Wilke Fleury Attorneys Featured in “The Best Lawyers in America” & “Best Lawyers: Ones to Watch” 2025 Editions
August 19, 2024 —
Wilke Fleury LLP2025 Best Lawyers & Ones to Watch
George Guthrie, Best Lawyer
Adriana Cervantes, One to Watch
Steven Williamson, Best Lawyer
Jason Eldred, One to Watch
Daniel Foster, Best Lawyer
David Frenznick, Best Lawyer
Kathryne Baldwin, One to Watch
Daniel Egan, Best Lawyer
Wilke Fleury is extremely proud to have five attorneys recognized in The Best Lawyers in America and three attorneys recognized in the Best Lawyers: Ones to Watch in America! Best Lawyers has been regarded by lawyers and the public for more than 40 years as the most credible measure of legal integrity and distinction in the United States. Congratulations to this talented group!
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Wilke Fleury LLP
A Court-Side Seat: As SCOTUS Decides Another Regulatory “Takings” Case, a Flurry of Action at EPA
July 19, 2021 —
Anthony B. Cavender - Gravel2GavelThis is a brief account of some of the important environmental and administrative law cases recently decided.
THE U.S. SUPREME COURT
Pakdel v. City and County of San Francisco
On June 28, 2021, the Supreme Court decided this regulatory “takings” case, and, in a Per Curium opinion, reversed the Ninth Circuit’s ruling that that petitioners had to exhaust their state administrative remedies before they could file this lawsuit under 42 USC Section 1983. The City government had already come to a sufficient regulatory conclusion, and the Constitution does not require additional processing. In so ruling, the Ninth Circuit ignored last term’s decision in Knick v. Township of Scott.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Part II: Key Provisions of School Facility Construction & Design Contracts
July 21, 2018 —
David R. Cook - Autry, Hall & Cook, LLPIn
Part I of this article, published in late April, we discussed the performance risk and time risk involved with construction and design contracts, and in Part II, we will cover cost risk and political risk.
Cost Risk
School budgets are limited for many reasons, and the construction budget is no exception. As a result, contracts should guard against unwarranted cost increases and claims. In the absence of a written change order signed by the appropriate officer, the contract should absolutely prohibit additional compensation for changes in the work. It should forbid claims for all events except those within the school authority’s sole control. Even for permitted claims, the contractor must provide written notice so that the authority might alleviate the problem and control its costs. To encourage the contractor to limit costs and claims, the contract could include a shared-savings clause, which grants an incentive payment for completion within the budget.
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David R. Cook, Autry, Hall & Cook, LLPMr. Cook may be contacted at
cook@ahclaw.com
Construction Defect Attorneys Call for Better Funding of Court System
June 28, 2013 —
CDJ STAFFThe construction defect law firm Anderson Shoech has a solution to some of the problems with the California courts. They note that cases often work their way through the system more slowly than they did in the past, due to “unprecedented cuts of over $1 billion from the State Court budget.” Prior to the cuts, cases were resolved “within six months to a year.” Under the current conditions, those involved in a lawsuit “would be lucky if their case was heard within 18 months of filing and could expect at least two full years to pass.”
They recommend that California return to appropriately funding the court system. Failure to do so could cause business to go to states “with a functioning and predictable court system.”
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Design Professional Asserting Copyright Infringement And Contributory Copyright Infringement
May 01, 2019 —
David Adelstein - Florida Construction Legal UpdatesStandard form construction contracts between an owner and design profesional will address copyright protection, as well as other contractual protections, associated with a design professional’s “instruments of service.” An owner negotiating an agreement with a design professional should consider alternative language that broadens the scope of the contractual license given to it with respect to the use of the design. Regardless, a design professional’s copyright infringement claim is still a challenging claim to ultimately prevail on. While a design professional may likely survive the motion to dismiss stage in a copyright infringement claim, whether it survives the summary judgment stage is another, more challenging, story.
