Claim Preclusion: The Doctrine Everyone Thinks They Know But No One Really Knows What it Means in Practice
April 25, 2023 —
Garret Murai - California Construction Law BlogGenerally, I think restraint in litigation is a good thing. Don’t go crazy on your claims, don’t go nut-so in your discovery, and don’t present your case at trial in a way that causes the judge and/or jury to raise their eyebrows or shake their heads in disbelief. But, as with nearly everything, there’s always an exception. One of which is: don’t hold back on a claim because you “think” you might be able to bring it later, because you might not be able to as the next case, 5th and LA v. Western Waterproofing Company, Inc., 87 Cal.App.5th 781 (2023), demonstrates.
The 5th and LA Case
At the outset, let me first say how much I enjoyed reading this case based on the writing alone. The case, as the 2nd District Court of Appeals states, involves “a second lawsuit about an increasingly leaky roof.”
In 2012, property owner 5th and LA hired roofing contractor Western Waterproofing Company, Inc. to remove and recoat a parking lot that served also served as the roof over retail and office space below. Western completed its work in July 2012 and almost immediately 5th and LA noticed water that the coating was failing causing water leaks to the interior of the building.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
SEC Recommendations to Protect Against Cybersecurity Threats
March 09, 2020 —
Shaia Araghi and Jeffrey Dennis – Newmeyer DillionWhat Happened?
The Securities and Exchange Commission's Office of Compliance Inspections and Examinations ("OCIE") issued a detailed
report on January 27, 2020 regarding various ways for organizations to safeguard data and protect against security and data breaches. Cyber threat actors are now invading data in a more sophisticated manner than ever before, and implementation of the SEC's recommended practices are essential in order to protect from outside vulnerabilities.
What is at Risk?
If market participants fail to implement these recommended policies, they will become more vulnerable to external attacks and data breaches. This can weaken an organization or firm if all employees are not properly trained and informed of the increasing dangers of cybersecurity breaches.
What Can You Do to Protect Yourself from a Cybersecurity Threat?
1.
Governance and Risk Management. Senior leaders should make efforts to improve the cyber safety at their organization. Some of these efforts may include:
- Devote attention to overseeing the organization's cybersecurity and resilience programs;
- Develop a risk assessment process to identify and mitigate cybersecurity risks to the organization;
- Adopt and implement policies and procedures regarding these risks;
- Promptly respond and adapt to changes by updating policies and procedures when necessary; and
- Establish communication policies and procedures to provide timely information to customers, employees, and others when needed.
2.
Access Rights and Controls. Implement updated controls to determine appropriate users for organization systems, limit access as appropriate to authorized users (including the set-up of multi-factor authentication) and monitor user access.
3.
Data Loss Prevention. OCIE has recommended various important data loss prevention measures for organizations:
- Establish a vulnerability management program;
- Implement capabilities that can monitor network traffic and detect threats on endpoints;
- Establish a patch management program covering all software and hardware;
- Maintain an inventory of hardware and software assets;
- Encrypt data and implement network segmentation;
- Create an insider threat program to monitor any suspicious behaviors; and
- Secure legacy systems and equipment through disposal of sensitive information from hardware and software and by reassessing vulnerability and risk assessments.
4.
Mobile Security. Establish policies and procedures for mobile device use, manage use of mobile devices through a mobile device management application, implement security measures for internal and external users, and train employees on mobile device policies and effective practices.
5.
Incident Response and Resiliency. Detect and disclose material information regarding incidents in a timely manner and assess appropriateness of corrective actions taken in response to incidents. Organizations should develop a plan if an incident occurs, address applicable reporting requirements, assign staff to execute specific areas of the plan, and test and assess the plan. In the event that a data breach occurs, an organization should improve its resiliency by maintaining an inventory of core business services and prioritizing business operations based on an assessment of risks.
6.
Vendor Management. Establish a vendor management program to ensure that vendors meet your organization's security requirements. Organizations should aim to understand all contract terms with vendors to ensure that all parties are in agreement regarding risk and security. Organizations should also monitor third-party vendors and ensure that the vendor continues to meet the organization's security requirements.
7.
Training and Awareness. Train staff to implement cybersecurity policies of the organization. Organizations should provide cybersecurity and resiliency training and re-evaluate the effectiveness of training procedures.
A Final Reminder for Organizations
Organizations should strive to implement as many of the SEC's recommended protection measures as possible. Ensuring that senior members of an organization are leading the initiative in increased awareness about cybersecurity threats through training of employees will lead to greater cyber safety for the overall organization. Although prevention of all breaches cannot be guaranteed, developing data loss prevention plans to keep the organization and its core businesses safe from attack will benefit the entire organization.
How We Can Help
If you feel that your business falls below the SEC's recommended security measures, our firm can assist with compliance. Contact us for a free initial consultation to determine a reasonable and practical way for your business to become compliant with these guidelines.
