When Is Mandatory Arbitration Not Mandatory?
August 19, 2015 —
Christopher G. Hill – Construction Law MusingsI have discussed my views on mandatory mediation in construction contracts at other places here at Musings and also discussed how the contract is king here in Virginia. A recent Charlottesville, Virginia Circuit Court case combined these two concepts to allow a subcontractor to proceed straight to litigation despite various ADR provisions in the contract between it and the general contractor.
In ProBuild v. DPR & Continental Casualty, the Court looked at a series of ADR steps that were to be followed in the contract between the parties in order to allow DPR, the general contractor to require arbitration as opposed to litigation. The Court considered the surety’s motion to stay the litigation against it pending arbitration between ProBuild and DPR.
In ProBuild, the Court looked at a contractual provision that provided certain steps to be followed in the event of a dispute, starting with a notice of dispute, followed by negotiation, followed by mediation should the disputing party request it, and in the event that mediation was tried and failed, the disputing party or general contractor could require arbitration. The Court determined that ProBuild, the subcontractor, was the disputing party under the contract, had pursued unsuccessful formal negotiations and that neither ProBuild nor DPR requested mediation. The Court then held that because unsuccessful mediation was a prerequisite to required arbitration and because mediation was never pursued, the mandatory arbitration clause did not apply.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
How Concrete Mistakes Added Cost to the Recent Frederick Douglass Memorial Bridge Project
December 16, 2023 —
Richard Korman - Engineering News-RecordA disputed insurance claim heading for trial next year over construction of Washington, D.C.'s two-year-old Frederick Douglass Memorial Bridge revolves around the design-build joint venture's problems in 2019 with concrete voids and honeycombing. The flaws required demolition and rebuilding costing millions of dollars.
Reprinted courtesy of
Richard Korman, Engineering News-Record
Mr. Korman may be contacted at kormanr@enr.com
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Constructing a New American Dream
August 06, 2014 —
Beverley BevenFlorez-CDJ STAFFShelley D. Hutchins in Big Builder interviewed various architects and engineers to discuss the future of home design and building. Obtaining the American Dream “means having a place of sanctuary and security as well as shelter,” Hutchins wrote. “What that house looks like and how it functions is changing to accommodate different family make-ups, population and culture shifts toward denser more integrated communities, and increasingly extreme weather patterns.”
Hutchins declared, “According to experts, educators, and experimenters in the residential design and construction industry many solutions for building houses for the future involve revisiting what worked before. Combining historic research with new innovations is what will produce the best housing.”
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SEC Recommendations to Protect Against Cybersecurity Threats
March 09, 2020 —
Shaia Araghi and Jeffrey Dennis – Newmeyer DillionWhat Happened?
The Securities and Exchange Commission's Office of Compliance Inspections and Examinations ("OCIE") issued a detailed
report on January 27, 2020 regarding various ways for organizations to safeguard data and protect against security and data breaches. Cyber threat actors are now invading data in a more sophisticated manner than ever before, and implementation of the SEC's recommended practices are essential in order to protect from outside vulnerabilities.
What is at Risk?
If market participants fail to implement these recommended policies, they will become more vulnerable to external attacks and data breaches. This can weaken an organization or firm if all employees are not properly trained and informed of the increasing dangers of cybersecurity breaches.
What Can You Do to Protect Yourself from a Cybersecurity Threat?
1.
Governance and Risk Management. Senior leaders should make efforts to improve the cyber safety at their organization. Some of these efforts may include:
- Devote attention to overseeing the organization's cybersecurity and resilience programs;
- Develop a risk assessment process to identify and mitigate cybersecurity risks to the organization;
- Adopt and implement policies and procedures regarding these risks;
- Promptly respond and adapt to changes by updating policies and procedures when necessary; and
- Establish communication policies and procedures to provide timely information to customers, employees, and others when needed.
2.
Access Rights and Controls. Implement updated controls to determine appropriate users for organization systems, limit access as appropriate to authorized users (including the set-up of multi-factor authentication) and monitor user access.
3.
Data Loss Prevention. OCIE has recommended various important data loss prevention measures for organizations:
- Establish a vulnerability management program;
- Implement capabilities that can monitor network traffic and detect threats on endpoints;
- Establish a patch management program covering all software and hardware;
- Maintain an inventory of hardware and software assets;
- Encrypt data and implement network segmentation;
- Create an insider threat program to monitor any suspicious behaviors; and
- Secure legacy systems and equipment through disposal of sensitive information from hardware and software and by reassessing vulnerability and risk assessments.
4.
Mobile Security. Establish policies and procedures for mobile device use, manage use of mobile devices through a mobile device management application, implement security measures for internal and external users, and train employees on mobile device policies and effective practices.
5.
Incident Response and Resiliency. Detect and disclose material information regarding incidents in a timely manner and assess appropriateness of corrective actions taken in response to incidents. Organizations should develop a plan if an incident occurs, address applicable reporting requirements, assign staff to execute specific areas of the plan, and test and assess the plan. In the event that a data breach occurs, an organization should improve its resiliency by maintaining an inventory of core business services and prioritizing business operations based on an assessment of risks.
6.
