Board of Directors Guidance When Addressing Emergency Circumstances Occasioned by the COVID-19 Pandemic
May 11, 2020 —
Marc Casarino, Lori Smith & Gwenn Barney - White and Williams LLPThe COVID-19 pandemic has sent massive shockwaves throughout the global economy. This crises requires business leaders to confront a host of deleterious effects on an emergency basis – the likes of which many companies have never experienced. Boards of directors must remain cognizant of their oversight responsibilities in these trying times. This post offers guidance to directors of Delaware companies for addressing emergency circumstances occasioned by the COVID-19 pandemic.
Board Oversight – Lessons from Marchand V. Barnhill
Directors should consider the lessons learned from the recent Delaware Supreme Court case Marchand v. Barnhill, a ruling we addressed in a previous blog post, when considering board oversight during the COVID-19 pandemic. Marchand centered on a lawsuit brought by shareholders in an ice cream manufacturing company against the company’s board of directors. The shareholders claimed that the directors violated their duty of loyalty[1] to the company when they failed to provide sufficient oversight and compliance-monitoring during a listeria outbreak that led the company to recall all products, temporarily cease product production at all plants and lay off more than one-third of the company’s workforce.
Reprinted courtesy of White and Williams LLP attorneys
Marc Casarino,
Lori Smith and
Gwenn Barney
Mr. Casarino may be contacted at casarinom@whiteandwilliams.com
Ms. Smith may be contacted at smithl@whiteandwilliams.com
Ms. Barney may be contacted at Barneyg@whiteandwilliams.com
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Estoppel Certificate? Estop and Check Your Lease
May 06, 2019 —
Lauren Podgorski - Snell & Wilmer Real Estate Litigation BlogIf you are leasing space in a building, there may come a time when you receive a request from your landlord to fill out and sign an estoppel certificate. Estoppel certificates are usually sent to tenants in connection with the sale or refinance of a building, and a third party may rely on the accuracy of the statements and information contained in the estoppel certificate in connection with that transaction. Estoppel certificates can range from a very simple, one-page document, to several pages.
I’ve received an estoppel certificate in the mail. What do I do now?
Consider the following:
Check your lease. Your lease may require you to deliver the signed estoppel certificate and may even give you a timeframe within which you are required to return it. A form of estoppel certificate may also be included in your lease as an exhibit. If you’ve previously agreed to a form of estoppel certificate in your lease, check to ensure the one you have received matches the form you previously agreed to and if it doesn’t make sure to review it carefully to make sure it is acceptable.
Review the estoppel certificate and confirm that all of the information is accurate. Be on the lookout for any terms or provisions that you did not agree to in your lease. If it seems like the landlord is trying to modify your lease, you likely do not need to consent to the change in this document. Cross off (or modify or delete, if you have an electronic copy) any information that is inaccurate. Fill in all blanks (if the blank is not applicable, write “N/A”), and if any exhibits are referenced in the body of the document, make sure they are actually attached.
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Lauren Podgorski, Snell & WilmerMs. Podgorski may be contacted at
lpodgorski@swlaw.com
Watch Your Step – Playing Golf on an Outdoor Course Necessarily Encompasses Risk of Encountering Irregularities in the Ground Surface
May 08, 2023 —
Kaitlyn A. Jensen & Lawrence S. Zucker II - Haight Brown & Bonesteel LLPOn April 27, 2023, the First District Court of Appeal issued an opinion in Walter Wellsfry, et al. v. Ocean Colony Partners, LLC (A165175, April 27, 2023) affirming summary judgment for a golf course owner on the grounds that the injured golfer’s lawsuit was barred by the primary assumption of risk doctrine. In doing so, the Court of Appeal found that outdoor golfers assume the risks associated with the topographical features of the course, including the risk of stepping on an inconspicuous tree root.
Recreational golfer Walter Wellsfry was walking from a tee box back to his golf cart when he allegedly stepped on a small tree root concealed by grass, causing him to fall into his golf cart in immediate pain. The ground consisted of mixed terrain, including a combination of grass, dirt, and sand. The tree root was estimated to be approximately 1.5 inches high by 1.5 inches wide. Believing he may have only sprained an ankle, Wellsfry continued the course and reported the incident to management. He later sued the golf course owner Ocean Colony Partners for negligence, claiming that the tree root was a “hidden obstruction” creating an unreasonable risk of harm to anyone who traversed the area.
Reprinted courtesy of
Kaitlyn A. Jensen, Haight Brown & Bonesteel LLP and
Lawrence S. Zucker II, Haight Brown & Bonesteel LLP
Mr. Jensen may be contacted at kjensen@hbblaw.com
Mr. Zucker may be contacted at lzucker@hbblaw.com
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Federal Government May Go to Different Green Building Standard
February 12, 2013 —
CDJ STAFFThe federal government has expressed a commitment to environmentally sound, or “green” building practices, but now the question becomes who decides what constitutes a green building. The U.S. General Services Administration has started a public comment period on what certification program the GSA should recommend. Currently, the GSA uses the LEED standard from the U.S. Green Building Council.
Although there are three green building standards, LEED, Green Globes, and the Living Building Challenge, only the first two are being seriously considered, according to a report on TriplePundit.com. The Green Globes program from the Green Building Initiative has its detractors, as some feel that the program fails to be sufficiently environmentally sound. Green Globes was created by a former lumber industry executive, Ward Hubbell, and is more permissive about woods and plastics used in construction. Hubbell defends the program, saying that the certification program is both rigorous and transparent.
