#8 CDJ Topic: The Las Vegas HOA Fraud Case Concludes but Controversy Continues
December 30, 2015 —
Beverley BevenFlorez-CDJ STAFFIn the long-running case involving the scheme to take over and defraud homeowner associations in Las Vegas, Nevada, the
Las Vegas Review-Journal reported that a “total of 43 defendants either pleaded guilty or were convicted at trial in what prosecutors say is the largest public corruption case ever in Nevada.” Despite the conclusion of the trial and the convictions, “U.S. Magistrate Judge George Foley Jr. denied a June request by the Las Vegas Review-Journal to dissolve two protective orders keeping secret 6 million pages of documents, including 10,000 pages of FBI and other law enforcement reports.”
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Reported in an editorial, the Las Vegas Review-Journal attorney Maggie McLetchie stated after Judge Foley’s ruling: “It’s our view the public and the newspaper should be able to evaluate a law enforcement investigation including assessing why the government may have gone more lightly on some people. Given the issues…within the U.S. attorney’s office, it’s in the public’s interest to probe what occurred.”
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Waiving The Right to Arbitrate Under Federal Law
November 08, 2021 —
David Adelstein - Florida Construction Legal UpdatesIf there is an arbitration provision in your contract that you want to enforce, you do not want to take action inconsistent with those rights as this could give rise to a waiver argument, i.e., that you waived your rights to arbitrate, particularly if the other party has been prejudiced.
Under federal policy and law, establishing waiver requires the party arguing waiver to “bear a heavy burden of proof.” U.S. f/u/b/o John Wayne Construction, G.S.A. Division, LLC v. Federal Ins. Co., 2021 WL 4526727 (M.D.Fla. 2021) quoting Stone v. E.F. Hutton & Co., 898 F.2d 1542, 1543 (11th Cir. 1990).
“To determine whether the right to arbitrate has been waived, courts apply a two part test: i) whether, “‘under the totality of the circumstances,’ the party ‘has acted inconsistently with the arbitration right’”; and ii) “whether, by doing so, that party ‘has in some way prejudiced the other party.’” Id. quoting Ivax Corp. V. B. Braun of Am., Inc., 286 F.3d 1309, 1315-16 (11th Cir. 2002). Substantial participation in litigation prior to invoking the right to arbitrate supports a party acting inconsistent with the right to arbitrate. Id. And, “‘[p]rejudice has been found in situations where the party seeking arbitration allows the opposing party to undergo the types of litigation expenses that arbitration was designed to alleviate.’” Id. quoting Morewitz v. W. of Eng. Ship Owners Mut. Prot. & Indem. Ass’n (Luxembourg), 62 F.3d 1356, 1366 (11th Cir. 1995).
Hence the heavy burden for a party to support to prove waiver– establishing both substantial participation in litigation that is inconsistent with the right to arbitrate AND prejudice.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Vietnam Expands Arrests in Coffee Region Property Probe
February 19, 2024 —
Mai Ngoc Chau - BloombergVietnam authorities detained the Communist Party chief of coffee-producing province Lam Dong as they expand an investigation into alleged bribery tied to a tourist and residential project, the public security ministry said in a website statement.
Party chief Tran Duc Quan was arrested for allegedly abusing his power and position, according to the statement. Quan allegedly violated the law while giving instructions to the Dai Ninh property project in the province, causing severe consequences, it said.
A Lam Dong Provincial Party Committee representative declined to provide a comment about the arrest. A representative for Quan was not available.
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Mai Ngoc Chau, Bloomberg
No Coverage for Home Damaged by Falling Boulders
March 08, 2021 —
Tred R. Eyerly - Insurance Law HawaiiThe policy's earth movement exclusion barred coverage for the home damaged by large boulders rolling down from the hillside above. Sullivan v. Nationwide Affinity Ins. Co. of Am., 2021 U.S. App. LEZXIS 628 (10th Cir Jan. 11, 2021).
Plaintiffs' home sustained extensive damage when two or three large builders rolled down a steep hillside and struck the home. The insurer, Nationwide, hired an engineering firm that determined the boulders were not influenced by meteorological conditions such as torrential rain or high winds. The report noted that rockfall hazards existed primarily due to an undercut sandstone outcrop, and evidenced by numerous rocks from rockfall events that scattered Plaintiffs' property.
Based on the report, Nationwide denied coverage under the earth movement exclusion. The exclusion provided Nationwide did "not insure for loss caused directly or indirectly by . . . Earth Movement" and regardless of "whether or not the loss event results in widespread damage or affects a substantial area." The policy further defined "earth movement" to include "landslide . . . or any other earth movement including earth sinking, risking or shifting."
