At the same time NFL Commissioner Roger Goodell faces tough questions about Ray Rice, a new domestic violence law went into effect in Massachusetts.  Employers with 50 or more employees must now provide employees who are victims of domestic violence up to 15 days of leave in any 12-month period.  Governor Deval Patrick signed the law on August 8, 2014 and it became effective immediately so employers should not delay in taking steps to come into compliance.

Leave is also allowed to employees if a family member is a victim of abusive behavior, including spouses, parents, step-parents, children, step-children, siblings, grandparents, and grandchildren.  The definition of family member also includes those in a “substantive” dating or engagement relationship and who live together, persons having a child in common regardless of whether they have ever married or lived together, or a guardian.

The law applies to all employees regardless of how long they have been at the company or how many hours they work.  Leave may be taken for any of the following reasons:

To seek or obtain medical attention, counseling, victim services, or legal assistance;

To obtain a protective order from a court;

To appear in court or before a grand jury;

To meet with a district attorney or other law enforcement official;

To attend child custody proceedings;

To secure housing; OR

To address other issues directly related to the abusive behavior against the employee or his or her family member.

Employers may require employees to provide advance notice for leave unless there is a threat of imminent danger to the health or safety of the employee or a covered family member. If advance notice is not possible, employees must notify the employer within three workdays that the leave was taken under the law.  Employees must exhaust accrued paid leave before taking any unpaid leave unless the employer waives this requirement.

The law allows employers to require employees to provide documentation supporting the leave within a reasonable time of the request.  An employee satisfies this documentation requirement by providing any one of the following:

A protective order, order of equitable relief or other documentation issued by a court;

A document under the letterhead of the court, provider or public agency which the employee attended for the purposes of acquiring assistance as it relates to the abusive behavior;

A police report or statement of a victim or witness provided to police;

Documentation that the perpetrator of the abusive behavior against the employee or family member of the employee has:  admitted to sufficient facts to support a finding of guilt of abusive behavior; or has been convicted of, or has been adjudicated a juvenile delinquent by reason of, any offense constituting abusive behavior and which is related to the abusive behavior that necessitated the leave under this section;

Medical documentation of treatment as a result of the abusive behavior;

A sworn statement, signed under the penalties of perjury, provided by a counselor, social worker, health care worker, member of the clergy, shelter worker, legal advocate or other professional who has assisted the employee or the employee’s family member in addressing the effects of the abusive behavior;

A sworn statement, signed under the penalties of perjury, from the employee attesting that the employee has been the victim of abusive behavior or is the family member of a victim of abusive behavior.

Employers may not retaliate or interfere with an employee’s use of such leave, and the Massachusetts Attorney General will enforce the law.  It should be noted that this new law adds to the Victim/Witness of Crime law which provides leave to employees who have been a victim of a crime or have been subpoenaed to attend court as a witness.

All covered employers must notify employees of their rights and responsibilities under the law.  With an immediate effective date, employers should review all handbooks and policies and amend them accordingly.  Supervisors and managers should also be trained on how to handle such leave requests.

This blog was posted on September 17 on Employment Law Business Guide. Click here to read the original entry. 

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Categories: Employment/Labor Law | State Law

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On June 24, 2011, then-Governor Beverly Purdue signed H 709——"Protecting and Putting North Carolina Back to Work Act" into law. As part of this Legislative Reform, North Carolina Employers now have an additional defense (misrepresentation) available to workers’’ compensation claims arising on or after June 24, 2011. However, in order to use this defense Employers must do their homework BEFORE an alleged work accident happens.

An Employer may plead an affirmative “" Misrepresentation Defense”" when an employee intentionally misrepresents his/her physical condition to the Employer at the time the employee is entering into the employment relationship, and the employee alleges a work injury with a causal tie to the misrepresentation.

An Employer bears the burden of proving each and every element of the “Misrepresentation Defense” by a preponderance of the evidence.

Pursuant to NCGS §§ 97-12.1, an Employer must prove ALL of the following elements to succeed on the defense:

(1) The employee knowingly and willfully made a false representation as to the employees physical condition;

(2) The employer relied upon one or more false representations by the employee and that reliance was a substantial factor in the Employers decision to hire the employee;


(3) There was a causal connection between the false representation and the employees injury or occupational disease.

