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DIRECTORY AND CAPABILITIES

Jury Trials and Mediation in Philadelphia County: Virtually in Person

July 27, 2020 — Andrew F. Susko, Robert G. Devine & Daniel J. Ferhat - White and Williams LLP
When will the trial court in Philadelphia County be open for jury trials in civil actions? While a precise prediction, given the current state of our trial courts in the middle of the COVID-19 pandemic, is difficult to make, what is known is that the use of virtual technology is likely permanently changing the landscape of civil litigation, including depositions, mediation, and other forms of alternative dispute resolution. Even civil jury trials, at least in the near term and during the pandemic, are being conducted virtually, either by private agreement, or through the courts, as is occurring in Texas and most recently in Florida with its pilot virtual trial program in five of its trial courts. While it is necessary at present for the parties to consent to a virtual trial, courts may ultimately compel the parties’ participation. Regardless, litigants and their counsel are well advised to understand the complexities and manner of a virtual trial. Seasoned trial attorneys have long experienced and are comfortable with virtual depositions bringing distant counsel, parties and witnesses together through technology to present testimony. The use of virtual technology as a means for court arguments and hearings, mediation, and alternative dispute resolution, while novel and emerging as the new normal, is territory where a comfort level can be achieved. And while distinctions most assuredly exist, recent experience has demonstrated that court arguments, mediations and depositions can be conducted effectively remotely and virtually. Legal issues certainly do remain in the context of the deposition of parties to a civil action regarding whether a lawyer’s physical presence in the same room with a party-witness can be demanded, and whether courts would compel a virtual deposition during the COVID-19 pandemic where such physical presence of a party and their attorney could not be achieved. Undoubtedly these issues will be resolved, likely sooner than later, given the scope of the pandemic in certain areas. Reprinted courtesy of White and Williams LLP attorneys Andrew F. Susko, Robert G. Devine and Daniel J. Ferhat Mr. Susko may be contacted at suskoa@whiteandwilliams.com Mr. Devine may be contacted at deviner@whiteandwilliams.com Mr. Ferhat may be contacted at ferhatd@whiteandwilliams.com Read the court decision
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Construction Industry on the Comeback, But It Won’t Be the Same

November 20, 2013 — CDJ STAFF
“The majority of contractors have readjusted and there’s cautious optimism, but there’s a new normal in construction,” Cam Dickinson, senior vice president of the construction group of Woodruff-Sawyer. But he cautioned that “it’s not going to come back like it was in the good old days.” Some places, like the Miami or New York City areas are doing well, although New York City has the perhaps unique advantage of its market. Brian Schofeld, Crystal & Co.’s senior managing director and construction practice leader noted that for one New York City project, “the penthouse went for the full value of the gut renovation and that left the other 17 floors as a profit.” Further signs of life are that “the residential private side is going gangbusters in the Bay Area and downtown San Francisco,” according to Bret Lawrence, vice president of construction for Woodruff-Sawyer, but he notes that “it’s nothing like it was.” Read the court decision
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OSHA Advisory Committee, Assemble!

February 06, 2023 — Rachel E. Pelovitz - Construction Executive
The Occupational Safety and Health Administration (OSHA) has sourced new members for its Advisory Committee on Construction Safety and Health, which was established by the Construction Safety Act to provide “advice and assistance in construction standards and policy matters” to the assistant secretary of labor for occupational safety and health. The committee consists of 15 members, one appointed by the secretary of labor, to represent the interests of employers, employees, state safety and health agencies, in addition to the public. Reprinted courtesy of Rachel E. Pelovitz, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Ms. Pelovitz may be contacted at pelovitz@abc.org Read the full story... Read the court decision
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Henkels & McCoy Pays $1M in Federal Overtime-Pay Case

July 19, 2021 — Tom Ichniowski - Engineering News-Record
In a consent judgment in a federal labor case, major specialty contractor Henkels & McCoy Inc. has paid about $1.1 million in back pay and damages for allegedly not paying required overtime wages to 362 current and former workers in five states, the U.S. Dept. of Labor says. Reprinted courtesy of Tom Ichniowski, Engineering News-Record Mr. Ichniowski may be contacted at ichniowskit@enr.com Read the full story... Read the court decision
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Not so Fast! How Does Revoking Acceleration of a Note Impact the Statute of Limitations?