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
DC District Court Follows Ninth Circuit’s Lead Dismissing NABA’s Border Wall Case
April 10, 2019 —
Anthony B. Cavender - Gravel2GavelOn February 14, the U.S. District Court for the District of Columbia dismissed the complaint of the National American Butterfly Association (NABA) alleging that the U.S. Government’s border wall preparation and law enforcement activities at NABA’s National Butterfly Center, located in South Texas along the Rio Grande River, violated federal environmental laws (National Environmental Policy Act (NEPA)) and the Endangered Species Act (ESA)) as well as NABA’s constitutional rights. The case is National American Butterfly Association v. Nielsen, et al.
On January 25, 2017, the President issued an Executive Order to the Secretary of the Department of Homeland Security (Secretary) to “take all appropriate steps to immediately plan, design, and construct a physical wall along the southern border” with Mexico. A few weeks later, the Secretary issued a memorandum to the U.S. Customs and Border Enforcement to implement the Executive Order. The land occupied by the NABA has been affected by these actions, as well as other actions taken by the Secretary pursuant to her authority under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), located at 8 U.S.C. § 1103.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
2019 Legislative Changes Affecting the Construction Industry
July 09, 2019 —
Melinda S. Gentile & Cadian T. Baker - Peckar & Abramson, P.C.The 2019 Florida Legislative Session recently concluded and a number of important construction-related House Bills (HB) and Senate Bills (SB) were presented during the Session. Below is a summary of those construction-related bills set to become law in 2019.
Bills Becoming Law in 2019
HB 1247: Relating to Construction Bonds. This bill passed both the House and the Senate and is awaiting the Governor’s signature. Once the Governor has approved the bill it becomes effective as of October 1, 2019.
This bill addresses how to properly perfect a claim against a contractor’s payment bond.
(1) The Notice of Nonpayment that must be served on the contractor and the surety, must be made under oath and include the following provisions:
The nature of the labor or services performed or to be performed;
The materials furnished or to be furnished;
The amount paid on the account; and if known, the amount owed and the amount to become due.
A Notice of Nonpayment that includes the sums for retainage must specify the portion of the amount claimed for retainage.
(2) A subcontractor, laborer, or material supplier (claimant) who files a fraudulent Notice of Nonpayment loses their rights under the bond. The filing of a fraudulent notice is a complete defense to claimant’s claim against the bond. A notice is fraudulent if the claimant willfully exaggerated the amount due, willfully included a claim for work not performed or materials not furnished or prepared the notice with willful and gross negligence, which resulted in willful exaggeration. However, a minor mistake in the notice, or a good faith dispute as to the amount due, is not considered fraudulent. Please note that this provision mirrors the existing statute relative to a fraudulent lien.
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Melinda S. Gentile, Peckar & Abramson, P.C.Ms. Gentile may be contacted at
mgentile@pecklaw.com
New Recommendations for Healthy and Safe Housing Conditions
May 19, 2014 —
Beverley BevenFlorez-CDJ STAFFThe National Center for Healthy Housing (NCHH) and the American Public Health Association (APHA) jointly “released the National Healthy Housing Standard, which provides recommendations for the maintenance and condition of occupied dwellings,” reported Big Builder.
According to Big Builder, “The standard's provisions aim to fill gaps where there are no property maintenance policies and to complement the International Property Maintenance Code and other federal, state, and local policies in place regarding the upkeep of existing homes.”
Some of the recommendations included room access to daylight, no or low-VOC building materials, and water management.
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OSHA ETS Heads to Sixth Circuit
December 13, 2021 —
George Morrison - White and Williams LLPOn November 16, 2021, the U.S. Court of Appeals for the Sixth Circuit was selected during the Judicial Panel on Multidistrict Litigation’s lottery to hear the multiple consolidated challenges to the recent COVID-19 Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA). OSHA is permitted to issue an ETS if the agency arrives at the conclusion that a “grave danger” to worker safety exists. An ETS does not go through the typical notice-and-comment period that federal regulations usually follow.
Inheriting the Fifth Circuit’s recent nationwide stay on implementation and enforcement of the ETS, the Sixth Circuit will decide whether the stay should be “modified, revoked, or extended” in the short term. Early this morning, OSHA filed an emergency motion to dissolve the Fifth Circuit’s stay of the vaccine mandate with the Sixth Circuit. OSHA argued, among other things:
- The Fifth Circuit erred in holding “that OSHA lacked statutory authority to address the grave danger of COVID-19 in the place on the ground that COVID-19 is caused by a virus and also exists outside of the workplace” because “[t]hat rationale has no basis in the statutory text.”
- The Fifth Circuit erred in finding the ETS both over- and underinclusive because “OSHA recounted extensive empirical data showing that all employees can transmit COVID-19 in the workplace and that COVID-19 has spread in a vast variety of workplace.”
- The “petitioners have not shown that their claimed injuries outweigh the interests in protecting employees from a dangerous virus while this litigation proceeds . . . . These claimed injuries do not justify delaying the [ETS] that will save thousands of lives and prevent hundreds of thousands of hospitalizations.”
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George Morrison, White and Williams LLPMr. Morrison may be contacted at
morrisong@whiteandwilliams.com
