Introducing Nomos LLP!
December 30, 2019 —
Garret Murai - California Construction Law BlogWe’ve been quiet lately we know.
We’ve been nesting. Not the alien popping through your stomach kind of nesting, although, there have been a few white knuckled “what the heck did we get ourselves into!” moments. Rather, we’ve been quietly building something we think is pretty great. Not just for us, but for our clients.
Our own law firm. So here’s the 411:
What’s with the name Nomos LLP?
We’ve gotten a few questions about that. We wanted to create a client-centric law firm not a lawyer-focused one. Hence, no last names. Plus, we don’t have cool last names like Low, Ball & Lynch or Payne & Fears. The name “nomos” is Greek for “law.” And, of course, it’s from the Greeks that much of modern Western legal system is derived. Simple. Opa!
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Who Says You Can’t Choose between Liquidated Damages or Actual Damages?
October 11, 2017 —
Kevin Walton - Snell & Wilmer Real Estate Litigation BlogIn Colorado, courts enforce liquidated damages provisions if three elements are satisfied: (1) the parties intended to liquidate damages; (2) the amount of liquidated damages was a reasonable estimate of the presumed actual damages caused by a breach; and (3) at the time of contracting, it was difficult to ascertain the amount of actual damages that would result from a breach. But what happens when a contract gives a party a right to choose between liquidated damages or actual damages? This seems troublesome because it allows a party to set the floor for their damages without limitation if actual damages exceed the contractual amount. As a matter of first impression, the Colorado Supreme Court addressed this issue in Ravenstar, LLC v. One Ski Hill Place, LLC, 401 P.3d 552 (Colo. 2017).
In Ravenstar, plaintiffs contracted to buy condominiums from a developer. As part of their contracts, plaintiffs deposited earnest money and construction deposits equal to 15% of each unit’s purchase price. Plaintiffs breached their contract by failing to obtain financing and failing to close by the closing date. Each contract’s damages provision provided that if a purchaser defaulted, the developer had the option to retain all or some of the deposits as liquidated damages or, alternatively, to pursue actual damages and apply the deposits to that award. After plaintiffs defaulted, the developer chose to keep plaintiffs’ deposits as liquidated damages. Plaintiffs sued for return of their deposits.
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Kevin Walton, Snell & WilmerMr. Walton may be contacted at
kwalton@swlaw.com
Crime Policy Insurance Quotes Falsely Represented the Scope of its Coverage
July 13, 2020 —
Brian J Clifford - Saxe Doernberger & VitaAn Indiana businessman found out the hard way how far his insurance company was willing to go to avoid paying a claim after it misrepresented the coverage of a crime policy it sold to him. The quote for the policy indicated that it included coverage for losses resulting from computer hacking. Despite this representation, when the policyholder’s bank accounts were hacked, the insurer denied coverage on the ground that there was no provision for hacking coverage in the policy. Fortunately, the Indiana Court of Appeals recognized the insured’s right to argue before a jury that the insurer’s quotes falsely represented the scope of its coverage.
In Metal Pro Roofing, LLC v. Cincinnati Ins. Co., Richard Cornett, principal of Metal Pro Roofing, LLC and Cornett Restoration, LLC (the “LLCs”), purchased a Cincinnati Insurance Company CinciPlus Crime XC+ Policy (the “Policy”). At the time Mr. Cornett purchased this coverage, and during all subsequent renewals, Cincinnati issued insurance quotes that stated:
Cincinnati can insure your money and securities while at your premises, inside your bank and even off site in the custody of a courier. While you’ve taken precautions to protect your money and securities, you run the risk of loss from employees, robbers, burglars, computer hackers and even physical perils such as fire.
Give yourself peace of mind with Cincinnati’s crime coverage to insure the money and securities you worked so hard to earn.
Crime Expanded Coverage (XC®)Plus Endorsement $125.00.
(Emphasis added.)
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Brian J Clifford, Saxe Doernberger & VitaMr. Clifford may be contacted at
bjc@sdvlaw.com
Reasons to Be Skeptical About a Millennial Homebuying Boom in 2016
December 10, 2015 —
Patrick Clark – BloombergPredicting whether millennials are finally going to start buying homes in large numbers has become a seasonal sporting event for real estate experts (also something resembling a periodic parental nag). There's good reason for the abiding fixation. Millennials are the largest generation in the U.S. labor force and something akin to guppies in the housing market food chain: When a first-time buyer moves into an entry-level house, it lets the sellers upgrade. But they've been held back by housing price increases that outpace wage hikes, not to mention limited access to credit, and rising rents that make it harder to save for a down payment.
