Antidiscrimination Clause Required in Public Works and Goods and Services Contracts –Effective January 1, 2024
January 22, 2024 —
Travis Colburn - Ahlers Cressman & SleightIn July 2023, the Washington legislature passed Senate Bill 5186, which mandates inclusion of select antidiscrimination clauses in every state contract and subcontract for public works, goods, or services executed after January 1, 2024.
[i] RCW 49.60.530(3) codifies the now-required antidiscrimination clauses, which prohibit four categories of discrimination against any person because of age, sex, marital status, sexual orientation, gender identity, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability (the “Protected Class”).
Under the new law, public contractors and subcontractors (“Public Contractor”) may not refuse to hire a person because that person is a member of the Protected Class, unless that refusal is based upon a bona fide occupational qualification or if a person with a particular disability would be prevented from properly performing the particular work involved.
[ii] Similarly, Public Contractors may not discharge or bar a person from employment or discriminate against any person – either in terms of compensation or other terms and conditions of employment – because that person is a member of the Protected Class.
[iii] Last, Public Contractors may not print or circulate (or cause to be printed or circulated) any statement, advertisement, publication, form of application for employment, or make inquiry in connection with prospective employment, which expresses any limitation, specification, or discrimination as to the Protected Class.
[iv] Read the full story...Reprinted courtesy of
Travis Colburn, Ahlers Cressman & SleightMr. Colburn may be contacted at
travis.colburn@acslawyers.com
Courthouse Reporter Series: The Bizarre Case That Required a 117-Year-Old Expert
December 04, 2023 —
Todd Heffner & Di'Vennci Lucas - The Dispute ResolverA recent decision by the Georgia Court of Appeals, Munro v. Georgia Department of Transportation, highlights how overly specific and inflexible rules of evidence can create peculiar results.
Munro involved a dispute over the design of a Georgia intersection. No. A23A0404, 2023 WL 4194716 (Ga. Ct. App. June 27, 2023). The plaintiff alleged that the defendant improperly designed the intersection, never corrected that improper design, and failed to properly maintain the intersection. These claims were dismissed for a very odd reason: the plaintiff’s expert witness wasn’t old enough.
The case arose from a car accident. A vehicle in which the plaintiff Munro was a passenger collided with a tractor trailer crossing an intersection. Munro sued the Georgia Department of Transportation (DOT) for negligently designing, maintaining, and inspecting the intersection. The DOT filed a motion to dismiss for lack of subject matter jurisdiction on the ground of sovereign immunity and a motion to exclude the testimony of the Munros’ expert witness, among other motions. The trial court dismissed the case in full on the sovereign immunity ground and denied the other motions as moot. The Munros appealed.
Reprinted courtesy of
Todd Heffner, Troutman Pepper and
Di'Vennci Lucas, Troutman Pepper Read the full story...Mr. Heffner may be contacted at
todd.heffner@troutman.com
Orange County Team Obtains Unanimous Defense Verdict in Case Involving Failed Real Estate Transaction
March 25, 2024 —
Lewis Brisbois NewsroomOrange County, Calif. (March 4, 2024) - Orange County Partners Esther P. Holm and Alexandra Anast obtained a unanimous defense verdict in a real estate matter involving a failed real estate transaction. The property at issue, which was located in the West Hollywood Hills and had beautiful views, was undergoing extensive remodeling. There were several bids for its purchase. Ultimately, the plaintiff, a real estate investor, was awarded the purchase.
The plaintiff and the seller entered into a real estate purchase agreement, but the plaintiff failed to release the physical contingencies within the 17-day period prescribed by the contract. Instead, the plaintiff demanded a reduction in price, which the seller rejected. The plaintiff then filed a lis pendens on the property, clouding the title and making it impossible for the sellers to sell the property to anyone else. The buyer and seller subsequently engaged counsel. The plaintiff filed the lawsuit against the seller as well as the real estate company and its agents. Prior to trial, the plaintiff and the seller reached a settlement.
Read the full story...Reprinted courtesy of
Lewis Brisbois
Construction Litigation Roundup: “Apparently, It’s Not Always Who You Know”
December 16, 2023 —
Daniel Lund III - LexologyA respondent party in a pair of international arbitrations on the losing end of roughly $285,000,000 in adverse awards attacked the awards based upon arbitrator bias.
“If there is one bedrock rule in the law of arbitration, it is that a federal court can vacate an arbitral award only in exceptional circumstances. … The presumption against vacatur applies with even greater force when a federal court reviews an award rendered during an international arbitration.”