To satisfy the first and second elements of the Misrepresentation Defense, an employer may gather information on a perspective employees physical condition to determine whether he/she can safely perform the job BEFORE finalizing the employment relationship.

Timing is vital.

To preserve the Misrepresentation Defense AND to ensure compliance with employment laws/regulations such as the Americans with Disabilities Act, an employer should ask about the employees physical condition to determine whether he/she can safely perform the job:

(1) At the time of hire;

(2) At the time of receiving notice of the removal of conditions from a conditional offer of employment;


(3) During the course of a post-offer medical examination.

The key to successful implementation of the Misrepresentation Defense is a top-notch hiring program. Specifically, an Employer may find it useful to:

(1) Prepare accurate Job Descriptions detailing with specificity the essential functions and physical demands of their positions.

**Have the perspective employee sign off on the Job Description, thus confirming both his/her understanding of the requirements and functions of the position, as well as his/her affirmative representation that he/she is physically capable of performing the essential functions of the job, with or without reasonable accommodation;

(2) Utilize a Post-Offer, Pre-Hire Questionnaire to ask for information such as prior work injuries, medication usage, work restrictions, surgeries, and permanent partial disability ratings.

**The time to utilize this tool is once a conditional offer of employment has been extended. Successful completion of the Post-Offer, Pre-Hire Questionnaire is a condition precedent to the employment offer being finalized.

(3) Utilize a Post-offer, Pre-Hire Physical to determine the perspective employees fitness for duty.

**Much like with the Post-Offer, Pre-Hire Questionnaire, the time to utilize this tool is once a conditional offer of employment has been extended. Successful completion of the Post-Offer, Pre-Hire Physical is a condition precedent to employment being finalized.

By utilizing these practices, an Employer is clarifying the nature of the position and the importance of securing an employee who is able to perform the essential functions and responsibilities of the job. These practices give a perspective employee the opportunity to reveal that he/she is physically capable of performing the job, and the Employer’’ s reliance on these disclosures is inferred and expected.

As for the third and final element of the “Misrepresentation Defense," an Employer must prove there is a causal connection between the alleged work injury and the physical conditions falsely represented to the Employer by the employee at the time of his/her hire. Specifically, the question is whether the employees undisclosed physical condition increased his/her risk for injury.

By developing a comprehensive hiring program, not only will an Employer ensure perspective employees are physically capable of performing the job, but an Employer also protects itself against potential future workers’’ compensation claims should a perspective employee misrepresent his/her physical abilities.

This blog was originally posted in the DRI communities on September 9. If you are a committee member of any of our thirty substantive law committees, please click here to log in and gain access. If not, we encourage you to join a committee that best suits your practice. 


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“When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.”  -- Indiana poet James Whitcomb Riley (1849–1916)

1. Background

The United States Court of Appeals for the Ninth Circuit issued two important decisions in California and Oregon cases, on August 27, 2014.  Both decisions were issued by Judge William A. Fletcher.  

Between 2003 and 2009, cases were filed against FedEx in approximately 40 states.  The Judicial Panel on Multidistrict Litigation consolidated these cases for multidistrict litigation (“MDL”) proceedings in the District Court for the Northern District of Indiana (“the MDL Court”).  Plaintiffs in these cases moved for summary judgment and sought to establish their status as employees.  The MDL Court denied all of Plaintiffs’ Motions for Summary Judgment and held that Plaintiffs were independent contractors as a matter of law. 

2. Alexander decision

The California case, Alexander v. FedEx Ground Package System, Inc. dba FedEx Home Delivery (Case No. 12-17509), was brought by 2300 full-time delivery truck drivers who worked for FedEx Ground and FedEx Home Delivery between 2000 and 2007.  

Upon review of the “right to control” test previously articulated by the court in S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 769 P.2d 399 (Cal.1989), the appellate court found that California FedEx drivers were employees, not independent contractors, despite the OA with FedEx, which seemed to indicate the contrary.

Specifically, the court found that the California FedEx drivers were employees under the California “right to control” test because FedEx control of: (1) the appearance (i.e., clothing and grooming) of its employees as well as their vehicles (i.e., paint color, signage, shelving to certain specifications); (2) the times in which its drivers work (i.e.,  structuring of workloads to ensure that each driver works approximately 9.5 to 11 hours a day; and (3) delivery of packages via negotiating delivery windows with FedEx customers, on behalf of drivers.  

