Biden’s Solar Plans Run Into a Chinese Wall
May 23, 2022 —
Liam Denning - BloombergA new and unexpected obstacle to President Joe Biden’s green ambitions has emerged: a tiny solar-power company based in San Jose.
Auxin Solar Inc., which accounts for all of 2% of U.S. solar-module manufacturing, recently persuaded the Commerce Department to open a potentially devastating trade inquiry. After the U.S. imposed anti-dumping measures against Chinese solar-cell and module manufacturers just over a decade ago, alternative suppliers sprang up in South Korea and Southeast Asia. Auxin now contends that those other Asian suppliers are effectively used by Chinese companies to circumvent the anti-dumping measures.
If Commerce ultimately agrees, then more than four-fifths of solar-module imports to the U.S. and half of all cells could suddenly be subject to steep tariffs, perhaps levied retroactively. The Solar Energy Industries Association warns of dire consequences for U.S. solar-power development — critical to Biden’s decarbonization targets — claiming that some suppliers are already backing away because of the risk. Heavyweight NextEra Energy Inc. warns that the investigation may delay 2.8 gigawatts of projects slated for this year. Timothy Fox of ClearView Energy Partners, a Washington-based analysis firm, says Commerce’s “structural” inclination toward protectionism may lead it to concur with Auxin.
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Liam Denning, Bloomberg
Providing “Labor” Under the Miller Act
January 28, 2019 —
David Adelstein - Florida Construction Legal UpdatesA recent opinion out of the Northern District of California discusses the “labor” required to support a Miller Act payment bond claim on a federal construction project. It is a good case that discusses the type of labor required to support a Miller Act payment bond claim.
In Prime Mechanical Service, Inc. v. Federal Solutions Group, Inc., 2018 WL 619930 (N.D.Cal. 2018), a prime contractor was awarded a contract to design and install a new HVAC system. The prime contractor subcontracted the work to a mechanical contractor. The mechanical contractor with its sub-designer prepared and submitted a new HVAC design to the prime contractor and provided 4-5 onsite services to determine the location and layout for the new HVAC equipment, perform field measurements, obtain security passes, and plan site access and crane locations. The mechanical contractor submitted an invoice to the prime contractor and the invoice remained unpaid for more than 90 days, which the prime contractor refused to pay. The mechanical contractor than filed a Miller Act payment bond lawsuit.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Newmeyer Dillion Partner Louis "Dutch" Schotemeyer Named One of Orange County's 500 Most Influential by Orange County Business Journal
January 25, 2021 —
Newmeyer DillionProminent business and real estate law firm Newmeyer Dillion is pleased to announce that partner
Louis "Dutch" Schotemeyer has been selected to the Orange County Business Journal's fifth annual "OC 500 Directory of Influence" list. The 2020 list recognizes the 500 most influential leaders who have made a positive mark on Orange County's business community over the last year.
Located in the Newport Beach office, Schotemeyer's practice areas include, Real Estate Litigation, Construction Operations and Litigation, Business Litigation and Labor & Employment. Additionally he provides risk management and legal advice to companies without dedicated in-house legal counsel. A seasoned litigator, he leverages his litigation experience to advise clients, including C-Level executives, regarding potentially litigious situations that touch their business operations and his practice areas.
"Dutch's deep knowledge and experience as in-house counsel has informed his business-first approach to complex legal disputes and made him an invaluable resource to the Orange County business community," said Firm Managing Partner Paul Tetzloff. "We are pleased that Dutch's contributions to the community have been recognized by Orange County Business Journal."
Schotemeyer
rejoined the firm in September after serving as Vice President and Associate General Counsel for William Lyon Homes, Inc., and Vice President and Deputy General Counsel for Taylor Morrison. While at William Lyon Homes, he was named 2019 "General Counsel Rising Star" by the Orange County Business Journal.
The full "OC 500 Directory of Influence" list was distributed in a special December supplement.
About Newmeyer Dillion
For over 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that achieve client objectives in diverse industries. With over 60 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 operations, growth, and profits. 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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“Since You Asked. . .”
October 15, 2024 —
Daniel Lund III - Lexology… you must now pay.
So said a California appellate court, affirming the trial court’s decision against a subcontractor suing for unpaid subcontract sums. Instead of being awarded those unpaid amounts, the subcontractor lost the case and was tagged with a $1.55 million attorney’s fees award and $270,000 costs award in favor of the defendants.
What went wrong?
California law requires a licensed contractor to maintain at all times proper workers’ compensation insurance coverage. The failure to maintain the coverage and have the certificate of coverage on file with the California Contractors State License Board results in “automatic and immediate suspension” of the contractor license. Retroactive reinstatement of the license may occur only if the contractor provides proof of the insurance within 90 days of the effective date of the insurance certificate – unless the contractor can show that failure to have the certificate on file was “due to circumstances beyond the control of the licensee.”
