On February 18, 2016, the United States Court of Appeals for the Fifth Circuit affirmed 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 District Court entered summary judgment in the clients’ favor on March 13, 2015, and plaintiffs appealed. The Court of Appeals heard oral argument on February 2, 2016, and affirmed for the clients soon after on February 18, 2016. The clients were represented by David Kaufman, Patrick McDowell (argued), and Benje Bailey.
Benchmark Litigation has named the Brunini firm Mississippi’s “Firm of the Year” for 2016. David Kaufman and Patrick McDowell accepted the award for the firm at the Benchmark Litigation Awards ceremony in New York City on February 11.
Benchmark Litigation focuses exclusively on litigation in the United States. Benchmark Litigation Award winners are determined through extensive interviews of the nation’s leading private practice lawyers and in-house counsel to identify the leading litigators and law firms in each jurisdiction. The Brunini firm is proud to be recognized among the country’s most distinguished law firms.
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Brunini Attorney Named Mississippi Business Journal’s 2015 Lawyer of the Year
JACKSON, Miss. – Watts Ueltschey, a partner in the Jackson office of Brunini, Grantham, Grower & Hewes, PLLC was recently named Mississippi Business Journal’s 2015 Lawyer of the Year at the MBJ’s Leadership in Law dinner. He is the first attorney from Brunini to ever receive this award.
Brunini’s Ueltschey has been recognized by Martindale Hubbell Preeminent rating; Best Lawyers in America® in the fields of Energy Law, Mining Law and Oil and Gas Law; Chambers USA: America’s Leading Lawyers for Business in the field of Energy and Natural Resources; and Super Lawyers in the fields of Energy and Natural Resources and Real Estate.
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Mississippi Environmental Quality Permit Board Summary of Meeting Held February 9, 2016
Prepared By Brunini, Grantham, Grower & Hewes, PLLC
The Environmental Practice Group of the Brunini Law Firm publishes a summary of the proceedings of each monthly meeting of the Mississippi Environmental Quality Permit Board and of the Mississippi Commission on Environmental Quality. We strive to provide, in a succinct newsletter format, the key points addressed in each meeting that will be of interest to the regulated community in Mississippi.
If you have any questions concerning the content of a newsletter it would like further information about the matters addressed in a newsletter, please contact John Milner, the Brunini Firm Environmental Practice Group leader, at jmilner@brunini.com or (601) 960-6842.
Meeting Summary
The Mississippi Department of Environmental Quality Permit Board (Board) convened its regular monthly meeting at 9:00 a.m. on February 9, 2016 at the offices of the Mississippi Department of Environmental Quality in Jackson. Mr. David H. Snodgrass, RPG chaired the meeting. The Board approved minutes from the January regular meeting along with non-controversial actions/certifications by the staff since the January meeting.
Following a prepared agenda, items considered were as follows:
OFFICE OF GEOLOGY
In accordance with MDEQ staff recommendations, the Board approved the following surface mining bond releases and permit to transfer.
Surface Mining Bond Releases:
| Permittee | County | Permit | Staff Recommendation |
| Burns Dirt Construction, Inc. | Oktibbeha | P13-010 | Final 50% release |
| Hammett Gravel Company, Inc. | Holmes | P97-027 | Final 20% release |
| Hammett Gravel Company, Inc. | Holmes | P98-004 | Final 20% release |
Surface Mining Permit to Transfer:
| Permittee | County | Permit | Staff Recommendation |
| Riverwind Construction, Inc., requests that P08-036 be transferred to Sikes Equipment Company, LLC | Rankin | P08-036 | Approval of transfer |
OFFICE OF POLLUTION CONTROL
Liza Ouzts, MDEQ Senior Attorney, informed the Board that the Findings of Fact and Conclusions of Law have been completed subsequent to the evidentiary hearing that was held in September 2015 regarding the NPDES permit issued to the West Rankin Utility Authority (MS0061743). Following the hearing, the Board affirmed the issuance of the NPDES permit. Copies of the Findings of Fact and Conclusions of Law were submitted to West Rankin Utility Authority and the City of Jackson. Both parties made comments regarding elements of the hearing that were absent from the Findings of Fact and Conclusions of Law. Consequently, MDEQ staff developed a redline version that incorporated the requested elements.
Pursuant to the MDEQ staff recommendation, the Board voted to accept the redline version of the Findings of Fact and Conclusions of Law.
OTHER BUSINESS
Mr. Roy Furrh, MDEQ General Council, reminded Board members to submit their statements of interest.