Will next year be the year that millennials1 finally satisfy builders and real estate agents (not to mention mom and dad) by making their presence felt in the housing market? Yes, but not to the degree that many might hope.
Millennials will make up the largest share of homebuyers in 2016
This is more of a demographic inevitability than a prediction. Historically, the largest share of U.S. homebuyers have been between 25 and 34 years old. Millennials will buy one out of three homes in 2016, predicts Jonathan Smoke, chief economist for Realtor.com, a small uptick from this year. If you prefer your glass half empty, though, Zillow Chief Economist Svenja Gudell thinks the median age of first-time home buyers will hit a new high next year. In either case, Americans will continue the trend of buying their first homes later in life than they did in past decades, as the chart below shows—likely due to some mix of wage stagnation, rising housing costs, and a tendency to start families later in life.
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Patrick Clark, Bloomberg
Inverse Condemnation and Roadwork
October 09, 2023 —
David R. Cook Jr. - Autry, Hall & Cook, LLPThe following case, issued yesterday by the Georgia Supreme Court, addresses the accrual of the statute of limitations on a claim of inverse condemnation based on nuisance.
Wise Bus. Forms, Inc. v. Forsyth Cnty., S22G0874, 2023 WL 6065278 (Ga. Sept. 19, 2023)
We granted certiorari in this case to clarify the standards for determining when a claim for inverse condemnation by permanent nuisance accrues for purposes of applying the four-year statute of limitation set forth in OCGA § 9-3-30 (a).
[. . .]
Permanent nuisance cases vary in relation to when the alleged harm to a plaintiff’s property caused by the nuisance becomes “observable” to the plaintiff. Forrister, 289 Ga. at 333 (2), 711 S.E.2d 641. In some cases, the harm to the plaintiff’s property is immediately observable “upon the creation of the nuisance.” Id. For example, where a landowner or governmental agency “erects a harmful structure such as a bridge or conducts a harmful activity such as opening a sewer that pollutes a stream,” and it is immediately obvious that the structure or activity interferes with the plaintiff’s interests, the plaintiff must file “one cause of action for the recovery of past and future damages caused by [the] permanent nuisance” within four years of the date the structure is completed or the harmful activity is commenced. Id. at 333-336 (2) and (3), 711 S.E.2d 641 (citing Restatement (Second) of Torts §§ 899 and 930). Phrased another way, where the “construction and continuance” of the permanent nuisance at issue is “necessarily an injury, the damage is original, and may be at once fully compensated. In such cases[,] the statute of limitations begins to run upon the construction of the nuisance.” City Council of Augusta v. Lombard, 101 Ga. 724, 727, 28 S.E. 994 (1897).
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David R. Cook Jr., Autry, Hall & Cook, LLPMr. Cook may be contacted at
cook@ahclaw.com
How AB5 has Changed the Employment Landscape
March 16, 2020 —
Jason Morris – Newmeyer DillionAs a result of California's Assembly Bill 5, effective January 1, 2020, the California Supreme Court's ABC test is now the standard for evaluating independent contractor classifications for purposes of the Industrial Welfare Commission Wage Orders, California Labor Code, and the California Unemployment Insurance Code. That dramatically ups the ante for companies that rely on independent contractors, particularly those that have not re-evaluated such classifications under the ABC test.
Misclassification cases can be devastating, especially for misclassified non-exempt employees, and can result in minimum wage violations, missed meal and rest periods, unpaid overtime, unreimbursed business expenses, record-keeping violations, steep penalties, attorneys' fees, and even criminal liability, among other consequences. Misclassifying workers creates enormous risks for companies and is fertile ground for class actions and representative actions under the Private Attorneys General Act (PAGA).
The Costs Of Misclassification Are Expensive, And Hope Is Not A Strategy
Many business owners I speak to understand AB5 has caused the ground to shift beneath their feet and recognize the resulting risks of misclassifying workers. Despite these risks, companies often balk at taking the necessary steps to evaluate their classifications and mitigate the risk of an adverse classification finding.