Vendor Management. Establish a vendor management program to ensure that vendors meet your organization's security requirements. Organizations should aim to understand all contract terms with vendors to ensure that all parties are in agreement regarding risk and security. Organizations should also monitor third-party vendors and ensure that the vendor continues to meet the organization's security requirements.
7.
Training and Awareness. Train staff to implement cybersecurity policies of the organization. Organizations should provide cybersecurity and resiliency training and re-evaluate the effectiveness of training procedures.
A Final Reminder for Organizations
Organizations should strive to implement as many of the SEC's recommended protection measures as possible. Ensuring that senior members of an organization are leading the initiative in increased awareness about cybersecurity threats through training of employees will lead to greater cyber safety for the overall organization. Although prevention of all breaches cannot be guaranteed, developing data loss prevention plans to keep the organization and its core businesses safe from attack will benefit the entire organization.
How We Can Help
If you feel that your business falls below the SEC's recommended security measures, our firm can assist with compliance. Contact us for a free initial consultation to determine a reasonable and practical way for your business to become compliant with these guidelines.
Shaia Araghi is an associate in the firm's Privacy & Data Security, and supports the team in advising clients on cyber-related matters, including compliance and prevention that can protect their day-to-day operations. For more information on how Shaia can help, contact her at shaia.araghi@ndlf.com.
Jeff Dennis (CIPP/US) is the Head of the firm's Privacy & Data Security practice. Jeff works with the firm's clients on cyber-related issues, including contractual and insurance opportunities to lessen their risk. For more information on how Jeff can help, contact him at jeff.dennis@ndlf.com.
About Newmeyer Dillion
For 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that achieve client objectives in diverse industries. With over 70 attorneys working as a cohesive team to represent clients in all aspects of business, employment, real estate, environmental/land use, privacy & data security and insurance law, Newmeyer Dillion delivers holistic and integrated legal services tailored to propel each client's success and bottom line. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California and Nevada, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.newmeyerdillion.com.
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Amid the Chaos, Trump Signs Executive Order Streamlining Environmental Permitting and Disbands Infrastructure Council
August 24, 2017 —
Garret Murai - California Construction Law BlogWe’ve been trying to stay focused here at the California Construction Law Blog. But it’s been hard.
This past week, a couple of new developments took place at the federal level on infrastructure, although if you blinked, you may have missed it.
Executive Order on Environmental Permitting
This past Tuesday, at a press conference quickly overshadowed by the President’s comments about the tragic events that took place in Charlottesville, President Trump announced that he had signed a new executive order aimed at streamlining the environmental permitting process for federally-funded projects.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
CSLB Begins Processing Applications for New B-2 License
June 21, 2021 —
Garret Murai - California Construction Law BlogAs we wrote about in our
2021 Construction Law Update, one of the new laws to take effect on January 1, 2021 was the enactment of
SB 1189 which created a new B-2 Residential Remodeling Contractor’s license. The new license is available to contractors working on existing homes with residential wood frame structures requiring at least three (3) unrelated trades or crafts under a single contract.
Beginning June 1, 2021, the Contractors State License Board began accepting applications for the B-2 Residential Remodeling Contractor’s license. According to a press release from the CSLB:
The B-2 classification provides a pathway to licensure for many unlicensed people who are currently working on remodeling and small home improvement projects that don’t qualify for a B-General Building License because the contracted work does not include framing or rough carpentry. Consumers employing a licensed contractor have reduced liability and greater consumer protection. Licensees benefit from licensure as they have opportunities to lawfully advertise, and compete on a level playing field for jobs.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
HB 20-1046 - Private Retainage Reform - Postponed Indefinitely
May 04, 2020 —
David M. McLain – Colorado Construction LitigationOn Tuesday, February 18th, the Colorado House Business Affairs & Labor Committee voted 10-0 to postpone indefinitely House Bill 1046. If it had been enacted, HB 1046 would have required, for all for all construction contracts of at least $150,000:
- A property owner to make partial payments to the contractor of any amount due under the contract at the end of each calendar month or as soon as practicable after the end of the month;
- A property owner to pay the contractor at least 95% of the value of satisfactorily completed work;
- A property owner to pay the withheld percentage within 60 days after the contract is completed satisfactorily;
- A contractor to pay a subcontractor for work performed under a subcontract within 30 calendar days after receiving payment for the work, not including a withheld percentage not to exceed 5%;
- A subcontractor to pay any supplier, subcontractor, or laborer who provided goods, materials, labor, or equipment to the subcontractor within 30 calendar days after receiving payment under the subcontract; and
- A subcontractor to submit to the contractor a list of the suppliers, sub-subcontractors, and laborers who provided goods, materials, labor, or equipment to the subcontractor for the work.
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David McLain, Higgins, Hopkins, McLain & RoswellMr. McLain may be contacted at
mclain@hhmrlaw.com
Federal Court Strikes Down 'Persuader' Rule
November 23, 2016 —
Pam Hunter McFarland – Engineering News-RecordIn a victory for construction industry groups, a federal court has permanently blocked a U.S. Dept. of Labor rule requiring attorneys and other outside groups to disclose publicly that they provide advice to employers on how to comply with federal labor laws.
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Pam Hunter McFarland, Engineering News-RecordMs. McFarland may be contacted at
mcfarlandp@enr.com
