Alaska District Court Sets Aside Rulings Under New Administration’s EO 13795
May 06, 2019 —
Anthony B. Cavender - Gravel2GavelOn March 29, the U.S. District Court for the District of Alaska issued two separate rulings that reversed and set aside energy and environmental decisions made by the current administration, which had revoked decisions made in these same matters by the prior administration. The cases are League of Conservation Voters, et al., v. Trump (concerning the development of oil and gas leases on the Outer Continental Shelf (OCS)) and Friends of Alaska National Wildlife Refuges, et al., v. Bernhardt, Acting Secretary of the U.S. Department of the Interior (which concerns a Land Exchange that would facilitate the construction of a road between two remote Alaska communities when that road would traverse parts of a designated national wilderness).
In the League of Conservation Voters matter, the District Court held that the President’s Executive Order 13795 (released on April 28, 2017), which purported to revoke President Obama’s decisions to withdraw certain OCS tracts from oil and gas exploration and development, was unlawful because it was not authorized by Section 12(a) of the Outer Continental Shelf Lands Act (OCSLA). In 2015 and 2016, President Obama issued Presidential Memorandums and an Executive Order withdrawing these particular tracts.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
America’s Infrastructure Gets a D+
March 16, 2017 —
Garret Murai – California Construction Law BlogThe American Society of Civil Engineers (ASCE) has issued their 2017 Infrastructure Report Card, which assigns a letter grade to the nation’s infrastructure.
Our country’s grade in 2017? A disappointing D+.
Although, if you’re a glass half full kind of person (bless your soul) at least our grade didn’t fall since the last report card was issued in 2013, when our grade was a D+ as well.
In short, we suck. Although, apparently, we don’t suck evenly across the board.
ASCE has divided its cumulative GPA into grades for specific courses, if you will. Our transit systems received a grade of D-; our airports, dams, drinking water and waste water plants, inland waterways, levees and roads received a grade of D; our power plants, hazardous waste plants, public parks and schools received a grade of D+; our bridges, ports and solid waste plants a grade of C+, and our rail systems received a grade of B.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Nancy Conrad to Serve as President of the Pennsylvania Bar Association
May 28, 2024 —
White and Williams LLPWhite and Williams is honored to announce that Nancy Conrad, Managing Partner of the Lehigh Valley office and Chair of the Higher Education Practice Group, will serve as President of the Pennsylvania Bar Association (PBA) for the 2024-2025 term. She will be the seventh woman to serve as President, the second president to hail from Lehigh Valley, the third partner from White and Williams and our firm’s first woman Partner to serve in this role. Conrad recently completed her term as President of the Lehigh County Bar Association (2023-2024).
Tim Davis, Managing Partner stated, “We are proud of Nancy as she begins her term as President of the Pennsylvania Bar Association. Her commitment to ensuring excellence in the profession, her focus on the community and on being an inclusive thought-leader have all laid the foundation for her to take on this important position."
During her career and involvement with the PBA, Conrad served on a number of committees and sections. She started with the Women in the Profession Committee (WIP), then expanded to the Federal Practice Committee, the Labor & Employment Section, the Civil Litigation Section and others. In each of these committees and sections, she served in leadership roles leading to her appointment as Woman Governor and Chair of the DEI Team.
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White and Williams LLP
The Enforceability of “Pay-If-Paid” Provisions Affirmed in New Jersey
January 04, 2023 —
Levi W. Barrett, Michael S. Zicherman & Brian Glicos - Peckar & Abramson, P.C.On December 7, 2022, the Appellate Division affirmed the New Jersey Superior Court decision in Jersey Precast v. Tricon Enterprises, Inc. et al., finding that the “pay-if-paid” clause in a material supplier’s purchase order with a general contractor was binding and enforceable. While clauses conditioning a general contractor’s obligation to pay its subcontractors on the general contractor’s receipt of payment from the project owner are not unique – this is the first time that a court in New Jersey has affirmed this practice in a published opinion. [1]
Background
The general contractor, Tricon, sent Jersey Precast its standard form purchase order for the supply of prestressed box beams to fulfill a public improvement contract with Union County. The reverse side of the form purchase order contained standard terms and conditions, and included a pay-if-paid clause drafted by Michael Zicherman, a partner of Peckar & Abramson, P.C. While Jersey Precast provided some draft revisions to the terms and conditions, Tricon never signed the purchase order and the proposed revisions were never accepted. Significantly, Jersey Precast did not attempt to modify the pay-if-paid provision. It later developed that the construction of the project became impossible, and the beams fabricated by Jersey Precast were not used. Tricon invoiced Union County for the cost of the beams, but the County failed to make payment and refused to accept delivery of the beams.
Reprinted courtesy of
Levi W. Barrett, Peckar & Abramson, P.C.,
Michael S. Zicherman, Peckar & Abramson, P.C. and
Brian Glicos, Peckar & Abramson, P.C.
Mr. Barrett may be contacted at lbarrett@pecklaw.com
Mr. Zicherman may be contacted at mzicherman@pecklaw.com
Mr. Glicos may be contacted at bglicos@pecklaw.com
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Balcony Collapses Killing Six People
June 17, 2015 —
Beverley BevenFlorez-CDJ STAFFSix college students died from injuries that occurred when a balcony collapsed at a downtown apartment complex in Berkeley, California, according to Berkeleyside. The city of Berkeley ordered a structural inspection of the remaining balconies at Library Gardens, and to immediately remove the failed balcony.
The following day Berkeleyside reported that the city ordered the Library Gardens’ owners to remove another balcony after “[i]nspectors determined that the third-floor balcony ‘was structurally unsafe and presented a collapse hazard endangering public safety.’”
