Implications for Industry as Supreme Court Curbs EPA's Authority
August 15, 2022 —
Pam McFarland & Jeff Yoders - Engineering News-RecordThe U.S. Supreme Court has limited the ability of the U.S. Environmental Protection Agency to regulate power plant greenhouse gas emissions, and though the court’s opinion referred to a fairly narrow provision within the Clean Air Act, the ruling potentially places broad restrictions on the ability of federal agencies to enact regulations to address the climate crisis, according to several sources.
Reprinted courtesy of
Pam McFarland, Engineering News-Record and
Jeff Yoders, Engineering News-Record
Ms. McFarland may be contacted at mcfarlandp@enr.com
Mr. Yoders may be contacted at yodersj@enr.com
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Courts Generally Favor the Enforcement of Arbitration Provisions
May 10, 2021 —
David Adelstein - Florida Construction Legal UpdatesIn recent posts (
here and
here) I have discussed arbitration provisions and cases dealing with the enforceability of arbitration provisions.
The case of Lemos v. Sessa, 46 Fla.L.Weekly D701a (Fla. 3d DCA 2021) deals with two noteworthy principles when it comes to arbitration that warrant another post about arbitration provisions.
First, courts will and should try to resolve any ambiguity in arbitration provisions in favor of arbitration.
Second, when there is an offending arbitration provision or one that includes language that violates public policy, the trial court “should sever the offending provisions from the arbitration clause so long as such severance does not undermine the parties’ intent.” Lemos, supra. This principle is reinforced when the arbitration provision is in an agreement that contains a severability provision.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
15 Wilke Fleury Lawyers Recognized in 2020 Northern California Super Lawyers and Rising Stars Lists
August 17, 2020 —
Wilke Fleury LLPWilke Fleury is proud to announce that 15 of our astounding attorneys were featured in the Annual List of Top Attorneys in the 2020 Northern California Super Lawyers magazine.
Super Lawyers rates attorneys in each state using a patented selection process; they also publish a yearly magazine issue that regularly produces award-winning features on selected attorneys.
Wilke Fleury LLP
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Nomos LLP Partner Garret Murai Recognized by Super Lawyers
September 05, 2023 —
Garret Murai - California Construction Law BlogNomos LLP Partner Garret Murai has been selected to the 2023 Northern California Super Lawyers list in the area of Construction Litigation. This is the tenth consecutive year that he has been recognized by Super Lawyers.
Garret was also also featured in this year’s Northern California Super Lawyer’s magazine’s 20th anniversary cover story “Built Different” where he talks a bit about his practice and changes he has seen over the past 20 years as a construction lawyer. The following is an excerpt from the article:
“The New Reality of Work”
Garret Murai, whose father was an architect, is a founding partner of Nomos LLP, an Oakland-based construction law firm. Concentrating in both commercial and public works, Murai’s clients run the gamut from contractors and subcontractors to owners and developers.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Reconstructing the Francis Scott Key Bridge Utilizing the Progressive Design-Build Method
June 04, 2024 —
Lisa D. Love - The Dispute ResolverHaving awakened on the morning of March 26 to the devastating news of the collapse of Baltimore’s Francis Scott Key Bridge after being struck by the Dali, a 984 length /52 beam foot cargo container ship, I thought of the many times I crossed the bridge as a child growing up in Washington, D.C. I also recalled Montgomery Schyler’s comments on the opening of the Brooklyn Bridge, when he stated that “the work which is likely to be our most durable monument, and to convey some knowledge of us to the most remote posterity, is a work of bare utility; not a shrine, not a fortress, not a palace, but a bridge.”
