Chris Fontan, current Member at Large for the Mississippi Bar’s Labor & Employment Section, presented during it’s Annual CLE Service. The materials from his presentation may be viewed here.
On March 15, 2017, a jury in the District Court for the Northern District of Mississippi returned a defense verdict in favor of Peco Foods, Inc. and against 55 plaintiffs. The underlying lawsuit involved nuisance and negligence-based claims brought by residents of the Egypt, Mississippi community related to Peco Foods’ contracts with two broiler chicken farms in the area. Specifically, the residents complained that the farms were a nuisance because they allegedly produced excessive odors, flies, and truck traffic. Plaintiffs also claimed that Peco Foods was negligent in contracting and continuing its contractual relationship with the farms. After a 13-day trial that involved 70 witnesses, the jury found that none of the 55 plaintiffs had established their claims against Peco Foods and returned a defense verdict. Judge Michael Mills presided over the trial. During closing argument, the Plaintiffs’ counsel asked the jury to award $11 million in monetary damages.
Benchmark Litigation has named the Brunini firm Mississippi’s only “Firm of the Year” for 2017. This is the second consecutive year for Brunini to receive this honor. Patrick McDowell accepted the award for the firm at the Benchmark Litigation U.S. Awards Dinner in New York City on February 16.
Benchmark Litigation focuses exclusively on litigation in the United States. Award winners are determined through extensive interviews of the nation’s leading private practice lawyers and in-house counsel to identify the very best litigators and law firms in each jurisdiction. The Brunini firm is proud to continue to be recognized among the country’s most distinguished law firms.
David Kaufman was elected President of the Mississippi Chapter of the American Board of Trial Advocates at its annual meeting held in Jackson on February 11, 2017. ABOTA is an invitation-only national association of experienced trial lawyers and judges dedicated to the preservation and promotion of the Seventh Amendment to the U.S. Constitution, which guarantees the right to civil jury trials. ABOTA’s primary goal is to educate the American public about the history and value of the right to trial by jury and is dedicated to elevating the standards of integrity, honor and courtesy in the legal profession. Founded in 1958, ABOTA boasts a membership of more than 7,600 experienced attorneys representing both the plaintiff and defense bars in civil cases and who are spread among 95 chapters located in all 50 states and the District of Columbia.
Brunini’s Kaufman has been recognized by Best Lawyers in America® for Bet-the-Company Litigation, Business Litigation, Securities Litigation, and Personal Injury Litigation. Chambers USA has included him among America’s Leading Lawyers in Business Litigation, and Mid-South Super Lawyers has named Kaufman one of its top 50 lawyers in Mississippi for business litigation. Benchmark Litigation has named him a Local Litigation Star, and The Mississippi Business Journal recognized Kaufman as a Leader in the Law for 2011. He is also a Fellow of the American College of Trial Lawyers and an Associate and former National Director of the American Board of Trial Advocates.
Late Tuesday afternoon (November 22, 2016), a federal judge in Texas entered a nationwide preliminary injunction blocking implementation of a highly controversial rule that was set to take effect in less than 10 days (on December 1, 2016). The judge’s injunction temporarily prevents the U.S. Department of Labor (DOL) from enforcing its controversial Proposed New Overtime Rule that would significantly expand overtime eligibility for millions for public and private sector employees.
In September 2016, two separate lawsuits were filed in U.S. District Court in the Eastern District of Texas challenging the legality of the DOL’s proposed changes. The lawsuits—one filed by a group of 21 states and the other filed by a conglomerate of over 50 nationwide business groups and trade organizations—both sought to temporarily enjoin and permanently strike the DOL’s Proposed Rule from taking effect. The federal court later consolidated the two suits into one case.
In granting the preliminary injunction on Tuesday, U.S. District Judge Amos Mazzant ruled that the states and businesses were able to show ”a likelihood of success in their challenge” of the Proposed Rule, as well as a likelihood of “irreparable harm” if the Proposed Rule went into effect on December 1st. In contrast, Judge Mazzant felt that the DOL failed to show it would be harmed if implementation of the Proposed Rule were delayed.