Shaia Araghi is an associate in the firm's Privacy & Data Security, and supports the team in advising clients on cyber-related matters, including compliance and prevention that can protect their day-to-day operations. For more information on how Shaia can help, contact her at shaia.araghi@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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The “Up” House is “Up” for Sale
May 07, 2015 —
Garret Murai – California Construction Law BlogYou might remember the 2009 Pixar/Disney 3-D animated movie “Up,” about an aging widower, Carl Frederickson, who learns to let go of his past and live his dream of moving he and his beloved late wife’s “clubhouse” to a cliff overlooking Paradise Falls in Venezuela where the once young couple’s hero, Charles Muntz, a famous but now disgraced explorer, was said to have discovered the skeleton of a rare bird which skeptics alleged was fabricated.
In the movie, the “clubhouse” is integral to the plot. In the opening scenes of the movie the audience learns that the clubhouse, which had been Mr. Frederickson’s deceased wife’s clubhouse that the couple later turned into their home, is sitting in the middle of a construction zone because old Mr. Frederickson has refused to sell his house to a developer who has proceeded to build around his house anyway. When a large loader knocks over his mailbox and a construction worker tries to fix it, Mr. Frederickson struggles with the worker not wanting him to touch any of his memories, and in the process inadvertently strikes the man with his cane. Later, in court, Mr. Frederickson learns that he has to leave the house and go to a retirement home. Apparently, justice is quick and decisive in their town. However, instead of going to a retirement home peaceably, codgy Mr. Frederickson rigs the clubhouse with thousands of balloons and proceeds to fly away, home and all. And, so the movie begins.
Soon, however, what some have called the real life “Up house” will be sold. And the story behind the house is about as a interesting as its movie counterpart. And, because we lawyers are into disclosures, I will disclose that “counterpart” is more accurate than “adaption,” since the movie Up was in production before the events giving rise to the real life Up house took place.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Another Defect Found on the Bay Bridge: Water Leakage
February 11, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to the San Francisco Chronicle, the eastern span of the Bay Bridge has dealt with alleged “defective welds” and “cracked steel rods,” and now there are reports of leakage. The Chronicle stated that rainwater “is dripping into the steel structure beneath the road deck on the suspension stretch of the span, which,” according to Caltrans “is supposed to be watertight.”
Water corrosion on a bridge could cost $6.4 billion, the San Francisco Chronicle claimed. Caltrans said that they “are going to have teams of engineers and inspectors there this weekend to assess the problem.”
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Teaming Agreements- A Contract to Pursue a Solicitation and Negotiate
November 23, 2020 —
David Adelstein - Florida Construction Legal UpdatesTeaming agreements are practical and useful agreements on public projects where a prime contractor teams with a subcontractor for purposes of submitting a bid or proposal in response to a solicitation. The prime contractor and subcontractor work together to pursue that solicitation and have the government award the contract to the prime contractor. The teaming agreement allows for information to be confidentially shared (estimating and pricing, construction methodologies, systems, and suggestions, value engineering, etc.) where the subcontractor agrees that it will only pursue the solicitation with the prime contractor. In other words, the subcontractor ideally is not going to submit pricing to another prime contractor proposing or bidding on the same project and is not going to share information the prime contractor has furnished to it. Likewise, the prime contractor is not going to use the subcontractor’s information for purposes of finding another subcontractor at a lower price and is agreeing to use its good faith efforts or best attempts to enter into a subcontract with the subcontractor if it is awarded the project. This is all memorialized in the teaming agreement.
The potential problem lies with language that requires the parties to use their good faith efforts or best attempts to enter into a subcontract if the project is awarded to the prime contractor. In essence, this can become a disfavored “agreement to agree” to a future contract that could allow either party to create an argument to back out of the deal under the auspice that they could not come to terms with the subcontract.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Good Indoor Air Quality Keeps Workers Healthy and Happy
June 10, 2024 —
Ellie Gabel - Construction ExecutiveMost people primarily think of air conditioners as appliances to keep people cool. However, a 2024 study of office air conditioners shows that they promote indoor air quality by minimizing the harmful effects of bushfire smoke.
The research indicated air conditioners used in office environments can trap particles and reduce people’s exposure to harmful elements such as sulfates and nitrates. The researchers collected particulate matter from commercial air conditioner filters during the peak bushfire season in Australia. Evaluations showed the daily particulate matter levels were usually two to three times the average amount. However, some hourly maximums were 10.5 times the usual.
The team took samples for four months, finding the specimens exceeded national air quality standards 19% of the time. Analyses performed in a university showed commercially available air filters captured significant amounts of bushfire smoke, reducing the associated hazards for building occupants.
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Ellie Gabel, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Congratulations to Haight Attorneys Selected to the 2020 Southern California Super Lawyers List
April 27, 2020 —
Haight Brown & BonesteelSeven Haight attorneys have been selected to the 2020 Southern California Super Lawyers list.
Congratulations to:
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Workers on Big California Bridge Tackle Oil Wells, Seismic Issues
February 02, 2017 —
Aileen Cho - BloombergSurrounded by workers, Nik Pecci, project safety manager with PMCM Consulting Engineers for the $1.5-billion Gerald Desmond Bridge replacement project—which is revitalizing a 50-year-old link in Long Beach—gestured in several directions: “I’ve got all these [port] tenants here, I’ve got a massive bridge over here. I have to build this thing intertwined with one of the busiest ports in the world. I constantly have commuters, cargo trucks and trailers and trains.”
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Aileen Cho, ENRMs. Cho may be contacted at
choa@enr.com
