Brunini Law

We've been around as long as the egg carton.

(But we're much tougher to crack.)

U.S. Department of Labor Issues First Guidance Concerning Families First Coronavirus Response Act (FFCRA)

by

On Wednesday, March 18, 2020, President Trump officially signed the Families First Coronavirus Response Act (FFCRA) into law.  The text of the FFCRA provided broad details concerning its two principal mandates: (1) new, paid sick leave rights for workers impacted by COVID-19 and those serving as caregivers for others with COVID-19; and (2) new, enhanced leave entitlements under the Family Medical Leave Act (FMLA), including limited paid leave rights.  However, Congress failed to address many of the details concerning the implementation of the FFCRA, instead deferring to the Secretary of Labor.

On Tuesday, March 24, 2020, the U.S. Department of Labor (DOL) issued a series of guidance attempting to answer preliminary questions concerning the mechanics of the FFCRA.  Specifically, the DOL issued a General Question and Answer page, along with Fact Sheets for Employers and Employees.  The DOL also stated it also will be issuing implementing regulations regarding the new law in the near future, as well as additional guidance.  Of note, the DOL indicated that the FFCRA will officially go into effect on Wednesday, April 1, 2020—not on April 2nd as originally expected.

While circumstances remain fluid, we will continue to monitor further proposed legislation and its potential impact on our clients.

Related Attorneys

CORONAVIRUS AND THE INTERRUPTION OF YOUR BUSINESS

by

As rapidly as the coronavirus is spreading its footprint across the globe, businesses of all shapes and sizes are closing their doors … and losing income.  Unfortunately, Mississippi businesses are not exempt from this fast moving reality.  Indeed, coffee shops, boutiques, restaurants, office complexes, and a variety of other businesses across the State have been forced to drastically change their operations or, in some cases, completely shutter their businesses in response to the coronavirus pandemic and the related government directives concerning travel and social distancing.  As a result, many companies are already reporting lost profits, as well as a significant concern about the future of their businesses.

Fortunately, most companies carry a commercial property insurance policy, which typically includes not only coverage for property damage but also coverage for lost profits incurred as a result of damage to the covered property.  In other words, a business may have coverage for its coronavirus lost profits through its commercial property policy.  To know that, an insured should first review its policy to determine if it contains any of the following types of coverages which are frequently included in a commercial property policy.

Business Income/Interruption 

Business Income/Interruption Coverage provides coverage for the loss of income an insured sustains as a result of a suspension of an insured’s operations.  However, most policies require that the suspension stem from “direct physical loss or damage” caused by a “covered peril” (typically theft, fire, wind, falling objects or lightning) to the specific covered property.  This type of coverage is most commonly found in circumstances where an insured’s covered property is damaged by a fire, or perhaps a storm, forcing the insured to suspend its operations for a period of time.  In that scenario, the fire or storm damage to the subject property would be readily apparent, and assuming it is a covered peril, the claimant would have a strong claim for the income lost during the restoration period.  However, a claim for lost income as a result of the coronavirus will be much more complex.

First, an insured will need to demonstrate “direct physical loss or damage” to its covered property.  Given the nature of the coronavirus, however, there likely will be no apparent damage to the property.  So, insureds will likely contend that, regardless of its visibility or lack thereof, the virus is within their workplace – albeit at a microscopic level – and that it is has in fact damaged their covered property.

Courts have heard similar arguments in other contexts (e.g. asbestos, gasoline fumes, etc.) and reached varying conclusions.  Some have sided with the insureds that the contaminant damaged the property, while others agreed with the insurers that the contaminant had not damaged the insured’s property.  This determination, which will involve a detailed analysis of the relevant policy and applicable law, will be the critical issue in evaluating these claims for coverage.

Next, an insured should review its policy to determine if it excludes coverage for business interruption claims based on communicable diseases.  Due to the SARS outbreak in 2003, the insurance industry purportedly paid out a significant amount of claims based on “business interruptions” caused by SARS.  After the SARS outbreak, and to avoid a repeat, the insurance industry began excluding losses incurred by communicable disease.  Perhaps most importantly, in 2006, the heavily relied upon Insurance Services Office (ISO) issued form CP 01 40 07 06 excluding “loss or damage caused by or resulting from any virus, bacterium, or other microorganism that induces or is capable of inducing physical distress, illness or disease.”  Determining whether the insured’s policy contains this exclusion will be a critical component of any coverage analysis.