I thought of the beauty of New York’s Mario Cuomo Bridge, a 3.1-mile cable-stayed twin-span bridge with eight traffic lanes, bicycle and pedestrian paths, six lookout points and room for future rapid transit. It was completed in 2018 and constructed under a design-build procurement model[i] at a cost of $3.98 billion. Accelerated bridge construction (ABC) techniques were utilized in its construction. ABC techniques employ innovative planning, design, materials, and construction methods in a safe and cost-effective manner to reduce the on-site construction time that occurs when building new bridges or replacing and rehabilitating existing ones. ABC techniques improve site constructability, total project delivery time, work-zone safety for the traveling public and traffic impacts, on-site construction time, and weather-related time delays.[ii]
I also thought of the gracefulness of Boston’s Leonard P. Zakim Bunker Hill Memorial Bridge, a 0.27-mile hybrid cable-stayed steel and concrete bridge with pedestrian and bicycle access that holds 10 lanes of traffic. The Zakim Bridge was completed in 2004 at a cost of approximately $100 million as part of the $24.3 billion Big Dig.[iii] Despite its elegant, streamlined appearance, the bridge was designed to be exceptionally strong, withstand winds over 400 miles per hour and endure a magnitude 7.9 earthquake.[iv]
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Lisa D. Love, JAMS
Is Your Website Accessible And Are You Liable If It Isn't?
January 06, 2020 —
Kyle Janecek and Jeffrey Dennis - Newmeyer DillionTo anyone who does business online - beware. While the ADA has been in play for years, it did not necessarily account for all the technological advances that have been made over time. Specifically, when it comes to accommodations - what accommodations can and should be made within a website, and whether accommodations should be made on all websites or just some. However, because of this, a new type of lawsuit has emerged, and is slowly becoming more prominent. Since the Supreme Court refused to clarify this particular area of law, we must turn to the recent Ninth Circuit Ruling in Robles v. Domino's for guidance.
What Happened in Robles v. Domino's?
As part of a spree of litigation, Guillermo Robles had sued Domino's Pizza due to the lack of accessibility for the Domino's smartphone application and website. Mr. Robles is blind, and neither the website nor application, which allowed users to order Domino's food for pickup or delivery, and offer exclusive discounts, were accessible to him. The Domino's website and application were both incompatible with his chosen software, prompting a lawsuit in 2016. After a short success in the trial court due to the lack of guidance given to websites and applications in how to accommodate for the ADA, the Ninth Circuit overruled the trial court, finding that: (1) the ADA applied to Domino's as there was a nexus between the Domino's website and app, and physical restaurants; and (2) the lack of guidance to Domino's did not violate its right to due process.
The ultimate effect of Robles v. Domino's found that businesses cannot necessarily avoid ADA litigation, even though the federal government hasn't given guidelines on how to make a website or mobile application accessible.
What Happened at the Supreme Court?
Back in June, Domino's appealed the Ninth Circuit decision, prompting a flurry of amicus briefs. This was done, in part, because there is a circuit split between the Sixth, Ninth, and Eleventh Circuits requiring that a website has a physical nexus to a place of public accommodation (i.e. a "brick-and-mortar" location), and the First, Second, Fifth and Seventh Circuits, which will rule that a website is a place of public accommodation if it does something a place of public accommodation would do (i.e. Netflix showing films). In addition, parties aside from Domino's have been looking for further guidance given the lack of comments from the Department of Justice and Congress. This is especially relevant because the Department of Justice has been considering the application of the ADA to the internet from 1996 to 2018, resulting in some inconsistent comments regarding the need for rule making.
This had pushed Domino's and others to attempt to end the ongoing regulation through litigation and furthermore, due to the decision in the Ninth Circuit, to avoid the Domino's holding from creating a "defacto" requirement.
How Do You Prepare?
While there is an off-chance that this kind of civil ADA litigation will resurface to the Supreme Court, these claims tend to settle relatively quickly, and ultimately may prevent courts from providing any solid or concrete guidance on accessibility until either the Department of Justice provides guidelines or Congress amends the ADA to specifically address website accessibility.
However, a determination of what is "accessible" may be put forward due to the new proposed regulations for the CCPA set forth by California's Attorney General. The proposed regulations specifically state that a privacy policy should be accessible to consumers with disabilities, and at a minimum, should provide information on how a consumer with a disability can access the notice in an alternative format. Importantly, this removes the arguments on whether or not the website would have to be a place of public accommodation. It is now widely applicable to every website. Given the CCPA is to be enforced by the Attorney General, this presents a possible situation where the state of California will determine what is accessible through enforcement actions.
In the absence of guidelines however, you have four actions you can take to protect your business.
- Learn the standards. There are unofficial accessibility guidelines such as WCAG 2.0AA that are treated as an industry standard. While this may not completely protect you from claims made by litigants, this will help your business move towards compliance.
