Real Estate

"EB-5: The Foreign Investor 'Stimulus Package,'" Daily Journal of Commerce

Tue, 23 Apr 2013 00:00:00 GMT

"The Foreign Investor Stimulus Package," Daily Journal of Commerce

Thu, 25 Apr 2013 00:00:00 GMT

"What the Senate Immigration Proposal Would Mean for Wineries," Wine America, The National Association of American Wines

Tue, 23 Apr 2013 00:00:00 GMT

Ashley II Holdings Require Caution

Sat, 11 May 2013 16:48:45 GMT

Posted by Larry Burke

On April 4, 2013, the Fourth Circuit Court of Appeals issued a much anticipated decision in PCS Nitrogen, Inc. v. Ashley II of Charleston LLC, No. 11-1662 (4th Cir. April 4, 2013) (Ashley II). This wide-ranging decision is most notable for requiring buyers to be very careful if they wish to avail themselves to the protections... Continue Reading

BLM Fails to Review Fracking Impacts of Oil & Gas Leases in California

Wed, 17 Apr 2013 00:55:39 GMT

Posted by Davis Wright Tremaine

From Allison A. Davis of our San Francisco Office: The U.S. District Court in San Jose recently found that the Bureau of Land Management (BLM) failed to adequately review the environmental impacts of fracking on four oil and gas leases it recently auctioned off in the Monterey Shale area of Monterey and Fresno counties in... Continue Reading

BLM Revises Proposed Rule on Hydraulic Fracturing

Fri, 31 May 2013 00:00:00 GMT

BLM Revises Proposed Rule on Hydraulic Fracturing

Fri, 31 May 2013 16:47:27 GMT

Posted by Davis Wright Tremaine

A recent advisory from DWT partners Glenn Benson and Barbara Jost: On May 16, 2013, the U.S. Department of the Interior’s Bureau of Land Management (“BLM”) issued a revised proposed rule regarding hydraulic fracturing on federal and Indian lands for oil and gas production. In response to the more than 177,000 public comments submitted in... Continue Reading

BSEE and Coast Guard Sign Memorandum of Agreement for Regulating Mobile Offshore Drilling Units

Tue, 11 Jun 2013 00:00:00 GMT

BSEE and Coast Guard Sign Memorandum of Agreement for Regulating Mobile Offshore Drilling Units

Tue, 11 Jun 2013 17:01:46 GMT

Posted by Davis Wright Tremaine

A recent advisory from DWT partners Glenn Benson and Barbara Jost: On June 4, 2013, the U.S. Department of the Interior’s Bureau of Safety and Environmental Enforcement (“BSEE”) and the U.S. Coast Guard signed a Memorandum of Agreement regarding division of lead agency responsibilities between the two agencies for regulation, inspection, and oversight of systems... Continue Reading

Can We Please Talk About Outcomes for a Change???

Sat, 20 Apr 2013 23:54:39 GMT

Posted by Richard Glick

I get it that environmental groups place strict compliance with regulatory controls at a premium. After all, the standards are designed to be protective of the resource, and they are The Law, which must be obeyed. But I sometimes find it dismaying when people conflate immediate, measured and guaranteed compliance with ecological outcomes. They are... Continue Reading

Cary Greene, Former General Counsel to WineAmerica, The Influential National Association of U.S. Wineries, Joins Davis Wright Tremaine LLP

Thu, 11 Apr 2013 00:00:00 GMT

Chambers USA Recognizes Davis Wright Tremaine LLP in 43 Practice Areas and Names 88 Attorneys "Leading Lawyers For Business"

Thu, 30 May 2013 00:00:00 GMT

City of Seattle and King County Agree to Major Upgrades to Settle Discharge Violations

Tue, 23 Apr 2013 18:55:52 GMT

Posted by Lynn T. Manolopoulos

To settle an enforcement action by the U.S. Environmental Protection Agency (“EPA”) and the State of Washington (“State”), King County and the City of Seattle have agreed to complete major upgrades to their local sewage and combined stormwater collection, piping and treatment systems to address allegedly illegal discharges. In addition, the County and City have... Continue Reading

Clayton Graham, Senior Associate at Davis Wright Tremaine LLP, Named 'Outstanding Young Lawyer' of 2013 by King County Bar Association

Thu, 09 May 2013 00:00:00 GMT

Do We Really Have A Section 404 Permit?