Contingent Business Interruption

Commercial property policies routinely include coverage for disruptions in an insured’s supply chain.  This coverage applies when damage occurs not to the insured’s property but to the property of others relied on by the insured to supply materials to the insured or its customers.  Again, it is important to note that these policies usually require damage or physical loss caused by a covered peril to the supplier’s property.  As with the Business Income/Interruption claim, the specific language of the policy will be critical in this analysis.

Order of Civil Authority

Many commercial property insurance policies provide coverage for business income losses sustained when a “civil authority” prohibits or impairs access to the policyholder’s premises.  Some of these policies do not require “physical loss” to the insured’s covered property, and those that do sometimes do not require that the physical loss occur to the insured’s own property.  Thus, if a governmental authority – federal, state, or local – prohibits or even limits access to an area including an insured’s business, the insured may have coverage for its loss of income under its “civil authority” coverage.  Yet again, analysis of the specific language in the policy and applicable law will be critical in determining coverage.

The First Coronavirus Coverage Case

On March 16, 2020, Oceana Grill in New Orleans, Louisiana filed what is thought to be the first lawsuit – of many more to come – dealing with a coronavirus business interruption coverage dispute (Cajun Conti, LLC, et al. v. Certain Underwriters at Lloyd’s London, et al., Civil District Court for the Parish of Orleans, Louisiana).

In its Petition for Declaratory Judgment, Oceana Grill requested a declaration of coverage for coronavirus-caused losses under a business interruption policy.  Oceana contends that it purchased an “all risk policy” from Lloyd’s of London, “which covers all risks unless clearly and specifically excluded” and further contends that “the policy does not provide any exclusion due to losses, business or property, from a virus or global pandemic.”

With respect to harm caused by the virus, Oceana contends that:

[T]he scientific community, and those personally affected by the virus, recognize the Coronavirus as a cause of real physical loss and damage….The virus is physically impacting public and private property, and physical spaces in cities around the world….The global pandemic is exacerbated by the fact that the deadly virus physically infects and stays on the surface of objects or materials, ‘fomites,’ for up to twenty-eight days, particularly in humid areas below eighty-four degrees….It is clear that contamination of the insured premises by the Coronavirus would be a direct physical loss needing remediation to clean the surfaces of the establishment.

Oceana also pointed out that the Louisiana Governor issued a statewide order banning gatherings of 250 or more people and the New Orleans Mayor issued additional operating restrictions on businesses.

For these reasons, Oceana has asked the Court to declare that:

  1. The policy provides coverage to Plaintiffs for any future civil authority shutdowns of restaurants in the New Orleans area due to physical loss from Coronavirus contamination; and
  2. The policy provides business income coverage in the event that the coronavirus has contaminated the insured’s premises.

This will be an important case to monitor as the coronavirus crisis and resulting business interruption coverage disputes continue.

The Brunini attorneys are closely monitoring developments in the coronavirus crisis and are counseling clients through the various legal and business issues involved in the crisis.

Related Attorneys

A Message from Brunini to our Clients and Friends (COVID-19)

by

As we all work to address the growing personal and business challenges presented by COVID-19, Brunini wants to assure our clients, friends, and the public that we will continue providing top-notch legal services uninterrupted by the ongoing public health crisis.  The firm activated its business continuity policies and procedures some time ago, and we are taking every precaution possible to protect the health, safety and welfare of our clients, the entire Brunini Team and their families.  Among other protective measures:

  • Brunini lawyers and staff may work remotely and securely, as may be needed for each individuals’ circumstances, to ensure we continue to serve our clients’ legal needs without interruption;
  • Brunini has implemented enhanced cleaning efforts to protect our lawyers, staff, clients and families, and encourages safe practices and hygiene to minimize the person to person spread of the coronavirus;
  • For some time Brunini has limited non-essential travel of its lawyers and staff, and has established procedures for employees to self-monitor and self-quarantine in the event of potential exposure in high-risk areas; and
  • Brunini encourages social distancing in our practice, including promoting the use of remote meeting technology to help our lawyers and clients avoid unnecessary exposure to potential risks, and we are prepared to adjust our means of communicating as may be needed to suit clients’ specific needs and capabilities.