The appellate court also considered “secondary factors” in reaching this determination: (1) the full integration of the drivers work into FedEx’s operation; (2) the supervision of FedEx managers; (3) the fact that no skill is required in connection with the occupation of driving for FedEx; (4) the length of time – one to three years – of the employment agreement with FedEx; and (5) the importance of drivers’ work to FedEx’s business.  

Conversely, the appellate court was not convinced by FedEx’s argument, which was based on the D.C. Circuit’s decision in FedEx Home Delivery v. National Labor Relations Board, 563 F.3d 492 (D.C. Cir. 2009), that drivers have “entrepreneurial opportunities” that most employees do not have (i.e., the right to hire a third-party to assist with delivery).  It downplayed the importance of the OA between drivers and FedEx and held that the belief of the parties as to their relationship is not controlling if facts indicate another type of relationship exists.  

3. Slayman decision

The Oregon case, Slayman v. FedEx Ground Package System, Inc. dba FedEx Home Delivery, Inc. (Case No. 12-35559), involves 363 full-time delivery truck drivers who worked for FedEx Ground and FedEx Home Delivery from 1999 through 2009.  Slayman involved an appeal of two consolidated class actions.  

The panel also found that Oregon drivers in the Slayman matter were employees under Oregon’s  “right to control” test, as articulated in Stamp v. Dep’t of Consumer & Business Services, 9 P.3d 729, 731 (Or. Ct. App. 2000), for essentially the same reasons as articulated above.  

It additionally applied considerations specific to Oregon’s “economic realities” test, articulated by the court in Cejas Commercial Interiors, Inc. v. Torres-Lizama, 316 P.3d 389, 394 (Or. Ct. App. 2013).  It held that drivers were employees, rather than independent contractors, for the following reasons: (1) FedEx controls the terms and conditions of Plaintiffs’ employment; (2) FedEx drivers are a permanent and important part of FedEx’s business; (3) drivers work every day that FedEx delivers packages, for 9.5 to 11 hours a day; and (4) managers oversee and evaluate performance of drivers, and may refuse to let them work.  

4. Conclusion 

These decisions will likely expose FedEx to millions of wage claims based on newfound employee status of drivers.  Drivers may seek millions of dollars in damages for overtime pay, back pay for missed meal and rest periods, and may seek to recoup expenses incurred for worker-provided equipment. 

FedEx is largely credited with having originated the "independent contractor" work model in the logistics industry.  As such, these decisions significantly impact many similarly-situated businesses, such as many trucking and courier companies, many of whose drivers work long hours for low pay and little job security, who have adopted FedEx model.  Ride sharing service companies such as Lyft and Uber Technologies are also at risk for litigation resulting form these decisions, as their drivers have similarly contended that they should be afforded employee status.  

The Alexander and Slayman decisions are especially important for corporations to take note, especially those sharing economy" companies that have followed the FedEx work model, both in terms of responding to anticipated litigation as well as reworking policies and procedures regarding independent contractors. 

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Categories: Court of Appeals

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Lawyers Get Old Also

Posted on September 2, 2014 02:49 by Steve Crislip

I had a very talented law partner who retired at age 64 to take an appointment by the Governor for a six-year term on the Public Service Commission.  He works just as hard as always, but for less money in government service.  When I discussed it with him, he said he wanted to do something different and to go out on top — and that he did.

The days of the magic retirement age of “X” and a gold watch are over.  (See August 2013 Post.)  For each it is a personal decision and for the poor planners, a necessary delayed requirement.  As the very large group of post-World War II children age up, it becomes a legal issue worth revisiting.  I officially “retired” at 65, but daily actively practice law and intend to do so.  It is just a bit more fun doing it on your own terms, as opposed to that strong fiduciary duty to your other partners to provide full hours, manage a business, feed work to others, and be part of your professional and local communities.  As I said before, no lawyer ever went to the Pearly Gates and said:  “Damn, I wish I had billed some more hours.” 

