Jennings Strouss Law Firm

Thursday, April 7, 2016

Jennings, Strouss & Salmon Expands Energy Practice Group with the Addition of Gerit F. Hull

“We are excited to have Gerit join us,” stated Deb Roby, Chair of the firm’s Energy Practice Group. “His depth of experience in the electric and natural gas industries will be a tremendous benefit to the firm’s energy clients.”

Hull represents clients in the electricity and natural gas industries. He is experienced in matters involving production, acquisition and sales of energy in wholesale and retail markets, and related transportation, transmission and distribution services. Hull offers transactional representation and counsel regarding compliance with state and federal regulations. Hull provides advocacy in matters before the Federal Energy Regulatory Commission (FERC), state utility commissions, and in state and federal court.

Hull’s practice addresses issues stemming from wholesale and retail electricity market participation, Regional Transmission Organization (RTO) membership, transmission system expansions and interconnections, transmission and ancillary services rates and tariffs, reliability regulations, hydroelectric project licensing and operations, and access to electric utility infrastructure by communications companies. In the natural gas sector, his engagements involve wholesale market transactions, pipeline transportation service and storage capacity, compliance with safety regulations, and liquefied natural gas (LNG) projects. In addition, Hull provides counseling and advocacy to gas and electric retail suppliers in licensing, contractual and consumer protection matters.

“I am pleased with the opportunity to join Jennings, Strouss & Salmon,” stated Hull. “The firm’s deep energy bench will be a great resource for my clients and I am looking forward to working closely with the energy team and other talented lawyers at this full-service law firm.”

In addition to over a decade of private practice, Hull’s work experience includes four years as an attorney for the Bonneville Power Administration, an agency under the U.S. Department of Energy that markets electric power produced by federal hydropower facilities in the Pacific Northwest. Hull also served for four years as senior counsel at PacifiCorp, where he focused on matters involving PacifiCorp’s Power Delivery business unit.

Hull earned his J.D. from George Washington University Law School in 1996 and an LL.M. from Lewis & Clark Law School in 2000. He earned a B.A. in economics and management from Hiram College.

About Jennings, Strouss & Salmon, P.L.C.

Jennings, Strouss & Salmon, P.L.C., has been providing legal counsel for over 70 years through its offices in Phoenix and Peoria, Arizona; and Washington, D.C. The firm's primary areas of practice include agribusiness; automobile dealership law, bankruptcy, reorganization and creditors’ rights; construction; corporate and securities; employee benefits and pensions; energy; family law and domestic relations; health care; intellectual property; labor and employment; legal ethics; litigation; professional liability defense; real estate; surety and fidelity; tax; and trust and estates. For additional information please visit www.jsslaw.com and follow us on LinkedIn, Facebook, and Twitter.

The firm’s affiliate, B3 Strategies, assists clients with lobbying and public policy strategy at the local, state, and federal levels. For more information please visit www.b3strategies.com.

~JSS~

Contact: Dawn O. Anderson | danderson@jsslaw.com| 602.495.2806

PHOENIX, Ariz. (April 6, 2016) – Jennings, Strouss & Salmon, P.L.C., a leading Phoenix-based law firm, is pleased to announce that Gerit F. Hull has joined the firm as a Member in the firm’s Energy Practice in Washington, D.C.
“We are excited to have Gerit join us,” stated Deb Roby, Chair of the firm’s Energy Practice Group. “His depth of experience in the electric and natural gas industries will be a tremendous benefit to the firm’s energy clients.”
Hull represents clients in the electricity and natural gas industries. He is experienced in matters involving production, acquisition and sales of energy in wholesale and retail markets, and related transportation, transmission and distribution services. Hull offers transactional representation and counsel regarding compliance with state and federal regulations. Hull provides advocacy in matters before the Federal Energy Regulatory Commission (FERC), state utility commissions, and in state and federal court.
Hull’s practice addresses issues stemming from wholesale and retail electricity market participation, Regional Transmission Organization (RTO) membership, transmission system expansions and interconnections, transmission and ancillary services rates and tariffs, reliability regulations, hydroelectric project licensing and operations, and access to electric utility infrastructure by communications companies. In the natural gas sector, his engagements involve wholesale market transactions, pipeline transportation service and storage capacity, compliance with safety regulations, and liquefied natural gas (LNG) projects. In addition, Hull provides counseling and advocacy to gas and electric retail suppliers in licensing, contractual and consumer protection matters.
“I am pleased with the opportunity to join Jennings, Strouss & Salmon,” stated Hull. “The firm’s deep energy bench will be a great resource for my clients and I am looking forward to working closely with the energy team and other talented lawyers at this full-service law firm.”
In addition to over a decade of private practice, Hull’s work experience includes four years as an attorney for the Bonneville Power Administration, an agency under the U.S. Department of Energy that markets electric power produced by federal hydropower facilities in the Pacific Northwest. Hull also served for four years as senior counsel at PacifiCorp, where he focused on matters involving PacifiCorp’s Power Delivery business unit.
Hull earned his J.D. from George Washington University Law School in 1996 and an LL.M. from Lewis & Clark Law School in 2000. He earned a B.A. in economics and management from Hiram College.