Fri, 26 Apr 2013 00:04:52 GMT

Posted by Scott Broadwell

The United States Court of Appeals for the District of Columbia Circuit issued an opinion on April 23 in Mingo Logan Coal Co. v. United States Environmental Protection Agency upholding the Environmental Protection Agency’s (“EPA”) invalidation of a discharge permit issued four years prior by the United States Army Corps of Engineers (“USACE”). The decision effectively... Continue Reading

FDA Food Safety Rulemaking Tour Heads to the Northwest

Wed, 20 Mar 2013 16:15:55 GMT

Posted by Michael Gelardi

The federal Food and Drug Administration (FDA) will hold a public meeting on FDA’s proposed food safety rules in Portland, OR on March 27-28. The rules implement portions of the recent Food Safety Modernization Act by imposing sweeping federal regulation of local farming practices and food processing operations across the nation. The proposed rules are... Continue Reading

Guidance on the Use of Social Media for Alcohol Beverage Companies

Fri, 17 May 2013 21:40:51 GMT

By Cary Greene

On Monday, the Alcohol & Tobacco Tax & Trade Bureau (“TTB”) released new guidance on the use of social media by alcohol beverage companies. The Industry Circular explicitly equates “social media” with “advertising,” and suggests that advertising regulatory requirements, including statements and disclosures mandated by TTB rules, apply to social networks and video sharing sites.

The Circular does its best to take a practical approach to social media and holds industry members accountable mainly for what they themselves post or repost on their own websites, pages or apps. Postings by producers on sites maintained by other individuals or companies may also be advertising if the “totality of the message” leads to that conclusion. Mandatory statements are required on “profile” pages as well as on any data likely to become standalone material.

While the Circular does not directly refer to voluntary codes of advertising adopted by national wine, beer, and spirits trade groups, its publication should be a reminder of the importance of self-regulation and compliance. Apart from TTB, the Federal Trade Commission has also shown active interest in studying alcohol advertising online.

In Alaska, Oil and Gas Leases Convey Property Rights; Permits Do Not

Wed, 03 Apr 2013 18:50:02 GMT

The Supreme Court of Alaska held that the Alaska Constitution requires only one “best interest finding” that an oil or gas project is in the state’s best interest, although subsequent permitting decisions must be made after a “hard look” that considers cumulative impacts. Sullivan v. Resisting Environmental Destruction on Indigenous Lands (REDOIL), Decision No. 6769... Continue Reading

IRS Guidance on “Beginning of Construction” for ATRA 2012 Tax Credit Extensions

Thu, 18 Apr 2013 23:10:49 GMT

Posted by Davis Wright Tremaine

DWT tax partner Pamela Charles reports: The IRS has issued guidance (Notice 2013-29) on satisfying the new “beginning of construction” requirement for the renewable energy production tax credit under Code Section 45 (PTC) and energy investment tax credit under Code Section 48 (ITC). These credits are available to qualifying projects if construction of the facility begins before... Continue Reading

IRS Revises Guidance on “Beginning of Construction” for ATRA 2012 Tax Credit Extensions

Fri, 03 May 2013 23:47:01 GMT

Posted by Davis Wright Tremaine

From DWT tax partner, Pamela Charles: Last month, the IRS issued guidance (Notice 2013-29) on satisfying the new “beginning of construction” requirement for the renewable energy production tax credit under Code Section 45 (PTC) and energy investment tax credit under Code Section 48 (ITC). The IRS has revised Notice 2013-29 to provide guidance clarifying the... Continue Reading

Is Your Floating Home a “Vessel?”

Tue, 02 Apr 2013 22:31:26 GMT

Early this year, the United States Supreme Court decided a case that could have had far-reaching effects on local land use regulations affecting floating homes. However, the Court’s opinion in this case, Lozman v. City of Riviera Beach (No. 11-626), appears to have left most of these regulations intact—at least for the time being. The... Continue Reading

Logging Roads Get A Pass – At Least For Now

Fri, 22 Mar 2013 23:47:01 GMT

Posted by David J. Ubaldi

Yesterday, in a 7-1 decision with Justice Scalia the lone dissenter, the U.S. Supreme Court handed a major victory to the forest products industry. As it does so often, the Court reversed a Ninth Circuit ruling that had required Clean Water Act (CWA) permits for sediment laden stormwater that runs off of logging roads. The... Continue Reading

Loko Liability: Claims Against Alcohol Beverage Manufacturer for Intoxication Injuries

Sat, 20 Apr 2013 18:17:38 GMT

By Ashley Watkins, Cary Greene, Chip English and Dave Ernst

Recently, the parents of a young man who died of alcohol poisoning filed a wrongful death suit against Phusion Projects, Inc., the company behind the “Four Loko” Beverage. This type of lawsuit against the manufacturer of an alcohol beverage is uncommon. Dram shop laws facilitate lawsuits against retailers for over-serving someone who subsequently causes a drunk- driving accident, but courts typically have not found a manufacturer liable for harms to the consumer caused by his own over-consumption. However, Four Loko has seen its fair share of this kind of litigation (see an overview of them in this insurance coverage lawsuit).