The next Permit Board meeting will be held on March 8, 2016 at 9 a.m.
This Newsletter is a publication of the Environmental Department of the law firm of Brunini, Grantham, Grower & Hewes located in Jackson, Mississippi. This Newsletter is not designed or intended to provide legal or professional advice, as any such advice requires the consideration of the facts of the specific situation.
IRS Circular 230 Notice
To ensure compliance with requirements imposed by the IRS, we inform you that, unless specifically indicated otherwise, any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any tax-related matter addressed herein.
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Five Things I Learned as a Community Banker
In my last blog post, which I am ashamed to say was all the way back in May of last year, I concluded by noting that, between 2010 and 2014, a bank’s ability to control costs appeared to be more closely correlated to its earnings performance than its ability to grow interest income. I also stated that my next article would examine whether or not that correlation should hold in a rising interest rate environment. However, since it appears that interest rates will never again rise meaningfully (notwithstanding the Federal Reserve’s feeble attempt to start the process last month, one they may very well need to reverse soon the way 2016 is starting out), I decided to scrap that whole series altogether. Instead, I decided to start the new year with a different idea that will highlight five important ideas or facts about different subjects that I feel are important to community bankers (or maybe just important to me, who knows).
First of all, I must admit that I stole this idea from the Wall Street Journal who, from time to time, runs articles on “Five Things” ranging from interesting notes on that most revered pursuit of intellectual superiority known as the presidential race to reasons why J.J. Abrams had to kill off Han Solo (a development that I am still quite upset about). Luckily, my legal help is cheap, so if the Journal has a problem with me using their format, maybe it will all work out OK.
For my first article in the series, I plan to focus on five things I learned as a community banker that are still useful to me today. As a matter of fact, since they are so countercultural for many in my current profession of law, they may benefit me more now than they did when I was banking. Follow along and see how many of these traits community banking has conditioned into your character as well.
1. Always Call People Back As Soon As Possible
I know this one sounds simple, but you would be shocked to know (or maybe you wouldn’t) how many attorneys act like their voicemail doesn’t exist. Trying to get them to return a message is like trying to get your ten year old to give you change back after a trip to the concession stand; it just doesn’t happen. I’m not sure if they are scared of their phone, or if they are actually that busy, but either way, it is enough to drive you mad. Not that it is excusable, but I can somewhat see why they now refuse to return my calls since I am not their client but instead an attorney that is often representing an opposing viewpoint (even so, the undue delay does nothing but hinder their client’s interest). However, I am sad to say that I had the same experience when I was a community banker AND A CLIENT. Either most clients are much more patient than me, or those attorneys are so good it doesn’t matter. Regardless, community banking taught me that you must always return your phone calls. Not only does it prevent the bank down the street from fielding a subsequent call from that same person, but common sense tells you that it benefits you and your community reputation in the long run to respect the time and effort people put into trying to contact you. Since common sense is often in short supply in the legal world, maybe that is why bankers are just better at this.
2. No Job is Below Your Pay Grade
I must admit, one community banker comes to my mind as the embodiment of this lesson, and it is my father. Since I was a kid, I have watched him pick up paper in the parking lot of the bank while carrying the title of Chairman of the Board and Chief Executive Officer, a practice that he also exhibited several times while me, as his employee, failed to notice and walked right by the tootsie roll wrapper that he bent down to pick up. In the world of legal runners and billable hours, this just doesn’t happen unless it can be done for $235 per hour and itemized on some poor soul’s bill. However, I learned from my father that doing the small jobs that need to be done doesn’t just make you look more down to earth; it also places the needs of your organization above those of your own in order to make sure that it accomplishes its utmost potential. After all, as the organization rises, so do the prospects and aspirations of its members. Unless the organization prospers, though, the realized potential of the members making up that organization is limited by the weight of that underperforming organization. There are too many small jobs for the runners and administrative staff to do alone; some of them require non-billable hours now for a more profitable practice later.
3. Sometimes You Have to Wear More than One (Or Twenty) Hats
Don’t get me wrong, attorneys are great multi-taskers and are forced every day to juggle more than one file at a time. However, for some time now the phenomenon of professional specialization has taken a foothold within many law firms so that most attorneys limit themselves to one or two practice areas and rarely venture across the borders of those specialties for fear of having to touch base with their professional liability carrier. Community bankers, though, have never had that luxury. As a matter of fact, as regulation increases and the pool of qualified talent decreases, the thought of specialization is nothing more than a pipe dream for all community bankers, or at least those that want to survive the current super-competitive environment to fight another day. Truth be known, technology and competition is quickly changing the legal profession as well, and an obstinate adherence to strict specialization may not be possible for most attorneys much longer, either. Luckily, I had six years of community banking that taught me to wear more than just one hat.