The most common reason I hear from resistant companies is the worker does not want to be reclassified as an employee and the company trusts the worker ("I've worked with her for years; she won't sue me because she wants to be a contractor"). I get it. Making the change from contractor to employee results in less flexibility and greater administrative burden for everyone involved. While I'm sympathetic, the government is not. Reluctance to change while acknowledging the associated risks amounts to a strategy based on hope. As we say in the Marine Corps, however, "hope is not a strategy."
Aside from the sometimes foolhardy belief that a misclassified worker can be trusted to not file suit after a business breakup (when the deposits stop and mortgage bill comes due, guess who's a prime target), companies often fail to recognize the numerous ways in which their classification decisions can be challenged even when they are in agreement with their (misclassified) contractors. Here are just three examples of how your classifications can be scrutinized despite the lack of a challenge by the worker:
- Auto Accidents: Whether delivering products, making sales calls, or traveling between job sites, independent contractors often perform work that requires driving. Of course, sometimes drivers are involved in automobile accidents. When accidents happen, insurance companies step in and look for sources of money to fund claims, attorneys' fees, costs, and settlements. One potential source is your insurance. "But the driver isn't my employee!," you say. You better buckle up because the other motorist's insurance carrier is about to challenge your classification in an attempt to access your insurance policies.
- EDD Audits: During the course of the last several years, the California Employment Development Department (EDD) has increased the number of verification (random) audits it performs in search of additional tax revenue. One reason government agencies prefer hiring entities classifying workers as employees rather than independent contractors is it's a more efficient tax collection method; employers collect employees' taxes on the government's behalf, which increases collection rates and reduces government collection costs. The consequences of misclassification include pricey fines, penalties, and interest.
- Unemployment Insurance, Workers' Compensation, and Disability Claims: In addition to verification audits, the EDD performs request (targeted) audits. Targeted audits may result when a contractor files an unemployment insurance, workers' compensation, or disability claim because independent contractors are ineligible for such benefits. Request audits, like verification audits, can result in costly fines, penalties, and interest if the EDD concludes you have misclassified your workers. Even so, that may not be the worst of it: the EDD often shares its findings with the Internal Revenue Service.
Your Action Plan
AB5 has changed the measuring stick, misclassification costs are high, and you do not have complete control of when the government or others can challenge your classifications. So what can you do? Here are several steps all prudent companies should take if they are using independent contractors:
- Conduct an audit of current classification practices;
- Review written independent contractor agreements;
- Implement written independent contractor agreements;
- Update workplace policies;
- Update organizational charts;
- Reclassify independent contractors as employees if necessary.
Jason Morris is a partner in the Newport Beach office of Newmeyer Dillion. Jason's practice concentrates on the areas of labor and employment and business litigation. He advises employers and business owners in employment litigation, as well as advice and counsel related to employment policies and investigations. You can reach him at jason.morris@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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ASCE Statement on Biden Administration Permitting Action Plan
May 23, 2022 —
Dennis D. Truax, President, American Society of Civil Engineers (ASCE)Washington, DC. – ASCE applauds the Biden Administration for the development of their new Permitting Action Plan aimed at accelerating the federal permitting and environmental review process for major infrastructure projects across the country.
The plan leverages permitting provisions that were included in the Infrastructure Investment and Jobs Act and aims to ensure that the federal environmental review and permitting processes will be efficient, transparent, guided by science, and shaped by meaningful input from the public and government agencies.
One of the key recommendations in the 2021 Report Card for America's Infrastructure was to streamline the project permitting process across infrastructure sectors, while ensuring appropriate safeguards and protections are in place. Therefore, ASCE believes that the most recent plan is a step in the right direction to ensure that projects can be delivered on-time, and on-budget, while maintaining the rigorous environmental review process.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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Architect Sues School District
November 20, 2013 —
CDJ STAFFSFL+A Architects is suing the Marlboro County, South Carolina School District over $690,000 that the architect claims is owed to it by the school district. The firm did design work for the Blenheim Elementary Middle School, which opened in January.
The architectural firm contends that the school district refused to pay for anything outside of basic services and failed to pay the full amount on those either.
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