Arbitration Denied: Third Appellate District Holds Arbitration Clause Procedurally and Substantively Unconscionable
February 15, 2021 —
Stephen M. Tye & Lawrence S. Zucker II - Haight Brown & BonesteelIn Cabatit v Sunnova Energy Corporation, the Third Appellate District held that an arbitration clause in a solar power lease agreement was unenforceable because it was procedurally and substantively unconscionable.
In Cabatit, Mr. and Ms. Cabitat entered into a solar power lease agreement (the “Agreement”) with Sunnova Energy Corporation (“Sunnova”). Ms. Cabitat, who signed the agreement, speaks English but does not understand complicated or technical terms. The salesperson scrolled through the agreement language and Ms. Cabatit initialed where the salesperson indicated, even though she did not understand most of what he was saying. The salesperson did not explain anything about the arbitration clause nor did he provide Ms. Cabatit with a copy of the Agreement.
Reprinted courtesy of
Stephen M. Tye, Haight Brown & Bonesteel and
Lawrence S. Zucker II, Haight Brown & Bonesteel
Mr. Tye may be contacted at stye@hbblaw.com
Mr. Zucker may be contacted at lzucker@hbblaw.com
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West Coast Casualty Promises Exciting Line Up at the Nineteenth Annual Conference
March 28, 2012 —
CDJ STAFFWest Coast Casualty has announced the lineup for the annual WCC Construction Defect Seminar. This year’s seminar will be the nineteenth anniversary, and it will be held on May 17th and 18th, 2012 in Anaheim, California. They are the largest construction defect event in the world and this year’s seminar will again bring the top people in the field to address many of the current issues and where the construction defect community will be going in the future.
The event, anticipated to be even larger than prior years, will have numerous panels and presentations on the current state of construction defect litigation. Among the topics that will be presented are “Arbitrate? Let’s See You Make Me!” “Defending Construction Defect Failure Mechanisms?An Expert’s Perspective,” and “Current Trends in Effectively Handling SB800 Cases.”
Speakers at the event will include judges, lawyers, and representatives of the insurance industry. One event, “Meet Your Judges, A Candid Discussion on Construction Defect Claims and Litigation from the Bench?” will include judges from five states, including the Honorable Nancy M. Saitta, Chief Justice of the Nevada Supreme Court, the Honorable Clifton Newman of the South Carolina Circuit Court, and the Honorable Rex Heeseman of the Los Angeles County Superior Court.
Daniel A. Berman, Esq. and Stephen Henning, Esq. will be talking on the topic of “Social Networking Sites: Strategies, Ethical Pitfalls, and Practice Pointers for Litigating and Winning Your Construction Defect Case.” Mr. Berman is a Founding and Managing Partner of Wood, Smith, Henning & Berman LLP. He has been named a Southern California Super Lawyer for eight consecutive years. Mr. Henning is a Founding Partner of Wood, Smith, Henning & Berman, LLP and Fellow of the Litigation Counsel of America. Mr. Henning will also be one of the presenters on the panel “Important Court Decisions Impacting Construction Defect Claims.”
The panel “Why Do We Need to Know Certain Things and How Decisions Are Made” will be presented by important figures in the construction claims industry, including Phyllis Modlin, Todd Schweitzer, Teresa D. Wolcott, and Lee Wright. Ms. Modlin is a Construction Defect Claims Supervisor responsible for nationwide claims for Markel Corporation. Mr. Schweitzer is an Assistant Vice President of Major Case for Construction Defect and Professional Liability Claims Services at Zurich North America. Ms. Wolcott is the National Product Manager for Construction Defect Claims within the Construction Claims Organization at Travelers Insurance. Mr. Wright is an Assistant Vice President and Senior Claims Consultant for XL Specialty Insurance.
