Hake Law Attorneys Join National Law Firm Wilson Elser
April 02, 2014 —
Beverley BevenFlorez-CDJ STAFFIn a press release published on PRWEB, the national law firm Wilson Elser announced “that Bill Hake, founder of Bay Area–based Hake Law, and 15 members of his team, including attorneys, paralegals and staff, have joined the firm’s San Francisco office effective April 1.”
Specifically, “Wilson Elser has added a total of four partners from Hake Law, including Bill Hake, Melissa Ippolito, Nicolas Martin and Lucy Hoff, and four associates, including Gardiner McKleroy, Jeremy Berla, Molly Friend and Whitney Barnecut, bringing the total attorney headcount in Wilson Elser’s San Francisco office to 40.”
According to the release, “Hake Law was primarily a defense litigation firm focused on product liability, construction defects, D&O, catastrophic injury, toxic tort, white collar criminal, class action and complex litigation defense.” Wilson Elser is a “full-service and leading defense litigation law firm… with nearly 800 attorneys in 25 offices in the United States, one in London and through a network of affiliates in key regions globally.”
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Settlement Payment May Preclude Finding of Policy Exhaustion: Scottsdale v. National Union
December 11, 2013 —
Heather Anderson — Higgins, Hopkins, McLain & Roswell, LLC.In the last year, the U.S. District Court for the District of Colorado found that a settlement payment from an excess insurance carrier to another primary insurance carrier precluded a finding of vertical exhaustion sufficient to trigger the primary carrier’s duty to indemnify. See Scottsdale Ins. Co. v. National Union Fire Ins. Co. of Pittsburgh, 2012 WL 6004087 (D. Colo. 2012). The Scottsdale case arose out of the construction of a 507-unit apartment complex in Arapahoe County, Colorado in which a number of defects became apparent during construction. As a result, the owner of the project sued the general contractor and/or the construction manager, seeking to recover more than $22 million for various construction deficiencies. Id. at *1.
The general contractor was insured under policies issued by several carriers. Scottsdale Insurance Co. (“Scottsdale”) and National Union Fire Ins. Co. (“National Union) provided umbrella coverage, and CNA and American Zurich Ins. Co. (“Zurich”) provided primary insurance under commercial general liability policies. About five years later, the construction defect case settled for $8.5 million dollars.
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Heather AndersonHeather Anderson can be contacted at
anderson@hhmrlaw.com
Accounting for Payments on Projects Became Even More Crucial This Year
September 21, 2020 —
Christopher G. Hill - Construction Law MusingsI discussed
several of the statutory changes affecting the construction industry here at Construction Law Musings in the run-up to July 1, 2020. One of those changes, an amendment to
Virginia Code Section 43-13, may add another arrow to the collection quiver of subcontractors and suppliers. As part of the previously-linked rundown, I highlighted one of the big additions in 2020, namely the amendment making those pesky clauses that let those up the payment chain from you hold money on “this or any other project” void as against public policy.
The other big addition to 43-13 is the change that adds a possible civil cause of action for downstream and unpaid subcontractors and suppliers in the event that funds paid to a general contractor or subcontractor are not first used to pay their downstream contractors and suppliers. Prior to July 1, 2020, this statute provided criminal penalties for such behavior but did not contain the possibility of a civil penalty. The operative language for the change is as follows:
The use by any such contractor or subcontractor or any officer, director, or employee of such contractor or subcontractor of any moneys paid under the contract before paying all amounts due or to become due for labor performed or material furnished for such building or structure for any other purpose than paying such amounts due on the project shall be prima facie evidence of intent to defraud. Any breach or violation of this section may give rise to a civil cause of action for a party in contract with the general contractor or subcontractor, as appropriate; however, this right does not affect a contractor’s or subcontractor’s right to withhold payment for failure to properly perform labor or furnish materials on the project.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Texas Couple Claim Many Construction Defects in Home
October 08, 2013 —
CDJ STAFFA Galveston, Texas couple has claimed that their new home has “many” defects and are suing the seller. John Klein and Cheri Harmon-Klein state that they were told that the house was built in conformance with the International Residential Code and that the all hurricane damage had been repaired. Instead, they characterized the house as “unfit for human habitation.” The couple claims that the defects were not evident at inspection prior to their purchase.
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Builders Beware: Smart Homes Under Attack by “Hide ‘N Seek” Botnet
October 30, 2018 —
Scott L. Satkin & Amtoj S. Randhawa - Newmeyer & Dillion LLPGerman manufacturer eQ-3 has found itself under siege by a botnet known as "Hide 'N Seek." This pernicious malware has infected tens of thousands of eQ-3's smart home devices by compromising the device's central control unit. Once a device has been infected, the malware spreads to other Internet of Things ("IoT") devices connected to the same wireless network. IoT devices have become the prime target for botnet attacks. As opposed to computers, laptops, or other larger computing devices, the smaller storage capacity and lower processing power of IoT devices limit the amount and complexity of the security measures that can be installed—making them an easier target for botnets.
What is a Botnet?
For those unfamiliar with the term, a botnet is a network of devices infected with a malware program allowing the infector to control and/or exploit the devices. Once a suitable number of devices are infected, the person or group controlling the botnet can harness the computing power of each infected device to perform activities which were previously constrained by a single device's capabilities (i.e. DDoS attacks, spamming, cryptocurrency mining, etc.).
