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BREAKING – U.S. FEDERAL JUDGE ISSUES NATIONWIDE ORDER TEMPORARILY BLOCKING DEPARTMENT OF LABOR’S PROPOSED OVERTIME RULE CHANGE

November 23, 2016 by Christopher R. Fontan

 

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.

Related Attorneys

  • Stephen J. Carmody
  • Christopher R. Fontan
  • Tammye Campbell Brown
  • Claire W. Ketner
  • Lauren O. Lawhorn
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EPA Signals Denial of Proposed Changes to Point of Obligation under the Renewable Fuel Standard

November 16, 2016 by Brunini Law

 

 

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.

Related Attorneys

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United States Supreme Court denies certiorari review of Fifth Circuit ruling affirming summary judgment for clients

November 10, 2016 by Brunini Law

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.

Related Attorneys

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2016 Mid-South Super Lawyers

November 8, 2016 by Brunini Law

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

Related Attorneys

  • 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
  • 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

Chris Fontan Presents to Rankin County Chamber

November 3, 2016 by Brunini Law

Brunini and TempStaff in coordination with the Rankin County Chamber of Commerce presented a Brunch and Learn on November 2, 2016, where Brunini’s Chris Fontan was the featured speaker.  His presentation covered Employment and HR Law in Mississippi and can be viewed here.

Related Attorneys

  • Christopher R. Fontan

Chris Fontan Presents to Headmasters for the Jackson Area Association of Independent Schools (JAAIS)

October 28, 2016 by Brunini Law

On October 27, 2016, Chris Fontan presented to the Headmasters for the Jackson Area Association of Independent Schools (JAAIS).  During his presentation, he discussed the implications of the Fair Labor Standards Act (FLSA) and Overtime Regulations in Mississippi Educational Establishments.  You may view the presentation here.

Related Attorneys

  • Christopher R. Fontan

Ron Yarbrough elected a Fellow of the American College of Construction Lawyers

October 14, 2016 by Brunini Law

Ron A. Yarbrough, of Brunini, Grantham, Grower & Hewes, has been elected a Fellow of the American College of Construction Lawyers.  He is one of only three ACCL Fellows from Mississippi.  The ACCL is a national organization of lawyers who have demonstrated skill, experience and high standards of professional and ethical conduct in the practice, or in the teaching, of construction law, and who are dedicated to excellence in the specialized practice of construction law.

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The Brunini Firm Welcomes R. Lane Bobo

September 30, 2016 by Brunini Law

Lane Bobo has joined Brunini, Grantham, Grower & Hewes, PLLC as an associate in the firm’s litigation department. Lane will concentrate his practice in medical malpractice defense, construction and general commercial litigation.

Lane is a recent magna cum laude graduate of the Mississippi College School of Law.  Prior to attending law school, he received his Bachelors of Arts in History with a minor in Business Administration from the University of Mississippi.

Sam Kelly, Managing Partner of the Brunini firm said “We are excited to welcome Lane to the Firm and are confident that he will be a great asset to our team.”

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Jones, Sclafani and Drinkwater Obtain Judgment and Dismissal

September 2, 2016 by Brunini Law

On August 18, 2016, Trey Jones, Joseph Sclafani and William Drinkwater obtained a judgment and dismissal for one of the firm’s bank clients in an important case regarding a bank’s duty to protect noncustomers from the wrongdoing of its customers. After being injured in an automobile accident, the plaintiff hired a law firm to pursue her claims arising from the accident. Subsequently, the plaintiff filed for bankruptcy. During the pendency of the bankruptcy, the law firm the plaintiff hired to pursue her personal injury claim obtained a $500,000 settlement. The law firm then hired a separate bankruptcy attorney to obtain bankruptcy court approval of the settlement and payment of the law firm’s legal fees. After receiving the $500,000, the bankruptcy attorney deposited the funds into his personal account at the bank. The bankruptcy attorney paid the law firm its legal fees but stole the money owed to the plaintiff.

Following the bankruptcy attorney’s theft, the plaintiff sued the law firm she hired to litigate her personal injury claim for malpractice and negligence, among other claims, for allowing the bankruptcy attorney’s conversion. As part of the plaintiff’s settlement of her claims against the law firm, the law firm assigned any causes of action it may have against any financial institution relating to the conversion. The plaintiff, assignee of the law firm, then sued the bank for negligence and conversion, arguing that a bank that has notice or knowledge of a customer’s misappropriation of funds from the customer’s trust account may be held liable to the non-customer whose funds were misappropriated.

Resolving a complicated issue not yet addressed by the Mississippi Supreme Court, the U.S. District Court held that plaintiff, as successor in interest to the law firm, did not have standing to assert a conversion claim because the funds converted never belonged to the law firm. Likewise, the court held, as a matter of law, that the bank owed no duty to plaintiff, as successor in interest to the law firm, to protect it from its customer’s misappropriation of funds that belonged to the law firm’s client. Accordingly, the court dismissed all of plaintiff’s claims with prejudice.

Related Attorneys

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Chris Fontan Presents to Mississippi Corporate Counsel Association

August 24, 2016 by Brunini Law

Chris Fontan spoke at the August meeting of the Mississippi Corporate Counsel Association on August 24, 2016.  His presentation provided attendees with CLE credit and covered Hot Issues in Employment Law in Mississippi in 2016.  The presentation may be viewed here.

Related Attorneys

  • Christopher R. Fontan
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