False Implied Certifications in Making Payment Requests: What We Can Learn from Lance Armstrong
January 20, 2020 —
Brian S. Wood & Alex Gorelik - ConsensusDocsIn April 2018, the Department of Justice announced a $5M settlement reached in its lawsuit against former professional cyclist, Lance Armstrong. While the fallout from Armstrong’s latently-admitted use of performance-enhancing drugs (“PEDs”) was well-publicized, including lost sponsorship deals, stripped Tour de France titles, and damage to his reputation, few were aware of Armstrong’s exposure to liability and criminal culpability for false claims against the government. The DOJ’s announcement reminded Armstrong and the rest of us of the golden rule of dealing with the government: honesty is the best policy. The corollary to that rule is that dishonesty is costly.
Armstrong’s liability stemmed from false statements (denying the use of PEDs) he made, directly and through team members and other representatives, to U.S. Postal Service (“USPS”) representatives and to the public. USPS was the primary sponsor of the grand tour cycling team led by Armstrong. The government alleged in the lawsuit that Armstrong’s false statements were made to induce USPS to renew and increase its sponsorship fees, in violation of the False Claims Act.
The Statute
Enacted in 1863, the False Claims Act (“FCA”) was originally aimed at stopping and deterring frauds perpetrated by contractors against the government during the Civil War. Congress amended the FCA in the years since its enactment, but its primary focus and target have remained those who present or directly induce the submission of false or fraudulent claims. The current FCA imposes penalties on anyone who knowingly presents “a false or fraudulent claim for payment or approval” to the federal Government. A “claim” now includes direct requests to the Government for payment, as well as reimbursement requests made to the recipients of federal funds under federal benefits programs (such as Medicare). Thirty-one states, the District of Columbia, and Puerto Rico have also enacted laws imposing penalties for false claims against state agencies and their subdivisions, with most of these laws modelled after the federal FCA.
Reprinted courtesy of
Brian S. Wood, Smith, Currie & Hancock, LLP and
Alex Gorelik, Smith, Currie & Hancock, LLP
Mr. Wood may be contacted at bswood@smithcurrie.com
Mr. Gorelik may be contacted at agorelik@smithcurrie.com
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New OSHA Vaccination Requirements For Employers With 100 Or More Employees (And Additional Advice for California Employers)
November 19, 2021 —
Laura Fleming & Rana Ayazi - Payne & FearsUpdate 11.8.21: On Nov. 6, 2021, the United States Court of Appeals for the Fifth Circuit granted a stay of the OSHA ETS, stating that the OSHA ETS may have “grave statutory and constitutional issues.” The stay is not a final ruling on the validity of the ETS but temporarily halts its implementation nationwide. OSHA has until Nov. 8, 2021 at 5:00 PM to respond and the petitioners have until Nov. 9, 2021 at 5:00 PM to reply to OSHA’s response. The Fifth Circuit will then issue its ruling likely late this week or early next week.
On Sept. 9, 2021, President Joe Biden announced his COVID-19 Action Plan. The Action Plan called on the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to develop a rule requiring all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.
On Nov. 4, 2021, OSHA released the rule in the form of an Emergency Temporary Standards (“OSHA ETS”). Here are ten things you need to know about the OSHA ETS:
- How To Count To 100: (1) The applicable number is the total number of employees employed on November 5, 2021—this is the headcount that will be used for the duration of the OSHA ETS. (2) The count must be done at the employer level not the individual location level. (3) Part-time employees do count towards the total number of employees. (4) Employees who work from home do count towards the total number of employees. (5) Independent contractors do not count towards the total number of employee.
Reprinted courtesy of
Laura Fleming, Payne & Fears and
Rana Ayazi, Payne & Fears
Ms. Fleming may be contacted at lf@paynefears.com
Ms. Ayazi may be contacted at ra@paynefears.com
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Identifying and Accessing Coverage in Complex Construction Claims
September 29, 2021 —
Jeffrey J. Vita & Michael V. Pepe - Saxe Doernberger & Vita, P.C.I. Introduction
First-party, third-party, builder’s risk, professional liability, commercial general liability, wrap-ups, and additional insured status are all potential sources of insurance coverage for a large construction loss. Therefore, it is critical for construction industry participants, from owners and developers to general contractors and their subcontractors, to have a functional knowledge of the different types of insurance coverage available to them and how those coverages intersect to respond to a loss. This paper presents a brief overview of the various types of coverage available to contractors, construction managers, and owners in a large construction loss and the risks each coverage is designed to insure.
In general, there are two forms of coverage: (1) First-party liability coverage, which protects an insured’s own losses on a project during construction; and (2) Third-party liability coverage, which insures the project participants for losses that become the subject of claims or suits brought against the project participants by third parties. When a loss occurs, such as property damage, both types of coverage can be implicated. For example, if a fire burns down a building under construction, the contractor likely would incur first-party losses such as cleanup costs. The contractor may also have third-party exposure if the owner alleges that the contractor was responsible for the fire. On the other hand, when a bodily injury occurs, all losses to the contractor will be third-party losses. A broad overview of each of these policies is provided below.