“To state a claim for copyright infringement a plaintiff [design professional] must assert [and prove the following two prongs]: ‘(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.’” Robert Swedroe Architect Planners, A.I.A., P.A. v. J. Milton & Associates, Inc., 2019 WL 1059836, *3 (S.D.Fla. 2019) quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991).
In the first prong, the design professional must establish it complied with statutory formalities to own a valid copyright. Id.
In the second prong, the design professional must establish that the defendant copied constituent elements that are original. Id.
There is also a claim known as contributory copyright infringement.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dadelstein@gmail.com
The Expansion of Potential Liability of Construction Managers and Consultants
November 18, 2019 —
Scott D. Cessar - Construction ExecutiveOver the last decade or so, there has been far more judicial willingness to adopt legal theories that result in an increased risk of exposure to construction managers and consultants working on construction projects. This has resulted in a greater likelihood of lawsuits being filed that name construction managers and consultants as defendants and a greater likelihood of those lawsuits surviving efforts to have the lawsuits dismissed prior to trial. The consequence of more claims has led to increased costs for legal expenses, settlements and uncompensated personnel time devoted to the defense of the claims.
This expansion of potential liability may be broken into two sets:
- claims for pure economic loss not arising from property damage or personal injury by parties not in a contractual relationship with a construction manager or consultant; and
- claims for property damage or personal injury by a party not in a contractual relationship with a construction manager or consultant.
The first set concerns claims by a contractor against a construction manager or consultant that its breach of duties owed to the owner on a project and/or its provision of incomplete or inaccurate information on a project, which it knew, or should have reasonably anticipated, would be relied on by the contractor, resulted in damages to the contractor.
Reprinted courtesy of
Scott D. Cessar, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Cessar may be contacted at
scessar@eckertseamans.com
Duty to Defend For Accident Exists, But Not Duty to Indeminfy
March 05, 2015 —
Tred R. Eyerly – Insurance Law HawaiiThe Seventh Circuit found there was a duty to defend the additional insured under the policy, but not a duty to indemnify. Kmart Corp. v. Footstar, Inc., 2015 U.S. App. LEXIS 1775 (7th Cir. Feb. 4, 2015).
By agreement, Footstar operated the footwear department in hundreds of Kmart stores around the country. Footstar's footwear departments were in designated areas of the Kmart stores. Section 18.1 of the Master Agreement required Footstar to defend and indemnify Kmart from "all damage . . . arising out of Footstar's performance or failure to perform under this Agreement." The same section also required Footstar to obtain additional insurance coverage for Kmart.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Recent Bribery and Anti-Corruption Enforcement Trends in Global Construction Industry
August 26, 2019 —
Ralph A. Finizio & Anthony Finizio - ConsensusDocsBribery and corruption have long plagued the construction industry, particularly in the developing world and emerging markets. Large contracts often trickle down through layers of subcontractors, presenting opportunities for corruption at each level. The risk is enhanced in certain foreign jurisdictions, where large corporations may be wholly or partially state-owned enterprises and public officials may expect payment in exchange for state-issued licenses or government contracts.
Recent enforcement trends indicate that both the U.S. Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) are increasingly targeting the construction industry for anti-bribery and corruption actions under the Foreign Corrupt Practices Act (FCPA). Several former DOJ officials also recently commented that the construction industry has become a focus of anti-corruption enforcement efforts.
The FCPA is a formidable tool for regulators, making it unlawful to influence a foreign government official with any type of payment or personal reward. While certain safe harbors apply — including de minimis payments made to expedite routine governmental action or the payment being lawful in the foreign jurisdiction — these exceptions are construed narrowly and can be difficult to apply in practice.
Reprinted courtesy of
Ralph A. Finizio, Pepper Hamilton LLP and
Anthony Finizio, Pepper Hamilton LLP
Mr. Finizio may be contacted at finizior@pepperlaw.com
Mr. Finizio may be contacted at finizioa@pepperlaw.com
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