We are talking valuable experienced legal resources here.  Firms should have every interest in using their talents productively as long as their lawyers wish to do so.  However, on the other side, you do not want to be the older person the younger partners always complain being gone or not engaged.  They do not take kindly to the “I earned it” approach.  It is more like “what have you been doing lately” approach.  So, do like my friend did — go out on top is my thought.  Work out your own deal with your firm and be happy.  The Earl of Elkview, a local colorful lawyer, advocates “Festive Living” with livable rather than billable hours.  There are many variables to be considered.  See, Jim Cotterman (Cotterman on Compensation) May 14, 2014.

There is a legal point where the retirement and aging issue transcends what is right, or what you want to do with your legal career.  Do not get to the point where your train of thought leaves the station without you.

Having served on a statewide Alzheimer’s Board, I feel somewhat better attuned to the aging process issues which will statistically hit the Boomers in a big way.  Absent a cure, aging issues will most definitely affect boomer lawyers and their law firms.  So as your law partners’ keeper, you must watch for all the many things induced by the stressful life of a lawyer, and now add cognitive degeneration to that watch list.  Before 401K plans, lawyers never retired and others did pay attention to this, but not so much in the last thirty (30) years.  Now I see an early ethics opinion on this very subject.

Kansas Bar Association Legal Ethics Opinion No. 14-01 “Duty to report attorney memory lapses” tells its lawyers to refer memory lapses, cognitive deteriorations, or other potentially disabling conditions to the Kansas Lawyers Assistance Program, or other suitable service.  If this problem resulted in acts or omissions constituting actual violations, then another lawyer would have the duty to report it.  I see this as an early recognition that this coming impairment is a larger issue to be regarded in the legal community due to its potential volume.  Well, there you have it.  Have we discussed this before?

As a good friend of mine always closes:  “Remember, life is too short for boring briefs.”

This blog was originally posted on Lawyering for Lawyers. Click here to read the original entry. 

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Categories: Professional Liability

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The Centers for Medicare & Medicaid Services (“CMS”) issued a Section 111 Non-Group Health Plan (“NGHP”) Alert on August 19, 2014.  The Alert revises the rules pertaining to Section 111 reporting for liability insurance (including self-insurance) in cases involving exposure, ingestion, and implantation.  Specifically, the Alert allows for the claims made in amended complaints or other comparable supplemental pleadings to govern Section 111 reporting obligations in the context of the December 5, 1980 cut-off.  

As background, the Medicare Secondary Payer (“MSP”) Act was enacted by Congress on December 5, 1980.  As such, CMS does not assert recovery claims against liability insurance settlements, judgments, awards, or other payments where the incident occurred before December 5, 1980.  CMS does not assert recovery claims where the incident occurred before December 5, 1980 because Medicare was the primary payer in these situations prior to the passage of the MSP Act.  The MSP Act has been revised several times since its initial passage on December 5, 1980.  One of the these revisions, referred to as Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (“MMSEA”), added mandatory reporting requirements with respect to Medicare beneficiaries who have Group Health Plan coverage or receive settlements, judgments, awards, or other payments from NGHPs.   

The Alert revises the Section 111 reporting requirements for liability insurance (including self-insurance) by providing that “the most recently amended operative complaint or comparable supplemental pleading” governs when determining whether the date of last exposure, ingestion or implantation claimed is before or after December 5, 1980.  The Alert responds to numerous inquiries regarding the effect of amended pleadings on Section 111 reporting obligations in the context of the December 5, 1980 cutoff for liability insurance payments.  See e.g., CMS-hosted Section 111 NGHP Town Hall Teleconference, pp. 46-47 (October 19, 2011); CMS-hosted Section 111 NGHP Town Hall Teleconference, p. 52 (February 23, 2012).

The Alert further provides:

Any operative amended complaint (or comparable supplemental pleading) must occur prior to the date of settlement, judgment, award, or other payment and must not have the effect of improperly shifting the burden to Medicare by amending the prior complaint(s) to remove any claim for medical damages, care, items and/or services, etc. 

Where a complaint is amended by Court Order and that Order limits Medicare’s recovery claim based on the criteria contained in this alert, CMS will defer to the Order. CMS will not defer to Orders that contradict governing MSP policy, law, or regulation.

