Picture this: former wife sues her ex-husband for cutting and selling timber from a co-owned 120-acre timberland tract. The timberland tract was purchased during the couple’s marriage and was community property. As part of a divorce settlement, the ex-couple remained co-owners of the timberland. Thereafter, the ex-husband had the timber cut and sold – and checks for the timber sold were made payable to the then girlfriend (now wife) of the ex-husband. When the former wife found out, she sued the ex-husband, seeking treble damages (among other things), under Louisiana’s so-called “timber piracy” statute.

As a co-owner, is the ex-husband liable to his former wife under Louisiana’s “timber piracy” statute? This was the issue presented to the Louisiana Supreme Court in the case, Sullivan v. Wallace, 2010-0388 (La. 11/30/10), 51 So.3d 702. The Court concluded that he was not, because the “timber piracy” statute did not apply to suits between co-owners.

Continue Reading The Rogue Co-Owner: Cutting and Selling Timber from a Co-owned Tract

In less than a month, the Louisiana Department of Health and Hospitals will begin enforcement of its new Home and Community-Based Service Providers Minimum Licensing Standards. The new regulations, which were published in the June 2011 Louisiana Register, contain one set of licensing standards that apply to providers of the following community-based services: Adult Day Care, Family Support, Personal Care Attendant (PCA), Respite Case, Substitute Family Care, Supervised Independent Living (SIL) and Supported Employment. While many provisions in the new regulations mirror requirements previously contained in DHH’s Personal Care Attendant Services licensing standards, the following are some of the notable regulatory changes that existing providers must comply with by the October 1, 2011 enforcement date (note that this article does not address all regulatory changes, including the changes to administrator qualification and other core staffing requirements):

  • Number of Governing Body Members. The new licensing regulations require all providers to have a governing body that is comprised of three or more persons. Previously, no minimum number of members was required. Providers are still required to have documentation identifying all governing body members by name, address, terms of membership, office title and terms of office. Additionally, the governing body must continue to hold at least two formal meetings a year.
  • Liability Insurance. All providers must have documentation of liability insurance coverage for any vehicle used to transport clients, whether the vehicle is owed by the agency or any of its employees. The personal liability insurance of the provider’s employees cannot be substituted for the required coverage. Previously, the regulations merely provided that the provider ensure that any vehicle used to transport clients carried a sufficient amount of current liability insurance.
  • Driver Histories and Driving Course Completion. Providers are required to have documentation of successful completion of a safe driving course for each employee who transports clients. The new regulations mandate that each employee shall complete a safe driving course within 90 days of hiring, every three years thereafter, and within 90 days of the provider’s discovery of any moving violation. Additionally, providers are required to run a driving history record at the time of hiring and annually thereafter for each employee. Existing providers should ensure that all current employees complete a safe driving course and that a driver history report has been run on all current employees prior to the October 1, 2011 enforcement deadline.
  • Unannounced Quarterly Supervisory Visits. Direct care staff supervisors are now required to make an onsite supervisory visit at least once per quarter for each direct care staff member. Additionally, the regulations state that supervisory visits should occur more frequently if dictated by the ISP; as needed to address worker performance; to address a client’s change in status; or to assure services are provided in accordance with the ISP. Providers should note that a quarterly unannounced visit is required for each direct service worker, not for each client served by the agency. Thus, if one client is being serviced by four direct care workers, the agency is required to conduct four unannounced visits to that client’s residence during the quarter. We have spoken with DHH regarding this requirement and have learned that all quarterly visits do not have to be completed by the October 1, 2011 compliance date. However, DHH expects providers to have a procedure in place by October 1 for conducting the unannounced visits and expects that at least one quarterly visit per employee will be accomplished between October 1, 2011 and December 31, 2011.

On August 25, 2011, the U.S. Department of Transportation’s (“DOT”) Pipeline and Hazardous Materials Safety Administration (“PHMSA”) announced that it was seeking information concerning contemplated changes in natural gas transportation safety regulations. (1)  This advanced notice of proposed rulemaking (“ANPRM”) follows another one published by PHMSA involving hazardous liquid pipelines. See, 75 Fed. Reg. 63774 (Oct. 18, 2010). Draft rules have not yet been proposed in response to that initiative. In this initiative, PHMSA requests comments on considerations to greatly expand both the reach and the regulatory requirements for gas pipelines.

