Meyers Nave Achieves Defense Verdict in Alleged $2.8 Million Employment Termination Case After Seven Years of Litigation

Attorneys Janice Brown, Arlene Yang, and Nicole Ries Fox of the law firm of Meyers Nave have prevailed in a recent decision by the Superior Court of California, County of San Diego, in an employment litigation case in which the plaintiff sought more than $2.8 million, plus punitive damages. Following seven years of litigation and a ten-day bench trial, Judge Eddie C. Sturgeon ruled in favor of the defendants on all counts, a rare occurrence in employment law cases. The case, Horner v. Leone, concerned a former executive of Mr. Copy, Inc., dba MRC Smart Technology Solutions, Inc., who alleged that his former employer, and its founder and former President, Robert Leone, constructively terminated his employment, discriminated against him based on his age, retaliated against him, and promised to employ him for his working life, and failed to pay him wages, sales commissions, and reimbursements.

At trial, witness testimony highlighted the fact that the plaintiff had actually accepted a new job for more pay before he resigned, that he had years of poor performance, and that he sought commissions for accounts that he stopped managing months earlier. The Court concluded that the plaintiff did not prove that Mr. Copy or Mr. Leone breached any employment agreement; defrauded him; discriminated against him based on his age; retaliated against him; constructively terminated his employment; or failed to pay his wages, commissions, and reimbursements.

Janice Brown, Principal in Meyers Nave’s Labor and Employment Practice, Workplace Investigations Practice and Commercial Litigation Practice, noted, “We tried multiple times to resolve this case without trial, but could not reach agreement. In the end, the Court agreed that our clients’ position was meritorious, and we prevailed on all counts. We thank the Court and the Honorable Eddie C. Sturgeon for his diligence and patience in overseeing this seven-year case. Arlene, Nicole, and I recognize the challenge of receiving such a favorable ruling for the defendants in an employment law case. We’re particularly pleased for the founder of Mr. Copy, Inc., Robert Leone, who was the executive who hired Mr. Horner, and who felt the weight of this action. He feels vindicated and deservedly so.”

Why Meyers Nave

Since 1986, Meyers Nave helps clients resolve their most nuanced, challenging, and complex transaction, litigation, and regulatory compliance issues. We are known for our outstanding track record of successful outcomes as well as the creativity we bring to solving high-stakes precedent-setting matters. A highly regarded leader in our founding practice of municipal and special district law, we are also go-to counsel for our wide-ranging experience in land use, environmental law, construction, public contracts, eminent domain, First Amendment law, commercial litigation, labor and employment, workplace investigations, trial and litigation, crisis management, public finance, real estate, and housing, among many other key disciplines. Meyers Nave offers the statewide reach of a California firm with the client service flexibility of a medium-size team. For more information about Meyers Nave, please visit https://www.meyersnave.com/.

 

U.S. Supreme Court Reinstates Trump-Era Regulations for Clean Water Act Section 401 Certification

Rule Limits States and Tribal Objections to Certain Projects (At Least For Now)

On April 6, 2022, the U.S. Supreme Court stayed an October 21, 2021 District Court Order that vacated 2020 regulations adopted by the Trump Administration on State and tribal water quality certification authority under Clean Water Act Section 401.  Under Section 401, an applicant for a federal permit or license for an activity that “may result in any discharge into the navigable waters” must obtain a “water quality certification” from the state or authorized tribe in the area where a discharge could occur.  The Trump Administration regulations placed restrictions on the time frame and scope of objections by States and tribal governments under Section 401, limiting their respective authority to impose conditions on certification for discharge into waters within their borders.  The 2020 rule was vacated by U.S. District Court in California as the result of a legal challenge.  In a 5-4 vote, the high court’s decision reinstated the Trump-era rule nationwide, without any explanation, while the legal challenges are pending in the Court of Appeal.