Per the general rules governing Section 111 reporting, the revised language in the Alert controls over the applicable, current language in the MMSEA Section 111 Medicare Secondary Payer Mandatory Reporting, Liability Insurance (Including Self-Insurance), No-Fault Insurance, and Workers’ Compensation User Guide Version 4.2, Chapter III: Policy Guidance § 6.5.1, p. 6-23 through 6-25 (March 3, 2014).  The revised language in the Alert will be added to the next version of User Guide.

For complete details regarding Section 111 reporting obligations in the context of the December 5, 1980 cutoff, please see the full text of the Alert here.

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In his recently-published book, Cybersecurity for Executives: A Practical Guide, Retired Brigadier General Gregory Touhill, now Deputy Assistant Secretary at the Department of Homeland Security Office of Cybersecurity and Communications, offers the following quote from Congressman Mike Rogers, Chairman of the House Intelligence Committee, on the state of cybersecurity: “There are two kinds of companies. Those that have been hacked, and those that have been hacked but don’t know it yet.”  What makes the quote particularly interesting? It is from 2011 – long before the headlines regarding Target, Ebay, and Adobe. Not to mention the recently reported efforts of Russian and Chinese hackers. In light of all these events, the question arises “how concerned should directors and officers be about cybersecurity?” Most experts would respond, “very.” 

In October 2011, the SEC Division of Corporate Finance issued its Disclosure Guidance on cybersecurity. The Guidance suggested several risk factor disclosures, including a discussion of material cybersecurity risks to a registrant’s business or operations, a description of cyber incidents experienced by the registrant, and a description of relevant insurance coverage.  A report prepared by the insurance brokerage firm Willis in August 2013, based on a review of 10-Ks and annual reports filed by the Fortune 1000, suggested that companies were describing the possibly material risks to their businesses in broad terms, but were not adequately disclosing actual cyber events or their cyber-related insurance coverage.  Notably, only a few months prior to the Willis report, SEC Chairman Mary Jo White asked her staff to brief her on current cybersecurity disclosure practices for publicly-listed companies, and to provide recommendations for further SEC action. 

Significantly, in a speech delivered in June 2014 at the NYSE “Cyber Risks and the Boardroom” Conference, SEC Commissioner Luis Aguilar suggested one source of guidance for boards regarding cybersecurity.  In February 2014, the National Institute of Standards and Technology (NIST), pursuant to an Executive Order from President Obama, released the first version of the Framework for Improving Critical Infrastructure.  The NIST Framework is intended to provide companies with a set of industry standards and best practices for managing their cybersecurity risks. In his speech at the NYSE conference, Commissioner Aguilar noted, “While the Framework is voluntary guidance for any company, some commentators have already suggested that it will likely become a baseline for best practices by companies, including in assessing legal or regulatory exposure to these issues or for insurance purposes.”   In concluding his speech, Commissioner Aguilar cautioned board members, “Given the heightened awareness of these rapidly evolving risks, directors should take seriously their obligation to make sure that companies are appropriately addressing those risks.”

The obvious takeaway from all of the above is that directors and officers (and their counsel) need to remain closely attuned to both current and future guidance from the SEC both in terms of meeting their obligations to address their company’s own cybersecurity and with respect to their disclosure and reporting obligations regarding cybersecurity.

Finally, anyone interested in understanding the latest developments in cybersecurity, data breaches, privacy law, and related insurance issues should consider attending DRI’s inaugural Data Breach and Privacy Law Seminar in Chicago on September 11-12, 2014. For more information and to register, go to:

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Categories: Privacy | Seminar

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The Seventh Circuit has issued an opinion in City of Greenville, Illinois, v. Syngenta Crop Protection LLC, which limits the presumption of public access to non-privileged documents filed with a court to only those documents that influenced or underpinned a judicial decision. 

In City of Greenville, environmental groups intervened to seek access to the defendant's internal emails and business deliberations that plaintiffs had filed in opposition to a motion to dismiss. A protective order entered by the district court did not apply to materials filed in connection with a dispositive motion. The Seventh Circuit refused to permit access to uncited documents that were not considered by the district court in ruling on the motion to dismiss explaining "the presumption of public access turns on what the judge did, not on what the parties filed."  Because the documents did not affect the district court's decision, the Seventh Circuit held they need not be disclosed to the public. 