Continue Reading PHMSA Seeks Comments on Expansion of Gas Transmission Pipeline Regulations

Today, the ICM Registry launched the new sponsored top-level domain – .XXX. The .XXX domain is being launched specifically for the adult entertainment industry; however, the .XXX launch is also important for individuals, businesses, and organizations owning trademark rights. Trademark owners will have a short, fifty-two (52) day period (“Sunrise B period”) to protect their trademarks from .XXX registry ahead of wider availability on the .XXX domain. The Sunrise B period will run from September 7, 2011 to October 28, 2011.

The .XXX Registry is allowing trademark owners to block their marks in the .XXX domain (e.g., yourmark.xxx). The owner of a registered mark desiring to opt-out of the .XXX domain may submit an application to the .XXX Registry, with a one-time fee of $225 per domain name. This application, if granted, will remove that domain name from the pool of domain names available for future registration. Essentially, a successful application will prevent any potential person or entity from registering a trademark as an .XXX domain name for at least ten (10) years. Any blocked domain will resolve to a standard informational page stating that the domain name is not available for registration.

If a trademark owner does not block its trademark from .XXX registry during the Sunrise B period, all members of the adult entertainment industry will have the ability to register that mark as an .XXX domain name. Although post-registration protection measures, such as the ICM Registry’s Uniform Dispute Resolution Policy (“UDRP”) and the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d) (“ACPA”), are available to trademark owners who fail to block their mark from .XXX registry during the Sunrise B period, participation in the .XXX Registry’s Sunrise B opt-out process may be a more cost-effective and pro-active approach for trademark owners.

Trademark owners desiring to protect their marks from .XXX registry should act fast as the Sunrise B period only lasts from September 7, 2011 to October 28, 2011.

Act Number 323 of the 2011 Regular Session of the Louisiana Legislature modified the rules on small successions in Louisiana. In addition to some other changes, the law allows the use of the small succession procedure, which generally involves filing an affidavit rather than opening judicial proceedings, to transfer title to immovable property in Louisiana if the property has a value of $75,000.00 or less as of the date of death. Further, this new rule applies to successions of individuals who died either before or after the effective date of the legislation. Under this new rule, if a decedent was domiciled outside of Louisiana at the time of death and had a testament that has been probated by a court order of another state, then title to the immovable property in Louisiana, including mineral interests, can be transferred through the small succession procedure if the property has a gross value of $75,000.00 as of the date of death.

The new legislation may need some modification as it appears to only apply to ancillary probate proceedings that are testate and not intestate while it applies to Louisiana residents who die intestate. Given the fact that immovable property in Louisiana would be governed by Louisiana’s rules of intestacy, a non-Louisiana resident who dies intestate should be able to benefit from the same procedure. In any event, the new legislation is a step in the right direction to assist with ancillary probate proceedings in Louisiana, particularly when the property in Louisiana of nominal value. Often, the costs of an ancillary probate can be greater than the property involved.

On September 2, 2011, President Obama announced that he had requested the Environmental Protection Agency to withdraw the proposed revision to the primary National Ambient Air Quality Standard for ozone at this time. A White House press release quoted the President as stating:

“I have continued to underscore the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover. With that in mind, and after careful consideration, I have requested that Administrator Jackson withdraw the draft Ozone National Ambient Air Quality Standards at this time. Work is already underway to update a 2006 review of the science that will result in the reconsideration of the ozone standard in 2013.” 1

The request was delivered to EPA Administrator Lisa Jackson via a letter from Cass Sunstein, Director of the Office of Management and Budget. The letter stated that the decision was based on the President’s Executive Order 13563, which emphasizes that “Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation.” The letter from OMB indicated that EPA was already in the process of reviewing the ozone standard again based upon the most recent science and is required to complete that review by 2013. It urged EPA to complete that process. However, OMB indicated that the President requested that EPA “reconsider” its proposed rule in light of the directives of the Executive Order, in particular, to “promote predictability and reduce uncertainty.” The OMB letter flatly stated that President Obama did not support EPA’s proposed rule and that regulatory agencies should take action consistent with the President’s priorities. 2