Reprinted courtesy of
Jeffrey J. Vita, Saxe Doernberger & Vita and
Michael V. Pepe, Saxe Doernberger & Vita
Mr. Vita may be contacted at JVita@sdvlaw.com
Mr. Pepe may be contacted at MPepe@sdvlaw.com
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St Louis County Approves Settlement in Wrongful Death Suit
August 13, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to the StarTribune, the St Louis County Board agreed to pay $100,000 to settle with the family of a teenager who had been killed in a car crash. The family purported that “an improperly placed road construction sign contributed to the accident that caused her death.”
Defendants in the suit included the county, Benchmark Engineering, and Jola & Sopp Excavating. The county board settled, but denied liability.
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WSDOT Excludes Non-Minority Women-Owned DBEs from Participation Goals
June 15, 2017 —
Ellie Perka - Ahlers & Cressman PLLCA drastic change has been implemented by the Washington State Department of Transportation (“WSDOT”) to the Disadvantaged Business Enterprise (“DBE”) Program in Washington. Effective June 1, 2017, WSDOT has implemented a “waiver” to exclude women-owned DBEs[i] from qualifying toward Condition of Award (“COA”) Goals on federally-funded projects. This move is significant. It will likely result in long-lasting detrimental impacts on the DBE community, women-owned businesses, and the entire construction community in Washington. The construction industry should be in an uproar over this change. Instead, it has largely gone unnoticed (likely because its impacts have not yet been felt). It is a de facto exclusion of women-owned businesses from the DBE program, and the severity of this change cannot be overstated.
Under the waiver, women-owned businesses no longer satisfy COA Goals on federally-funded projects (i.e., projects receiving funding from the Federal Highway Administration) advertised after June 1, 2017. Existing contracts are not impacted and may continue to utilize women-owned DBEs to satisfy COA Goals until the project is complete. The waiver is not retroactive.
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Ellie Perka, Ahlers & Cressman PLLCMs. Perka may be contacted at
eperka@ac-lawyers.com
Homeowners Not Compelled to Arbitration in Construction Defect Lawsuit
January 06, 2012 —
CDJ STAFFA California appeals court has ruled that developers cannot enforce CC&Rs in a case where a developer cited an arbitration clause it had inserted into the CC&R. The homeowners are alleging construction defect and wished to sue the developer who claimed a right to this under the CC&Rs.
The Marina del Rey Argonaut reports that particular appeal dealt only with whether the developer could compel arbitration. The underlying construction defect issues will subsequently have to be determined at trial.
The attorney for the homeowners’ association, Dan Clifford, noted that “arbitration has to be agreed to by both parties.” The covenant was drafted by the developer and in addition to requiring arbitration, it had a clause that it could not be amended without the consent of the developers. The court ruled that CC&Rs “can be enforced only by the homeowners association, the owner of a condominium or both.”
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Application of Set-Off When Determining Prevailing Party for Purposes of Attorney’s Fees
February 22, 2021 —
David Adelstein - Florida Construction Legal UpdatesThe recent opinion from the Second District Court of Appeal in Hayward Baker, Inc. v. Westfield Ins. Co., 2020 WL 7767859 (2nd DCA 2020) demonstrates that the significant issues test for determining the prevailing party for purposes of attorney’s fees applies to disputes involving payment bonds under Florida’s Lien Law (Florida Statutes Chapter 713). The
significant issues test is more or less a subjective test where the party that is deemed to have prevailed on the significant issues in the case is the prevailing party for purposes of attorney’s fees in the case. A trial court has discretion to determine the prevailing party which will not be disturbed absent an appellate court finding the trial court abused that discretion. This significant issues test is an important consideration so that parties understand just because money ends up going their way does not necessarily mean they prevailed on the significant issues in the case. It could mean that. But it may not based on the claims and moneys involved in the dispute.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
You Don’t Have To Be a Consumer to Assert a FDUTPA Claim
February 22, 2018 —
David Adelstein – Florida Construction Legal UpdatesA few years ago, the Fourth District Court of Florida rendered an opinion in
Caribbean Cruise Line, Inc. v. Better Business Bureau of Palm Beach County, Inc., 169 So.3d 164 (Fla. 4th DCA 2015) regarding
Florida’s Deceptive and Unfair Trade Practices Act (referred as to “FDUTPA”) (Florida Statute s. 501.201et seq.).
This case held that a party can assert a FDUTPA claim even though the party is NOT a consumer. The party still has to prove there was an injury to consumers in filing such claim, but again, the party can bring the claim even though it is NOT a consumer. Caribbean Cruise Line, 169 So.3d at 169 (“[W]hile the claimant would have to prove that there was an injury or detriment to consumers in order to satisfy all of the elements of a FDUTPA claim, the claimant does not have to be a consumer to bring the claim.”).
See also Cemex Construction Materials Florida, LLC v. Armstrong World Industries, Inc., 2018 WL 905752, *15 (M.D.Fla 2018) (relying on
Caribbean Cruise Line to find that even though the plaintiff does not need to be a consumer, the plaintiff still must prove an injury to consumers to satisfy elements of a FDUTPA claim).
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
