Look Up And Look Out: Increased Antitrust Enforcement Of Horizontal No-Poach Agreements Signals Heightened Scrutiny Of Vertical Agreements May Be Next
November 28, 2022 —
John F. Finnegan, III & Dominick Weinkam - ConsensusDocsIn the current regulatory environment, it is important for contractors to remain vigilant of heightened anti-competitive enforcement in the construction and procurement spheres by the United States Department of Justice (DOJ). Such vigilance should include, among other things, regular review of applicable laws and implementation of related updates to compliance policies, as well as careful evaluation of joint venture (JV), subcontractor, and teaming agreements.
Recent DOJ Activity Opens The Door To Broader Antitrust Exposure For Contractors
Many contractors include exclusivity and non-compete clauses in their vertical agreements, including subcontractor agreements and certain types of JV and teaming agreements. In fact, many widely available “checklists” for drafting these agreements recommend including such provisions; however, under U.S. antitrust law, particularly as enforced by the DOJ in the last 1-2 years, exclusivity and non-compete clauses may be construed as unduly competition-restricting. Although no court has yet held that exclusivity and non-compete clauses in vertical agreements violate antitrust laws, recent aggressive enforcement activity by the DOJ with regard to horizontal no-poach agreements suggests that the investigatory headwinds may be blowing in that direction.
Reprinted courtesy of
John F. Finnegan, III, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs) and
Dominick Weinkam, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs)
Mr. Finnegan may be contacted at jfinnegan@watttieder.com
Mr. Weinkam may be contacted at dweinkam@watttieder.com
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Home Prices in 20 U.S. Cities Rise Most Since February 2006
January 29, 2014 —
Jeanna Smialek – BloombergHome prices in 20 U.S. cities rose in November from a year ago by the most in almost eight years, providing a boost to household wealth.
The S&P/Case-Shiller index of property prices in 20 cities climbed 13.7 percent from November 2012, the biggest 12-month gain since February 2006, after a 13.6 percent increase in the year ended in October, a report from the group showed today in New York. The median projection of 31 economists surveyed by Bloomberg called for a 13.8 percent advance.
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Jeanna Smialek, BloombergMs. Smialek may be contacted at
jsmialek1@bloomberg.net
Flint Water Suits Against Engineers Will Go to Trial, Judge Says
March 14, 2022 —
James Leggate - Engineering News-RecordA federal judge in Michigan declined on Feb. 7 to accept the contention of engineer Lockwood, Andrews and Newnam Inc. that claims against it for professional negligence in its advisory role to Flint, Mich. ahead of the city's drinking water crisis should not go to trial. The civil case, set for trial on Feb. 15, was brought on behalf of four children who say they suffered neurocognitive harm from exposure to lead in the water supply.
Reprinted courtesy of
James Leggate, Engineering News-Record
Mr. Leggate may be contacted at leggatej@enr.com
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Beyond the Statute: How the Colorado Court Upheld Modified Accrual in Construction Contracts
November 13, 2023 —
Hal Baker - Colorado Construction Litigation BlogIn a case of first impression, the First Division of the Colorado Court of Appeals recently reviewed whether parties may contractually alter the accrual time established by Colorado’s statute of limitations for construction defect actions, C.R.S. § 13-80-104, in South Conejos Sch. Dist. RE-10 v. Wold Architects, Inc., 2023 COA 85 (2023), decided on September 21, 2023. The Court held that sophisticated parties may contractually alter the accrual time standards, enlarging the accrual time as was the issue in this case. Notably, the Court’s decision was made in the context of commercial construction, not residential.
The issue in South Conejos Sch. Dist. RE-10 arose from the construction of a school in Antonito, Colorado. Prior to construction, the South Conejos School District RE-10 (the “School District”) and Wold Architects, Inc. (“Wold”) entered a contract that provided:
Unless a longer period is provided by law, any action against [Wold] brought to recover damages for deficiency in the design, planning, supervision, inspection, construction or observation of construction or for injury to person or property shall be brought within two years after the claim for relief arises and is discovered by [the District]; … “Discovered” as used herein means detection and knowledge by [the District] of the defect in the improvement that ultimately causes the injury, when such defect is of a substantial or significant nature.
