SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Look Up And Look Out: Increased Antitrust Enforcement Of Horizontal No-Poach Agreements Signals Heightened Scrutiny Of Vertical Agreements May Be Next

November 28, 2022 — John F. Finnegan, III & Dominick Weinkam - ConsensusDocs
In the current regulatory environment, it is important for contractors to remain vigilant of heightened anti-competitive enforcement in the construction and procurement spheres by the United States Department of Justice (DOJ). Such vigilance should include, among other things, regular review of applicable laws and implementation of related updates to compliance policies, as well as careful evaluation of joint venture (JV), subcontractor, and teaming agreements.  Recent DOJ Activity Opens The Door To Broader Antitrust Exposure For Contractors Many contractors include exclusivity and non-compete clauses in their vertical agreements, including subcontractor agreements and certain types of JV and teaming agreements. In fact, many widely available “checklists” for drafting these agreements recommend including such provisions; however, under U.S. antitrust law, particularly as enforced by the DOJ in the last 1-2 years, exclusivity and non-compete clauses may be construed as unduly competition-restricting. Although no court has yet held that exclusivity and non-compete clauses in vertical agreements violate antitrust laws, recent aggressive enforcement activity by the DOJ with regard to horizontal no-poach agreements suggests that the investigatory headwinds may be blowing in that direction. Reprinted courtesy of John F. Finnegan, III, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs) and Dominick Weinkam, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs) Mr. Finnegan may be contacted at jfinnegan@watttieder.com Mr. Weinkam may be contacted at dweinkam@watttieder.com Read the court decision
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Brad Pitt’s Foundation Sues New Orleans Architect for Construction Defects

September 25, 2018 — David Suggs – Bert L. Howe & Associates, Inc.
Brad Pitt’s foundation has sued its architect of New Orleans projects alleging “defective design work led to leaks and other flaws in homes built for residents of an area that was among the hardest hit by Hurricane Katrina,” reported Insurance Journal. The Make It Right Foundation claims damages of more than $15 million caused by architect John C. Williams. According to Insurance Journal, “The foundation paid Williams’ firm millions of dollars to produce architectural drawings for more than 100 homes under the program, which was supposed to provide Lower 9th Ward residents with sustainable and affordable new homes.” This lawsuit against the architect is apparently in response to a class-action lawsuit by New Orleans attorney Ron Austin against Pitt’s Make It Right Foundation. Austin’s lawsuit “accused the charity of building substandard homes that are deteriorating at a rapid pace,” Insurance Journal reported. The 39 homes involved in a previous suit regarding the manufacturer of TimberSIL are excluded from the lawsuit against Williams. Read the court decision
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Court Holds That Public Entity Can Unilaterally Replace Subcontractor Under California’s Subletting and Subcontracting Fair Practices Act

July 22, 2019 — Garret Murai - California Construction Law Blog
The Subletting and Subcontracting Fair Practices Act (Public Contract Code section 4100 et seq.), also known as the Listing Law, is intended to prevent direct contractors on public works projects from “bid shopping” and “bid peddling.” Bid Shopping: Bid shopping is when a direct contractor discloses a subcontractor’s bid to other subcontractors in an attempt to obtain a lower bid than the one in which it based its bid to the owner. Bid Peddling: Bid peddling is the other side of the equation. It is when a subcontractor whose bid was not selected, lowers its bid in an attempt to induce the direct contractor to substitute it for another subcontractor after the prime contractor’s bid has been awarded. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel, Rosen, Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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FHFA’s Watt Says Debt Cuts Possible for Underwater Homeowners

February 05, 2015 — Clea Benson – Bloomberg
(Bloomberg) -- Fannie Mae and Freddie Mac’s overseer wants to allow debt cuts for a narrow group of borrowers who owe more than their homes are worth. The trick is figuring out a way to do it without incurring costs for taxpayers. Federal Housing Finance Agency Director Melvin L. Watt told reporters Wednesday that he is still studying the idea of reducing principal on properties with depressed values, a step backed by housing advocates and Democratic lawmakers. Read the court decision
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Reprinted courtesy of Clea Benson, Bloomberg

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Senate Committee Approves Military Construction Funds

June 29, 2011 — CDJ STAFF

With a decrease in funding, as compared to the House bill, the Military Construction and Veteran’s Affairs subcommittee of the Senate moved on a $72 billion construction bill. The House version had approved an additional half billion dollars in funding. Senator Tim Johnson, Democrat of South Carolina, said that he expected easy reconciliation with the House version. The Senate bill will move to the full Senate Appropriations Committee on June 30.