About Jennings, Strouss & Salmon, P.L.C.
Jennings, Strouss & Salmon, P.L.C., has been providing legal counsel for over 70 years through its offices in Phoenix and Peoria, Arizona; and Washington, D.C. The firm's primary areas of practice include agribusiness; automobile dealership law, bankruptcy, reorganization and creditors’ rights; construction; corporate and securities; employee benefits and pensions; energy; family law and domestic relations; health care; intellectual property; labor and employment; legal ethics; litigation; professional liability defense; real estate; surety and fidelity; tax; and trust and estates. For additional information please visit www.jsslaw.com and follow us on LinkedIn, Facebook, and Twitter.

The firm’s affiliate, B3 Strategies, assists clients with lobbying and public policy strategy at the local, state, and federal levels. For more information please visit www.b3strategies.com.

~JSS~

Contact: Dawn O. Anderson | danderson@jsslaw.com| 602.495.2806
- See more at: http://www.jsslaw.com/news_detail.aspx?id=465#sthash.8oLuRG8b.dpuf

~JSS~

Contact: Dawn O. Anderson | danderson@jsslaw.com| 602.495.2806
- See more at: http://www.jsslaw.com/news_detail.aspx?id=465#sthash.8oLuRG8b.dpuf

~JSS~

Contact: Dawn O. Anderson | danderson@jsslaw.com| 602.495.2806
- See more at: http://www.jsslaw.com/news_detail.aspx?id=465#sthash.8oLuRG8b.dpuf

FERC Refines Pipeline Cost-Allocation Policies in Order on Remand

By: Joel Greene & Andrea Sarmento

The proposed incremental rate sought to recover costs incurred by Transco for purchases of base gas for the Washington Storage Field. Transco’s Historic Shippers supplied base gas to support their storage entitlements at the Washington Storage Field and have a right, pursuant to a 1975 Settlement, to purchase their respective share of the base gas at historic cost from Transco when terminating storage service from the field. During the period 2005-2006, two of Transco’s Historic Shippers permanently released their Washington Storage Field capacity rights to the Replacement Shippers and exercised their right to purchase approximately 3.4 million Dth of base gas at its historic cost. As a result, Transco had to purchase approximately 3.4 million Dth of base gas to support the top gas needs of its shippers.

Transco sought to recover the costs of this purchase with an incremental rate charged to the Replacement Shippers. Initially, the Commission accepted Transco’s proposed incremental rate, rejecting arguments that such rate violated cost allocation principles established in the Policy Statement. The Commission found that its Policy Statement was inapplicable because the case did not involve any construction or expansion requiring certificate authorization—only the replenishment of base gas at a preexisting facility. The Commission further rejected arguments that the incremental rate violated cost-causation principles requiring that all approved rates reflect to some degree the costs actually caused by the customer who must pay them. The Commission reasoned that the permanent capacity releases to Paribas and South Jersey were the “most immediate and proximate” cause of Transco’s need to purchase new base gas in 2005 and 2006.

On appeal, the D.C. Circuit vacated and remanded the Commission’s decision to accept Transco’s incremental rate as just and reasonable.^{^[3]}The D.C. Circuit was not persuaded that the exiting Historic Shippers’ releases to the Replacement Shippers should be viewed as the most immediate and proximate cause of Transco’s need to purchase base gas; and held that the Commission failed to explain how the Historic Shippers’ continued demand did not contribute to the need for the new base gas.

