Record Keeping—the Devil’s in the Details
July 30, 2015 —
Craig Martin – Construction Contract AdvisorAnother court has found that poor record keeping will prevent recovery on a claim. The court in Weatherproofing Tech., Inc. v. Alacran Contracting, LLC found that a contractor’s documents were a mess and that no reasonable jury could base a verdict on the contractor’s records.
The underlying project involved the construction of an army training facility. The total project cost approximated $13 million. Alacran, the general contractor, subcontracted about $3 million of the work to Weatherproofing Tech. Alacran paid Weatherproofing $700,000 for its work, even though Weatherproofing submitted invoices of more than $2 million. Alacran justified its refusal to pay Weatherproofing on the grounds that the parties had agreed to split the profit and loss on the project and the project was out of money. Not surprisingly, Weatherproofing sued Alacran for the amount owed.
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Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
Haight Welcomes Elizabeth Lawley
September 03, 2015 —
Elizabeth W. Lawley – Haight Brown & Bonesteel LLPHaight Brown & Bonesteel LLP welcomes partner Elizabeth W. Lawley. Elizabeth joins Haight’s new Sacramento office in the Construction Law and General Liability Practice Groups. She has extensive experience representing construction companies, contractors, subcontractors, real estate developers and insurers. Among her clients are prestigious national home builders, window manufacturers, roofers, HVAC, tile and masonry contractors. Elizabeth provides exceptional legal services while navigating complex litigation handling and resolution and she adds another layer of top-tier skills to Haight’s existing practice.
Haight Brown & Bonesteel LLP
2485 Natomas Park Drive
Suite 450
Sacramento, CA 95833
www.hbblaw.com
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Elizabeth W. Lawley, Haight Brown & Bonesteel LLPMs. Lawley may be contacted at
elawley@hbblaw.com
COVID-19 Response: Executive Order 13999: Enhancement of COVID-19-Related Workplace Safety Requirements
March 08, 2021 —
Alan Rupe & Luis Mendoza - Lewis BrisboisPresident Biden has signed 28 Executive Orders as of February 2, 2021. While this is a large number of Executive Orders compared to the historical record, most call for creating task forces and directing agencies to explore policy changes. However, there is one that stands out to employment lawyers – Executive Order 13999 (Order). Titled “Protecting Worker Health and Safety,” the Order addresses workplace safety. It sets out instructions, primarily to the Secretary of Labor and Assistant Secretary of Labor for Occupational Safety and Health, for establishing and issuing a set of guidelines under the Occupational Safety and Health Act (OSHA).
Pursuant to the Order, the Secretary of Labor will issue revised guidance to employers on workplace safety concerning COVID-19, determine if emergency workplace standards are required, and improve overall OSHA shortcomings related to COVID-19 workplace protections and enforcement. Enforcement will include the use of anti-retaliation principles concerning employees reporting unsafe conditions in the workplace. OSHA has issued initial guidance based on the Order.
Reprinted courtesy of
Alan Rupe, Lewis Brisbois and
Luis Mendoza, Lewis Brisbois
Mr. Rupe may be contacted at Alan.Rupe@lewisbrisbois.com
Mr. Mendoza may be contacted at Luis.Mendoza@lewisbrisbois.com
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Surplus Lines Carrier Can Force Arbitration in Louisiana Despite Statute Limiting Arbitration
February 12, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe federal district court granted the surplus lines insurer's motion to compel arbitration despite a Louisiana statute barring policies from depriving courts of jurisdiction in cases against insurers. Queens Beauty Supply, LLC v. Indep.Specialty Ins. Co., 2023 U.S. Dist. LEXIS 195372 (E.D. La. Oct. 31, 2023).
Hurricane Ida damaged property leased by Queens. Queens filed suit against its insurer, Independent Specialty Insurance Company (ISIC) for breath of contract and bad faith for failing to pay the full amount Queens contends it was owed for the damage. ISIC moved to compel arbitration.
Queens argued that ISIC waived its right to enforce the policy's arbitration clause by its actions before the court, including failing to opt-out of the settlement program adopted for Hurricane Ida cases. The court disagreed, ISIC had taken no overt act that evidenced a desire to resolve the instant dispute through litigation rather than arbitration. ISIC asserted as an affirmative defense that Queens's claims were barred by the arbitration clause in the policy. ISIC then participated in the settlement program for Hurricane Ida cases, which evidences a desire to settle the dispute, not to resolve it by litigation. Therefore, ISIC had not waived its right to arbitrate.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Virginia Joins California and Nevada in Passing its Consumer Privacy Act
March 15, 2021 —
Kyle Janecek – Newmeyer DillionCalifornia tends to be on the forefront in consumer privacy laws within the United States. However, there is a growing momentum for other states to join California in legislating consumer privacy rights, as well as pushes for federal legislation. The latest state to join in and pass consumer privacy legislation is Virginia, with its Virginia Consumer Data Protection Act (VCDPA). With Virginia joining the fray, several questions arise, such as how closely does the VCDPA follow California's legislation? How, if at all, does it differ from already-existing legislation? What do businesses need to comply with the VCDPA, if at all?
WHAT IS THE VIRGINIA CONSUMER DATA PROTECTION ACT?