The return of the Trump-era rule will contribute to uncertainty as to how California and other states and tribal groups will conduct Section 401 review of federal licenses and permits affecting its waters.  The Biden Administration had announced plans to review 2020 regulations, and on June 2, 2021, the EPA issued a Notice of Intention to Reconsider and Revise the Clean Water Act Section 401 Certification Rule in the Federal Register.  However, the new regulations are not expected to be published until next year.  In the meantime, the outcome of currently pending federal cases such as CalState Water ResControl BdvFERC, No. 20-72782 (9th Cir. filed Sept. 17, 2020)  and Turlock Irrigation District, et al v. FERC,  No. 21-1121 (D.C. Cir. May 21, 2021) may provide some clarity regarding Section 401 certification authority.

Background on 2020 Clean Water Act Section 401 Certification Rule

States can protect the water quality of federally regulated waters within their borders pursuant to federal statute under Clean Water Act Section 401.  The 1971 version of the Section 401 EPA Rule (40 CFR Part 121.1(1971)) provides guidelines as to how States and Tribal governments can provide final certification for discharges into their waters based on federal, state, and Tribal water quality standards.

In 2019, the Trump administration issued Executive Order 13868 to encourage greater investment in energy infrastructure and reduce regulatory uncertainty in the United States, including broad directives to the EPA regarding Section 401.  This guidance was formalized in the 2020 Rule (see 40 CFR Part 121(2020)).  The 2020 Rule limited the role of States and Tribes in the certification in certain key respects:

  • Scope: The certification must address water quality concerns from the discharge itself and not the proposed activity as a whole. 40 CFR Part 121.3.  This has the effect of preventing objections from States and Tribes based on broader environmental concerns, such as climate change.
  • Timing: The federal agency must establish a reasonable period for certification review, capped at a maximum of one year. 40 CFR Part 121.6.  This rule is meant to codify a recent federal holding that requiring withdrawal and resubmission of the same certification request for the purpose of circumventing the one-year statutory deadline does not restart the reasonable period of time.  Hoopa Valley Tribe v. FERC, 913 F.3d 1099, 1101 (D.C. Cir. 2019).
  • Federal Oversight: The 2020 Certification Rule creates an affirmative obligation for federal permitting agencies to review state Section 401 Certifications to ensure compliance with procedural requirements. 40 CFR Part 121.8.  Failure to comply with procedural requirements can lead to Section 401 Certification being waived.

Legal Challenge to Trump Rule

Shortly after the 2020 Rule was finalized, California, other states, and environmental groups challenged the rule in three separate cases (brought in federal district courts in California, Pennsylvania, and South Carolina).  The California challenge resulted in Judge Alsup’s October 21, 2021, vacating the 2020 Certification Rule and reinstating the 1971 version. The District Court concluded the 2020 Rule arbitrarily limits the power to “consider all state actions related to water quality in imposing conditions” on Section 401 certification.

A group of States, led by Louisiana, and several energy groups intervened to defend the rule and requested the Ninth Circuit stay the ruling. The Ninth Circuit denied a motion to stay the effect of Judge Alsup’s order while the appeal was pending.

The “Shadow” Supreme Court Ruling and Justice Kagan’s Dissent

After the Ninth Circuit denied their request on February 24, an application for stay pending appeal was granted by the US Supreme Court in its 5-4 ruling on April 6.  In what is commonly referred to as a “shadow docket,” which are orders and summary decisions that defy normal procedural regularity, the 5-4 decision was issued without any explanation or rationale.

Justice Elena Kagan authored a dissent, joined notably by Chief Justice John Roberts, as well as Justice Breyer and Justice Sotomayor, to the Stay.  Citing Supreme Court precedent, Justice Kagan reiterated the standard for obtaining a stay in a case pending before an appellate court.  In such a case, a stay may only be granted in extraordinary circumstances and upon a showing of irreparable injury absent a stay.  According to the dissent, the applicants failed to meet this standard because they could not identify a single project that a State has blocked in the months since the District Court’s decision.  Moreover, the applicants failed to identify a single project that the court’s ruling threatens and failed to show why the reinstated regulatory regime was incapable of countering state overreach.