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The Employment and Labor Law Committee is one of several DRI committees participating in DRI's inaugural Data Breach and Privacy Law Seminar, September 11-12, 2014 in Chicago.  Click here to sign up

It seems like every day when we open a newspapaer or turn on the TV, there is another report of a significant data breach, followed by customer outrage and lawsuits!  This seminar will offer presentations from data security and privacy professionals who are at the forefront of cutting-edge data security and privacy issues, as well as industry leaders who will provide valuable insight and practical experience.  I encourage you to attend.   

Attendees will learn from real world scenarios and obtain concrete takeaways to aid in understanding and navigating the field of data security, including presentations on topics such as: 

The "science" of cyber attacks

Industry standards for privacy and data protection

Theories of civil liability and data security breach

Technical requirements for the protection of health records

Effective strategies to respond to data breach incidents, including insurance coverage

Data security ethical issues

The seminar will be an excellent educational and networking opportunity for everyone who attends.  Our committee helped shape the topics and I know you will benefit from attending.

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Categories: Privacy | Seminar

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On Monday, the Seventh Circuit affirmed two jury-selection decisions in a Section 1983 wrongful arrest lawsuit. In Marshall v. City of Chicago, No. 13-2771, 2014 WL 3892562 (7th Cir. Aug. 11, 2014), officers placed the plaintiff under arrest and took him into custody for constructively possessing a firearm while it was unlawful for him to do so. The plaintiff then sued for damages on the theory that the arrest was not supported by probable cause. The civil jury returned a defense verdict, and the plaintiff appealed. The decision is available here

On appeal, the plaintiff argued that the district court abused its discretion by denying his motion to excuse a prospective juror for cause on the grounds that she held a prior belief concerning the possession of firearms by convicted felons which made her unfit to serve. The Seventh Circuit wrote that a district court must apply a two-step process in determining which prior beliefs warrant for-cause dismissal: (1) does the prospective juror manifest a prior belief that is both material and “contestable,” meaning a rational person could question its accuracy and (2) if so, can the juror suspend that belief for the duration of the trial? The Seventh Circuit found that the bias alleged by the plaintiff was immaterial and that the juror’s exchanges with the trial court judge confirmed her ability to disregard her own prior experience and judge the case on the basis of the evidence brought before her.

Second, the plaintiff argued that the district court erred by refusing to agree to an ad hoc alteration of the parties’ agreed-upon jury selection procedures for the express purpose of ensuring that the petit jury would include jurors of a certain race. The parties had agreed, prior to trial, to try the case to a jury of eight, which would be selected from a venire of twenty. The order in which veniremen were called for voir dire was randomly assigned, with no knowledge of race, by the clerk’s office. Of the first fourteen veniremen called, none of the twelve whom were not excused for cause were black. At that point, a petit jury of eight (non-black) jurors had been selected. Counsel for the plaintiff, who is black, noticed that three of the six remaining veniremen were also black, and moved the court to expand the size of the petit jury to ten “in the hope of getting one of the persons of color on the jury.” The defendants objected and the court denied the plaintiff’s request. The Seventh Circuit wrote that it is established that a litigant has no right to a petit jury which contains members of his race or which fairly represents a cross-section of the community. It further wrote that a litigant does have a right to a jury venire composed of a fair cross-section of the community, but the plaintiff did not challenge the composition of the venire. And it wrote that the plaintiff also had a right to see that no state actor intentionally excluded any person from the petit jury on account of their race, but he did not claim that any state actor acted in such a way.

The Seventh Circuit affirmed the district court on both issues, finding the plaintiff’s arguments meritless and finding no abuse of discretion.

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Fracking: A Historical Research Perspective

Posted on August 14, 2014 07:44 by Taylor Hammel

The business of natural gas production has been booming over the last decade thanks to recent technological improvements, namely horizontal drilling coupled with hydraulic fracturing (commonly referred to as fracking). This has given energy companies the ability to extract unconventional natural gas from previously impermeable shale rock formations.

Natural gas is inexpensive, burns cleaner than coal, and America’s previously untapped, abundant supply will reduce dependency on foreign oil. States welcome the natural gas industry for the revenues it provides (as have some landowners) and the jobs it brings. To be sure, citizens from across the country flock to these jobs, while consumers appreciate the resulting lower utility bills.

But natural gas production is not without controversy, much of which centers around fracking and its potential impact on the environment. Increasingly, debates among the industry, politicians, environmental groups, landowners, and the public are playing out in legislatures and courts across the country.