We recognize that our clients, friends, and the public are being impacted by this challenging public health crisis and are dealing with many difficult and novel business issues.  We are here to help with employment concerns, tax issues, insurance coverage questions or any other legal assistance you might need.  Contact information is available on our website (www.brunini.com), or you may call (601)948-3101 for assistance in reaching any member of our team.

BRUNINI NAMED “MISSISSIPPI FIRM OF THE YEAR” 2020 IN THE 2020 EDITION OF BENCHMARK LITIGATION

by

Brunini, Grantham, Grower & Hewes, PLLC has been named “Mississippi Firm of the Year” in the 2020 edition of Benchmark Litigation. Brunini also made this year’s shortlist of Litigation Law Firm of the Year for Mississippi. Brunini is one of only four firms in Mississippi to achieve this honor.

Benchmark Litigation is a guide to America’s leading litigation firms and attorneys. Their results stem from the culmination of a research period that was conducted between March and November 2019, where researchers conducted interviews with litigators and their clients to identify the leading litigators and firms.

All winners were announced at a ceremony held on Thursday, Feb. 27, 2020 at the Pierre in New York. For more information on Benchmark Litigation’s 2020 US Awards, please click here.

Brunini Recognized by Super Lawyers

by

16 Attorneys from Brunini were recently selected as 2019 Mid-South Super Lawyers and Mid-South Rising Stars.

2019 Mid-South Super Lawyers:

  • Matt Allen – Business Litigation
  • Lynne Green – Estate & Probate
  • William Trey Jones – General Litigation
  • David Kaufman – Business Litigation
  • Sam Kelly – Construction Litigation
  • James McCullough – Business Litigation
  • Patrick McDowell – Business Litigation
  • John Milner – Environmental
  • Watts Ueltschey – Real Estate
  • John E. Wade – Medical Malpractice: Defense
  • Ron Yarbrough – Construction Litigation

2019 Mid-South Rising Stars:

  • Cody Bailey – Construction Litigation
  • Lane Bobo – Medical Malpractice: Defense
  • William Drinkwater – Civil Litigation: Defense
  • Taylor McNeel – Business Litigation
  • Kyle Williams – Appellate

Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. Since Super Lawyers is intended to be used as an aid in selecting a lawyer, we limit the lawyer ratings to those who can be hired and retained by the public.

Related Attorneys

BEST LAW FIRMS 2020 RECOGNIZES BRUNINI

by

Best Lawyers “Best Law Firms” 2020 has awarded Brunini in 32 tier-one rankings.

U.S. News – Best Lawyers “Best Law Firms” are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must first have a lawyer recognized in The Best Lawyers in America©, which recognizes the top 5% of private practicing lawyers in the United States. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.

  • Metropolitan Tier 1
    • Gulfport
      • Gaming Law
      • Land Use & Zoning Law
    • Jackson-MS
      • Administrative / Regulatory Law
      • Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law
      • Bet-the-Company Litigation
      • Commercial Litigation
      • Communications Law
      • Construction Law
      • Corporate Law
      • Energy Law
      • Environmental Law
      • Litigation – Bankruptcy
      • Litigation – Construction
      • Litigation – Environmental
      • Litigation – Intellectual Property
      • Litigation – Land Use & Zoning
      • Litigation – Real Estate
      • Litigation – Securities
      • Litigation – Tax
      • Mass Tort Litigation / Class Actions – Defendants
      • Media Law
      • Mergers & Acquisitions Law
      • Natural Resources Law
      • Oil & Gas Law
      • Personal Injury Litigation – Defendants
      • Product Liability Litigation – Defendants
      • Real Estate Law
      • Tax Law
      • Trusts & Estates Law
    • Tupelo
      • Mass Tort Litigation / Class Actions – Defendants
      • Personal Injury Litigation – Defendants
      • Product Liability Litigation – Defendants
  • Metropolitan Tier 2 
    • Jackson-MS
      • Closely Held Companies and Family Businesses Law
      • Commercial Transactions / UCC Law
      • Employment Law – Management
      • Energy Regulatory Law
      • Legal Malpractice Law – Defendants
      • Litigation – First Amendment
      • Litigation – Labor & Employment
      • Mortgage Banking Foreclosure Law
      • Professional Malpractice Law – Defendants
      • Trademark Law
    • Tupelo
      • Commercial Litigation
  • Metropolitan Tier 3
    • Jackson-MS
      • Corporate Governance Law
      • Elder Law
      • Labor Law – Management
      • Litigation – Antitrust
      • Litigation – Trusts & Estates
      • Medical Malpractice Law – Defendants

National and metropolitan tier 1 rankings will be featured in the physical edition of U.S. News – Best Lawyers “Best Law Firms”, which will be distributed to more than 30,000 in-house counsel. The 2020 “Best Law Firms” rankings can be seen in their entirety by visiting bestlawfirms.usnews.com.

