there other requirements for an enforceable agreement under La. R.S. 23:921?</b></p> <p>Yes. If the non-compete agreement is between one of the eight relationships listed in the law, &nbsp;an enforceable non-compete agreement in Louisiana can be for no longer than two years from date of termination of the relationship. It can be shorter, but it cannot be any longer than two years. Additionally, the geographical area of prohibition for which someone is prohibited from competing must be listed in the non-compete agreement &ldquo;by parishes, municipalities, or parts thereof.&rdquo; (i.e., you are prohibited from competing in the Parishes listed below). Finally, some Louisiana courts require that the business in which a party is prohibited from competing be defined therein. Other Louisiana jurisprudence holds that a definition of the business is no longer required. However, if a definition of the business is included, it cannot be overly broad.<a href="file:///C:/NRPortbl/BR/MARTINM/1814837_1.DOCX#_ftn1" name="_ftnref1" title="">[1]</a> Including a narrow and accurate definition of the business in your agreement is recommended.</p> <p><b>Can a radius be used (50 miles from any office location) to define the geographical area of prohibition?</b></p> <p>No. The area of prohibition must be &ldquo;specified&rdquo; by &ldquo;parish, municipality or parts thereof.&rdquo; Louisiana jurisprudence has specifically held that a radius used to define the area of prohibition fails to meet the requirements of La. R.S. 23:921.<a href="file:///C:/NRPortbl/BR/MARTINM/1814837_1.DOCX#_ftn2" name="_ftnref2" title="">[2]</a></p> <p><b>Can an employee be told that if they refuse to sign a non-compete agreement they will be terminated? Is that legal duress?</b></p> <p>As long as they are an at-will employee, an employee can be fired for refusing to sign a non-compete agreement according to Louisiana jurisprudence.<a href="file:///C:/NRPortbl/BR/MARTINM/1814837_1.DOCX#_ftn3" name="_ftnref3" title="">[3]</a></p> <p><b>Can damages be recovered for violation of a valid non-compete agreement in Louisiana?</b></p> <p>Yes. According to La. R.S. 23:921, &ldquo;damages for the loss sustained and the profit of which&rdquo; has been deprived is recoverable. Liquidated damages, however, according to Louisiana jurisprudence, are <u>not</u> <u>recoverable</u> for violation of non-compete agreements in Louisiana.<a href="file:///C:/NRPortbl/BR/MARTINM/1814837_1.DOCX#_ftn4" name="_ftnref4" title="">[4]</a></p> <p><b>Are there some professions, such as doctors, hair stylists, and stockbrokers, in which they form such a close relationship with their patients/customers that Louisiana law prohibits the use of non-compete agreements in these situations?</b></p> Louisiana law <u>does</u> <u>not</u> prohibit the use of non-compete agreements for doctors, hair stylists, or stockbrokers, despite the close relationship formed with their patients/customers. There is one profession in Louisiana, however, in which La. R.S. 23:921 specifically prohibits the use of non-compete agreements. That profession?&hellip;<b><u>Automobile</u> <u>Salesmen</u></b>.<a href="file:///C:/NRPortbl/BR/MARTINM/1814837_1.DOCX#_ftn5" name="_ftnref5" title="">[5]</a> <div><br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p><a href="file:///C:/NRPortbl/BR/MARTINM/1814837_1.DOCX#_ftnref1" name="_ftn1" title="">[1]</a> &nbsp;<i>Baton Rouge Computer Sales, Inc. v. Miller-Conrad</i>, 1999-1200 (La. App. 1 Cir. 5/23/00), 767 So. 2d 763, 765; <i>Vartech Sys., Inc. v. Hayden</i>, 2005-2499 (La. App. 1 Cir. 12/20/06), 951 So. 2d 247, 260.</p> </div> <div id="ftn2"> <p><a href="file:///C:/NRPortbl/BR/MARTINM/1814837_1.DOCX#_ftnref2" name="_ftn2" title="">[2]</a> &nbsp;<i>Medivision, Inc. v. Germer</i>, 617 So. 2d 69, 72 (La. Ct. App.),&nbsp;<i>writ denied,</i>&nbsp;619 So. 2d 549 (La. 1993); <i>Team Envtl. Scrvs., Inc. v. Addison</i>, 2 F.3d 124, 126 (5th Cir.1993).</p> </div> <div id="ftn3"> <p><a href="file:///C:/NRPortbl/BR/MARTINM/1814837_1.DOCX#_ftnref3" name="_ftn3" title="">[3]</a> <i>Moores Pump &amp; Supply, Inc. v. Laneaux</i>, 98-1049 (La. App. 3 Cir. 2/3/99), 727 So. 2d 695, 698; <i>Litig. Reprographics &amp; Support Servs., Inc. v. Scott</i>, 599 So. 2d 922, 923 (La. Ct. App. 1992).</p> </div> <div id="ftn4"> <p><a href="file:///C:/NRPortbl/BR/MARTINM/1814837_1.DOCX#_ftnref4" name="_ftn4" title="">[4]</a> &nbsp;<i>G.T. Michelli Co. v. McKey</i>, 599 So. 2d 355, 357 (La. Ct. App. 1992).