Owner’s Slander of Title Claim Against Contractor Recording Four Separate Mechanics Liens Fails Under the Anti-SLAPP Statute
February 01, 2021 —
Garret Murai - California Construction Law BlogMost mechanics lien actions follow a pretty standard process:
- A mechanics lien claimant, either a contractor subcontractor, material supplier, or laborer, performs work but is not paid;
- Mechanics lien claimant records a mechanics lien on the property in which work was performed; and
- Within 90 days thereafter files suit to foreclose on the mechanics lien.
Sometimes, either before or after a mechanics lien claimant files suit, the owner will record a mechanics lien release bond, in which case mechanics lien claimant files suit against the release bond.
But what if a mechanics lien claimant records a mechanics lien, the owner records a mechanics lien release bond, and the mechanics lien claimant records three different but identical mechanics liens thereafter? Is this even legal?
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
When is Mediation Appropriate for Your Construction Case?
May 07, 2015 —
Christopher G. Hill – Construction Law MusingsHere at Construction Law Musings, I have often discussed mediation as a good alternative to the expense and headaches of litigation. What I have discussed less often are the circumstances in which it is most appropriate to consider or even push for mediation.
The obvious and clearest time that mediation must be used is where the contract requires it. Many construction contracts, including those from the AIA (when the parties check the appropriate box) require mediation as a prerequisite to arbitration or litigation. As is almost always the case in Virginia, this clause will be enforced. In short, if your construction contract has such a clause, and despite my reservations about “mandatory mediation,” you need to at least go through the process before moving forward with your construction claim.
The more interesting case is where no such clause exists and the parties reach an impasse, sometimes prior to litigation and often after the filing of a construction complaint or demand for arbitration. What questions should you as a construction attorney be asking both to and about your construction clients before attempting mediation?
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Five Steps Employers Should Take In the Second Year Of the COVID-19 Pandemic
March 29, 2021 —
Laura H. Corvo - White and Williams LLPFor the past year, employers faced unprecedented difficulties as they navigated the twists, turns and ever-present challenges the COVID-19 pandemic dished out. A year later, new challenges face employers. The promise of vaccines, the fear of new variants, and the realization that “normal” will never look quite the same, leave many employers to wonder: “what next?”. As employers prepare to enter the second year of the COVID-19 pandemic, here are five things they should plan to do.
1. Update Workplace Safety Measures
At the onset of the pandemic, employers struggled to understand the safety obligations involved in preventing the spread of COVID in the workplace. As we approach the second year of the pandemic, clearer legal standards and better science exist requiring employers to update the steps they are taking to keep their workplaces safe.
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Laura H. Corvo, White and Williams LLPMs. Corvo may be contacted at
corvol@whiteandwilliams.com
New NEPA Rule Restores Added Infrastructure Project Scrutiny
May 10, 2022 —
Pam McFarland - Engineering News-RecordThe White House Council on Environmental Quality has finalized a regulation that restores basic project environmental review practices that were in place prior to changes made during the Trump administration. The rule is the first of two that will have the Biden administration’s stamp on how such reviews are done under the National Environmental Policy Act (NEPA) for major federal construction projects.
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Pam McFarland, Engineering News-Record
Ms. McFarland may be contacted at mcfarlandp@enr.com
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Will They Blow It Up?
March 28, 2012 —
CDJ STAFFThe issues concerning the Harmon Towers building in Las Vegas continue to make their way through the courts. As we noted in a previous piece, Cook County building officials stated that the building could be a hazard if Las Vegas were struck by an earthquake. The question of whether the building will continue to stand is just one of the issues in front of a judge.
MGM Resorts International argued at a March 13 hearing for permission to implode the Harmon hotel building. They claim that more than 1,700 defects have been discovered in the building and that the building is a public safety hazard. Arguing against demolition, Perini Building Company, the general contractor for the hotel, and its subcontractors are claiming that imploding the building would destroy evidence and prejudice juries in the ongoing construction defect claims. They claim that MGM Resorts wishes to abandon the building due to the economic slowdown. Perini Corp, the contractor for the project, claims that the building can be fixed. Perini claims that MGM’s position in the construction trial would be improved if the building is demolished.
