Contract Change #8: Direct Communications between Owners and Contractors (law note)
March 28, 2018 —
Melissa Dewey Brumback - Construction Law in North CarolinaAs the Engineer or Architect of Record, you probably have frequently experienced Owners and Contractors communicating directly, in direct contravention of the language of the contract that requires them to endeavor to route all communications through the design team. With the latest version of the 201,
direct communication is now authorized, to recognize both the reality of what was happening on the ground and to recognize that sometimes Owners and Contractors may need to communicate without waiting for the design team.
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Melissa Dewey Brumback, Construction Law in North Carolina
US Court Disputes $1.8B AECOM Damage Award in ‘Remarkable Fraud’ Suit
April 26, 2021 —
Mary B. Powers - Engineering News-RecordA federal appeals court has thrown out a $1.8-billion award granted by a lower court three years ago to an AECOM unit in a bizarre legal battle involving a Nevada company that claimed to have won multiple contracts using the name of Morrison Knudsen—the former well-known Boise-based construction contractor that was sold in 1996, and through acquisitions, became part of design-build giant AECOM in 2014.
Reprinted courtesy of
Mary B. Powers, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
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Year and a Half Old Las Vegas VA Emergency Room Gets Rebuilt
March 07, 2014 —
Beverley BevenFlorez-CDJ STAFFLess than two years have passed since the billion dollar Las Vegas VA Medical Center construction was completed, and “earthmovers have begun churning the site again, this time to expand the hospital’s emergency room because the existing one is inadequate,” according to the Las Vegas Review-Journal. The new emergency room project is estimated to cost $16 million.
The current emergency room’s design is flawed. “VA officials this week couldn’t explain why the ambulance parking area was designed to be roughly 50 yards from the emergency room’s south entrance, a distance that adds critical seconds to a lifesaving situation,” reported the Las Vegas Review-Journal. Furthermore, VA officials did not confirm “who drew up the flawed design” or who “was responsible for checking the blueprints.”
The Las Vegas Review-Journal also reported that another reason for the expansion is that the current emergency room is too small. A VA spokesman had told the journal that “the emergency room ‘was built based on the workload and the funding that was available at the time,’” yet the journal pointed out that “the number of potential veterans projected to use the center” has remained constant.
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Newmeyer Dillion Announces Partner John Van Vlear Named to Board Of Groundwater Resources Association Of California
January 13, 2020 —
Newmeyer DillionProminent Orange County-based law firm Newmeyer Dillion is pleased to announce that partner
John Van Vlear has been elected to the Board of Directors for the Groundwater Resources Association of California (GRA). He will serve a three year term effective immediately.
"It was an honor to be nominated and I'm excited to help further GRA's goal of remaining the preeminent professional organization in the West addressing timely and important groundwater issues," says Van Vlear. He has been a member of the GRA for five years and has spoken both at a Southern California branch event and the 2nd Annual Western Groundwater Congress in Sacramento. Serving on the GRA Board will be Van Vlear's fourth different lifetime non-profit Board volunteer effort. He joins a diverse group of members to complete the Board, including a hydrologist with the US Geological Survey, environmental and engineering consultants, an equipment manufacturer, and water agencies' managers.
Van Vlear's practice focuses on all aspects of "contaminated sites" environmental legal work. Applying technical acumen, he focuses on investigation, strategic analysis, and remediation for site acquisitions/sales, development, regulatory interface, and related litigation in federal and state courts. He represents clients before a wide range of environmental agencies and has a portfolio of projects that include: commercial, industrial, raw land, and residential, as well as specialty facilities such as affordable housing, oil fields, and landfills throughout California and across the country. These matters have involved a complex blend of soil, groundwater, and vapor contamination. Van Vlear is a frequent speaker on environmental, real estate and contamination topics, as well as being a professional author and novelist, an expert witness, and arbitrator on environmental issues. He has been interviewed on TV twice professionally and has testified before the California Senate subcommittee on Environmental Quality.
Established in 1992, the GRA is a 1,000 member state-wide professional organization dedicated to resource management that protects and improves groundwater supply and quality through education and technical leadership. The GRA hosts programs and webinars focusing on important issues to water management community at both the state-wide and regional branch levels.