Berkeley’s mayor, Tom Bates, stated that “investigators believe the wood wasn’t sealed properly at the time of construction and was damaged by moisture as a result,” the Wall Street Journal reported.
Read the full story, 6/16/15 Berkeleyside article...
Read the full story, 6/17/15 Berkeleyside article...
Read the full story, Wall Street Journal...
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Client Alert: Court of Appeal Applies Common Interest Privilege Doctrine to HOA Litigation Meetings
March 19, 2014 —
David W. Evans, Steven M. Cvitanovic, and Michael C. Parme - Haight Brown & Bonesteel LLPIn Seahaus La Jolla Owners Assoc. v. Superior Court (No. D064567, March 12, 2014), the California Court of Appeal held a homeowners association’s (“HOA”) litigation meetings related to the HOA’s construction defect lawsuit were subject to protection under the attorney-client privilege. Specifically, the court concluded the common interest doctrine applied to the subject litigation meetings, thereby barring the defendants in the HOA’s lawsuit from seeking discovery related to the content and disclosures made during those meetings.
The plaintiff HOA initiated a construction defect lawsuit against a residential developer and builder, seeking damages for construction defects related to common areas. The defendants took the depositions of individual homeowners and inquired regarding the communications and disclosures made at informational litigation update meetings. The meetings were conducted by the HOA’s counsel with groups of homeowners, some of whom had filed their own, separate lawsuits against the same defendants. Motions to compel were filed after attorney-client privilege objections were asserted by counsel for the HOA. After the court-appointed discovery referee opined that the common interest doctrine applied and that the communications presented at the meetings were subject to the attorney-client privilege, the trial court rejected this recommendation and overruled the HOA’s privilege objections. The HOA filed a petition for a writ of mandate.
The defendants argued the privilege had been waived based on the presence of persons who were not the clients of the HOA’s attorney, that the subject communications were not “confidential communications” and that the individual homeowners and the HOA did not share common interests at the time. After setting forth a comprehensive discussion of the statutory principles underlying the attorney-client privilege and the bases for waiver, as provided in California Evidence Code §§ 912 and 952, and summarizing applicable decisional law, the court specifically analyzed the question of whether the common interest doctrine applied in the context of the disputed HOA litigation meetings. The common interest doctrine protects confidential communications made by counsel to third parties if the third parties are present to further the interest of the client or are those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer was consulted.
Reprinted courtesy of
David W. Evans,
Steven M. Cvitanovic, and
Michael C. Parme of Haight Brown & Bonesteel LLP
Mr. Evans may be contacted at devans@hbblaw.com, Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com, and Mr. Parme may be contacted at mparme@hbblaw.com
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Arizona Purchaser Dwelling Actions Are Subject to a New Construction
September 04, 2019 —
William L. Doerler - The Subrogation StrategistArizona recently amended its Purchaser Dwelling Action statute to, among other things, involve all contractors in the process, establish the parties’ burdens of proof, add an attorney fees provision, establish procedural requirements and limit a subcontractor’s indemnity exposure. The governor signed the bill—2019 Ariz. SB 1271—on April 10, 2019, and the changes go into effect and apply, retroactively “to from and after June 30, 2019.” The following discussion details some of the changes to the law.
Notice to Contractors and Proportional Liability
Under the revised law, a “Seller” who receives notice of a Purchaser Dwelling Action (PDA) from a residential dwelling purchaser pursuant to A.R.S. § 12-1363* has to promptly forward the notice to all construction professionals—i.e. architects, contractors, subcontractors, etc., as defined in A.R.S. § 12-1361(5)—that the Seller reasonably believes are responsible for an alleged construction defect. A.R.S. § 12-1363(A). Sellers can deliver the notice by electronic means. Once construction professionals are placed on notice, they have the same right to inspect, test and repair the property as the Seller originally placed on notice. A.R.S. § 12-1362(B), (C).
To the extent that the matter ultimately goes to suit, A.R.S. § 12-1632(D) dictates that, subject to Arizona Rules of Court, construction professionals “shall be joined as third-party defendants.” To establish liability, the purchaser has the burden of proving the existence of a construction defect and the amount of damages. Thereafter, the trier of fact determines each defendant’s or third-party defendant’s relative degree of fault and allocates the pro rata share of liability to each based on their relative degree of fault. However, the seller, not the purchaser, has the burden of proving the pro rata share of liability for any third-party defendant. A.R.S. § 12-1632(D).
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William L. Doerler, White and Williams LLPMr. Doerler may be contacted at
doerlerw@whiteandwilliams.com
Changes to the Federal Rules – 2024
November 18, 2024 —
William L. Doerler - The Subrogation StrategistUnless Congress moves quickly, several amendments to the Federal Rules of Civil Procedure and Evidence will take effect December 1, 2024. Below is a brief description of the amendments.
Rules of Evidence
Rule 107 is a new rule. This rule addresses illustrative aids, stating that, if such aid helps the trier of fact to understand the evidence or an argument, a party may use the aid if its utility is not substantially outweighed by the danger of, among other things, unfair prejudice. As noted under the discussion of Rule 1006, below, an illustrative aid - offered only to help the trier of fact understand the evidence - is generally not admissible into evidence.
Rule 613 currently states that extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and the adverse party is given an opportunity to examine the witness about it, or if justice so requires. As amended, the court has the discretion to forego this requirement.
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William L. Doerler, White and Williams LLPMr. Doerler may be contacted at
doerlerw@whiteandwilliams.com