In addition, Judge Kagan discussed how the Supreme Court signaled its view on the case merits despite the applicants failure to make a showing of irreparable harm.  As a result, the Court’s emergency docket was misused for merit determination without proper briefing and argument.

Impact on California

Several major federal licensing and permitting schemes are subject to the Clean Water Act Section 401, including permits for discharge of dredged or fill material into wetlands under Section 404 and Federal Energy Regulatory Commission (FERC) licenses for hydropower facilities and natural gas pipelines.  California is a State that has extensively utilized certification review under Section 401 to impose conditions on projects.  In particular, California’s State Water Resources Control Board (SWRCB) has used 401 Certification Authority in the Federal Energy Regulatory Commission (FERC) licensing context to require certain project conditions.

For example, in CalState Water ResControl BdvFERC, No. 20-72782 (9th Cir. filed Sept. 17, 2020) the SWRCB brought a petition to vacate a FERC issued license for the hydroelectric Yuba River Development Project.  SWRCB had issued a certification in July 2020 pending certain conditions and obligations.  FERC had determined that SWRCB had waived its certification authority by not acting on an initial application within one year of filing by Yuba County Water Authority (YCWA) based on Hoopa Valley Tribe v. FERC and the plain language of Clean Water Act Section 401.  YCWA has also filed a Federal suit that is currently stayed by the Eastern District of California court pending a decision in the Ninth Circuit where oral argument is scheduled for next month.

Similarly, in Turlock Irrigation District, et al v. FERC, No. 21-1121 (D.C. Cir. May 21, 2021), the Turlock and Modesto irrigation districts have asked the appeals court to overturn FERC’s order affirming California’s SWRCB rejection of the irrigation district’s application and request for the districts to resubmit certification days before a one-year deadline expired.  The order relates to two hydroelectric projects along the Tuolomne River.  Oral argument for the case was held this month in the D.C. Circuit, where the case is pending.  The irrigation districts relied on Hoopa Valley Tribe v. FERC as authority to argue that the state agency forfeited its authority when it delayed acting and required repeated resubmissions of an application.  States in support of FERC’s determination have pointed to the complexity of hydroelectric licensing and the inapplicability of Hoopa Valley Tribe v. FERC, which involved a different set of facts wherein the States took no action on certification requests after demanding repeated withdrawals and resubmissions.  

Nevertheless, both FERC cases demonstrate how the duration of the review period is an important aspect of the certification process.  The resolution of these cases will provide helpful precedent as to the appropriate review period for California’s state agencies engaged in 401 certification review.

California PERB Decision on UC Vaccination Mandate

In further proof that employers’ efforts to mandate vaccines has gained momentum, on July 26, 2021, the California Public Employment Relations Board (“PERB”) issued a decision that held that the University of California’s (“UC”) 2020 flu vaccine mandate was either (1) not amenable to bargaining or (2) outweighed the benefit of bargaining. PERB held that the UC’s mandating of vaccines is a managerial right due to the need to protect public health related to both COVID-19 and the flu. PERB has prioritized the need to protect the public’s health over collective bargaining rights. At the same time, PERB faulted the UC for failing to meet and confer with the unions over the foreseeable effects of the vaccine mandate.

For more information, contact Meyers Nave attorneys.

Public Agency Law Associate – 2 to 8 years of experience (Sacramento)

ABOUT MEYERS NAVE

Meyers Nave has a reputation in California as a go-to law firm serving as general counsel and city attorney to a variety of public agencies throughout the State.  Our public law attorneys handle our client’s highest profile, most complicated and significant transactions on the cutting edge of law and policy for public agencies in the State.  Attorneys work in multi-disciplinary teams across five offices to help our clients navigate local, state and federal laws and regulations.

Meyers Nave has served California local governments for over 30 years, growing into a state-wide firm with more than 60 attorneys with experience in the wide range of topics that impact our clients.  We provide day-to-day legal advice as well as representation in complex transactions and litigation.

Currently, Meyers Nave serves as city attorney for 16 cities and as general counsel to dozens of counties and special districts.  Many of these relationships have spanned decades—a fact which testifies to the quality of our work and our commitment to clients.

