A Court-Side Seat: Citizen Suits, “Facility” Management and Some Nuance for Your Hazard Ranking
September 28, 2020 —
Anthony B. Cavender - Gravel2GavelSome very interesting and fairly complex environmental law rulings have been released in the past few days.
U.S. Supreme Court—Trump, et al. v. Sierra Club, et al.
On July 31, 2020, in a 5-to-4 decision, the Supreme Court denied a motion to lift the stay entered by the Court a few days earlier. The earlier action stayed a preliminary injunction issued by the U.S. District Court for the Northern District of California, which had enjoined the construction of a wall along the Southern Border of the United States which was to be constructed with redirected Department of Defense funds. The merits will be addressed by the lower court and perhaps the U.S. Court of Appeals for the Ninth Circuit.
U.S. Court of Appeals for the District of Columbia Circuit—Meritor, Inc. v. EPA
In a case involving EPA’s administration of the Superfund National Priority List (NPL) of priority Superfund sites requiring expedited cleanup, the court held that EPA had acted in accordance with the law and its implementing rules, and denied relief. Meritor was spun off from Rockwell Corporation, and is responsible for Rockwell’s environmental liabilities, including sites Meritor never operated. In 2016, EPA added the Rockwell International Wheel & Trim facility in Grenada, Miss., to the NPL list. Meritor alleged that this listing was arbitrary and capricious, pointing to EPA’s failure to adequately consider the impact of a mitigation measure added to the facility to address vapor intrusion, a factor EPA must consider in its application of the agency’s hazard ranking system. However, the court was not impressed by these arguments, and denied relief. The court’s discussion of the nuances of the hazard ranking system is very instructive
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
It’s Time to Change the Way You Think About Case Complexity
August 07, 2018 —
Ben Patrick - Gordon & Rees Construction Law BlogThere are few things that lawyers love more than telling war stories. Partially, that’s because many lawyers either only or primarily have friends who are lawyers, and war stories are a way for lawyers to relate to each other—your barber doesn’t understand the pain of reading through 5 paragraphs of irrelevant objections posed to each of 75 interrogatories, but your fellow lawyers will. One common feature of war stories is a note regarding how much was at issue in the case. “I was handling this $25 million claim once….” Lawyers include the dollar figure in dispute as a shorthand for the complexity of the case they’re talking about. “Oh, we’ll be in depositions for a month solid, this is a $10 million case!”
I don’t know where I picked up this habit, but I know exactly how I learned to rethink it. A friend of mine, as in-house counsel, was handling a case worth over a billion dollars. When he told me about it, my jaw dropped. One of the first things I asked him was, how do you manage a case that big? And he told me about the several law firms he had engaged, all the people working on it. But then he said: it’s not really a complicated case. There were only 4-5 real factual questions, and a similar number of legal ones. It’s just that every factual question had a very high price tag associated with it. The high price tag doesn’t make the factual question any more complex, or any harder to litigate. For example, your builders’ risk policy either has coverage for flood damage or it doesn’t. If it does, then it doesn’t matter whether the flood washed the whole building away or just some materials from the laydown area—coverage is coverage, irrespective of quantum.
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Ben Patrick, Gordon & Rees Scully MansukhaniMr. Patrick may be contacted at
jpatrick@grsm.com
The Practical Distinction Between Anticipatory Breach and Repudiation and How to Deal with Both on Construction Projects
June 10, 2024 —
Devon Griger - ConsensusDocsWhen a multilevel construction project is underway and a contractor or subcontractor isn’t performing as expected, it can be difficult to know how to address the low performance without putting the parties’ contract and good working relationship at risk. However, there may come a time when poor performance lapses into a something much worse: an anticipatory breach or repudiation of the subject contract.
Imagine Scenario One: You are a general contractor managing a large-scale construction project and one of your subcontractors is falling behind on their work. The project manager for the subcontractor calls you and says, “Look, I don’t think we’re going to be able to hit our next milestone, and probably not the next one after that.” A conversation like this would generally trigger concern for most general contractors, but it would not necessarily invoke panic. These types of delay conversations are not uncommon on large scale projects.
Compare that example, however, with Scenario Two, where the subcontractor instead says, “We received an offer to work another job for much more money, so we’re leaving the project site today and will not be returning.” This is obviously different (and potentially worse) than Scenario One, and likely cause for much greater concern.
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Devon Griger, Jones WalkerMs. Griger may be contacted at
dgriger@joneswalker.com
Kahana Feld Welcomes Six Attorneys to the Firm in Q4 of 2023
January 16, 2024 —
Linda Carter - Kahana FeldKahana Feld is pleased to announce the addition of six attorneys to the team in the fourth quarter of 2023. We are excited to have each of these individuals on the team.
In our Houston office, Kahana Feld welcomes Partner Donald Loving II and Attorney Elliott Wright. Mr. Loving is a member of the General Liability and Trucking & Transportation practice groups. He earned his Juris Doctor from the University of Houston and has over 30 years of litigation and trial experience, including working as staff & corporate counsel for several prominent insurance carriers including GEICO, Progressive, USAA and Travelers. Mr. Wright is a member of the Construction Defect, General Liability, and Trucking & Transportation practice groups. He earned his Juris Doctor from SMU Dedman School of Law, and has extensive litigation and insurance defense experience.