</p> </div> <div id="ftn5"> <p><a href="file:///C:/NRPortbl/BR/MARTINM/1814837_1.DOCX#_ftnref5" name="_ftn5" title="">[5]</a> &nbsp;La. Stat. Ann. &sect; 23:921(I) (2019).</p> </div> </div> Twelve Breazeale, Sachse & Wilson Attorneys Named To Louisiana Super Lawyers, Seven Rising Stars19 Dec 2019 00:00:00 -0800 <div> <div>Breazeale, Sachse &amp; Wilson, L.L.P. (BSW) is pleased to announce that twelve attorneys have been named to the 2020 edition of <i>Louisiana Super Lawyers</i> and seven attorneys have been named <b>Rising Stars</b>.</div> <div> <p><b>Super Lawyers&mdash;Baton Rouge </b></p> <ul style="margin-top:0in" type="square"> <li><b>Robert L. Atkinson</b> in Health Care</li> <li><b>David R. Cassidy </b>in Tax</li> <li><b>Murphy J. Foster, III </b>in Employment &amp; Labor</li> <li><b>Emily B. Grey</b> in Health Care</li> <li><b>Scott N. Hensgens </b>in Business Litigation</li> <li><b>Van R. Mayhall, Jr.</b> in Business &amp; Corporate</li> <li><b>Thomas R. Temple, Jr. </b>in Civil Litigation: Defense</li> </ul> <h1>Super Lawyers&mdash;New Orleans</h1> <ul type="square"> <li><b>Thomas M. Benjamin</b> in Business Litigation</li> <li><b>Peter J. Butler, Jr.</b> in Business &amp; Corporate</li> <li><b>Alan H. Goodman </b>in Business Litigation</li> <li><b>Eve B. Masinter</b> in Employment &amp; Labor</li> <li><b>Richard G. Passler </b>in Business Litigation</li> </ul> <h1>Rising Stars&mdash;Baton Rouge</h1> <ul style="margin-top:0in" type="square"> <li><b>Danielle L. Borel </b>in Business Litigation</li> <li><b>Joseph J. Cefalu, III</b> in Civil Litigation: Defense</li> <li><b>Carroll Devillier, Jr. </b>in Business Litigation</li> <li><b>Druit Gremillion</b> in Personal Injury General: Defense</li> <li><b>Sunny Mayhall</b> in Employment Litigation</li> </ul> <h1>Rising Stars&mdash;New Orleans</h1> <ul type="square"> <li><b>Rachael Jeanfreau</b> in Employment &amp; Labor</li> <li><b>Matthew M. McCluer </b>in Employment Litigation: Defense</li> </ul> <p>Super Lawyers, part of Thomson Reuters, is a research-driven, peer influenced rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. The mission of Super Lawyers is to bring visibility to those attorneys who exhibit excellence in practice.</p> </div> </div> New York's Case Against Exxon Fails Miserably13 Dec 2019 00:00:00 -0800 <p>In a ruling that will likely have implications for climate change litigation across the United States, a state judge in New York has dismissed the New York Attorney General&rsquo;s suit against ExxonMobil Corporation. The 55-page opinion issued by Jude Barry Ostrager is a scathing rebuke of the AG&rsquo;s case.</p> <p>Over the three and one-half years of investigation and legal proceedings, Exxon produced millions of pages of documents and dozens of people were deposed or interviewed. The AG made several claims against Exxon in the original petition, which Judge Ostrager called &ldquo;hyperbolic.&rdquo; At trial, the AG claimed that Exxon committed equitable and common law fraud and otherwise violated certain state laws, including the Martin Act which generally relates to misrepresentations associated with the sale or distribution of stocks or securities. The trial lasted twelve days and eighteen witnesses testified.</p> <p>At the close of evidence, the AG withdrew its fraud claims, perhaps realizing that the judge would rule against them or that they had not proven the claims. Even so, the judge found that Exxon &ldquo;would not be held liable on any fraud-related claims,&rdquo; reasoning that because the AG failed to prove the other claims that did not require proof of intent, they certainly could not prove claims that did.</p> <p>As to the Martin Act or securities claims, the AG claimed that Exxon made misrepresentations and omissions in reports and shareholder meetings from 2013 to 2016 about how Exxon managed the risks of climate change and increasing regulations. The judge reviewed all of the publications which the AG asserted contained misrepresentations and omissions, the testimony of Exxon employees, and the AG&rsquo;s expert. Tellingly, the AG offered no testimony from any investor who claims to have been misled.