ABOUT THE POSITION

Meyers Nave is looking for a smart, thoughtful and motivated associate attorney with 2-to-8 years of experience to join the Municipal & Special District Law Practice Group in our Sacramento office.  The ideal candidate will have experience working with public agencies, including cities and special districts, and a demonstrated interest in public agency law or public service.

Key qualifications include excellent writing and research skills, superior public speaking ability and the ability to immediately work directly with clients.  Transactional experience is essential.  Prior experience in litigation is also valued.  Relevant professional experience may include, but is not limited to, Brown Act, Public Records Act, Political Reform Act, conflicts of interest and Government Code 1090, code enforcement, insurance, public contracting and procurement, land use and CEQA, transportation, public utilities, real estate and legislative affairs.

Meyers Nave offers a collaborative work environment where associate and of counsel attorneys are an essential part of our team of attorneys working directly with our clients.  Our Sacramento office provides a collegial, team-oriented work environment, with the support, structured training and resources of a mid-size state-wide firm.  We handle a broad variety of challenging issues on current legal and policy issues which offer exciting opportunities for our attorney teams.  Meyers Nave and the attorneys supervising this position are committed advancing the careers of our attorneys and creating client opportunities for them.  We are committed to mentoring and developing attorneys to advance within the firm and legal profession.

HOW TO APPLY

Meyers Nave is an equal opportunity employer and does not discriminate on the basis of any qualified applicant’s race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, military or veteran status or any other category protected by law.

Interested candidates should CLICK HERE and follow the link to apply.  Please submit a cover letter, resume, transcript and one substantive writing sample.

Public Agency Law Associate – 1 to 3 years of experience (Oakland Preferred)

ABOUT MEYERS NAVE

Meyers Nave has a reputation in California as a go-to law firm serving as general counsel to public agencies and handling our client’s highest profile, most complicated and significant transactions and litigation.  Attorneys work in multi-disciplinary teams across five offices to help our clients navigate local, state and federal laws and regulations.

Meyers Nave has served California local governments for over 35 years, growing into a state-wide firm with more than 60 attorneys with experience in the wide range of topics that impact our clients.  We provide day-to-day legal advice as well as representation in complex transactions and litigation.

Currently, Meyers Nave serves as city attorney for 16 cities and as general counsel to dozens of counties and special districts.  Many of these relationships have spanned decades—a fact which testifies to the quality of our work and our commitment to clients.

ABOUT THE POSITION

Meyers Nave is looking for a smart, thoughtful and motivated associate attorney with 1-3 years of experience to join the Municipal & Special District Law Practice Group in our Oakland office.  The ideal candidate will have experience working with public agencies, including cities and transportation agencies, and a demonstrated interest in public agency law or public service.

Key qualifications include excellent writing and research skills, superior public speaking ability and the ability to immediately work directly with clients.  Transactional experience is essential.  Relevant professional experience may include, but is not limited to, Brown Act, Public Records Act, Political Reform Act, conflicts of interest and Government Code 1090, public contracting and procurement, land use and CEQA, transportation, real estate and legislative affairs.

Meyers Nave offers a collaborative work environment where associate and of counsel attorneys are an essential part of our team of attorneys working directly with our clients.  Our Oakland office provides a collegial, team-oriented work environment, with the support, structured training and resources of a mid-size state-wide firm.  We handle a broad variety of challenging issues on current legal and policy issues which offer exciting opportunities for our attorney teams.  Meyers Nave and the attorneys supervising this position are committed advancing the careers of our attorneys and creating client opportunities for them.  We are committed to mentoring and developing attorneys to advance within the firm and legal profession.

HOW TO APPLY

Meyers Nave is an equal opportunity employer and does not discriminate on the basis of any qualified applicant’s race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, military or veteran status or any other category protected by law.

Interested candidates should CLICK HERE and follow the link to apply.  Please submit a cover letter, resume, transcript and one substantive writing sample.

Direct applicants only. The Firm is not accepting submissions from recruiters for this position.