On remand, the Commission reversed its prior decisions and found that the Policy Statement analysis used to determine whether the costs of an expansion should be borne solely by the new shippers or whether existing shippers should also be allocated a share of the project costs, does provide a reasonable framework for resolving the cost allocation issue in this case. The Commission reasoned that, while Transco did not need to apply for a new certificate to purchase replacement base gas, the pipeline had made an investment to increase the capabilities of its system and the Commission had to determine whether it is reasonable to allocate the cost of the new investment to all the pipeline's customers, old and new, or allocate those costs only to the new customers.

The Commission used two factors established in the Policy Statement to determine whether a rolled-in or an incremental rate should apply: (1) whether the new investment provides specific benefits to existing shippers; and (2) whether rolling in the cost of the new investment increases rates for the existing shippers. Following a lengthy analysis, the Commission determined that it is reasonable and equitable to allocate to the remaining historic shippers the costs associated with Transco's purchase of the base gas necessary to continue to provide service to them, given that the need to purchase this base gas arises from provisions of a settlement they agreed to, and the allocation is consistent with the Policy Statement. The analysis also showed that rolling in the costs associated with Transco's additional purchases of base gas needed to serve the Replacement Shippers benefits the Historic Shippers by leading to lower rates.

[1] Transcontinental Gas Pipe Line Corporation, 154 FERC ¶ 61,211 (2016)

[2] Certification of New Interstate Natural Gas Pipeline Facilities, 88 FERC ¶ 61,227 (1999) (“Policy Statement”), clarified, 90 FERC ¶ 61,128 (1999 Certificate Policy Statement Rehearing Order), clarified, 92 FERC ¶ 61,094 (2000).

[3] BNP Paribas Energy Trading GP v. FERC, 743 F.3d 264 (2014).

In a recent Order on remand from the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”),[1] the Federal Energy Regulatory Commission (“Commission”) reversed its earlier decisions and determined that the rolled-in vs. incremental rate policies established in its 1999 Certificate Policy Statement[2] do not justify Transcontinental Gas Pipe Line Corporation’s (“Transco”) Section 4 rate proposal to allocate the costs associated with its purchases of replacement base gas from the Washington Storage Field to BNP Paribas Energy Trading GP (“Paribas”) and South Jersey Resources Group, LLC (“South Jersey”) (collectively, “Replacement Shippers”) through a new incremental storage rate.
The proposed incremental rate sought to recover costs incurred by Transco for purchases of base gas for the Washington Storage Field. Transco’s Historic Shippers supplied base gas to support their storage entitlements at the Washington Storage Field and have a right, pursuant to a 1975 Settlement, to purchase their respective share of the base gas at historic cost from Transco when terminating storage service from the field. During the period 2005-2006, two of Transco’s Historic Shippers permanently released their Washington Storage Field capacity rights to the Replacement Shippers and exercised their right to purchase approximately 3.4 million Dth of base gas at its historic cost. As a result, Transco had to purchase approximately 3.4 million Dth of base gas to support the top gas needs of its shippers.
Transco sought to recover the costs of this purchase with an incremental rate charged to the Replacement Shippers. Initially, the Commission accepted Transco’s proposed incremental rate, rejecting arguments that such rate violated cost allocation principles established in the Policy Statement. The Commission found that its Policy Statement was inapplicable because the case did not involve any construction or expansion requiring certificate authorization—only the replenishment of base gas at a preexisting facility. The Commission further rejected arguments that the incremental rate violated cost-causation principles requiring that all approved rates reflect to some degree the costs actually caused by the customer who must pay them. The Commission reasoned that the permanent capacity releases to Paribas and South Jersey were the “most immediate and proximate” cause of Transco’s need to purchase new base gas in 2005 and 2006.
On appeal, the D.C. Circuit vacated and remanded the Commission’s decision to accept Transco’s incremental rate as just and reasonable.^{^[3]}The D.C. Circuit was not persuaded that the exiting Historic Shippers’ releases to the Replacement Shippers should be viewed as the most immediate and proximate cause of Transco’s need to purchase base gas; and held that the Commission failed to explain how the Historic Shippers’ continued demand did not contribute to the need for the new base gas.

