President Obama has declared 20 parishes in Louisiana to be Major Disaster Areas. The presidential declaration recognizes the obvious, grim reality of the tragedy in Louisiana, but more importantly enables flood victims in these parishes to apply for federal disaster assistance from the Federal Emergency Management Authority. A previous article on the Kean Miller Louisiana
By Leonard L. Kilgore, III and Richard D. McConnell
In Hogg v. Chevron U.S.A. Inc., Docket No. 09-CC-2635 (see opinion here), a case handled by Kean Miller attorneys, Leonard L. Kilgore, III and Richard D. McConnell, Jr., the Louisiana Supreme Court reversed the trial court’s denial of a motion for summary judgment based on a prescription (statute of limitations) defense. In a 5-2 decision, the Louisiana Supreme Court clarified several issues pertinent to prescription in tort cases, in particular to cases involving allegations of environmental contamination of immovable (real) property. The Court addressed the following issues:
1. What constitutes “actual” and/or “constructive” knowledge of plaintiffs sufficient to commence the running of the applicable prescriptive period for torts under La. Civil Code articles 3492 and 3493;
2. What constitutes a continuing tort; and
3. Does the alleged failure to remediate environmental damage constitutes a distinct, continuing tort?
The Court held that letters from the Louisiana Department of Environmental Quality (LDEQ) received by the landowners several years prior to filing suit, advising the landowners of the potential for underground migration of gasoline constituents from a former, leaking underground storage tank (UST) located on nearby property, were sufficient to provide the landowners with knowledge of the potential claim within the meaning of La. Civil Code Article 3493. Article 3493 provides:
“When damage is caused to immoveable property, the one year prescription commences to run from the day the owner of the immoveable acquired, or should have acquired, knowledge of the damages.”
The Federal Trade Commission (“FTC”) announced on July 29th that the date on which the FTC will begin enforcement of the Red Flag Rules has been further extended to November 1, 2009. The Red Flag Rules, which are contained in regulations promulgated by the FTC under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et. seq., require “financial institutions” and “creditors” to adopt written identity theft prevention programs designed to prevent, detect and mitigate the effects of identity theft. The Red Flag Rules are applicable to any entity that meets the definition of a creditor and maintains covered accounts.
Under the Red Flag Rules, a “creditor” is defined as any entity that “regularly extends, renews, or continues credit, or any entity who regularly arranges for the extension, renewal, or continuation of credit.” For example, hospitals, physicians and other health care providers would be considered “creditors” under the Red Flag Rules if they as a regular business practice do not require all patients to pay for medical goods or services at the time that such goods or services are provided.
Two days before the end of the 2009 Legislative Session, the Louisiana Legislature adopted the Louisiana Geologic Sequestration of Carbon Dioxide Act. Introduced as HB661, the final amended bill passed both the House and Senate unanimously. There are three major facets to the law: establishment of a comprehensive regulatory program for the control of injection, storage, and use of carbon dioxide under the auspices of the Office of Conservation within the Department of Natural Resources; establishment of liability limits for operators with transfer of liability for storage operations to the Geologic Storage Trust Fund (run by the state) after a specified time; and authority for expropriation of pipeline servitudes, storage facilities and other associated facilities necessary for carbon sequestration operations upon a determination of public convenience and necessity.
On April 3, 2009, the National Environmental Development Association (NEDA) filed a petition for rehearing en banc on a controversial decision (Sierra Club v. EPA) by the D.C. Circuit Court of Appeals. In that case, decided December 19, 2008, the court vacated the Startup, Shutdown, Malfunction (SSM) rules contained within the NESHAP General Provisions, 40 C.F.R. Part 63, Subpart A. The exemption has been in place since the EPA adopted the General Provisions to 40 C.F.R. Part 63 in 1994 pursuant to Section 112 of the federal Clean Air Act. Until this decision, sources were exempted from MACT technology-based emission limits if all elements of the SSM exemption were satisfied. Sources were nevertheless required by the general duty clause to minimize emissions to the greatest extent possible. The appeal stems from proposed rulemakings by the EPA in 2002, 2003 and 2006 to revise the SSM requirements.
After April 3, 2009, the U.S. Citizenship & Immigration Service ("USCIS") will require employers to complete a new version of the familiar I-9 form for all new employees. The USCIS delayed implementation of the new rule requiring the new I-9 until April 3.
Owners of exempt property may be hurt by a recent Louisiana law change. Historically, the owners of tax exempt property did not have to confirm that the exemption was being respected by the Assessor by checking the tax rolls during the public inspection period. The owner of exempt property could challenge a tax bill by waiting to receive his tax bill, paying the bill under protest, and then filing a lawsuit in district court. This procedure used to be in La. R.S. 47:2110. As the result of a major rewrite of the Louisiana law on tax sales, La. R.S. 47:2110 was renumbered La. R.S. 47:2134.
In July of 2008, Gov. Jindal signed Senate Bill no. 51 into law. Senate Bill no. 51 has been dubbed the “take-your-gun-to-work law.” The new statute took effect on August 15, 2008. The United States 10th Circuit Court of Appeals recently upheld a similar Oklahoma statute.
Louisiana is not the first state in the nation to enact such legislation. Other states with similar laws include Alaska, Kentucky, Mississippi, Georgia, Florida, and Oklahoma. Legal challenges to the statutes followed.
In today’s distressed retail market, the possibility of a tenant’s bankruptcy is a top concern for managers and owners of retail centers. Owners of commercial office buildings in many parts of the country are becoming increasingly concerned about tenant bankruptcies, too. Landlords need to know the options available when a tenant files for bankruptcy and should anticipate a tenant/debtor’s likely maneuvers in bankruptcy. This article provides a summary of relevant law and key strategic considerations to help landlords minimize losses and protect their interests when a tenant files bankruptcy.
Leases & “Executory Contracts”
Section 365 of the Bankruptcy Code allows a debtor (i.e., an entity that has filed for bankruptcy) to either assume or reject an executory contract or unexpired lease. This way, a debtor may decide to assume any valuable contracts and reject any burdensome ones. If a bankruptcy tenant decides to assume an unexpired lease, the lease will remain in effect through and after completion of a Chapter 11 reorganization. Assuming the lease does not mean the tenant gets to stay in the space free of charge. The tenant must cure any outstanding defaults and perform all pending obligations in the lease.
A federal appeals court recently ruled that a lower district court erred in granting summary judgment to a hospital in a whistleblower action under the federal False Claims Act that was based on allegations that the hospital’s arrangement with an anesthesia physician group violated the Stark Law and the Federal Anti-kickback Act.
In United States ex rel. Kosenske v. Carlisle HMA, Inc., No. 07-4616 (3rd Cir. Jan. 21, 2009), the 3rd Circuit Court of Appeals found that a hospital failed to meet the personal services exception to the Stark Law because an earlier anesthesia services agreement between the parties did not cover pain management services provided by the anesthesiology practice as a hospital outpatient clinic. The court also found that the agreement did not reflect fair market value for compensation by the hospital to the anesthesiologists that included free office space, supplies, and support personnel.