Applying the Federal Arbitration Act (according to the court, the international arbitrations were “seated” in the United States and fell under the New York Convention, such that the FAA is required to be the basis for vacatur efforts), the court examined assertions that certain alleged non-disclosures by the panel “concealed information related to the arbitrators’ possible biases and thereby ‘deprived [respondent] of [its] fundamental right to a fair and consensual dispute resolution process.’” The aggrieved party urged that one arbitrator’s undisclosed nomination of another arbitrator to serve as president of another arbitral panel – “a position that sometimes pays hundreds of thousands of dollars” – possibly influenced the second arbitrator to side with the first. Assertions were also levied that the arbitrators’ undisclosed work with the attorneys for the claimant in other arbitrations “allowed them to become familiar with each other, creating a potential conflict of interest.”
Read the full story...Reprinted courtesy of
Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
Real Estate & Construction News Roundup (2/21/24) – Fed Chair Predicts More Small Bank Closures, Shopping Center Vacancies Hit 15-year Low, and Proptech Sees Mixed Results
March 19, 2024 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn our latest roundup, office occupancy rates hit all-time lows, global hotel investment to exceed numbers from 2023, federal courts look into real estate commissions, and more!
Read the full story...Reprinted courtesy of
Pillsbury's Construction & Real Estate Law Team
Building 47 Bridges in Two Years
December 23, 2023 —
Dan Sopczak - Construction ExecutiveEvery construction project has its challenges, but some truly push the boundaries of what is achievable in the heavy civil industry. When the Indiana Department of Transportation sought to modernize its I-65/I-70 North Split Interchange in Indianapolis, Indiana, its request for proposals included building 47 new bridges and rehabilitating six additional bridges on an ambitious two-year timeline—905 days to substantial completion.
“Three design-build teams responded to the RFQ, and the same three teams responded to the RFP,” according to INDOT Strategic Communications Director Natalie Garrett. “Proposals were scored and evaluated using the best-value evaluation process defined by INDOT. The score was a combination of a technical proposal score and a price score.”
Reprinted courtesy of
Dan Sopczak, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Claims Litigated Under Government Claims Act Must “Fairly Reflect” Factual Claims Made in Underlying Government Claim
November 27, 2023 —
Garret Murai - California Construction Law BlogUnlike horseshoes and hand grenades, close sometimes isn’t close enough.
In the next case, Hernandez v. City of Stockton, 90 Cal.App.5th 1222 (2023), the Third District Court of appeal found that a pedestrian who sued a public entity for personal injuries caused by an “uplifted sidewalk” was barred from pursuing his claim when it was revealed that he had in fact injured himself by falling into a hole left by an “empty tree well” (i.e., a tree well that did not contain a tree”). According to the Court, the pedestrian’s claim was barred because the factual basis for recovery asserted in his complaint was not “fairly reflected” in his government claim.
The Hernandez Case
In April 2018, pedestrian Manual Sanchez Hernandez injured himself while walking on a public sidewalk in Stockton, California. He submitted a government claim with the City of Stockton claiming that his injuries, which included injuries to his knee, hands and back, was caused by a dangerous condition on public property. In his government claim, Hernandez alleged that he tripped on an “uplifted sidewalk” at or near 230 E. Charter Way in Stockton, California and that his injuries were due because the City “negligently and recklessly designed, maintained and operated the subject property so as to cause [his] injuries.”
Read the full story...Reprinted courtesy of
Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Judicial Economy Disfavors Enforcement of Mandatory Forum Selection Clause
December 16, 2023 —
David Adelstein - Florida Construction Legal UpdatesMandatory forum (venue) selection provisions are generally construed in favor of enforceability. Parties agreed to the forum for disputes so why not enforce them, right? A recent federal district court case out of the Eastern District of Louisiana exemplifies an exception grounded in judicial economy which disfavors the enforceability of mandatory forum selection provisions. Keep in mind that this judicial economy exception is fairly limited but the fact pattern below demonstrates why enforcing the mandatory forum selection provision was disfavored due to judicial economy.
In U.S. f/u/b/o Exposed Roof Design, LLC v. Tandem Roofing, 2023 WL 7688584 (E.D.La. 2023), a sub-subcontractor filed a Miller Act payment bond lawsuit against the prime contractor and the prime contractor’s Miller Act payment bond sureties. The sub-subcontractor also sued the subcontractor that hired it. However, the sub-subcontractor’s subcontract with the subcontractor included a mandatory forum selection provision in a different form. The subcontractor moved to sever and transfer the sub-subcontractor’s claims against it to the forum agreed upon in the subcontract. The trial court denied the severance and the transfer. Below are the reasons.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com