4. People Don’t Really Care What You Know Until They Know You Care
It scares me sometimes to think about how many people I work with every day (both within my law firm and within other firms whose attorneys I work with on different issues) that have more impressive IQs and resumes than I do. As a profession that peddles knowledge, attorneys often place the highest premiums on intellectual talents while discounting bedside manner. However, while I was a community banker that tried to convince my attorneys that I just didn’t need that twenty-page memo regardless of how well it was researched, I realized that clients really can’t trust your knowledge until they can trust that you will use it in their best interest. The duty of loyalty to a client doesn’t just mean you put their needs above those of a third party; it also means that you must put their needs above those of your own, no matter how much you need billable hours or words of affirmation extolling your vast legal research skills. Unless your knowledge benefits your client, it is better to just keep it to yourself, especially when your hourly rate contains three digits.
5. Never Tell A Customer “That’s Not My Job”
While I was at the bank, there was a sweet old lady that would call me at least once a month to help her balance her check book. At first, this aggravated me. After all, my ego told me that I have a CPA and a law degree; surely such a menial task can be performed more efficiently by a customer service representative, or possibly even a teller. However, I later noticed that there were other customers that would walk into my dad’s office asking the same thing, and he never hesitated to help them out. I’m not talking about customers who were going to bring the bank a two million dollar loan from time to time. No, I’m talking about the 85 year old man that was trying to make sure his social security check would stretch until the end of the month. Eventually, it dawned on me that God gives us a calling for reasons other than to generate income in the most efficient manner; he also places us within a profession to help make the world a better place. Those who realize this don’t just earn a living, they also live out a calling that makes their work more rewarding. At the same time, that two million dollar loan customer is watching more often than not and takes notice of their character. Such character demands loyalty, and loyalty is always good for business.
So, there’s my list of the five most valuable things I learned as a community banker. I know for sure that it is not comprehensive, and there very well may be other more important lessons you have learned that I failed to mention. If so, please e-mail them to me at twalker@brunini.com. I would love to learn from your experiences as well.
* This Newsletter is a publication of the Commercial Department of the law firm of Brunini, Grantham, Grower & Hewes located in Jackson, Mississippi. This Newsletter is not designed or intended to provide legal or professional advice, as any such advice requires the consideration of the facts of the specific situation.
IRS Circular 230 Notice
To ensure compliance with requirements imposed by the IRS, we inform you that, unless specifically indicated otherwise, any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any tax-related matter addressed herein.
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Mississippi Environmental Quality Permit Board Summary of Meeting Held January 12, 2016
Prepared By Brunini, Grantham, Grower & Hewes, PLLC
The Environmental Practice Group of the Brunini Law Firm publishes a summary of the proceedings of each monthly meeting of the Mississippi Environmental Quality Permit Board and of the Mississippi Commission on Environmental Quality. We strive to provide, in a succinct newsletter format, the key points addressed in each meeting that will be of interest to the regulated community in Mississippi.
If you have any questions concerning the content of a newsletter it would like further information about the matters addressed in a newsletter, please contact John Milner, the Brunini Firm Environmental Practice Group leader, at jmilner@brunini.com or (601) 960-6842.
Meeting Summary
The Mississippi Department of Environmental Quality Permit Board (Board) convened its regular monthly meeting at 9:00 a.m. on January 12, 2016 at the offices of the Mississippi Department of Environmental Quality in Jackson. Mr. David H. Snodgrass, RPG chaired the meeting. The Board approved minutes from the December Regular meeting along with non-controversial actions/certifications by the staff since the December meeting.
Following a prepared agenda, items considered were as follows:
OFFICE OF GEOLOGY
In accordance with MDEQ staff recommendations, the Board approved the following surface mining bond releases.