Best Lawyers is the oldest and most respected lawyer ranking service in the world. For almost 40 years, Best Lawyers has assisted those in need of legal services to identify the lawyers best qualified to represent them in distant jurisdictions or unfamiliar specialties. Best Lawyers rankings are published in leading local, regional, and national publications across the globe.

Brunini Recognized As Highly Recommended Firm by Benchmark Litigation 2020

by

Brunini, Grantham, Grower & Hewes, PLLC has been recognized by Benchmarch Litigation 2020 as a Highly Recommended Firm in the state of Mississippi. Brunini is one of seven firms in the state to achieve this honor, with the following attorneys ranked as “Local Litigation Star,” “Future Star,” and “Labor & Employment Star” in their respective practice areas:

  • Cody Bailey – Future Star: Construction and General Commercial
  • Steve Carmody – Labor & Employment Star: Labor & Employment
  • Chris Fontan – Labor & Employment Star: Labor & Employment
  • William “Trey” Jones, III – Local Litigation Star and Labor & Employment Star: Appellate, Environmental, General Commercial, Labor & Employment, and Product Liability
  • David Kaufman – Local Litigation Star: Environmental, General Commercial, and Product Liability
  • Patrick McDowell – Local Litigation Star: Appellate, Environmental, General Commercial, and Intellectual Property

Benchmark Litigation is a guide to America’s leading litigation firms and attorneys. Their results stem from the culmination of a research period where researchers conducted interviews with litigators and their clients to identify the leading litigators and firms.

Related Attorneys

ARE YOU READY (AGAIN)? – U.S. DOL FINALIZES EXPANDED EMPLOYEE OVERTIME ELIGIBLIITY RULES

by

The United States Department of Labor (the DOL) has released its Final Rule that will broaden federal overtime pay regulations to cover up to 1.3 million additional workers who are currently exempt from overtime eligibility. The Final Rule updates the regulations governing which executive, administrative, and professional employees are entitled to minimum wage and overtime pay protections under the Fair Labor Standards Act (the FLSA).

The FLSA requires employers to pay its “non-exempt employees” overtime (1 ½ the workers’ “regular rate of pay”) for all hours worked in excess of forty (40) per week.  See 29 U.S.C. § 207.  The DOL’s regulations implementing the FLSA sets forth a variety of employment classifications that are “exempt” from the FLSA’s overtime requirement—including employees performing executive, administrative, and/or professional job duties.  Since the 1940’s, in order for an employee to qualify as an exempt “white collar” employee, he/she had to meet three “tests”:  (1) the employee must be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed; (2) the amount of salary paid must meet a minimum specified amount; and (3) the employee’s job duties must primarily involve executive, administrative, or professional duties (as defined by the regulations).

The DOL last updated these regulations in 2004, setting the minimum salary threshold at $455 per week (or $23,660 annually). In May 2016, the Obama-era DOL attempted change to the overtime rule that would have doubled the minimum salary level for the so-called “white collar” exemption from $23,660 to nearly $48,000 per year.  This proposal would have also increased the total annual compensation requirement needed to exempt “highly compensated employees” to $134,004 annually (previously set at $100,000), established a mechanism for automatically updating the minimum salary level every three years and allowed employers to use nondiscretionary bonuses and incentive payments to satisfy up to 10% of the new standard salary level.

The DOL’s new Final Rule, raises the minimum salary level for exempt employees to only $689 per week, or $35,568 annually.  The Proposed Rule does have many similarities to the 2016 proposal, including:

  • Allowing employers to count nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the standard salary level test (provided such bonuses are paid annually or more frequently);
  • Increasing the total annual compensation requirement needed to exempt “highly compensated employees” to $107,432 annually (of which $684 must be paid weekly on a salary or fee basis); and
  • Not proposing any changes to the standard duties test for the white collar exemptions.