After Judge Elizabeth Gonzalez heard the four days of testimony on the Harmon Towers building and whether it should be demolished, she scheduled more testimony, with two days in April and an entire week in July. Judge Gonzalez will be deciding whether the building will be torn down, imploded, or left in place.
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Be Proactive Now: Commercial Construction Quickly Joining List of Industries Vulnerable to Cyber Attacks
June 15, 2017 —
Jeffrey M. Dennis & Nathan Owens – Newmeyer & Dillion LLPCommercial contractors have long faced their own unique business risks - labor and material shortages, delay claims, bonding issues, and defects in workmanship. But, in today's ever-evolving cyber world, it is imperative that contractors understand they are vulnerable to risks beyond finishing a project on time and on budget. As we are seeing more and more each day, cyber threats impact all businesses, including the construction industry, and the failure to protect against these threats will cost your company millions in damages and reputational harm.
UNDERSTANDING CYBER THREATS
Traditionally, cyber threats are thought of as the theft of employee and customer information over the internet. Given the construction industry is the largest employer in the world, the need to protect this information is obvious. The release or loss of personnel or consumer data could lead to extensive liability under a variety of potential claims, including statutory fines. In addition to securing confidential information, companies have to protect against outside agents accessing control of a company’s security protocols, equipment or encrypting files using malicious software. The recent “WannaCry” attack demonstrates that no business is immune from cyber attacks.
EXAMPLES OF RELATED BREACHES
For those that think these scenarios do not happen, here are two examples of these types of breaches:
* In May 2013, Chinese hackers stole floor plans, server information, and security system designs from an Australian prime contractor. Fearing the risks of compromised physical and network security, the contractor incurred additional costs of $132.6 million in project delays and costs to rework the various components that had been stolen.
* Then, in December 2014, a German governmental office reported that a steel mill suffered massive damage when malware prevented a blast furnace from being properly shut down. Hackers gained access to key technology within the company, which eventually allowed them to control the production line.
THE NEW WORLD OF THE IoT
In addition to these types of “traditional” hacking threats, cybersecurity risks continue to evolve and become more complicated every day. Some of these new threats are driven by the development of a phenomenon known as the Internet of things, or IoT. The IoT is most basically defined as the interconnection of devices with on / off switches to the Internet and each other. Since the IoT is estimated to be 20 billion or more devices within 3 years, and can be combined with malicious software, IoT poses one of the most challenging risks for contractors to protect against.
The technology included in today's commercial buildings clearly opens this avenue of risk. A centralized computer control center, typically employed in new buildings, controls and maintains the systems that are vital to the operation of the building, e.g., power, elevators, HVAC, lighting, and security. What happens if a hacker gains control to one of these systems, let alone all of them? What if a hacker simply utilizes an IoT attack to overwhelm a building’s computer systems? In either scenario, at a minimum, significant disruption would occur. Worse, the health and safety of those within the building could be jeopardized. A hacker may utilize ransomware in combination with an IoT attack to take over control of the building and hold it and possibly the occupants “hostage” until a ransom is paid.
The first significant IoT attack happened in October 2016 when a major web hosting company was attacked through the IoT, causing the host site to crash. The attack did not steal information, it simply caused the site to crash. But, that crash caused world-wide disruption across the Internet.
Hackers used malicious software to access a hundred thousand common household devices — web cameras, fitness trackers, DVR’s, smart TVs and even baby monitors — to flood the hosting company’s servers with incredibly high internet traffic. This attack showed that everyday items can be hacked and controlled by cyber criminals and then used against anyone else.
As we have all seen in recent news, the WannaCry cyber attack impacted businesses across the globe. Days after the attacks, hospitals were still left feeling its impact with continued appointment and planned operation cancellations, and delays in service. We should expect to see these types of attacks increasing in frequency.