Surface Mining Bond Releases:
| Permittee | County | Permit | Staff Recommendation |
| Eutaw Construction Company, Inc. | Monroe | P96-002T | Final 10% release |
| Eutaw Construction Company, Inc. | Monroe | P97-018T | Final 10% release |
| King Equipment & Dozer Services, LLC | Jasper | P08-006 | Additional 20% release |
| S&B Industrial Minerals North America | Monroe | P00-041T | Final 10% release |
| Valley Gravel Company | Lowndes | P97-039 | Initial 10% release |
OFFICE OF POLLUTION CONTROL
Construction and Building Materials Branch
The Board approved coverage for OFP Match Worx Shooting Facility in Leake County under the Construction Stormwater General Permit (MSR107027). MDEQ staff stated that this facility was cited in October 2015 for conducting land-disturbing activities on a site larger than 5 acres without a permit. Since this time, the facility developed a SWPPP and submitted a Notice of Intent (NOI) to MDEQ. Staff have reviewed the facility’s SWPPP and NOI and stated that it is complete. Further, the facility has appropriate plans for safety and hours of operation.
Several visitors attended the meeting and stated their concerns regarding the proposed shooting range. These included water contamination, air pollution, and safety and noise disturbances. Visitors also asked that MDEQ hold a public hearing before issuing coverage. Mr. Snodgrass of the Board noted that this facility was requesting a general permit—which has no public hearing requirement. Further, Mr. Snodgrass clarified that the Board was not responsible for local landuse and zoning decisions. The Board approved the coverage based on MDEQ staff recommendation that all environmental requirements are now satisfied.
Solid Waste and Mining Branch
The Board approved a reissuance of the Solid Waste Permit for Unified Waste Systems, L.L.C., Starling Rubbish Disposal Facility (SW0170020518). This as a 55-acre Class I rubbish disposal site located in DeSoto County. Standard permits for Class I facilities allow operation for a 10-year period. MDEQ staff stated that this permit contains language allowing the facility to operate for 5 years (until July 7, 2019). After this time, the facility must obtain a conditional use approval from the DeSoto County Board of Supervisors and submit such approval to MDEQ to continue operation.
A resident of DeSoto County addressed the Board, requested an additional public meeting and time for review of the permit, and voiced concerns about the current operation of the site. Concerns included a report of unauthorized waste being accepted at the site and an alleged fire within the landfill. The resident is also concerned the facility would endanger nearby schools and negatively impact future development. The Board clarified that it is not in charge of local zoning, but rather ensures compliance with state and federal environmental regulations. Further, the permit contains special language that requires the facility to provide documentation of the local Board of Supervisor’s continuing approval of the site.
MDEQ staff inspected the facility on January 6, 2016 and found no compliance issues and no physical evidence of a fire in the landfill. The Board approved the permit based on the MDEQ Staff’s recommendation that all environmental requirements are satisfied.
Joint Matter of the Office of Geology and the Office of Pollution Control
The Board approved the Surface Mine application (A1927) and modification of the Mining Stormwater Coverage (MSR322500) for Pierce Construction and Contract Hauling, Inc., Tucker Mine in Monroe County. MDEQ staff stated that the modification would allow a 23-acre mine for borrow material. A public hearing was held in Monroe County in December 2015. At the hearing, attendees expressed concerns regarding traffic near the facility and the number of permitted mine sites near Hamilton, MS. However, MDEQ Staff explained that there are only 1 permitted surface mine and 3 “exempt” sites (less than 4 acres) located near Hamilton.
MDEQ staff stated that the facility has met all requirements for modification of the facility and recommended the Board’s approval. The Board separately approved the facility’s Surface Mining Permit and modified the Mining Stormwater Coverage.
OTHER BUSINESS
Mr. Roy Furrh, MDEQ Legal Counsel reminded the Permit Board members that they need to file their annual ethics statement.
The next Permit Board meeting will be held on February 9, 2016 at 9 a.m.
This Newsletter is a publication of the Environmental Department of the law firm of Brunini, Grantham, Grower & Hewes located in Jackson, Mississippi. This Newsletter is not designed or intended to provide legal or professional advice, as any such advice requires the consideration of the facts of the specific situation.
IRS Circular 230 Notice
To ensure compliance with requirements imposed by the IRS, we inform you that, unless specifically indicated otherwise, any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any tax-related matter addressed herein.
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Curt Hébert Named 2015 Mississippi Business Journal “Top Ten” Leadership in Law Recipient
The Mississippi Business Journal announced its 2015 Leadership in Law Class, and Curt Hébert, Jr., was among the Top Ten Leaders in Law. Hébert joins a group of Brunini attorneys who have received similar awards over the last six years, including Eddie Brunini, 2010; David Kaufman, 2011, Walter Weems, 2012, John Milner, 2012, Granville Tate, 2013 and Sam Kelly, 2014.