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Hal Baker, Higgins, Hopkins, McLain & Roswell, LLCMr. Baker may be contacted at
baker@hhmrlaw.com
Policy Sublimit Does Not Apply to Business Interruption Loss
December 02, 2015 —
Tred R. Eyerly – Insurance Law HawaiiRefusing to give the sublimit in a flood policy an expansive reading, the court found that the sublimit did not apply to business interruption loss. Federal-Mogul Corp. v. Ins. Co. of Pa., 2015 U.S. Dist. LEXIS 137394 (E.D. Mich. Oct. 8, 2015).
The insured's facility in Thailand was damaged by flood. The parties stipulated that the insured suffered a loss of $64,500,000, which included $39,406,467 in property damage and $25,093,533 in time element loss (i.e., economic loss due to an inability to operate normally). The insurer paid $30 million, stating that the High Hazard flood zone provision in the policy limited the amount owed under the policy.
The insured argued the High Hazard sublimit applied only to physical loss or damage caused by the flood, and not to time element loss. Therefore, the insured was entitled to judgment on its time element loss claim for $29,093,533. The insurer argued it was entitled to judgment as a matter of law because the High Hazard sublimit applied to all loss caused by flood, including time element loss.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
California Court Holds No Coverage Under Pollution Policy for Structural Improvements
October 02, 2018 —
Brian Margolies - TLSS Insurance Law BlogIn its recent decision in Essex Walnut Owner L.P. v. Aspen Specialty Ins. Co., 2018 U.S. Dist. LEXIS 138276 (N.D. Cal. Aug. 15, 2018), the United States District Court for the Northern District of California had occasion to consider the issue of a pollution liability insurer’s obligation to pay for the redesign of a structural support system necessitated by the alleged presence of soil contamination.
Aspen’s insured, Essex, owned a parcel of property it was in the process of redeveloping for commercial and residential purposes. The project required excavation activities in order to construct an underground parking lot, and as part of this process, Essex designed a temporary shoring system comprising tied-in retaining walls in order to stabilize the area outside of the excavation. During the excavation work, construction debris was encountered requiring removal. Aspen agreed to pay for a portion of the costs to remove and dispose the debris under the pollution liability policy it issued to Essex.
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Brian Margolies, Traub Lieberman Straus & Shrewsberry LLPMr. Margolies may be contacted at
bmargolies@tlsslaw.com
Connecticut Supreme Court Rules Matching of Materials Decided by Appraisers
March 28, 2022 —
Tred R. Eyerly - Insurance Law HawaiiThe Connecticut Supreme Court determined that an appraisal panel could resolve whether the insurer must replace undamaged materials so that they match the damaged materials. Klass v. Liberty Mut. Ins. Co., 2022 Conn. LEXIS 2 (Conn. Jan. 11, 2022).
The insured reported damage to the roof of his home to Liberty Mutual. A representative from Liberty Mutual inspected and noticed a few shingles missing from the rear slope of the roof. The representative agreed that the damage was caused by wind damage, a covered loss under the policy. Liberty Mutual accepted coverage and issued an estimate to replace the rear slope of the roof. The insured's contractor inspected the roof and provided an estimate that contemplated replacement of the entire roof at nearly double the cost of Liberty Mutual's estimate.
The insured requested an appraisal. Liberty Mutual responded that the insured could not invoke the appraisal process in the absence of a "competing" estimate (i.e., one that addressed the claim for which coverage was accepted). Any dispute regarding the matching of the front and rear roof slope was a question of coverage, not an issue for appraisal.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
A Relatively Small Exception to Fraud and Contract Don’t Mix
April 01, 2015 —
Christopher G. Hill – Construction Law MusingsRemember all of my posts about how fraud and contract claims don’t usually play well in litigation? Well, as always with the law, there are exceptions. For instance, a well plead Virginia Consumer Protection Act claim will survive a dismissal challenge.
A recent opinion out of the Alexandria division of the U. S. District Court for the Eastern District of Virginia sets out another exception, namely so called fraudulent inducement. In XL Specialty Ins. Co. v. Truland et al, the Court considered the question of whether both a tort and contract claim can coexist in the same lawsuit when the tort claim is based upon the information provided to the plaintiff when that information proves false.
As the courts of Virginia have held for years, only certain information and statements made pre-contract can be the basis for a fraud claim in the face of a contractual duty to perform. One type of statement that is not properly the subject of a fraud in the inducement type claim is sales talk or opinion. Such sales talk (for example claiming that your company is the best for the job) is not the subject of a fraud claim because it is not meant to be relied upon and that such talk is an opinion about future performance, not a false statement of present fact or intent.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com