In their lawsuits, as well as during oral argument on their requests for the preliminary injunction, the states and businesses argued that the DOL’s rule would force many state and local governments, as well as private businesses, to increase their employment costs substantially. If enacted, the Proposed Rule would double the minimum salary threshold—from the current $23,660 to the proposed $47,476—required for an employee to qualify for the Fair Labor Standards Act’s (FLSA) white collar exemptions. To this end, the states and businesses contested the DOL’s policy behind the change to the Proposed Rule by arguing that the federal agency relied too heavily on the “salary level” earned by an employee and not enough on the kind of work an employee performs. The states and businesses argued that such a policy disregarded the original text of the FLSA.
In initially siding with the states and businesses, Judge Mazzant held that the DOL wasn’t entitled to deference in creating the Proposed Rule, and that Congress intended the exemption to apply based on the tasks an employee actually performs. The judge recognized that the DOL has “significant leeway” to establish the types of duties that might qualify an employee for the white collar exemptions, but that nothing in the text of the FLSA indicated Congress’s intention for the DOL to define employee classifications with respect to a minimum salary level. Judge Mazzant ultimately opined that the DOL’s enactment of the Proposed Rule appeared to exceed its delegated authority and as a result, ignored Congress’s intent behind the FLSA.
In issuing the preliminary injunction, Judge Mazzant also agreed that the states and businesses would suffer irreparable harm being forced to comply with the new costs associated with the Proposed Rule—harm which could not be redressed or undone if the Court later decided in their favor in permanently striking the Proposed Rule. “Due to the approaching effective date of the final rule, the court’s ability to render a meaningful decision on the merits is in jeopardy,” Judge Mazzant said. “A preliminary injunction preserves the status quo while the court determines the department’s authority to make the final rule as well as the final rule’s validity.”
Representatives of the states and business groups who initiated the legal challenge were quick to praise the Court’s decision. “Businesses and state and local governments across the country can breathe a sigh of relief now that this rule has been halted,” said Nevada Attorney General Adam Paul Laxalt.
Representatives for the DOL have yet to comment, so it remains to be seen if the federal government will simply allow the injunction to remain in place pending final resolution of the consolidated lawsuits. Alternatively, the DOL could choose to pursue a countermanding order on appeal. (However, since any appeal would be heard by the Fifth Circuit, the success of such an appeal is far from a certainty.) Lurking above all of these legal maneuvers is the recent election of President Donald Trump, who has yet to publicly announce his intentions for the Proposed Rule.
So, while it still remains possible the Proposed Rule could ultimately take effect (either in full or in some modified form), the Court’s ruling on Tuesday is certainly a welcome reprieve for U.S. employers—at least for the time being.
By: L. Kyle Williams
Over the past year, several petroleum distributors, and other entities, have advocated for moving the point of obligation under the Renewable Fuel Standard (“RFS”), seeking to remove this responsibility from refiners and importers, and place it on “position holders” or those parties that blend renewable fuel into transportation fuel.
The RFS promotes increased blending of ethanol, biodiesel and other renewable fuels. Obligated parties—currently, refiners and importers—bear the responsibility of complying with annual renewable fuel volume obligations (“RVOs”) established by the U.S. Environmental Protection Agency (“EPA”). These parties ensure the requisite amount of renewable fuels gets blended into the fuel pool, to offset petroleum fuel production and, in turn, they receive Renewable Identification Numbers (“RINs”) for blending, which are credited toward fulfilling their RVO. Obligated parties can either blend the fuels, earning the corresponding RINs, or they can purchase them.
Valero Energy Corp. filed a petition for reconsideration with the EPA, asking it to change the definition of “obligated party”, as provided by the RFS to no longer include refiners or importers, but rather, “the entity that holds title to the gasoline or diesel fuel, immediately prior to transfer from the truck loading terminal or bulk terminal to a retail outlet, wholesale purchaser-consumer or ultimate consumer.” In addition, CVR Energy and the American Fuel and Petrochemical Manufacturers filed separate but similar requests with the EPA. Proponents of moving the point of obligation argue the current system is fraught with inefficiencies, and larger retailers have a competitive advantage by benefitting from profitable RIN sales. In addition, Valero claimed changing the point of obligation will incentivize the growth of renewable fuels, while the current system has the effect of limiting renewable fuel use. In its petition to the EPA, Valero further claimed the existing point of obligation “harm[s] renewable fuel producers, independent refiners, retailers and U.S. consumers.”
