Developer Transition - Maryland Condominiums
June 21, 2017 —
Nicholas D. Cowie - Maryland Condo Construction Defect Law BlogINTRODUCTION
“Developer transition” is the process by which the governance of a condominium association is transferred from developer to unit owner control. This article provides a brief overview of the legal requirements that govern the developer transition process for Maryland condominiums. This article also as well as a “transition checklist” for transitioning unit owner-controlled boards of directors.
PERIOD OF DEVELOPER CONTROL
A developer initially controls an association because it owns all unsold units in the newly created condominium community. As such, the developer has the controlling votes associated with majority ownership and can appoint its own employees as the initial members of the board of directors and thereby control how the condominium association conducts its affairs. This is referred to as the “period of developer control,” during which the developer makes all decisions on behalf of the association.
The developer also creates an association’s governing documents, allowing it to dictate, subject to applicable law, the procedures and time periods under which control over the association’s board of directors will eventually be transferred to the homeowners.
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Nicholas D. Cowie, Cowie & Mott, P.A.Mr. Cowie may be contacted at
ndc@cowiemott.com
What to do When the Worst Happens: Responding to a Cybersecurity Breach
November 21, 2018 —
Scott L. Satkin & J. Kyle Janecek – Newmeyer Dillion LLPCybersecurity is a growing concern for today's businesses. While it's always advisable to take whatever action possible to avoid a cybersecurity breach, no security measures can be one hundred percent perfect, and malicious actors are always innovating and trying to find new security flaws. The implementation of new technology brings with it new opportunities, but also potentially new vulnerabilities. And hackers have one major advantage – those working to defend against cyber-attacks have to try to find and fix every potential exploit, whereas those on the other side only need to find one. As demonstrated by recent high-profile breaches at Google and Facebook, even massive tech companies with access to vast financial resources and top engineering talent can still fall prey to cyber-attacks. Therefore, understanding how to respond to a breach is just as critical to a company's cybersecurity plan as attempting to prevent one. Below are a few solid tips on how to react when an organization's cybersecurity has been compromised.
Plan in Advance
The best response to a cybersecurity breach begins before the breach ever happens. A written incident response plan is of paramount importance. In the immediate aftermath of a cybersecurity breach, people will be scared and stressed. In those circumstances, they will be more likely to be able to respond effectively if there is a plan laid out for them and they have received training on how to follow that plan. Make sure that employees are trained on the parts of the plan that are relevant to them. Most may only need to know who to report to if they suspect a breach may have occurred, while those who will be involved in the breach response will need more in-depth training. The plan should also be updated regularly to account for staffing changes, new technology, and the evolving legal landscape. The law may also require a plan for responding to cybersecurity breaches, depending on the jurisdiction.
Call Your Lawyer- Early and Often
At the risk of sounding self-aggrandizing, attorneys are critical in responding to a cybersecurity breach. The most obvious reason is to advise clients on their legal obligations and potential liability – and this is indeed an important function. The patchwork of federal and state regulations governing cybersecurity is something laypeople – and even non-specialized attorneys – should navigate with caution. Of equal importance is the preservation of confidential communication under the attorney-client privilege. The presence of an attorney helps to improve the security of information surrounding the response to the breach because correspondence with that attorney is privileged, allowing candid evaluation of the breach. The ability to assert attorney-client privilege regarding an internal investigation and response can be quite useful in the event of a later external investigation or litigation.
To Disclose or Not to Disclose?
An important question that needs to be asked in the wake of a cybersecurity breach is whether the incident must be disclosed, and if so, when, how, and to whom should such disclosures be made? While many understandably wish that their mistakes and failures will never see the light of day, there are also many people who will want to know when a company's cybersecurity has been breached. Shareholders want to know – and may have a right to know – if such a breach has harmed the business. Consumers want to know if their personal information has been compromised so that they can protect against identity theft. Furthermore, state breach notification laws may mandate certain disclosures to consumers depending on facts surrounding the breach. Legal requirements from states, the federal government, and even foreign entities may also require companies to provide notices to one or more regulatory agencies.
An attorney can advise on whether a company is legally required to provide any notice in the aftermath of a data breach, but even though notice may not be a legal requirement in a particular set of circumstances, it may still be prudent to give it anyway. Google decided not to disclose the recent breach of data from its Google+ service to avoid a PR and regulatory backlash, but the fact that it had happened eventually leaked out anyway. Even though legal experts have opined in the aftermath that Google likely was not obligated to disclose the breach, the fact that it did not caused exactly what Google attempted to avoid, but with magnified effect. "Google Experiences Consumer Data Breach" may not have been a good headline, but "Google Hides Consumer Data Breach" was a worse one.
Remember: Protection Is Key
No company wants a cybersecurity breach, but past experience has increasingly demonstrated that this is not a question of "if" but rather one of "when" and "how bad." Planning ahead and knowing what to do when a data breach does happen can ensure that an organization bounces back from a breach as smoothly and painlessly as possible.
Scott Satkin and Kyle Janecek are associates in the Cybersecurity group of Newmeyer & Dillion. Focused on helping clients navigate the legal dispute implications of cybersecurity, they advise businesses on implementing and adopting proactive measures to prevent and neutralize cybersecurity threats. For questions on how they can help, contact Scott at scott.satkin@ndlf.com and Kyle at kyle.jancecek@ndlf.com.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of cybersecurity, business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client's needs. 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 have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.ndlf.com.