The bill, S 1255, includes funding for construction and remodeling of military housing, as well as construction and remodeling of base facilities.

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Replacement of Defective Gym Construction Exceeds Original Cost

January 22, 2013 — CDJ STAFF
Austin, Texas has torn down a school gym, the Turner-Roberts Recreation Center at the Overton Elementary School, due to structural problems which became evident after the gym was completed four years ago. The cost of the new gym is $6.4 million, more than the cost of building the gym in the first place. The city is paying $3 million in repair costs with the rest of the money coming from the companies that designed and built the now demolished gym. According to the Austin Statesman, the total cost to the city will be about $8.6 million. The Turner-Roberts Recreation Center cost $5.6 million to build, but soon after it opened, structural problems were discovered. Cracks formed in walls and glass doors buckled. The settlement with the designer, contractor, and engineering firm did not require the firms to admit fault as they paid $3.4 million to fix the situation. The Statesman was unable to get a breakdown of how much each firm paid. Tom Cornelius, president of the GSC, the architectural firm on the project told the Statesman that "the foundation issues were not caused by design defects." Initially, the city sought to repair the gym, but early excavation determined that the defects were too extensive. In addition to the structural flaws, it was also determined that the HVAC system was faulty. Excavation also damaged plumbing work. Tearing down the gym turned out to be the most cost-effective response. Read the court decision
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Supreme Court’s New York Harbor Case Isn’t a ‘Sopranos’ Episode

August 03, 2022 — Stephen L. Carter - Bloomberg
The long-simmering harbor dispute between New York and New Jersey has observers reaching for illustrations from “The Sopranos” and “On the Waterfront.” But now that the US Supreme Court has agreed to adjudicate the spat, I wonder whether a more useful resource might be “The Paper Chase.” The disagreement stems from New Jersey’s determination to exit the Waterfront Commission of New York Harbor, an entity established by the two states back in 1953 in response to news reports of widespread corruption and violence among those who loaded and unloaded ships. New Jersey argues that as a sovereign state, it can’t be forced to remain in the pact forever. New York replies that the deal has the force of law and neither state can quit without the permission of the other. (And Congress!) The Supreme Court is now involved because that’s the venue the Constitution prescribes when one state sues another. Four days before New Jersey’s announced departure date of March 28, the justices issued an injunction preventing the move. This week they agreed to adjudicate the dispute and set an accelerated schedule for briefs and oral argument. Read the court decision
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Reprinted courtesy of Stephen L. Carter, Bloomberg

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A Quick Virginia Mechanic’s Lien Timing Refresher

February 27, 2023 — Christopher G. Hill - Construction Law Musings
As those who read Construction Law Musings on a regular basis know, mechanic’s liens are a big part of my construction law practice. These tricky and strictly enforced statutory collection tools are very powerful when correctly recorded and utterly useless if they aren’t recorded in a timely fashion and with the correct information contained within them. Couple that fact with recent changes to the mechanic’s lien form in 2019, and I feel the need to give a quick refresher. If you’ve kept up with Musings, you know about the two big numbers for Virginia mechanic’s lien timing, 90 and 150. These should be kept in mind for every general contractor, subcontractor, or supplier on any construction project in Virginia. Virginia Code Section 43-4 sets out the reasons to keep these numbers in mind. The code section sets out why you need to know these numbers. The 90 refers to the deadline for recording a lien. This number affects the right to a lien in Virginia. In order to preserve lien rights, a construction contractor must record the lien within ninety days of the last day of the last month in which the last work was performed or no later than ninety days from the date of completion of the project or other termination of work. The short version is that most general contractors on commercial projects have 90 days from the last work in which to record their lien and most subcontractors have 90 days from the last day of the last month of work. However, the best practice is to simply calculate the 90 days from the last work performed or material supplied to avoid issues and arguments between attorneys regarding timing. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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