The event will also include a Science and Technology Fair in which exhibitors will be presenting technological problem solving and decision making as they relate to resolving ongoing construction and post construction-defect related issues while reducing costs for all those involved in claims and litigation. The fair is dedicated to these novel applications of science and technology that benefit the construction defect community but are not yet commonly available. This will be the third time the Construction Defect Seminar will include a Science and Technology Fair.
Sessions at the event are approved for MCLE credit in Arizona, California, Colorado, Illinois, Maine, Minnesota, New York, Ohio, and Pennsylvania. MCLE credits vary by state; attendees can obtain up to 10.25 hours of credit in Arizona, California, Maine, and New York. Applications for several other states are still pending. Additionally, the event is also worth continuing education credits with the Florida Department of Insurance and for Registered Professional Adjusters. West Coast Casualty has applications pending for adjuster continuing education in an additional thirty-six states.
West Coast Casualty recommends this event for anyone involved in construction or construction defect claims, whether they are a claims adjuster, a member of a homeowner board, a judge, a property manager, a construction claims attorney, a general contractor, or anyone else with an interest in this area. The event typically has more than 1,600 attendees. Those interested can register online.
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Be Careful in Contracting and Business
May 06, 2019 —
Christopher G. Hill - Construction Law MusingsAfter an hour long phone conference with a client, I have had several thoughts, only a few of which I can share here (grin). The first is that my friends and clients in the construction industry are hurting, but need to work with an attorney to assure that the pain is lessened. The second is that more, not less, precision is needed in construction contracting these days.
The reason for the first thought is that the construction industry has taken a hit lately. The news is fraught with stories of the economic downturn and its impact on construction. While the money may be hard to part with, all construction professionals should get their contracts and business practices audited regularly to avoid risk and assure, as best as is possible, that they are protected. One place to get such triage is at my firm.
If you don’t use me, please use someone else.
On the second point, clients need attorney fees provisions, indemnity clauses and to assure that a scope of work is very specifically defined. Wiggle room is not available. In tough economic times. Owners will look for something closer to perfection when money is tight than when money is not. Contractors should also. Your contract is the first line of defense. While no contract can possibly cover every contingency and contracts are only as good as those who sign them when it comes right down to it, a good base contract is the best shield.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Around the State
March 27, 2019 —
Richard Glucksman & Chelsea Zwart – Construction Claims MagazineIn late 2018, Governor Jerry Brown signed two potentially impactful Senate bills relating to the construction of apartment buildings. These bills, discussed further below, were introduced, in part, in response to the Berkeley balcony collapse in June 2015, which was determined by the California Contractors State License Board to have been caused by the failure of severely rotted structural support joists—the repairs of which were deferred by the property manager despite indications of water damage.
In addition, 2018 saw the passage of California’s updated 2019 Building Energy Efficiency Standards. The new standards, which take effect in 2020, require, in part, the installation of solar systems on certain homes. The goal of the standards is to significantly decrease the energy usage in new homes while contributing to California’s greenhouse gas emissions reduction plans. Relatedly, new legislation, effective in 2019, aims to increase consumer protections for homeowners purchasing solar energy systems.
Reprinted courtesy of
Richard H. Glucksman, Chapman, Glucksman, Dean, Roeb & Barger and
Chelsea Zwart, Chapman, Glucksman, Dean, Roeb & Barger
Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com
Ms. Zwart may be contacted at czwart@cgdrblaw.com
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S&P Near $1 Billion Mortgage Ratings Settlement With U.S.
January 14, 2015 —
Tom Schoenberg and Edvard Pettersson – BloombergStandard & Poor’s is close to a settlement of about $1 billion with the U.S. for allegedly misleading investors about its ratings of mortgage-backed securities before the subprime crisis, a person familiar with the matter said.
The McGraw Hill Financial Inc. (MHFI) unit and the Justice Department may agree to settle the case as early as this quarter, according to the person, who asked not to be identified because the negotiations are confidential.