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Scott Saylin Expands Employment Litigation and Insurance Litigation Team at Payne & Fears
September 23, 2024 —
Payne & Fears LLPScott Saylin has joined Payne & Fears LLP as a Law Clerk in the firm’s Employment Litigation Group and Insurance Litigation Group. Before his time at Payne & Fears, Scott served as a law clerk for Cascadia Healthcare in Boise, Idaho.
“We are pleased to welcome Scott Saylin back to the firm. He was with us as a summer associate before completing his final year of law school at George Washington University,” said Amy Patton, the group’s co-chair. “Scott has fantastic potential to develop into an excellent litigator and will be an asset to our team.”
Get to Know Scott
What activities do you enjoy outside of work?
Pickle ball, long walks, beach trips, cooking, watching the Lakers games, and playing the guitar & piano.
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Payne & Fears LLP
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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WSHB Secures Victory in Construction Defect Case: Contractor Wins Bench Trial
October 01, 2024 —
Wood Smith Henning & BermanWood Smith Henning & Berman is pleased to announce a significant victory in a bench trial led by trial attorney
Thomas Fama. The case, which had been pending for nearly five years due to pandemic-related delays and unreasonable demands by the plaintiff, concluded with a resounding judgment in favor of the defendant.
"The result of this trial is a testament to our team's unwavering tenacity and strategic focus throughout the entire process," stated WSHB partner Tom Fama, lead counsel in the case. "We kept our eye on the proverbial ball and diligently worked to expose the lack of evidence supporting the plaintiff's claims."
The matter involved allegations of defective installation of a solar energy system, which the plaintiff claimed leaked during inclement weather. Fama and his team successfully demonstrated that the plaintiff's claims lacked substance, highlighting numerous pre-existing conditions on the roof that could have been responsible for the problem.
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Wood Smith Henning & Berman
Oregon Supreme Court Confirms Broad Duty to Defend
November 21, 2017 —
Theresa A. Guertin - Saxe Doernberger & Vita, P.C. BlogOriginally published by CDJ on January 13, 2017
The Supreme Court of Oregon issued a decision at the end of last year which perfectly illustrates the lengths to which a court may go to grant a contractor’s claim for defense from its insurer in a construction defect suit. In West Hills Development Co. v. Chartis Claims, Inc.,1 the Court held that a subcontractor’s insurer had a duty to defend a general contractor as an additional insured because the allegations of a homeowner’s association’s complaint could be interpreted to fall within the ambit of coverage provided under the policy—despite the fact that the policy only provided ongoing operations coverage, and despite the fact that the subcontractor was never mentioned in the complaint. The decision is favorable to policyholders but also provides an important lesson: that contractors may avoid additional insured disputes if those contractors have solid contractual insurance requirements for both ongoing and completed operations risks.
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Theresa A. Guertin, Saxe Doernberger & Vita, P.C.Ms. Guertin may be contacted at
tag@sdvlaw.com
Missouri Construction Company Sues Carpenter Union for Threatening Behavior
February 10, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to KMOV News, Raineri Construction Company in Missouri filed suit against the Local Carpenters’ District Council claiming employees had been “stalked and threatened” by the union. However, the Carpenters Union “denies the allegations” and said “it has the right to protest against a company that doesn’t always meet the union standards for pay and benefits.”
Tony Raineri, one of the construction company’s executives, said to KMOV News: “For me it wasn’t such a big deal until they started making threats of bodily harm, started following me and my wife to our home, started following my employees to their homes.”
KMOV News reported that a “union representative told News 4’s Craig Cheatham that no one acting on behalf of the Carpenters Union ever threatened, harassed or stalked Raineri, his employees or their clients.”
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The Vallagio HOA Appeals the Decision from the Colorado Court of Appeals
August 04, 2015 —
David M. McLain – Colorado Construction LitigationAs highlighted in our most recent post, the Colorado Court of Appeals’ Vallagio decision upheld a declaration provision that prohibited the amendment of a mandatory arbitration clause without the consent of the developer/declarant. Vallagio at Inverness Residential Condominium Association, Inc. v. Metropolitan Homes, Inc., et al., 2015COA65 (Colo. App. May 7, 2015). This case protects a developer/declarant’s ability to arbitrate construction defect claims with a well-crafted declaration that requires declarant consent in order to amend the mandatory arbitration provisions for construction defect actions.
However, the Vallagio ruling still hangs in the balance while the Colorado Supreme Court considers the condominium association’s petition for certiorari review, filed June 18, 2015. In its petition, the association argues that the declarant consent requirement violates public policy and four separate sections of the Colorado Common Interest Act (“CCIOA”).
For instance, the association argued in the courts below that a declarant consent requirement violates section 217 of CCIOA, which governs unit owners’ voting percentage requirements and provides that declarations may not require more than 67% affirmative vote for amendments. The Court of Appeals rejected this argument, reasoning that other provisions of section 217 contemplate consent requirements by parties other than unit owners, such as first mortgagees.
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David M. McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
