The Reptile Theory in Practice
September 06, 2021 —
Nicholas P. Hurzeler - Lewis BrisboisThe “Reptile Theory” is a trial strategy that attempts to use fear and anger to make the jury dislike the defendant so strongly they will award a plaintiff a grossly excessive amount of damages. The plaintiff’s attorney will seek to activate the jurors’ “survival mode” instincts by presenting the defendant’s conduct as highly dangerous and worthy of punishment. The defendant’s conduct will be portrayed as a threat to the safety of the general public, and the award as a deterrent needed to protect the community at large. The Reptile Theory appeals to the jurors’ emotions in place of any rational, impartial evaluation of the evidence.
The term “Reptile Theory” originated in the writings of nuero-physiologist Paul D. MacLean in the 1950s, who suggested that one major part of the brain consisted of a “reptilian complex” that controlled instinctive behaviors involved in aggression, dominance, and territoriality. Then in the 2009 publication “Manual of the Plaintiff’s Revolution” by David Ball and Don Keenan, the authors first described the “Reptile Theory” in the context of litigation. Since then it has become a hot topic in litigation as defense counsel develop methods to combat “Reptile” tactics resulting in runaway jury awards.
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Nicholas P. Hurzeler, Lewis BrisboisMr. Hurzeler may be contacted at
Nicholas.Hurzeler@lewisbrisbois.com
The Contract Disputes Act: What Every Federal Government Contractor Should Know
February 07, 2018 —
Sarah K. Carpenter – Smith Currie BlogClaims on construction projects are unpleasant, but sometimes unavoidable. Contract with the federal government and you are by statute and by contract required to resolve any and all disputes under the Contract Disputes Act. So what is the Contract Disputes Act? This article sets forth basic information all federal government contractors should know when faced with the necessity of making or defending a claim on a federal project.
What Is the Contract Disputes Act?
The Contract Disputes Act of 1978 (CDA or Act) was enacted by Congress to implement a comprehensive statutory scheme for the resolution of government contract claims. The CDA provides a framework for asserting and handling claims by either the government or a contractor. All disputes under the CDA must be submitted to either the U.S Court of Federal Claims or to an administrative board of contract appeals. The vast majority of board cases are handled by either the Armed Services Board of Contract Appeals or the Civilian Board of Contract Appeals. The ASBCA is generally responsible for deciding appeals from decisions of contracting officers in the Department of Defense, the Department of the Army, the Department of the Navy, NASA, and when specified, the CIA. The CBCA hears disputes from all other executive agencies except the United States Postal Service (USPS), the Postal Rate Commission, and the Tennessee Valley Authority.
The USPS is served by the Postal Service BCA. In addition, the Government Accountability Office Contract Appeals Board handles contract disputes arising in the legislative branch, and the Office of Dispute Resolution for Acquisition handles contract disputes and bid protests arising out of Federal Aviation Administration procurements.
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Sarah K. Carpenter, Smith Currie
Pinterest Nixes Big San Francisco Lease Deal in Covid Scaleback
September 21, 2020 —
Sophie Alexander - BloombergPinterest Inc. canceled a large office lease at a building to be constructed near its San Francisco headquarters, marking one of the most significant moves yet by a big tech company to scale back real estate plans in the city amid the Covid-19 pandemic.
“As we analyze how our workplace will change in a post-Covid world, we are specifically rethinking where future employees could be based,” Todd Morgenfeld, Pinterest’s chief financial officer and head of business operations, said in a statement Friday.
The social-sharing service is paying an $89.5 million termination fee to terminate its lease for 490,000 square feet (45,500 square meters) of space. It will keep its existing offices in the city.
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Sophie Alexander, Bloomberg
California Court of Appeal Provides Clarity On What Triggers Supplemental Analysis Under California Environmental Quality Act
July 20, 2020 —
Kelly Alhadeff-Black & Alexander N. Knaub - Lewis BrisboisIn a recent ruling, California’s Sixth District Court of Appeal clarified the need for supplemental environmental analysis under the California Environmental Quality Act (CEQA). Willow Glen Trestle Conservancy v. City of San Jose (6th Dist., May 18, 2020). Specifically, the court held that seeking additional discretionary approvals, such as regulatory permits, does not constitute a “new discretionary approval for the project” under the California Public Resources Code Section 21166 and the California Code of Regulations, title 14, section 15162 (the CEQA Guidelines).
In 2014, the City of San Jose approved a project that included the demolition and replacement of a wooden railroad bridge known as the Willow Glen Trestle (the Project). CEQA review for the Project was conducted via mitigated negative declaration (MND). The Project was quickly challenged by a local group called Friends of the Willow Glen Trestle, alleging that the City should have prepared an Environmental Impact Report based on the allegation that the Willow Glen Trestle constituted an historic resource for CEQA purposes. Ultimately, the City prevailed in that litigation (See Friends of the Willow Glen Trestle v. City of San Jose, et al. (6th Dist., 2016), which remanded the case to the trial court for further review consistent with the Court of Appeal’s verdict) with the court eventually finding that the City correctly analyzed and answered the question of historic resource classification and significance in reference to the Willow Glen Trestle.