The Final Rule will go into effect on January 1, 2020. Although the Final Rule does not become effective for several months, employers should be proactive and engage their legal counsel to begin planning for the change now.  Preparations should include auditing current practices and projecting the cost of change and FLSA compliance under the anticipated new framework. This includes evaluating the possibility and effects of significantly higher operating costs. Our professionals are available to discuss your organization’s current structure, as well as any steps needed to insure compliance with the ever-changing legal landscape facing employers.  Contact any one of our Labor & Employment Practice Group professionals with any questions concerning the upcoming transition.

Related Attorneys

EEO-1 Component 2 Deadline Approaching!

by

All private employers employing 100 or more employees and subject to Title VII must submit an EEO-1 report annually. Most federal contractors and subcontractors that employ 50 or more employees also are required annually to submit an EEO-1 report (however, only those federal contractors that employ 100 or more employees are required to submit Component 2 data).  If an employer fails to submit its EEO-1 report, under Section 709(c) of Title VII, the Equal Employment Opportunity Commission (EEOC) may compel an employer to file its EEO-1 report by obtaining an order from the U.S. District Court. Under Section 209(a) of Executive Order 11246, the penalties for failure of a federal contractor or subcontractor to comply may include termination of the federal government contract and debarment from future federal contracts.

The EEO-1 Report is a compliance survey mandated by Title VII of the Civil Rights Act of 1965 with amendments and administered by the EEOC and the U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP). The filing of Standard Form 100 is required by law. The Component 1 survey required companies to categorize employment data by race/ethnicity, gender and job category.

In addition to Component 1, employers are required to submit pay data (also known as Component 2 or EEO-2) as part of EEO-1 reporting to improve investigations of possible pay discrimination by gender, race or ethnicity. In 2019, a federal judge reinstated the revised EEO-1 Component 2 reporting provisions. As a result, the EEOC announced the reinstatement of the revised EEO-1: Pay Data Collection, which requires the collection and submission of 2017 and 2018 pay data (Component 2) by September 30, 2019.

The EEOC, in conjunction with NORC at the University of Chicago (an independent research institution) established a web-based portal for the collection of this information, which can be accessed at this address: https://eeoccomp2.norc.org/.  Additionally, the EEOC established a toll-free number to answer frequently asked questions through NORC at (877) 324-6214. You can also send email questions to EEOCcompdata@norc.org.

Related Attorneys

BRUNINI WELCOMES DREW C. BIGELOW

by

Drew C. Bigelow joined Brunini, Grantham, Grower & Hewes in August 2019. Prior to joining the Firm, Drew clerked for Judge Cory T. Wilson on the Mississippi Court of Appeals. Drew was one of only two law clerks employed by Judge Wilson before President Trump nominated Wilson to serve as United States District Court Judge for the Southern District of Mississippi. Drew also clerked for Chief Justice William L. Waller, Jr. prior to Waller’s gubernatorial campaign.

Drew received his Juris Doctor from Mississippi College School of Law in 2018, graduating magna cum laude. While in law school, Drew clerked for Judge Neil P. Olack on the United States Bankruptcy Court for the Southern District of Mississippi. Drew served on MC Law’s Moot Court Board and as Treasurer of MC Law’s Business Law Society. Drew earned numerous honors while at MC Law, including Dean’s List, the Mississippi Bar Litigation & General Practice Section Award, and the 2018 Writing Circle Award, as well as a number of American Jurisprudence awards for achieving the highest grade in a particular subject. Drew focused his efforts on topics relating to business and commercial law, earning the Business and Commercial Law certificate.

In 2014, Drew graduated from the University of Mississippi with a Bachelor of Accountancy and a minor in Management from the Patterson School of Accountancy. As a member of the Sally McDonnell-Barksdale Honors College and a Mississippi Eminent Scholar, Drew was a regular on the Chancellor’s and Dean’s Honor Rolls. Drew was also an active member in the Sigma Nu fraternity.

Drew belongs to Brunini’s Commercial department and focuses his practice in Corporate; Estate Planning; Trusts, Estates and Probate; Mergers & Acquisitions and Real Estate.

Related Attorneys