July 30, 2018 — Ben Reeves - Snell & Wilmer Real Estate Litigation Blog
Introduction Lenders routinely accelerate notes after a default occurs, calling the entire loan due immediately. Less regularly, a lender may change its mind and unilaterally revoke the acceleration. Rarely, however, does a lender fail to foreclose on its real property collateral before the statute of limitations expires. In Andra R. Miller Designs, LLC v. U.S. Bank, N.A., 244 Ariz. 265, 418 P.3d 1038 (Ct. App. 2018), a unique set of facts involving these issues led the Arizona Court of Appeals to hold that proper revocation of acceleration resets the statute of limitations. The Facts In Miller, a lender made a $1,940,000 loan evidenced by a promissory note and secured by a deed of trust against a home in Paradise Valley, Arizona. The borrower defaulted in September 2008. The default prompted the lender to notice a default, accelerate the note, and initiate a trustee’s sale of the home in 2009. After the lender accelerated the note, the six year statute of limitations began to run. See A.R.S. § 12-548(A)(1) and A.R.S. § 33-816. Pretty standard facts so far, right? Don’t worry, it gets a bit more convoluted. Read the court decision
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Reprinted courtesy of Ben Reeves, Snell & Wilmer
Mr. Reeves may be contacted at breeves@swlaw.com

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Entire Fairness or Business Judgment? It’s Anyone’s Guess

January 09, 2015 — Maurice Pesso, Greg M. Steinberg and Christopher J. Orrico – White and Williams LLP
In lawsuits challenging the validity of business transactions and combinations, the most significant issue is often which standard of review the court applies: the defense-friendly “Business Judgment Rule” or the more stringent “Entire Fairness Standard.” The standard utilized by the court – or more often times the standard which the parties think the court will apply – can drive decisions on motion practice, settlement discussions, and resolution strategy. Under the Business Judgment Rule, directors are presumed to have acted in good faith and their decisions will only be questioned when they are shown to have engaged in self-dealing or fraud. However, if a “Controlling Shareholder” stands on both sides of the transaction, the court will often scrutinize the transaction under the more plaintiff-friendly “Entire Fairness Standard.” So, what constitutes a “Controlling Shareholder?” If the party in question owns more than 50% of a company’s equity, the answer is clear-cut. However, for cases involving stockholders who own less than 50% of a company’s equity and stand on both sides of the disputed transaction, the answer is not so simple. This uncertainty was highlighted in back-to-back decisions by the Delaware Chancery Court in November 2014. On November 25, 2014, the court granted the defendants’ motion to dismiss a derivative lawsuit alleging breach of fiduciary duty in In Re Sanchez Energy Derivative Litigation (“Sanchez”). Vice Chancellor Glasscock held that the complaint failed to plead facts sufficient to raise an inference that two directors with a collective 21.5% equity interest in the company were Controlling Shareholders. The very next day, in In Re Zhongpin Inc. Stockholders Litigation (“Zhongpin”), the Delaware Chancery Court denied the defendants’ motion to dismiss breach of fiduciary duty claims against an alleged “Controlling Shareholder” and members of the company’s board. In Zhongpin, Vice Chancellor Noble held that sufficient facts were plead to raise an inference that a CEO with a 17.5% equity was a “Controlling Shareholder.” Reprinted courtesy of White and Williams LLP attorneys Maurice Pesso, Greg M. Steinberg and Christopher J. Orrico Mr. Pesso may be contacted at pessom@whiteandwilliams.com Mr. Steinberg may be contacted at steinbergg@whiteandwilliams.com Mr. Orrico may be contacted at orricoc@whiteandwilliams.com Read the court decision
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Real Estate & Construction News Roundup (6/18/24) – Cannabis’ Effect on Real Estate, AI’s Capabilities for Fund Managers and CRE’s Exposure on Large Banks

July 15, 2024 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
In our latest roundup, hotel-to-apartment conversions take big leap, state governments pass squatting legislation, US regional banks risk having debt ratings downgraded, and more!

• Reclassifying cannabis as a lower-risk substance could bring significant changes to the real estate sector associated with cannabis. (Margaret Jackson, Yahoo)
• More than 60 of the largest banks in the country are at increased risk of failure due to their commercial real estate (CRE) exposures. (Florida Atlantic University).
• As extreme weather grows in frequency and intensity, the nation’s patchwork of building codes have not kept up with modern conditions and if something goes wrong, contractors are not off the hook if they simply build to code. (Julie Strupp, Construction Dive)

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Federal Courts Keep Chipping Away at the CDC Eviction Moratorium

March 22, 2021 — Kriston Capps - Bloomberg
In a March 10 decision, a federal court in Cleveland blocked the national eviction moratorium, making it the second court to challenge the emergency measure implemented under President Donald Trump and extended by the Biden administration. The order clears the way for courts and landlords to resume evictions against tenants across much of Ohio. But the landlord groups who brought the suit believe that the decision could have a broader national application, setting the stage for an earlier-than-anticipated resumption of eviction activity before the ban expires on March 31. The judge ruled that the Centers for Disease Control and Prevention, which introduced its ban on evictions in September, lacks the authority to enact such a policy. While the court stopped short of issuing an injunction against the CDC ban, its decision goes further than the Texas court that made a similar call late in February. Read the court decision
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Reprinted courtesy of Kriston Capps, Bloomberg

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