Fracking: what it is and why it’s a big deal
Fracking is a drilling process that involves injecting a high pressure mixture of water, sand, and chemicals into rock formations to release trapped gas and increase the flow of it back to wells. Along with the sought-after gas, comes “flowback,” which “contains clays, chemical additives, dissolved metal ions and total dissolved solids (TDS).”

Critics of the oil and natural gas industry contend that flowback can lead to ground and surface water contamination, and seek the full disclosure of chemicals used in fracking fluid mixtures. Natural gas companies consider these mixtures trade secrets and worry about losing their competitive advantage in the marketplace should this information be disclosed.

Other environmental concerns include the storage and recycling of flowback and wastewater from drilling operations, the leakage of methane — the main ingredient in natural gas — from the supply chain into the atmosphere, and earthquakes related to fracking operations.

Industry & State Legislative Trends
As the industry matures and the natural gas boom continues in over thirty states, public scrutiny is increasing. Public officials and lawmakers have attempted to balance industry interests with those of the public as they undertake environmental impact studies and begin to implement guidelines and regulations. Clearly, the emerging trend is towards disclosure.

In 2011, the oil and natural gas industry responded to calls for transparency by creating, a website that tracks hydraulically fractured wells across the country. Energy companies can voluntarily disclose the chemicals used in the fracking process, with the exception of those that are proprietary.

At the same time, states have responded in various ways. For example, North Carolina and Illinois have followed in the footsteps of Wyoming, the first state that required the disclosure of fracking chemicals to state regulators. Currently, such information is not shared with the public, but there is ongoing litigation in several states seeking to overturn this. As part of regulations implemented in 2013, California now makes reporting chemicals on mandatory.

Other states have been more cautious. In New York, a non-legislative moratorium has been in place since 2008 while the state environmental and public health agencies complete an environmental impact review of fracking. Meanwhile, some municipalities have issued bans on fracking, with litigation on the rise to challenge them.

And though the debate surrounding fracking’s environmental impact has been polarizing in many states, progress has occurred. Just last year, the Center for Sustainable Shale Development (CSSD) formed in Pittsburgh, PA seeking to be a model for collaboration and compromise in developing natural gas production standards.

Trends at the Federal Level
Momentum has been building for more oversight of the natural gas industry at the federal level. In 2012, President Obama issued an executive order calling for a coordinated effort among the Department of Energy (DOE), Department of Interior (DOI), and the Environmental Protection Agency (EPA) to ensure the “responsible development” of the country’s oil and natural gas resources.

As a result, DOI released proposed draft rules in 2013 that would require energy companies operating on federal lands to publicly disclose the chemicals used in fracking. EPA is seeking public commentary until September 18, 2014 on its Advanced Notice of Proposed Rulemaking (ANOPR). It is asking for input on “the types of chemical information that could be reported and disclosed under [Section 8 of the Toxic Substances Control Act] and approaches to obtain this information on chemicals and mixtures used in hydraulic fracturing activities, including non-regulatory approaches.”

Later this year, EPA will release a two-year study on fracking’s potential impact on drinking water. By January 2015, air emissions from oil tanks, compressors, and other equipment used in fracking operations will be regulated under the Clean Air Act.

In the meantime, the U.S. Securities and Exchange Commission (SEC) has requested that energy companies disclose the chemicals used in fracking operations as well as efforts taken to reduce the environmental impact of fracking.

A Historical Research Perspective
The emerging trends toward disclosure, oversight, and litigation following this recent surge in unconventional natural gas production is similar to that of other major industrial developments. One lesson to be learned from these industries is that disclosure can result in increased public trust in fracking operations and in natural gas production overall. Additionally, proactive risk management of existing or potential environmental issues by the natural gas industry in tandem with state and federal regulatory agencies can prevent costly future cleanups and restoration projects.

So far, contamination claims related to fracking have been hard to assess due to remaining knowledge gaps. The jury is still out on the true environmental impact of fracking, but historical research can help answer fundamental questions such as what chemicals were in a watershed prior to the commencement of fracking operations or does a region have natural methane gas pollution?

This blog was originally posted to Taylor & Hammel LLC Blog on August 12. Click here to view the original entry. 

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Categories: Environmental Law

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