Reprinted courtesy of
Kelly Alhadeff-Black, Lewis Brisbois and
Alexander N. Knaub, Lewis Brisbois
Ms. Alhadeff-Black may be contacted at Kelly.Black@lewisbrisbois.com
Mr. Knaub may be contacted at Alexander.Knaub@lewisbrisbois.com
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Contract Change # 10: Differing Site Conditions (law note)
March 28, 2018 —
Melissa Dewey Brumback - Construction Law in North CarolinaPreviously, the A201 required a Contractor to provide notice to the Owner and Architect within 21 days after discovery of unforeseen site conditions. This notification is required prior to the conditions being disturbed, so as to allow the Design Team the ability to evaluate the site and determine the compensability of any such differing conditions.
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Melissa Dewey Brumback, Construction Law in North Carolina
Federal District Court Continues to Find Construction Defects do Not Arise From An Occurrence
May 10, 2012 —
CDJ STAFFCoverage for construction defects continues to be hotly contested in Hawaii state and federal courts. In a recent decision, Judge Mollway felt bound to follow the Ninth Circuit’s decision in Burlington Ins. Co. v. Oceanic Design & Constr., Inc., 383 F.3d 940, 944 (9th Cir. 2004), where the court found construction defect claims arise from breach of contract, not from an occurrence. Judge Mollway’s most recent decision on the issue is Illinois Nat. Ins. Co. v. Nordic PCL Constr., Inc., 2012 U.S. Dist. LEXIS 58464 (D. Haw. April 26, 2012).
Nordic constructed a grocery store for Safeway. In addition to the grocery store, Nordic built a 165-space rooftop parking deck, retail shops and related improvements. After opening for business in 2007, Safeway experienced significant leaks. Safeway demanded that Nordic repair the parking deck. Nordic sent the demand letter to the insurer, who agreed to appoint counsel subject to a reservation of rights.
Safeway filed suit against Nordic in state court alleging, among other things, breach of contract and negligence. The insurer provided Nordic with a defense, but Nordic hired independent counsel.
The insurer filed for declaratory relief in federal district court.
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Ways of Evaluating Property Damage Claims in Various Contexts
February 18, 2020 —
Bremer Whyte Brown & O'Meara LLPPotential damages in a lawsuit may come in many forms depending on the facts of the case. Common damages include medical expenses, loss of earnings, property loss, physical pain, and mental suffering. Of the many damages Plaintiffs may claim, one of the most prevalent and recognizable is property damage. This article briefly discusses these types of damages which fall under two major categories – Real Property and Personal Property.
Broadly speaking, “real property” means land, and “personal property” refers to all other objects or rights that may be owned. Ballentine’s Law Dictionary defines “real property” as: “Such things as are permanent, fixed, and immovable; lands, tenements, and hereditaments of all kinds, which are not annexed to the person or cannot be moved from the place in which they subsist. . . .” (Ballentine’s Law Dict. (3d ed. 2010).) “Personal property” is defined as: “Money, goods, and movable chattels . . . . All objects and rights which are capable of ownership
except freehold estates in land, and incorporeal hereditaments issuing thereout, or exercisable within the same.” (Id. (emphasis added).)
Real Property
Real property may be damaged or “harmed” through trespass, permanent nuisance, or other tortious conduct. The general rule is that Plaintiffs may recover the lesser of the two following losses: (1) the decrease in the real property’s fair market value; or (2) the cost to repair the damage and restore the real property to its pre-trespass condition plus the value of any lost use. (Kelly v. CB&I Constructors, Inc.) However, an exception to this general rule may be made if a Plaintiff has a personal reason to restore the real property to its former condition, sometimes called the “personal reason” exception. In such cases, a Plaintiff may recover the restoration costs even if the costs are greater than the decrease in the real property’s value, though the restoration cost must still be “reasonable” in light of the value of the real property before the injury and the actual damage sustained.
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Bremer Whyte Brown & O'Meara LLP
Commercial Real Estate Brokerages in an Uncertain Russian Market
March 28, 2022 —
Cait Horner & Adam J. Weaver - Gravel2Gavel Construction & Real Estate Law BlogSeveral commercial real estate firms have joined the growing list of companies temporarily suspending – or outright terminating – property and facility management operations in Russia amid economic sanctions and mounting international pressure. CBRE is the latest to make such a move, discontinuing its Russian leasing, investment and property management operations and denouncing Russia’s invasion of Ukraine in a statement issued March 7th. Other major players, including Savills, Knight Frank, and Colliers, have already suspended operations in the country, citing similar concern for international sanctions and the humanitarian impact of the invasion. Colliers is going even further to suspend operations in Belarus as well. Recently, global real estate service giant JLL switched course, issuing a formal statement that “with great sadness,” it will begin the process of separating from its domestic operations in Russia, though not commenting on whether the separation will be temporary or permanent. This is a significant change from just earlier this month , where, when asked about pulling operations from the country, JLL stated it would stay abreast of the situation abroad and continue to ensure the safety of its people and clients.
Now that CBRE and Dallas-based JLL have joined the list, Houston-based powerhouse Hines appears to be continuing its “wait and see” approach. Hines currently owns Russian assets valued at $2.9 billion, nearly 2 percent of its entire $160 billion asset portfolio, and its property management portfolio manages more than 243 million square feet worldwide. While other firms have temporarily suspended current operations, Hines has gone so far as to say it will avoid servicing any future investments in the country, though it did similarly condemn Russia’s actions. With JLL’s recent decision , if Hines does take a stronger stance, it will likely happen soon.
Reprinted courtesy of
Cait Horner, Pillsbury and
Adam J. Weaver, Pillsbury
Ms. Horner may be contacted at cait.horner@pillsburylaw.com
Mr. Weaver may be contacted at adam.weaver@pillsburylaw.com
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