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Linda Carter, Kahana FeldMs. Carter may be contacted at
lcarter@kahanafeld.com
There’s an Unusual Thing Happening in the Housing Market
October 03, 2022 —
Tracy Alloway - BloombergIt’s no secret that the US housing market has been softening as interest rates rise at the fastest pace in decades.
Higher mortgage rates mean the dramatic growth in home prices that we’ve seen over the past two years is beginning to slow. Sales of new homes recently came in at the weakest monthly level since 2018. Meanwhile, purchase applications are down 20% year-on-year, and so on.
But the rapid pace of rate hikes has also resulted in an interesting statistical anomaly. Months of supply — or the number of months it would take for the existing inventory of homes on the market to sell at the current sales pace — has jumped to 4.1 from a record low of just 2.1 back in January of this year. And, as Morgan Stanley strategist James Egan notes, rarely have we seen an increase of this size.
To some extent, the jump in inventory is to be expected. It’s maths. As sales volume falls while inventories rise, months of supply naturally increases.
But such a jump is intuitively striking, and the key question for housing-watchers is whether the absolute level of inventory — which is still low by many measures, even as homebuilders have ramped up construction since last year — will turn out to be more important than its rate of change. A housing market that is structurally undersupplied is going to be a lot less vulnerable to fewer sales.
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Tracy Alloway, Bloomberg
Building Supplier Sued for Late and Defective Building Materials
December 04, 2013 —
CDJ STAFFThe Lawson Henry Co. bought an unfinished townhome in Snowshoe, West Virginia with the intent of getting it finished and sold. To reach that goal, they contracted with O.C. Cluss Professional Services and O.C. Cluss Lumber Co. to provide them with building materials. According to the plaintiff, Cluss failed to deliver the building materials by the agreed-on date, causing the plaintiff to miss out on the peak season for selling the townhome.
The suit also alleges that in addition to materials being delivered late, some were defective or of poor quality. The Lawson Henry Co. is charging Charles C. Cluss and his companies of breach of contract.
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White and Williams Announces the Election of Five Lawyers to the Partnership and the Promotion of Five Associates to Counsel
February 16, 2016 —
White and Williams LLPWhite and Williams is proud to announce that Meredith Bieber, Eric Hermanson, Timothy Martin, Brian Tetro and Debra Weinrich have been elected to the partnership. The firm has also promoted Alan Charkey, Michael DiFebbo, William Doerler, Justin Fortescue and Stephen Milewski from associate to counsel.
The newly elected partners and promoted counsel represent the wide array of practices that White and Williams offers its clients, including construction, finance, healthcare, insurance coverage, product liability, real estate, reinsurance, and subrogation. These accomplished lawyers have earned this elevation based on their contributions to the firm and their practices.
“We are delighted to elect these five lawyers to the partnership and promote five exceptional associates to counsel. Those included in these promotions represent the breadth of services and the deep bench that we have to offer at White and Williams,” said Patti Santelle, Managing Partner of the firm. “The election of our new partners and promotion of our new counsel is a reflection of their success and dedication as well as the continued health of the firm.”
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White and Williams LLP
Finding Plaintiff Intentionally Spoliated Evidence, the Northern District of Indiana Imposes Sanction
March 14, 2018 —
Shannon M. Warren – The Subrogation Strategist On January 23, 2018, the Northern District of Indiana issued a decision that clarifies what constitutes spoliation of evidence under Indiana law. In
Arcelormittal Ind. Harbor LLC v. Amex Nooter, LLC, 2018 U.S. Dist. LEXIS 10141 (N.D. Ind.), the defendant filed a motion for sanctions, alleging that the plaintiff intentionally spoliated critical evidence. The defendant sought dismissal of the action, asserting that the plaintiff intentionally discarded and lost important physical evidence within hours of a fire that occurred while the defendant’s employees were performing work at its facility. The decision underscores the importance of taking immediate action to properly identify and secure potentially material evidence in order to satisfy ones duty to preserve pre-suit evidence and avoid any spoliation defenses and associated sanctions.
In
Arcelormittal, the court initially considered whether to apply state or federal law when analyzing a litigant’s duty to preserve pre-suit evidence and determine if that party committed spoliation. Since the case was brought in federal court based on diversity jurisdiction, the court held that Indiana state law governed the spoliation analysis.
As noted by the court, under Indiana state law, “the intentional destruction, mutilation, altercation, or concealment of evidence” is considered to be spoliation. Thus, under Indiana law, a party who knew or should have known that litigation was imminent “may not lose, destroy or suppress material facts or evidence.” The plaintiff argued that Indiana law requires a showing of improper purpose or bad faith to establish that a litigant spoliated evidence. The
Arcelormittal court rejected the plaintiff’s argument.
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Shannon M. Warren, White and Williams LLPMs. Warren may be contacted at
warrens@whiteandwilliams.com
