How to Challenge a Project Labor Agreement
May 24, 2018 —
Wally Zimolong – Supplemental Conditions Building and Construction Trades Council of Metropolitan District v. Associated Builders and Contractors of Massachusetts Rhode Island, Inc Massachusetts Water Resources Authority v. Associated Builders and Contractors of Massachusetts Rhode Island, Inc, 507 U.S. 218, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993) , affectionately knows as Boston Harbor, is the seminal Supreme Court decision that held that the National Labor Relations Act (“NLRA”) does not preempt government mandated project labor agreements (“PLAs”) if the government entity is acting as a market participant rather than a market regulator. Boston Harbor has led to many believing that virtually all PLAs are legal when the government agency is a project owner or if the PLA involves a private project. However, does Boston Harbor really cut that far?
In short, no. The primary issue in Boston Harbor was one of preemption. The Supreme Court addressed whether the NLRA preempted state and local laws and ordinances mandating PLAs. On that narrow issue, the Supreme Court said there is no preemption if the government is acting as a market participant. What the Court did not address is whether other federal statutes invalidate PLAs. Specifically, whether PLA’s can run afoul of Section 8(e), the so called “hot cargo” provisions, of the NLRA.
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Wally Zimolong, Zimolong LLCMr. Zimolong may be contacted at
wally@zimolonglaw.com
There Is No Sympathy If You Fail to Read Closely the Final Negotiated Construction Contract
February 28, 2022 —
David Adelstein - Florida Construction Legal UpdatesWhen an opinion in a case starts with, “Unlike some motions, not even the most ingenious lawyers could make this one complicated,” you know you are in for an interesting read. This was how the opinion started in U.S. f/u/b/o Hambric Steel and Fabrication, Inc. v. Leebcor Services, LLC, 2022 WL 345636 (M.D. GA. 2022), which concerns a Miller Act payment bond dispute between a subcontractor and prime contractor on a federal construction project.
As demonstrated below, the moral of this case is in fact simple. Read what you sign BEFORE you sign! No ifs, ands, or buts. Failure to do so will garner very little sympathy.
This case dealt with a prime contractor arguing that the subcontractor pulled the wool over its eyes by surreptitiously altering the final negotiated redlined contract between the parties. In particular, the prime contractor claimed that the dispute resolution provision was supposed to include a Virginia venue provision. However, the subcontractor “fraudulently” changed this provision to make it a Georgia venue provision after the final contract had been agreed to during the negotiation. Yet, it is undisputed that the executed contract between the parties included a Georgia venue provision.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Florida extends the Distressed Condominium Relief Act
June 17, 2015 —
Beverley BevenFlorez-CDJ STAFFThe Distressed Condominium Relief Act had been poised to expire on July 1st, but has now been extended by two additional years by the Florida legislature, the National Review reported. The act was Part VII of the Condominium Act in 2010, and has been previously extended twice. According to the National Review, “This Legislation attempted to allay the fears of potential investors about incurring developer liability in connection with the purchase of bulk units. The Act created a shield in favor of bulk purchasers from such potential liability, especially construction defects liability.”
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Construction Law Alert: Appellate Court Lets Broad General Release Stand in SB 800 Case
February 26, 2015 —
Steven M. Cvitanovic and Colin T. Murphy – Haight Brown & Bonesteel LLPUnder California's SB 800 "Right to Repair Act," a builder may obtain a "reasonable release" to resolve a construction defect claim in exchange for a cash payment. So, what's a "reasonable release" under SB 800? This question was answered by the Second Appellate District in the case of Belasco v. Wells (filed 2/17/2015, No. B254525).
Plaintiff David Belasco ("Plaintiff") purchased a newly constructed residence in 2004 from the builder defendant Gary Loren Wells ("Wells"). In 2006, Plaintiff filed a complaint against Wells with the Contractors' State License Board (the "Board") regarding certain alleged construction defects. The parties settled the 2006 action through written agreement that required Wells to pay Plaintiff $25,000 in consideration for Plaintiff executing a release and a Civil Code §1524 waiver of all known or unknown claims. In 2012, Plaintiff filed a subsequent action against Wells and Wells’ surety, American Contractors Indemnity Company ("American Contractors") (collectively "Defendants"), alleging a defect in the roof that was discovered by Plaintiff in 2011.
Reprinted courtesy of
Steven M. Cvitanovic, Haight Brown & Bonesteel LLP and
Colin T. Murphy, Haight Brown & Bonesteel LLP
Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com
Mr. Murphy may be contacted at cmurphy@hbblaw.com
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Hunton Offers Amicus Support in First Circuit Review of “Surface Water” Under Massachusetts Law
August 01, 2023 —
Michael S. Levine, Lorelie S. Masters & Janine A. Hanrahan - Hunton Insurance Recovery BlogHunton’s insurance team has offered its support on behalf of amicus curie United Policyholders in a brief to the
First Circuit concerning the meaning of “surface water” in the context of a broad, all-risk property insurance policy?
This important question arose in a dispute between Medical Properties Trust (“MPT”), a real estate investment trust, and Zurich American Insurance Company (“Zurich”), its insurer, after water entered and destroyed Norwood Hospital. The water at issue entered the building after collecting on the surface of the building’s flat parapet roof. Zurich argued that because the water collected on the surface of the roof, the water met the meaning of the term “surface water,” as that term was used in the policy’s definition of “flood.” Flood coverage is subject to a $100 million sublimit, whereas the policy’s general limit is $750 million.
Reprinted courtesy of
Michael S. Levine, Hunton Andrews Kurth and
Lorelie S. Masters, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Ms. Masters may be contacted at lmasters@HuntonAK.com
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CCPA Class Action Lawsuits Are Coming. Are You Ready?