PAY ATTENTION OR FACE THE CONSEQUENCES
Make no mistake about it, the stakes are incredibly high in the realm of cyber security protection. By 2021, the annual worldwide cost attributable to cyber attacks is estimated to reach the trillions of dollars. If any of these potential attacks occur, a contractor faces significant exposure, in many forms, including:
* Monetary. Cybersecurity events result in direct monetary losses in the form of notification costs, data recovery costs, and, of course, legal and public relations fees. States are also starting to impose strict standards on companies which will result in significant regulatory punishment in the cases of cyber breaches, including the added costs associated with agency investigations, regulatory fines and consumer redress funds.
* Reputation. Perhaps more important than the monetary risk, a contractor may incur substantial reputational harm if such a breach or attack is successful. Recent data has shown that small to medium-sized companies that experience a significant cybersecurity breach go out of business within six months of the breach – due to not only high monetary costs, but severe reputational damage.
* Criminal. The recently passed New York cybersecurity regulations place potential criminal penalties on compliance personnel. Other states are likely to follow New York.
As a business leader and commercial builder, the time to act is now. While the purchase of specific cyber insurance is an important part of protecting against the risks of a cyber attack, many cyber policies contain exclusionary language embedded in the policy making coverage potentially illusory. Additional steps can and need to be taken immediately, including an honest discussion of internal cybersecurity protections, examination of risk management strategy, and the training of employees. Failure to take these important steps could result in a disastrous cybersecurity breach and the loss of millions of dollars.
Jeffrey M. Dennis currently serves as Newmeyer and Dillion’s Managing Partner and, as a business leader, advises his clients on cybersecurity related issues, introducing contractual and insurance opportunities to lessen their risk. You can reach Jeff at jeff.dennis@ndlf.com.
J. Nathan Owens is the Managing Partner for Newmeyer & Dillion’s Las Vegas office. With more than 10 years in the construction industry as a former contractor himself, Nathan understands the complex issues builders and developers face in all aspects of development and construction. You can reach Nathan at nathan.owens@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 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 http://www.newmeyeranddillion.com/.
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Contract Provisions That Help Manage Risk on Long-Term Projects
June 29, 2020 —
Jason Lambert - Construction ExecutiveFew things can dampen the thrill and promise of a newly closed construction deal than the realization that it could quickly become a losing proposition for the contractor depending on economic and other conditions. In an era of instant information, constantly adjusting markets and political extremes, projects that start under one set of assumptions or conditions can occur or conclude under much different ones. While no one has a crystal ball, there are contractual provisions that can provide clear guidance in the face of many “what ifs” that can arise in construction.
One of the chief concerns a contractor should have in a project lasting more than a few months is what impact price increases will have on the profitability of the job. On a true cost-plus project, this may be of little concern, but on any project with a limitation on costs or a guaranteed maximum price, contractors should insist on a procedure to revisit the limitation or price if certain conditions change.
This can be as simple as allowing the contractor to receive an upward adjustment in the price if costs increase by more than a certain percentage. It can be as complicated as requiring multiple new bids and disclosures to the property owner, architect or project manager and allowing approval of new suppliers or subcontractors to limit cost increases to the cheapest increase. The protection—and certainty—to the contractor though, comes from having a process in the contract to address cost increases, whether it is simple or complex.
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Jason Lambert, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Lambert may be contacted at
Jason.lambert@dinsmore.com
Thanks for the Super Lawyers Nod for 2019!
May 20, 2019 —
Christopher G. Hill - Construction Law MusingsIt is with humility and a sense of accomplishment that I announce that I have been selected for the third straight year to the Virginia Super Lawyers in the Construction Litigation category for 2019. Add this to my recent election to the Virginia Legal Elite in Construction and I’ve had a pretty good year. As always, I am thrilled to be included on these peer elected lists.
So without further ado, thank you to my peers and those on the panel at Virginia Super Lawyers for the great honor. I feel quite proud to be part of the 5% of Virginia attorneys that made this list for 2019.
The full lists of Virginia Super Lawyers will appear in the May edition of Richmond Magazine. Please check it out.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