</p> <p>In the publications, Exxon made clear that it anticipated possible restrictions on fossil fuel production and decreasing consumer demand in the future based on global concerns regarding climate change. Indeed, Exxon mandated that all of its business segments include, where appropriate, greenhouse gas costs when seeking internal funding of capital investments. The judge found that there was no proof that anything Exxon is alleged to have done affected Exxon&rsquo;s balance sheet, income statement, or any other financial disclosure. Specifically, the judge found that no reasonable investor would make investment decisions &ldquo;based on speculative assumption of costs that may occur 20+ or 30+ years in the future with respect to unidentified future projects.&rdquo;</p> <p>As to testimony, the judge found that all of the Exxon employees were &ldquo;truthful&rdquo; and were &ldquo;uniformly committed to rigorously discharging their duties in the most comprehensive and meticulous manner possible.&rdquo; As to the testimony of the AG&rsquo;s expert, the judge found that his testimony actually provided no support for the AG&rsquo;s theory of the case because, as an investment professional, he had never downgraded Exxon as a result of any of the events which were the focus of the AG&rsquo;s claims.</p> <p>While the denial and dismissal of the New York AG&rsquo;s claims is significant, other suits are still pending around the country. Many contain the same type of fraud allegations asserted by the New York AG. However, these suits also contain other claims as well, such as common law nuisance claims. Nonetheless, the ruling in New York will certainly be touted by Exxon in the other pending cases.</p> <p>For now, though, Exxon has won a decisive victory against a determined opponent. For the New York AG, the case was simply not strong or persuasive enough under New York&rsquo;s securities law to convince the judge. We will have to wait and see if other claims will meet a similar fate.</p> Management Update Newsletter Volume 8, Issue 1201 Dec 2019 00:00:00 -0800't Violate Louisiana's Governmental Ethics Laws This Holiday Gift-Giving Season When It Comes to Public Employees25 Nov 2019 00:00:00 -0800 It is that time of the year again &ndash; governmental ethics violations when gift giving to public employees. Louisiana&rsquo;s governmental ethics laws significantly restrict &ndash; in fact, virtually eliminate &ndash; the giving of gifts to public employees from businesses in the private sector that do business with them. That innocent holiday gift is actually against the law. Simply put, when it comes to gift giving and governmental ethics, they simply do not mix.<br /> <br /> Louisiana law prohibits a public employee from being given &ldquo;anything of economic value&rdquo; by anyone seeking a contractual, business, or financial relationship with the public servant&rsquo;s agency or anyone who is seeking to influence the passage or defeat legislation by the public servant&rsquo;s agency. This means that traditional gift baskets of Louisiana spices, pecans, wine, or any other product is a violation of the governmental ethics law if the giver has a business relationship with the public employee&rsquo;s agency. And it is not only a violation of the ethics law to give a public employee such a gift; rather, the public employee&rsquo;s acceptance of the gift also violates Louisiana&rsquo;s governmental ethics law. <br /> <br /> Practically, the only thing that a person or company can give to a public employee with whom they have a contractual business or financial relationship is a greeting card; or a calendar or pen that does not have any resale value. But you can give your child&rsquo;s teacher a nominal gift. You can also pay for a public employee&rsquo;s meal as long as its value does not exceed $62.00 and you are dining with them.<br /> <br /> But he/she is my friend! The standard excuse for violating the governmental ethics laws during the holiday season. Louisiana&rsquo;s governmental ethics laws do not recognize this excuse as a defense to a violation. Simply put, friendship &ndash; no matter how close &ndash; does not matter.<br /> <br /> Businesses need to keep in mind that they can probably not give the gift they may want to give to a public employee. Always check with legal counsel. <br /> <br /> Otherwise, for each gift you give in violation of the governmental ethics laws you face a $10,000.00 fine and possible criminal charges. As for the recipient, the penalty can be all of those penalties and forfeiture of the gift. For both, the giver and receiver, the penalty always includes a public sanction &ndash; which could affect the giver&rsquo;s ability to do business in the future in the State of Louisiana and, for the recipient, could be detrimental to their future success.