Four Loko was an innovative product, combining caffeine and malt liquor into a single beverage. While initially very popular, the drink came under attack after a string of incidents in 2011. In Washington, nine college students were hospitalized after consuming Four Lokos at a party, leading the Attorney General to push for a national restriction on the sale of the product. In the face of this backlash against the product, the company removed caffeine from its formulation, and added additional labeling on the can under pressure from the FTC.'

This latest complaint makes allegations under the Washington Product Liability Act. The complaint parrots two of the major criticisms of the product. First, that the 23.5 ounce drink contained the alcohol equivalent of up to four or five beers, rather than the one or two advertised. Second, that the combination of alcohol and caffeine allegedly prevented the consumer from feeling the effects of the alcohol, leading him to drink more than he otherwise would have.

On a case-specific level, the plaintiff’s claims must overcome a few hurdles. First, claims of defective design require a plaintiff to show that the product was unsafe to an extent beyond what a normal customer would contemplate. A jury could be asked whether an ordinary consumer would likely anticipate that a malt liquor drink could get them drunk, even with the presence of caffeine. While the presence of caffeine does add an additional hook for potential liability, a court may be hard-pressed to overlook combinations of caffeine and alcohol so readily accepted in other situations; bars and restaurants have been serving "rum and Cokes" or Irish coffees for years without facing these sorts of claims.

Beyond the case-specific analysis, the case raises a number of public policy concerns that relate to the beverage industry as a whole. Imposing liability in this instance rejects the “individual responsibility” approach often favored in American society. The pushback from Big Brother-type restrictions on drinking is what led to the repeal of Prohibition and the 21st Amendment (notably, the only amendment actually repealing a prior amendment).

While this complaint is unique to the particular issues related to Four Loko, it is worth following as it pertains to the treatment of new alcohol beverage products. Many other products have been met with allegations of dangerousness when first introduced onto the market, including malt liquor, wine coolers, and flavored malt beverages. It will be interesting to see how Four Loko charts its path following this latest round of litigation.

New Guidance Issued on Social Media Use for Alcohol Beverage Companies

Sat, 18 May 2013 00:00:00 GMT

Qualifying Advanced Energy Project Program: IRS Announces Second Phase

Fri, 22 Mar 2013 16:38:16 GMT

Posted by Davis Wright Tremaine

DWT tax partner Pamela Charles reports: Last month, the IRS announced the second phase of the qualifying advanced energy project program to distribute the Section 48C tax credits that are available for reallocation now that the first phase of the program has been completed (see IRS Notice 2013-12). To be considered for an allocation of credits in... Continue Reading

Regulatory Issues Cause ConocoPhillips to Join Shell Oil in Suspending its Drilling Program in Arctic Waters off Alaska

Thu, 11 Apr 2013 21:26:34 GMT

Posted by Mike Jungreis

Today, ConocoPhillips announced that it is suspending its drilling program in the Chukchi Sea off the northwest coast of Alaska for 2014, due to uncertainty regarding the changing regulatory requirements. “While we are confident in our own expertise and ability to safely conduct offshore Arctic operations, we believe that more time is needed to ensure... Continue Reading

Section 1603 Cash Grant Modified Annual Report Form

Sat, 04 May 2013 16:46:03 GMT

Posted by Davis Wright Tremaine

From DWT tax partner, Pamela Charles: Recipients of Section 1603 cash grants are required by the Terms and Conditions of the program to provide annual project performance reports to the Treasury Department for the first five years after the project is placed in service. Beginning May 13, 2013, the Treasury Department will have a modified... Continue Reading

States Consider Legislative Proposals Regulating Toxic Chemicals in Consumer Products

Thu, 18 Apr 2013 22:58:25 GMT

Posted by Peter Sergienko

There is high and growing concern among the general public regarding adverse health effects from exposures to toxic chemicals in consumer products, especially from exposures to children. These concerns initially came to a head in the mid-2000s, resulting in passage of the federal Consumer Product Safety Improvement Act of 2008 (CPSIA). CPSIA imposed numerical limits... Continue Reading

The Alaska Constitution and Alaska Oil and Gas Projects

Tue, 09 Apr 2013 17:07:40 GMT

Posted by Lisa Doehl

In the March 29th decision of Sullivan v. Resisting Environmental Destruction on Indigenous Lands (REDOIL), the Supreme Court of Alaska held that the Alaska Constitution requires only one “best interest finding” (that an oil or gas project is in the state’s best interest) to be made before a lease is issued, though subsequent permitting decisions... Continue Reading

The United States Allocated 40% of Liability for Contamination Caused by a Contractor’s Manufacturing Operations

Thu, 21 Mar 2013 17:36:42 GMT

Posted by Davis Wright Tremaine

From Lynn Manolopoulos of our Bellevue office and Scott Broadwell of our Anchorage office: A recent decision by a federal court in the Central District of California found the United States liable for 40% of the response costs related to contamination from the manufacture of ammunition and rocket motors for the United States under governmental... Continue Reading