Curt Hébert, Jr., is the former Chairman of the Federal Energy Regulatory Commission (FERC) and the former Executive Vice President for Entergy Corporation. Hébert has advised energy companies and corporations throughout the Southeast, Northeast, and Midwest, as well as companies in Europe, on numerous matters, including building accountability and transparency into corporate governance, improving the quality of regulatory filings, reporting and relationships, and executing complex, structured regulatory settlements. He has developed broad and deep experience in all segments of the energy sector, spanning exploration and production, natural gas transportation, electric generation and distribution, nuclear, chemicals, and mining. He also brings a thorough knowledge of national and international energy markets, policy and regulatory processes. Hébert has extensive experience years in the telecommunications, transportation and water/sewage sector on regulatory filings and administrative hearings. He has been widely published and speaks regularly as well as interviews on national television networks on energy and business issues.
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U.S. Department of Labor’s Final Overtime Rule Not Expected in 2nd Half of 2016
Earlier this year, the U.S. Department of Labor (DOL) announced a series of proposed changes to its federal regulations regarding worker classification. If implemented, the highly controversial rule would require U.S. employers to potentially re-classify over 5 million workers as “non-exempt”—greatly expanding the number of U.S. employees eligible for overtime compensation. The DOL received over 250,000 public comments on the proposed changes throughout its open comment period, which ended on September 4, 2015.
Since that time, employers have had three common questions: (1) when would the DOL release its final decision on the proposed changes; (2) what will the final changes (if any) entail; and (3) when will employers have to comply with any final changes. Recent (yet conflicting) guidance from President Obama’s Administration indicates that the final ruling will not be issued before July 2016, and likely later into the year.
On November 20, 2015, the U.S. Office of Management and Budget (OMB) published its Fall 2015 Unified Agenda and Regulatory Plan
Prior to the publication of the Fall Unified Agenda, officials with the DOL, including Solicitor of Labor Patricia Smith, indicated that the final rule would likely be issued sometime in “late 2016.” DOL officials also stated that any changes would be issued early enough to for the changes to take effect before the President Obama leaves office.
Under either scenario, employers should not have to comply with any of the proposed changes to the FLSA’s overtime exemptions during the 1st half of 2016. However, the “late 2016” predictions are important for employers if true, as it suggests that the time between publication of the final rule and its effective date will be short, because the later the final rule is published, the smaller the window of time the department can allow employers to review and adapt before the new regulations become effective. In fact, it is very likely that employers may only have 30 to 60 days after the final changes are published before they become legally effective.
Will Peyton Manning Win Defamation Case?
The Al Jazeera report that Peyton Manning’s wife received shipments of Human Growth Hormone has been much discussed the past several days. Peyton has said that any implication that he used the drug is a “complete fabrication” and that he is so angry that he’ll probably sue Al Jazeera.
My good friend Rick Cleveland has recently written that a good editor would have told the reporter to “Go back. Dig deeper. You need more sources. This won’t stand up. You’ve got one source and he’s recanted. You’ve got nothing. We can’t go with this.” Rick is correct. Had I been the broadcast’s entity’s attorney, I would have recommended the route Rick is suggesting. But the question now is a different one. The question now is whether Peyton can win a defamation case given the legal standards that exist. My answer is that I doubt he can win.
Let’s assume that the story turns out to be completely untrue. Many of us who have followed the Manning family for many years would like to believe that is the case. Even so, Peyton will have a tough time prevailing in a defamation case. The reason is that there is a very different standard in defamation cases for “public figures” than is true for ordinary citizens. That is because the United States Supreme Court long ago ruled that publishers should be protected in the “public figure” arena so as to promote public discussion of important issues.
Few would question that Peyton Manning is a “public figure”. His success as an NFL quarterback has brought with it great fame. In addition to his exploits on the field, he has been interviewed countless times and he even appears in commercials for various products.
As a “public figure”, Peyton would have to prove not only that the report was false, but also that the publisher either knew it was false or published the story in “reckless disregard” of whether it was true or not. In determining whether a story was broadcast or printed in “reckless disregard” of its truth, the Supreme Court has promulgated this test: “There must be sufficient evidence to permit the conclusion that the defendant entertained serious doubts as to the truth of its publication.” Among other things, there’s the problem of the pharmacist’s statements on tape even though he recanted after the broadcast. To prevail will be a huge hill for Peyton to climb.
John Milner featured in Mississippi Petroleum Marketers and Convenience Stores Association Magazine
John Milner was recently featurered in the in the MPMCSA “Marketers Update” magazine for October – December 2015. The first article featured was an interview with John, and the second was an article co-authored by John Milner and Jess New.