On remand, the Commission reversed its prior decisions and found that the Policy Statement analysis used to determine whether the costs of an expansion should be borne solely by the new shippers or whether existing shippers should also be allocated a share of the project costs, does provide a reasonable framework for resolving the cost allocation issue in this case. The Commission reasoned that, while Transco did not need to apply for a new certificate to purchase replacement base gas, the pipeline had made an investment to increase the capabilities of its system and the Commission had to determine whether it is reasonable to allocate the cost of the new investment to all the pipeline’s customers, old and new, or allocate those costs only to the new customers.

The Commission used two factors established in the Policy Statement to determine whether a rolled-in or an incremental rate should apply: (1) whether the new investment provides specific benefits to existing shippers; and (2) whether rolling in the cost of the new investment increases rates for the existing shippers. Following a lengthy analysis, the Commission determined that it is reasonable and equitable to allocate to the remaining historic shippers the costs associated with Transco’s purchase of the base gas necessary to continue to provide service to them, given that the need to purchase this base gas arises from provisions of a settlement they agreed to, and the allocation is consistent with the Policy Statement. The analysis also showed that rolling in the costs associated with Transco’s additional purchases of base gas needed to serve the Replacement Shippers benefits the Historic Shippers by leading to lower rates.

[1] Transcontinental Gas Pipe Line Corporation, 154 FERC ¶ 61,211 (2016)

[3] BNP Paribas Energy Trading GP v. FERC, 743 F.3d 264 (2014).

- See more at: http://www.jsslaw.com/news_detail.aspx?id=464#sthash.9YlxxQzv.dpuf

On remand, the Commission reversed its prior decisions and found that the Policy Statement analysis used to determine whether the costs of an expansion should be borne solely by the new shippers or whether existing shippers should also be allocated a share of the project costs, does provide a reasonable framework for resolving the cost allocation issue in this case. The Commission reasoned that, while Transco did not need to apply for a new certificate to purchase replacement base gas, the pipeline had made an investment to increase the capabilities of its system and the Commission had to determine whether it is reasonable to allocate the cost of the new investment to all the pipeline’s customers, old and new, or allocate those costs only to the new customers.

The Commission used two factors established in the Policy Statement to determine whether a rolled-in or an incremental rate should apply: (1) whether the new investment provides specific benefits to existing shippers; and (2) whether rolling in the cost of the new investment increases rates for the existing shippers. Following a lengthy analysis, the Commission determined that it is reasonable and equitable to allocate to the remaining historic shippers the costs associated with Transco’s purchase of the base gas necessary to continue to provide service to them, given that the need to purchase this base gas arises from provisions of a settlement they agreed to, and the allocation is consistent with the Policy Statement. The analysis also showed that rolling in the costs associated with Transco’s additional purchases of base gas needed to serve the Replacement Shippers benefits the Historic Shippers by leading to lower rates.

[1] Transcontinental Gas Pipe Line Corporation, 154 FERC ¶ 61,211 (2016)

[3] BNP Paribas Energy Trading GP v. FERC, 743 F.3d 264 (2014).

- See more at: http://www.jsslaw.com/news_detail.aspx?id=464#sthash.9YlxxQzv.dpuf

Monday, March 7, 2016

Serial Plaintiff David Ritzenthaler Files Another Wave of ADA “Parking Lot” Lawsuits

By: Lindsay Leavitt

David Ritzenthaler, a disabled man, has filed more than 100 lawsuits against Arizona businesses alleging that their parking lots violate the Americans with Disabilities Act (“ADA”).

Mr. Ritzenthaler is just getting warmed up—I understand that he plans to file thousands of ADA “parking lot lawsuits” throughout Phoenix and across Arizona. Read my earlier blog about Mr. Ritzenthaler’s lawsuits here.

Mr. Ritzenthaler’s lawsuits do not discriminate. He has sued fast food restaurants, car washes, dental offices and commercial warehouses. The last category surprises some business owners. While most people recognize that retail businesses must comply with the ADA and provide accessibility to their patrons, very few are aware that the parking lots of commercial facilities—privately owned, nonresidential facilities such as factories, warehouses or office buildings—must also comply with the ADA. In other words, nearly every business facility in the U.S. that has a parking lot must comply with the ADA.

Most of Mr. Ritzenthaler’s lawsuits arise from three simple-to-fix violations of the ADA 2010 parking lot standards: (1) the correct number of “accessible” parking spaces, including van accessible parking spaces, (2) access aisles and pathways leading from accessible parking spaces to the facility entrance(s), and (3) signs with the international symbol for accessibility mounted in front of accessible parking spaces.