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
Connecticut Supreme Court Again Asked to Determine the Meaning of Collapse
August 20, 2018 —
Tred R. Eyerly - Insurance Law HawaiiFaced with a series of policies, earlier ones which did not define collapse, newer policies which did, the court determined there was a possibility of coverage under the older policies which did not define collapse. Vera v. Liberty Mut. Fire Ins. Co., 2018 U.S. Dist. LEXIS 100548 (D. Conn. June 15, 2018).
Connecticut courts have faced a rash of collapse cases as a result of cement provided to build house foundations by J.J. Mottes Concrete Co. Many basement foundations built with the concrete have shown cracking and other signs of premature deterioration.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Ohio: Are Construction Defects Covered in Insurance Policies?
January 09, 2015 —
Beverley BevenFlorez-CDJ STAFFAmanda M. Leffler of Brouse McDowell analyzed Ohio’s 2012 Supreme Court case Westfield Ins. Co. v. Custom Agri Sys., Inc., which ruled that “’[c]laims of defective construction or workmanship brought by a property owner are not claims for ‘property damage’ caused by an ‘occurrence’ under a commercial general liability policy.’”
Leffler stated that the Ohio Supreme Court decision wasn’t as “sweeping” as it might at first appear: “Rather, the Ohio Supreme Court adopted the rule that construction defects are covered ‘occurrences’ within the meaning of commercial general liability (‘CGL’) policies, but only to the extent that property other than the policyholder’s own work is damaged.“
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Students for Fair Admissions: Shaking the Foundations of EEOC Programs and M/WBE Requirements
October 16, 2023 —
Denise Farris Scrivener - The Dispute ResolverOn June 29, 2023, the Supreme Court issued a landmark decision,
Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, holding that race-based affirmative action programs in college admissions violate the Equal Protection Clause of the Fourteenth Amendment. 143 S. Ct. 2141, 216 L. Ed. 2d 857 (2023). On July 13, 2023, thirteen state Attorney Generals, relying on Students for Fair Admissions, issued a joint letter to the CEOs of the Fortune 100 companies, urging the elimination of all race-based programs in EEOC and government and private contracting. On July 19, 2023, a Tennessee district court judge issued an injunctive order against the Small Business Administration’s 8(a) application program on the basis of the program’s race-based presumption of disadvantage. Ultima Servs. Corp. v. U.S. Dep't of Agric., No. 220CV00041DCLCCRW, 2023 WL 4633481 (E.D. Tenn. July 19, 2023).
The message to be taken from these developments: all race-based programs and, by extension, potentially all gender-based programs—including ones that require or reward participation of Minority Business Enterprises (“MBE”) or Women Business Enterprise (“WBE”) in construction programs—currently stand on shaky ground.
This post will explain the constitutional foundations at play, the decisions shaking things up, and why well-rounded dialogue is urgently needed to address the status of these programs before they’re dead in the water.
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Denise Farris Scrivener, Farris Legal Services LLCMs. Scrivener may be contacted at
denise@farrislegal.net
Force Majeure Under the Coronavirus (COVID-19) Pandemic
March 08, 2021 —
Lindsay T. Watkins - Ahlers Cressman & Sleight PLLCAs COVID-19 disrupts work and life as we know it, the question many contractors have is what protections are available against the inevitable project impacts and delays? Generally, construction contracts require a contractor to timely perform work until project completion or potentially face damages (liquidated or actual) and possible termination. When events occur, however, that are beyond our control (such as a national pandemic), it is important to review and understand what contract provisions or avenues are available for potential relief.
1.
Review Your Contract For A Force Majeure Provision.
A
“force majeure” contract provision is commonly included in construction contracts, service agreements, purchase orders, etc. It typically covers events or conditions that can be neither anticipated nor controlled. These provisions, however, will vary greatly from contract to contract and may not include the language “force majeure” but rather may be included in general delay or impact clauses. For example, some common provisions include:
- Washington State Department of Transportation Clause (2018 Standard Specifications for Road, Bridge and Municipal Construction): The Contractor shall rebuild, repair, restore, and make good all damages to any portion of the permanent or temporary Work occurring before the Physical Completion Date and shall bear all the expense to do so, except damage to the permanent Work caused by: (a) acts of God, such as earthquake, floods, or other cataclysmic phenomenon of nature, or (b) acts of the public enemy or of governmental authorities; or (c) slides in cases where Section 2-03.3(11) is applicable; Provided, however, that these exceptions shall not apply should damages result from the Contractor’s failure to take reasonable precautions or to exercise sound engineering and construction practices in conducting the Work.
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Lindsay T. Watkins, Ahlers Cressman & Sleight PLLCMs. Watkins may be contacted at
Lindsay.Watkins@acslawyers.com