Continue Reading Louisiana Affected By President Obama’s Action on Ozone Standard Reconsideration

Several cases challenging the constitutionality of the Patient Protection and Affordable Care Act (the “ACA”) are traveling through the country in route to the United States Supreme Court. One of those cases, entitled Thomas More Law Center v. Obama, 2011 WL 2556039 (6th Cir. 2011), has become the subject of a petition by the Law Center asking the Supreme Court to review the Sixth Circuit decision. The petition was filed on July 26, 2011.

The Sixth Circuit upheld the constitutionality of the ACA. The court there determined that the “insurance mandate” included in the ACA was a proper exercise by Congress under the Commerce Clause of the United States Constitution. Numerous other appellate court cases have been decided since the passage of the ACA on March 23, 2010. Most of those cases have held that the requirement that all persons maintain insurance coverage is unconstitutional, but they have disagreed on whether or not the remainder of the law is severable and, therefore, may go forward. The petition by the Thomas More Law Center to the United States Supreme Court, is seeking a decision prior to the Supreme Court’s recess in the summer of 2012. Considering the political climate and the effect that this decision might have on voting in 2012, if the Supreme Court decides to take the case, the timing of its decision on the merits may be most important.

Last week, the United States Department of the Treasury announced the approval of applications from Louisiana and a handful of other states for State Small Business Credit Initiative (“SSBCI”) funding. The SSBCI is an important component of the Small Business Jobs Act (“the Act”) that was signed into law last fall. This funding is intended to provide support to state-level programs, and is designed to generate billions in additional small-business lending and help create new private sector jobs.

Under the Act, these states’ programs may receive a total of $360 million in SSBCI funds. Under the SSBCI, states must demonstrate a reasonable expectation that each $1 in federal funding will generate a minimum of $10 in new private lending. Accordingly, this $360 million allocation is expected to support more than $3.6 billion in new private lending.

The states approved for SSBCI funding are: Alabama ($31.3 million), Florida ($97.7 million), Idaho ($13.2 million), Iowa ($13.2 million), Louisiana ($13.2 million), Mississippi ($13.2 million), Ohio ($55.1 million), Oregon ($16.5 million), Tennessee ($29.7 million), Texas ($46.6 million), Virginia ($18.0 million), and Washington, D.C. ($13.2 million).

The Louisiana Department of Economic Development will use its funds to support two existing programs: the Louisiana Small Business Loan Guarantee Program and the Louisiana Seed Capital Program, a venture capital program.

True threats of violence or just talk?  The District of Columbia Circuit Court recently enforced an NLRB order in favor of two former employees who were fired for making alleged threatening remarks to a supervisor.  The supervisor had orally warned a group of employees who had exceeded the time for their break period.  Two employees then told the supervisor “it’s going to get ugly” and he “better bring [his] boxing gloves.”  The employer fired the employees for violating the employer’s zero-tolerance workplace violence policy.  The NLRB disagreed.  The Board held that the statements were “figures of speech,” not actual threats which would have not been protected speech under the NLRA.  Enforcing the NLRB decision, the District Court held that the Board’s determination was not unreasonable.  Kiewit Power Constructors Co. v. National Labor Relations Board, D.C. Cir., No. 10-1289, 8/3/11.

Maritime attachment is a powerful procedure that allows an aggrieved party to garnish any of the defendant’s property located within a particular federal judicial district.  Attachment is especially powerful because the garnished property can be used to ensure satisfaction of a claim, even if the property within the judicial district is not related to the claim that has been filed there.  This right can prove invaluable for securing payment of claims from a foreign defendant who cannot be easily traced down and sued.  This particular species of attachment is unique to admiralty law and is only available to satisfy “admiralty” or “maritime” claims, including contractual obligations that are separable from an non-maritime aspects of a contract.

Continue Reading Recent Fifth Circuit Decision Illustrates Importance of Including Demurrage Clause in Contract for Sale and Transport of Goods by Sea