There are two types of businesses in Arizona—those that have been sued by Mr. Ritzenthaler and those that will be sued by Mr. Ritzenthaler. Both types of businesses need to consult with a knowledgeable ADA attorney to resolve (or prevent) their ADA parking lot lawsuit.

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Lindsay G. Leavitt is a business litigation and employment law attorney at Jennings, Strouss & Salmon, P.L.C. He regularly represents businesses in ADA compliance related disputes and provides advice on preventative measures.

DOL’s Wage and Hour Division Refines Joint Employment under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.

By: Chris M. Mason

The Department of Labor (DOL) continues to make dramatic changes to what we know and understand of minimum wage and overtime requirements. This time, in January of 2016, the DOL’s Wage & Hour Division (WHD) issued an Administrator’s Interpretation (AI), AI No. 2016-1, providing guidance on the subject of joint employment under the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). The guidance in this AI signals potentially dramatic employer risks.

Today’s evolving workforce presents a plethora of staffing options not as routinely used in the past. Third-party staffing companies, management companies, professional employer organizations, and independent contractors all present a variety of staffing options for contemporary workplaces. Companies on both ends of this arrangement – those that lend and those that borrow workers – may be deemed joint employers, as this signaled by the WHD’s recent AI.

According to WHD AI No. 2016-1, these relationships will be reviewed for both horizontal and vertical joint employment. Horizontal joint employment exists when two or more businesses that are associated with, or related to each other, both separately employ the same individual. This might be seen, for instance, when two separate restaurants with common ownership employ the same waiter on different days of the week. Conversely, an employee who works directly for one employer but who is also economically dependent on another organization working in collaboration with the employer, might find himself or herself in a vertical joint employment relationship. For instance, an employee hired by a construction subcontractor may be considered in certain circumstances to be a joint employee of the general contractor on the project.

AI No. 2016-1 provides some guiding questions for concerned enterprises, but also foreshadows the demanding expectations we are likely to see from the WHD when it comes to joint employment evaluations and determinations:

· who owns the potential joint employers (i.e., i.e., does one employer own part or all of the other or do they have any common owners);

· do the potential joint employers have any overlapping officers, directors, executives, or managers;

· do the potential joint employers have control over operations (e.g. hiring, firing, payroll, advertising, overhead costs);

· are the potential joint employers’ operations inter-mingled (for example, is there one administrative operation for both employers, or does the same person schedule and pay the employees regardless of which employer they work for);

· does one potential joint employer supervise the work of the other

· do the potential joint employers share supervisory authority for the employee;

· do the potential joint employers treat the employees as a pool of employees available to both of them; and

· do the potential joint employers share clients or customers;

· are there any agreements between the potential joint employers.

For those enterprises that are deemed joint employers, both may face liability for minimum wage and overtime pay requirements, and can face much greater liability under countless other labor and employment laws applicable to joint employers.

To read the complete AI, click here. If you work through a staffing enterprise or PEO, or if you share workers directly with other operations, we encourage you to seek experienced labor and employment counsel to ensure that you are compliant with applicable law.

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Chris M. Mason is a labor and employment law attorney at Jennings, Strouss & Salmon, P.L.C. He counsels employers and management on all aspects of labor and employment law, including traditional labor matters, such as collective bargaining and union organizing; restrictive covenants; employment discrimination; sexual harassment; whistleblowing; retaliation; wrongful termination; personnel policies; reductions in force; trade secrets; restrictive covenants; duty of loyalty; drug and alcohol testing; and other state and federal laws, rules, and regulations. He is also an experienced litigator, representing clients in Arizona, federal, and appellate courts, as well as before administrative agencies, including the National Labor Relations Board, the Department of Labor, the Equal Employment Opportunity Commission, the Arizona Civil Rights Division, and the Department of Economic Security.

Thursday, April 7, 2016

Jennings, Strouss & Salmon Expands Energy Practice Group with the Addition of Gerit F. Hull

FERC Refines Pipeline Cost-Allocation Policies in Order on Remand

Monday, March 7, 2016

Serial Plaintiff David Ritzenthaler Files Another Wave of ADA “Parking Lot” Lawsuits

DOL’s Wage and Hour Division Refines Joint Employment under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.

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