March 23, 2020 —
Daniel Schneider & Jeffrey Dennis – Newmeyer DillionThe only certainties in life used to be death and taxes. In 2020, it would be safe to add California Consumer Privacy Act (CCPA) class actions to that "distinguished" list. On February 3, Barnes v. Hanna Andersson, LLC, N.D. Cal., Case No. 20-cv-00812, was filed in the Northern District of California, setting in motion the certainty that CCPA class actions are on their way, if not already here.* Filed on behalf of all California residents, the Barnes complaint alleges that between September and November 2019, clothing retailer Hanna Andersson and Salesforce, its online payment services provider, failed to properly safeguard the personally identifiably information (PII) of its customers after hackers stole customers' private information and posted it to the dark web for sale.
What You Need to Know
- Under the CCPA, a data breach is any unauthorized access, theft or disclosure of a consumer's non-encrypted and non-redacted personal information that results from a company's failure to implement and maintain "reasonable" security procedures and practices. Here, the complaint alleges that the defendants failed to maintain reasonable security procedures and practices in order to protect the consumers' PII.
- Although the CCPA is largely viewed as new law related to California consumers' privacy rights (and placement of subsequent obligations to companies doing business in California), the CCPA includes potentially draconian damages for a data breach permitted by unreasonable cybersecurity. Under the new law, an individual need not show any actual harm caused by a data breach, yet he/she may seek statutory fines of up to $750 per incident per individual in the event of a breach. Plaintiffs estimate that at least 10,000 California residents could have been affected by this breach, thereby exposing defendants to up to $7.5 million dollars in damages if proven true.
- There exists a duty to monitor and ensure that third party organizations are properly safeguarding a company's data. During the course of the investigation into the breach, it was discovered that the Salesforce ecommerce platform was infected with malware which allowed the hackers to steal consumers' PII from Hanna Andersson's website.
- The CCPA went into effect on January 1, 2020, yet enforcement by the California Attorney General is not allowed until July 2020. However, no such delay is required for private litigation under the data breach portion of the CCPA. Interestingly, although the complaint alleges that the data breach occurred in 2019, the court could choose to apply the CCPA but that is still yet to be determined.
While Barnes may be the first class action lawsuit to mention violation of the CCPA, it certainly will not be the last. In fact, numerous class actions lawsuits have been filed in the new year which either mention the CCPA or utilize CCPA-like language to style particular claims. As such, it is evident that the Plaintiffs' bar sees the CCPA as a potential for extensive class action litigation. Expect to see an ongoing deluge of class action litigation in California under the data breach portions of the CCPA. In addition, although the Barnes' plaintiffs may not be able to invoke the CCPA due to the data breach occurring in 2019 (before the CCPA took affect), Barnes serves as a stark reminder that implementing and maintaining reasonable data security is vital to defend a business against CCPA claims. Newmeyer Dillion can assist companies analyze their cyber risk profile, and provide access to experienced forensic teams which can ensure reasonable security exists in your organization.
*While Barnes does not yet expressly state a cause of action under the CCPA, relying upon violations of the California Unfair Competition Law in its place, we anticipate that an amendment will soon be filed to include a CCPA claim.
Daniel Schneider is a Partner in Newmeyer Dillion's Privacy & Data Security group. Focused on advocating on behalf of clients when cyber threats inevitably happen, Dan also advises on best practices to help protect the company and mitigate future concerns. Dan can be reached at daniel.schneider@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 achieve client objectives in diverse industries. With over 70 attorneys working as a cohesive team to represent clients in all aspects of business, employment, real estate, environmental/land use, privacy & data security and insurance law, Newmeyer Dillion delivers holistic and integrated legal services tailored to propel each client's success and bottom line. 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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Firm Offers Tips on Construction Defects in Colorado
February 28, 2013 —
CDJ STAFFAlthough the Tenth Circuit Court determined that construction defects are occurrences under a general liability policy and the passage of CRS Section 13-20-808, in which the Colorado Legislature addressed the definition of occurrences as they relate to construction defects, the insurance industry “will continue to challenge the very concept of coverage for construction defects,” according to five attorneys at the law firm Sherman & Howard.
They suggest that there are lessons to be learned from two recent cases that were recently decided by the Colorado Court of Appeals, TCD, Inc. v. American Family and Colorado Pool Systems, Inc. v. Scottsdale Insurance Company. They suggest that construction professionals to be certain that their insurers are “firmly rooted in insuring the construction industry.” Their broker should also have “specific expertise in insuring the construction industry.” And don’t buy on price alone. Finally, they suggest that construction professionals should “engage an experienced coverage attorney to assess pursuing coverage when an insurance company denies coverage for a construction defect claim.”
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Texas Windstorm Insurance Agency Under Scrutiny
April 05, 2011 —
Beverley BevenFlorez CDJ STAFFRepresentative Larry Taylor has introduced a bill in the Texas Legislature (HB 2818) that would further regulate the Texas Windstorm Insurance Agency (TWIA). According to Taylor, “In order to be adequately prepared for future hurricane seasons, it is imperative that TWIA be operating at maximum efficiency, that the Reserve Trust Fund be solvent and that the agency have adequate management measures in place to protect consumers and ensure that claims are paid in a timely manner. House Bill 2818 is an important step in the right direction toward restoring public confidence in TWIA.”
HB 2818 includes measures that would create an expert panel that would advise the commissioner on how to evaluate loss from the storm, and a greater transparency of TWIA Board meetings and actions.
In addition, the Texas Department of Insurance (TDI) has placed TWIA on Administrative Oversight. According to TDI, “While under Administrative Oversight, the Department may require its prior review and approval of executive decisions, certain expenditures, and other transactions. The insurer is required to fully cooperate with the Department and provide complete and timely disclosure of all information responsive to Department requests.”
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