The Justice Department has secured settlements worth tens of billions of dollars during the past two years from mortgage lenders and banks it blamed for the 2008 financial crisis. Those companies generated unprecedented amounts of shoddy mortgages that were packaged and sold to investors as securities, many of which turned out to be worthless despite their investment-grade ratings.
Mr. Schoenberg may be contacted at tschoenberg@bloomberg.net; Mr. Pettersson may be contacted at epettersson@bloomberg.net
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Tom Schoenberg and Edvard Pettersson, Bloomberg
Congratulations to Haight’s 2021 Super Lawyers San Diego Rising Stars
May 03, 2021 —
Catherine M. Asuncion, Arezoo Jamshidi & Michael C. Parme - Haight Brown & Bonesteel LLPHaight congratulates partners Michael Parme and Arezoo Jamshidi and associate Catherine Asuncion who were selected to the 2021 San Diego Super Lawyers Rising Stars list.
Reprinted courtesy of
Catherine M. Asuncion, Haight Brown & Bonesteel LLP,
Arezoo Jamshidi, Haight Brown & Bonesteel LLP and
Michael C. Parme, Haight Brown & Bonesteel LLP
Ms. Asuncion may be contacted at casuncion@hbblaw.com
Ms. Jamshidi may be contacted at ajamshidi@hbblaw.com
Mr. Parme may be contacted at mparme@hbblaw.com
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Anthony Luckie Speaks With Columbia University On Receiving Graduate Degree in Construction Administration Alongside His Father
October 02, 2023 —
Lewis BrisboisNew York, N.Y. (September 7, 2023) – New York Partner Anthony P. Luckie recently spoke with the Columbia University School of Professional Studies' Alumni publication regarding earning a Master of Science in Construction Administration alongside his father, as well as how the degree will benefit his law practice and clients.
As the article explains, Mr. Luckie and his father completed Columbia’s Construction Administration Program last year – only one week before the birth of Mr. Luckie’s own son. Mr. Luckie described that being accepted into the program at Columbia – a school from which “some of the most important figures in American history” have graduated – “was a really big thrill . . . .” He further explained that although he felt a sense of pride in earning the degree, the fact that he and his father shared the experience held even greater meaning for him. He noted, “[W]hile it’s an incredible achievement for both of us to graduate from an Ivy League school, for me, that day was a culmination of a father raising his son. Standing there with him onstage . . . I made sure I took time to feel grateful.”
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Lewis Brisbois
Changes To Commercial Item Contracting
May 29, 2023 —
Marcos R. Gonzalez - ConsensusDocsThe FAR Council has recently published two changes to commercial item contracting that clarify the definition of commercial services and simplify commercial item determinations (“CIDs”) for contracting officers (“COs”). Since the 1990s, the federal government has encouraged the purchase of commercial items to ease the regulatory burden on vendors who have not previously conducted federal business, encourage innovation, and lower prices[
1]. These different objectives (cost savings, broadening markets, innovation) often have corollary policies; for example, vendors who are not accustomed to the regulatory burdens of government business are encouraged to enter the market by being exempted from a slew of regulations (found in standard commercial items clause FAR 52.212-4). As a result, the regulations applicable to commercial item contracting are those required by statute and executive orders in addition to generic commercial terms that may be tailored due to potential variation in commercial terms.[
2]
Commercial Products v. Commercial Services
The first change, in effect since November 2021 pursuant to the 2019 National Defense Authorization (“NDAA”), split the old definition of “commercial item” into two separate definitions: “commercial product” and “commercial service.”[
3] We are now blessed with the following definitions of commercial products and services, respectively:
Commercial product means—
(1) A product, other than real property, that is of a type customarily used by the general public or by nongovernmental entities for purposes other than governmental purposes, and–
(i) Has been sold, leased, or licensed to the general public; or
(ii) Has been offered for sale, lease, or license to the general public;
Reprinted courtesy of
Marcos R. Gonzalez, Peckar & Abramson, P.C.
Mr. Gonzalez may be contacted at mgonzalez@pecklaw.com
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