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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Should I Stay or Should I Go? The Supreme Court Says “Stay”
June 10, 2024 —
Brendan J. Witry - The Dispute ResolverIn the construction industry, arbitration is a frequently agreed-upon and utilized dispute resolution method. The Federal Arbitration Act (the “FAA”), 9 U.S.C. 1, et seq., provides the underpinning and framework for how courts should handle litigation in connection with arbitration agreements. Where a party asserts that a claim brought in court should be subject to arbitration, Section 3 of the FAA provides that the action should be stayed. However, some courts have entertained a party’s request to dismiss a suit where the claim is subject to an arbitration agreement, creating a circuit split in the federal appeals courts. In
Smith v. Spizzirri, 2024 WL 2193872, issued on May 16, 2024, the Supreme Court held that, absent some other defect (such as the lack of personal or subject matter jurisdiction), Section 3 of the FAA requires a court which finds a claim is subject to an arbitration must stay the lawsuit during the arbitration proceedings rather than dismissing the action.[1] In so doing, the Court addressed a question that for years it left unanswered.
While most Circuits held, prior to Smith, that Section 3 requires a court to stay the litigation pending an arbitral award; the First, Fifth, Eighth, and Ninth Circuits each held that a court could dismiss an action in lieu of staying.
In Smith, both parties acknowledged the underlying claims were arbitrable, but when the district court compelled arbitration, the court dismissed the action rather than staying the court proceedings. The Ninth Circuit (relying on its prior precedent) affirmed, with two judges noting that the Ninth Circuit’s approach was incorrect. The Supreme Court granted certiorari and reversed.
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Brendan J. Witry, Laurie & Brennan LLPMr. Witry may be contacted at
bwitry@lauriebrennan.com
MetLife Takes Majority Stake in New San Francisco Office Tower
October 21, 2015 —
Hui-Yong Yu – BloombergMetLife Inc. is taking a majority stake in a 43-story office tower being built next to San Francisco’s Transbay Transit Center, expanding the biggest U.S. life insurer’s holdings in one of the country’s most expensive office markets.
MetLife formed a joint venture with Chicago-based John Buck Co. and Golub & Co. for the property, called Park Tower at Transbay, the companies said in a statement before the building’s groundbreaking Tuesday. The tower, which doesn’t yet have a tenant, is scheduled for completion in 2018.
Financial terms of the venture weren’t disclosed. Fred Pieretti, a spokesman for MetLife, said the company will own a majority interest in the building.
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Hui-Yong Yu, Bloomberg
Subcontractor’s Claim against City Barred by City’s Compliance with Georgia Payment Bond Statute
March 29, 2017 —
Chadd Reynolds – Autry, Hanrahan, Hall & Cook, LLPIn a recent Georgia Court of Appeals case, the Court was tasked with determining whether the City of Atlanta’s compliance with the Georgia Payment Bond Statutes barred a subcontractor from recovery against it after the general contractor failed to pay and the surety became insolvent.
Squared Plumbing Co., LLC (J. Squared), was a subcontractor on a project to clean up sewage spills in approximately 100 dwellings for the City of Atlanta. As required by the contract executed with the City, the general contractor, Scott and Sons Holdings, LLC (Scott and Sons), obtained a $200,000 payment bond from its surety, First Seaford Surety, Inc. (First Seaford). J. Squared sought to collect on the payment bond when Scott and Sons failed to pay J. Squared for the work it performed on the project. However, First Seaford became insolvent. J. Squared subsequently filed a claim against Scott and Sons and the City to recover $140,000 for its work on the project.
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Chadd Reynolds, Autry, Hanrahan, Hall & Cook, LLPMr. Reynolds may be contacted at
reynolds@ahclaw.com
SEC Climate Change Disclosure Letter Foreshadows Anticipated Regulatory Changes
November 08, 2021 —
Karen C. Bennett & Jane C. Luxton - Lewis BrisboisWashington, D.C. (October 13, 2021) - In late September 2021, the Division of Corporation Finance of the Securities and Exchange Commission (SEC) issued a Sample Letter providing guidance to companies on how their climate disclosures will be analyzed for compliance with material risk reporting obligations. The Sample Letter precedes the SEC’s issuance of mandatory climate-related disclosure rules anticipated by year-end and signals a greater focus on specific information used to support securities filings, a development that businesses should take seriously.
The Sample Letter builds on climate change guidance the SEC issued in 2010 and identifies nine categories of disclosures the SEC suggests may be material risks that must be disclosed. These include:
- Consistency between a company’s corporate social responsibility report and its SEC filings;
- Risks associated with climate-related legislation, regulation, or policy, and resulting compliance costs;
- Litigation risks related to climate change; and
- Risks linked to an array of operational and market factors, including capital expenditures, continuity of business operations, supply chain stability, changing demand, reputation, availability of credit and insurance, and other climate-change related potential impacts on the financial condition of the company.
Reprinted courtesy of
Karen C. Bennett, Lewis Brisbois and
Jane C. Luxton, Lewis Brisbois
Ms. Bennett may be contacted at Karen.Bennett@lewisbrisbois.com
Ms. Luxton may be contacted at Jane.Luxton@lewisbrisbois.com
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