Hide 'N Seek – History and Capabilities
The Hide 'N Seek botnet first appeared in January 2018 and has since spread rapidly. Its sophisticated design and capabilities have captivated the attention of many security watchdogs and researchers. While many botnets are designed to be "quick and dirty" (i.e. infect a few devices, eke out a little profit, and inevitably be cleared out or rendered ineffective by security updates and fixes), Hide 'N Seek was designed to maintain itself in the host's system indefinitely. When it was first released, Hide 'N Seek primarily targeted certain routers and internet-enabled security cameras; however, it has now began targeting digital video recorders, database servers, and most recently, smart home hubs.
Hide 'N Seek's communication capabilities are also more advanced than previous botnets. Previous botnets relied on existing communications protocols to communicate with other another, but Hide 'N Seek uses a custom-built peer-to-peer system to communicate. This advancement allows Hide 'N Seek to spread more rapidly than previous botnets.
Hide 'N Seek is also capable of extracting a device owner's personal information (i.e. name, address, e-mail, telephone numbers, etc.) whereas previous botnets were not. Most importantly, Hide 'N Seek is consistently updated to increase its infection rate, decrease its detection probability, and bypass any security measures designed to detect and remove it from the system. This modularity has proved to be Hide 'N Seek's greatest strength.
Protecting Against Hide 'N Seek and Other Botnets
While many of the precautions will undoubtedly come from the device manufactures vis-à-vis software programming and updates, homebuilders can still take some precautions to protect their customers.
- When selecting a smart home system to incorporate into a home's construction, be sure to evaluate its security features including, but not limited to its: wireless connectivity, password/passphrase requirements, interconnectedness with other IoT devices, etc. Third-party reviews from tech-oriented outlets will likely have useful information on a device's security measures, vulnerabilities, and any recent security compromises.
- Be vigilant in installing any eQ-3 smart home systems. The extent of the damage caused by Hide 'N Seek botnet remains unknown, as does damage from other potentially-infected technology. Thus, it may be prudent to avoid installing any eQ-3 device until it becomes evident that the threat has been neutralized and all security vulnerabilities have been remedied.
- If a builder uses technology other than eQ-3, precautions must be taken. Ensure that technology providers are thoroughly researched. It is also recommended to include strong contractual indemnity provisions, and require vendors to carry cyber-specific insurance policies.
- Homebuilders should consider purchasing their own stand alone cyber liability policies as a safety net, should potential exposure arise.
Scott Satkin and Amtoj Randhawa 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 Amtoj at amtoj.randhawa@ndlf.com.
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Billionaire Row Condo Board Sues Developers Over 1,500 Building Defects
September 29, 2021 —
Robert Burnson, BloombergThe condo board at one of New York’s tallest and toniest towers sued the building’s developers, claiming design flaws are to blame for flooding, stuck elevators and “horrible and obtrusive noise and vibration.”
The residential tower at 432 Park Avenue is a 1,396-foot skyscraper overlooking Central Park that was opened in 2015 on the city’s so-called Billionaire Row.
The condo board claims its engineering consultant has identified more than 1,500 construction and design defects — “many of which are described as life safety issues.”
The board that represents the condo owners sued the developers, CIM Group and Macklowe Properties, and the company, also known as sponsor, that the developers formed to build the tower.
The board is seeking $250 million, plus punitive damages, in the lawsuit, filed Thursday in New York Supreme Court.
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Robert Burnson, Bloomberg
Indemnity Provision Prevails Over "Other Insurance" Clause
December 06, 2021 —
Tred R. Eyerly - Insurance Law HawaiiThe Second Circuit predicted that the New York appellate courts would find the contractual indemnity provision prevailed over the application of an "other insurance" provisions. Cent. Sur. Co. v. Metro. Transit Auth., 2021 U.S. App. LEXIS 29860 (2nd Cir. Oct. 5,2021).
Long Island Railroad (LIRR) contracted with general contractor Rukh Enterprises, Inc. to complete a railroad bridge lead paint removal and repainting project on Metropolitan Transit Authority property. Rukh hired subcontractor, East Coast Painting & Maintenance to complete certain lead-related work on the project.
An employee of East Coast suffered an injury while working on the project. The employee sued LIRR and Rukh. A settlement in the underlying case was reached, implicating three of four policies - Admiral (primary for LIRR), Arch (CGL for Rukh), and Harleysville (primary for East Coast). Century Surety (excess liability for Rukh) did not contribute to the settlement and disclaimed all coverage.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Coronavirus and Contract Obligations
March 30, 2020 —
David R. Cook - AHC Construction and Procurement BlogThe Coronavirus (COVID-19) pandemic has caused a global disruption to businesses, causing many to temporarily close and lay off employees. As businesses assess the short– and long–term economic impact of COVID-19, they should also evaluate what contractual obligations and remedies are available under various agreements (e.g., leases, vendor agreements, and supply agreements). When performance may be delayed or may not occur altogether, businesses should consider their force majeure clauses, if any, and the doctrines of impossibility, impracticability, and frustration of purpose.
Force Majeure
Generally, unless a contract provides that performance will be suspended or relieved when certain events occur (e.g., “acts of God,” government regulation, acts of war or terror, strikes), each party is obligated to perform. However, when there is an express force majeure provision, certain events or acts may excuse non-performance or delayed performance. But depending on the jurisdiction, courts may construe force majeure provisions narrowly and excuse performance only for those events expressly listed in the clause. Nonetheless, if the force majeure provision includes pandemic, epidemic, quarantine, government act, disease, or similar terms, then the COVID-19 pandemic may excuse performance or allow delayed performance.
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David R. Cook, Autry, Hall & Cook, LLPMr. Cook may be contacted at
cook@ahclaw.com