- Know and negotiate. When dealing with third party service providers or developers, make sure that accessibility is brought up, discussed, and addressed before moving forward with using that service provider or developer. If the developer or service provider cannot assure that their product is accessible, be prepared to walk away. A business may be found liable for the inaccessibility of an online service provider used by the business to provide the business's services.
- Beta test often. As technology changes or websites are updated to be more device-friendly, new code or functions may make a website less accessible for accessibility devices and software. In addition, just because a website meets the WCAG 2.0AA, this may not account for all accessibility issues, so it would be prudent and beneficial to be thorough.
- Get help. Consider hiring third parties to help you evaluate a plan for accessibility and keep you up-to date for online accessibility issues.
Nonetheless, there is still a significant risk and uncertainty for anyone who does business online, as any business has to be aware of the current general framework of laws and industry accessibility guidelines to hope they meet the murky definition of "accessible."
Kyle Janecek is an associate in the firms Privacy & Data Security practice, and supports the team in advising clients on cyber related matters, including policies and procedures that can protect their day-to-day operations. For more information on how Kyle can help, contact him at kyle.janecek@ndlf.com.
Jeff Dennis (CIPP/US) is the Head of the firm's Privacy & Data Security practice. Jeff works with the firm's clients on cyber-related issues, including contractual and insurance opportunities to lessen their risk. For more information on how Jeff can help, contact him at jeff.dennis@ndlf.com.
About Newmeyer Dillion
For 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that align with the business objectives of clients in diverse industries. With over 70 attorneys working as an integrated team to represent clients in all aspects of business, employment, real estate, privacy & data security and insurance law, Newmeyer Dillion delivers tailored legal services to propel clients' business growth. 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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No Signature? Potentially No Problem for Sureties Enforcing a Bond’s Forum Selection Clause
March 21, 2022 —
Brian C. Padove - ConsensusDocsOne of the foundational tenets of contract law is that a party may only be bound by terms they agree to, or in other words, if the party did not sign a contract, that party cannot be bound by the terms thereof. While this principle is generally unwavering, there are certain situations in which a non-signatory to a contract may still be bound by the terms of a contract.
In particular, this non-signatory issue may arise when a payment bond claimant makes a bond claim, subsequently files a lawsuit, but the bond contains a forum selection clause different than the venue of the lawsuit and the surety seeks to enforce the bond’s forum selection clause. For example, the claimant may have filed its lawsuit against the surety in federal court, even though the bond provides language specifically mandating that no lawsuit shall be commenced by any claimant other than in a state court where the project is located. Thus, the question then becomes, can the surety enforce the forum selection clause against the claimant when the claimant did not sign the bond and/or never agreed to the terms thereof? The short answer, it depends (yes, that is a very lawyer-like answer). Given recent case law over the past decade, however, the surety has a strong argument in favor of enforcement of the forum selection clause.
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Brian C. Padove, Watt, Tieder, Hoffar & Fitzgerald, LLP (ConsensusDocs)Mr. Padove may be contacted at
bpadove@watttieder.com
Party Cannot Skirt Out of the Very Fraud It Perpetrates
January 09, 2023 —
David Adelstein - Florida Construction Legal UpdatesAn interesting case came out of Florida’s Fourth District Court of Appeal that touches upon two important points.
First, the
independent tort doctrine does not apply when there is not a contract between the parties.
Second, an officer cannot escape fraud simply by claiming his or her actions were done as an officer of the company when he or she actively participated in the fraud.
Both of these points are best explained by initially going into the facts of this case. As you will see, the Court’s rationale relates to the premise that a party should not be able to skirt out of the very fraud it perpetrates.
Factual Background
Costa Investors, LLC v. Liberty Grande, LLC, 48 Fla.L.Weekly D7b (Fla. 4th DCA 2022) involved the ultimate development and construction of four adjacent properties into the Costa Hollywood Hotel. The properties were purchased by a company called Liberty Grande. Its president / manager was also the president of Liberty Grande’s wholly owned subsidiary called Costa Hollywood Property. Liberty Grande transferred the properties to Costa Hollywood Property and the deed was signed by the president / manager.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