The VCDPA largely mimics elements from its Californian cousins, the California Consumer Privacy Act (CCPA) as modified by the California Privacy Rights Act (CPRA). The main features of the law include: (a) issuing the right to request what information is collected; (b) the right to correct information provided; (c) the right to deletion; (d) providing notice to consumers regarding the collection of their data; and (e) protecting consumer data. Further, the consumer requests, akin to the CCPA, do require verification, and similarly phrased data security practices that rely on how "reasonable" they are, depending on the volume and type of information at issue. Though, the VCDPA does expand on this slightly, requiring "data protection assessments" to determine the security of protected information, how it is shared and used, the benefits in sharing the information and harm resulting from any breaches.
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Kyle Janecek, Newmeyer DillionMr. Janecek may be contacted at
kyle.janecek@ndlf.com
U.S. Government Bans Use of Mandatory Arbitration Agreements between Nursing Homes and Residents, Effective November 28, 2016
November 17, 2016 —
Jeffrey M. Daitz & Joseph Vento – Peckar & Abramson, P.C.On September 28, 2016, the Centers for Medicare and Medicaid Services (“CMS”), which is part of the U.S. Department of Health and Human Services, issued a new rule that bans federal funding to any nursing home that requires its residents to enter mandatory pre-dispute arbitration agreements upon admission. The rule prevents nursing homes from forcing residents to submit any disputes concerning care, payment for services, etc., to mandatory binding arbitration rather than to a court.
Mandatory arbitration agreements are frequently used in many types of industries and have been for decades. However, recent eff orts by several consumer advocate groups have sought to curtail the use of mandatory arbitration clauses in industries where the individuals who executed such agreements have little to no bargaining power. According to these groups, nursing home residents are potentially more vulnerable than most to being unwittingly bound by such agreements because of the nature of the admissions process. The new rule is set to take effect on November 28, 2016, and will only apply to agreements entered into after that date.
Reprinted courtesy of
Jeffrey M. Daitz, Peckar & Abramson, P.C. and
Joseph Vento, Peckar & Abramson, P.C.
Mr. Daitz may be contacted at jdaitz@pecklaw.com
Mr. Vento may be contacted at jvento@pecklaw.com
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Rent Increases During the Coronavirus Emergency Part II: Avoiding Violations Under California’s Anti-Price Gouging Statute
April 06, 2020 —
Dan Schneider - Newmeyer DillionIn my earlier article, Profiting From Fear: What You Need to Know About Price Gouging During the Coronavirus Emergency, I discuss price gouging and how the anti-price gouging statute, California Penal Code 396 (“CPC 396”), protects buyers of goods and services deemed vital and necessary for the health, safety and welfare of consumers. Part II of the article provides guidance to landlords on the parameters applicable to acceptable price increases and focuses attention on the application of CPC 396 to rental housing and related issues.
California Penal Code 396
As it pertains to housing, defined as “any rental housing with an initial lease term of no longer than one year,” price gouging occurs when a landlord increases the rent of an existing or prospective tenant by more than 10 percent of the previously charged or advertised price following an emergency or disaster declaration for a period of 30 days.2 A residential landlord is only allowed to increase rent in excess of 10 percent if “the increase is directly attributable to additional costs for repairs or additions beyond normal maintenance that were amortized over the rental term that caused the rent to be increased greater than 10 percent or that an increase was contractually agreed to by the tenant prior to the proclamation or declaration” (CPC 396(e).) Further, landlords are prohibited from evicting a tenant and then re-renting the property at a rate that the landlord would have been prohibited from charging the evicted tenant under the statute (CPC 396(f).)3
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Dan Schneider, Newmeyer DillionMr. Schneider may be contacted at
daniel.schneider@ndlf.com
A Court-Side Seat: NWP 12 and the Dakota Access Pipeline Easement Get Forced Vacations, while a Potential Violation of the Eighth Amendment Isn’t Going Anywhere
August 10, 2020 —
Anthony B. Cavender - Gravel2GavelHere’s a report on several new decisions made over the past few days.
U.S. SUPREME COURT
U.S. Army Corps of Engineers v. Northern Plains Resources Council
On July 8, 2020, the Court has issued a partial stay of the decision of the U.S. District Court for Montana, which had held that the nationwide use by the Corps of Engineers of its Nationwide Permit 12 to permit oil and gas pipelines must be vacated because the Corps, when it reissued these permits in 2012, failed to follow the requirements of the Endangered Species Act. The breadth of this ruling seems to have surprised and alarmed many past and perspective permittees of the Corps. The stay will not apply to the ongoing Ninth Circuit litigation.
FEDERAL COURTS OF APPEAL
Vega, et al. v. Semple (The U.S. Court of Appeals for the Second Circuit)
On June 29, 2020, the court refused to dismiss a putative class action by past and present inmates of Connecticut’s Garner Correctional Institution who alleged that state correctional officials exposed them to excessive amounts of radon gas in violation of the Eighth Amendment. These officials are alleged to have been “deliberately indifferent” to inmate safety. A 1993 Supreme Court decision, Helling v. McKiney, clearly established the law in this area, and the Garner facility opened in 1992. The defense clams of limited immunity as to federal law violations were rejected.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