On November 10, 2016, the EPA announced that it proposed to deny all requests to change the point of obligation but will take public comment on such proposals to ensure it will “receive input from the wide variety of stakeholders that could be affected.” In its Proposed Denial, the EPA stated, “We are therefore opening a docket to formally receive comments on the petitions submitted to EPA to change the point of obligation in the RFS program from the refiners and importers of gasoline and diesel fuel to other parties, such as blenders or position holders of these fuels.” The comment period will last sixty days, beginning November 10, 2016. The EPA’s announcement comes after many trade associations, retailers and other entities discouraged any changes to the point of obligation, instead, advocating for the continuation of the current system. These parties include the National Association of Truckstop Operators, the American Petroleum Institute, and the National Association of Convenience Stores. According to these organizations, any changes in the point of obligation would harm consumers by negatively impacting the U.S. fuel market and would raise fuel prices.
The EPA has put forth a comprehensive report detailing its rationale for proposing to deny the requests. Its main arguments in favor of maintaining the current regime include: (1) the current program structure appears to be working to achieve the goals of the RFS program; (2) changing the point of obligation is not expected to result in the increased production, distribution and use of renewable fuels; (3) changing the point of obligation would significantly increase the complexity of the RFS program; and (4) changing the point of obligation could cause significant market disruption. While it is not readily known how the effects of the comment period or the recent U.S. Presidential election will impact this requested change, the EPA’s decision is of great importance to the industry and should be closely watched by industry professionals.
On October 31, 2016, the United States Supreme Court denied certiorari review of the United States Court of Appeals for the Fifth Circuit’s decision affirming the United States District Court of Louisiana’s award of summary judgment to the firm’s clients in a civil RICO action accusing the clients and others of alleged racketeering activities in connection with the awarding of debris removal and clean-up contract work in Louisiana following Hurricane Katrina. The clients were represented by David Kaufman, Patrick McDowell (briefed), and Benje Bailey.
Attorneys from Brunini were recently selected as Mid-South Super Lawyers 2016 and Mid-South Rising Stars 2016.
Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.
Brunini’s R. David Kaufman and John E. Wade were also listed in the Top 50 Mississippi Lawyers.
Mid-South Super Lawyers
Matt Allen-Business Litigation
Sheldon G. Alston- General Litigation
Leonard A. Blackwell, II-Environmental
Stephen J. Carmody- Employment & Labor
J. Gordon Flowers- Business Litigation
Lynne K. Green-Estate Planning and Probate
William Trey Jones, III- Business Litigation
R. David Kaufman- Business Litigation
Samuel C. Kelly- Construction Litigation
James A. McCullough, II- Bankrutpcy Business
M. Patrick McDowell- Business Litigation
John E. Milner- Environmental
Joseph A. Sclafani- Appellate
Watts C. Ueltschey- Energy & Resources
Leonard D. Van Slyke, Jr.- Tax
John E. Wade- Personal Injury Medical Malpractice: Defense
Eugene R. Wasson- Environmental
Ron A. Yarbrough- Construction Litigation
Mid-South Super Lawyers – Rising Stars
Cody C. Bailey- Construction Litigation
William Drinkwater- Bankruptcy: Consumer
Christopher R. Fontan- Employment & Labor
Karen Howell- IP
Lauren O. Lawhorn- Employment & Labor
Taylor B. McNeel- Business Litigation
Lane W. Staines- Health Care
- Christopher R. Fontan
- Cody C. Bailey
- Gene Wasson
- J. Gordon Flowers
- James A. McCullough II
- John E. Milner
- John E. Wade
- Joseph A. Sclafani
- Karen E. Howell
- Lane W. Staines
- Lauren O. Lawhorn
- Leonard A. Blackwell, II
- Leonard D. Van Slyke, Jr.
- Lynne K. Green
- M. Patrick McDowell
- R. David Kaufman
- Ron A. Yarbrough
- Samuel C. Kelly
- Matthew W. Allen
- R. Lane Bobo
- Sheldon G. Alston
- Stephen J. Carmody
- Taylor B. McNeel
- William D. Drinkwater
- William Trey Jones III