The U.S. Green Building Council also has its critics, and allegation have been made that LEED costs about twice as much as Green Globes in order to enrich the executives at the U.S. Green Building Council. Further, some claim that LEED certification involves lengthy delays. One architect criticized LEED, indicating that if he has questions he would “have to wait a month for a response.”
The U.S. Department of Energy seems to be favoring Green Globes, as their review found it a better choice for meeting government requirements for new buildings. Conversely, the agency preferred LEED for modifying existing buildings.
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Newmeyer Dillion Named 2023 Best Law Firm in Multiple Practice Areas By U.S. News-Best Lawyers
November 07, 2022 —
Newmeyer DillionNEWPORT BEACH, Calif. – November 3, 2022 – Prominent business and real estate law firm Newmeyer Dillion is pleased to announce that U.S. News-Best Lawyers® has recognized the firm in its 2023 "Best Law Firms" rankings, in seven practice areas earning the highest ranking possible - Tier 1 in the Orange County Metro area. The practices recognized include:
Commercial Litigation
Construction Law
Insurance Law
Litigation - Construction
Litigation - Insurance
Litigation - Real Estate
Real Estate Law
Additionally, the firm has been recognized as Tier 2 in Employment Law - Management and Tier 3 in Litigation - Labor & Employment.
"Newmeyer Dillion prides itself on genuinely partnering with our clients to offer business-oriented solutions for their legal issues," said Managing Partner Paul Tetzloff. "Receiving this honor shows that our clients appreciate the quality of our work and our team's dedication to their organization's success."
Firms included in the 2023 "Best Law Firms" list have been recognized by their clients and peers for their professional excellence. Firms achieving a Tier 1 ranking have consistently demonstrated a unique combination of quality law practice and breadth of legal expertise.
To be eligible for the "Best Law Firms" ranking, a firm must have at least one attorney recognized in the current edition of The Best Lawyers in America for a specific practice area. Best Lawyers recognizes the top 4 percent of practicing attorneys in the U.S., selected through exhaustive peer-review surveys in which leading lawyers confidentially evaluate their professional peers.
About Newmeyer Dillion
For over 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that achieve client objectives in diverse industries. With over 60 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 operations, growth, and profits. 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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Expert Can be Questioned on a Construction Standard, Even if Not Relied Upon
August 07, 2022 —
Garret Murai - California Construction Law BlogIt’s not uncommon in construction defect litigation for each side retain one or more experts to give their opinion as to whether something was constructed in accordance with the standard of care. This usually results in what we legal practitioners call a “battle of the experts.”
The California Code of Civil Procedure and Evidence Code include specific provisions applicable to experts including when they must be disclosed, when and how they can be deposed, and what opinions they can render. When attempting to challenge an expert it is not uncommon for one side to argue that the other side’s expert did not consider a certain fact or certain standard in reaching his or her opinion, therefore, allowing that party to argue at trial that the expert’s opinion is somehow flawed.
However, there are also certain limitations, including a limitation restricting a party from cross-examining an expert on any scientific, technical, or professional test, treatise, journal or similar publication if the witness did not rely on such publication in arriving at or forming his or her opinion. The next case,
Paige v. Safeway, Inc. (2021) 74 Cal.App.5th 1108, involved a case of first impression: Namely, whether an expert who did not rely on a publication in forming his or her opinion can nevertheless be questioned on a publication (in this case an ASTM standard) because the publication is a “reliable authority.”
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Commercial Construction Heating Up
November 20, 2013 —
CDJ STAFFThe Motley Fool suggests that commercial construction is the next hot sector. Their analysis is that lag time between a rise in residential construction and commercial construction is just about over. “Industry surveys and construction data are suggestion that commercial construction could be about to turn.”
Among the indicators are increased billing by architects for commercial projects. With the exception of December 2012, with a strong slump in residential work, commercial projects lagged below residential projects from June 2012 until June 2013.
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3D Printing Innovations Enhance Building Safety
October 07, 2019 —
Mahmut Ekenel & Melissa Sanchez - Construction ExecutiveThe mention of 3D printing alone is enough to get people excited, often conjuring images of a desktop console that can download and create three dimensional objects such as prototypes, or mechanical parts. And yet, in recent years the technology has given way to a slight impatience, as people begin to wonder how and when it will have a direct impact on both their lifestyles and their businesses.
The construction industry has been quick to take advantage of these innovations, and the effects are tangible, especially regarding building safety. The 3D construction technology allows for several key advantages in terms of faster construction times, uncompromised quality of construction and lower costs—allowing for affordable dwellings to be quickly built for people in need.
These advantages also lead to safety improvements during the building process. The ability to accelerate construction time without requiring an increase in labor results in a fewer construction-related workplace injuries and a reduction in material waste, making it an environmentally friendly construction method as well.
ICC-Evaluation Service (ICC-ES), a subsidiary of the International Code Council (ICC) which develops model codes and standards (i.e. International Building Code, International Residential Code) and delivers a wide array of building safety services, has taken the lead on developing acceptance criteria to address building code compliance of 3D printed construction. Currently, 3D construction technology is not within the provisions of the International Building Code (IBC) or International Residential Code (IRC). The acceptance criteria introduces new compliance measures for interior and exterior 3D printed concrete walls (with and without structural steel reinforcement), load-bearing and non-load-bearing walls, and shear walls in one-story, single-unit, residential dwellings. The 3D walls are constructed by printing two outer layers of 3D concrete and then filling the core with 3D concrete to form a solid wall.
Reprinted courtesy of
Mahmut Ekenel & Melissa Sanchez, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Mr. Ekenel may be contacted at mekenel@icc-es.org
Ms. Sanchez may be contacted at msanchez@icc-es.org
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