According to Engineering News-Record (“ENR”) the first major dispute in the area of integrated project delivery (“IPD”) has developed between the Department of Veterans Affairs (“VA”) and a Kiewit-Turner joint venture in connection with the construction of a VA hospital in Aurora, Colorado. IPD is a contractual relationship in which the owner, designer and builder all share one contract in which they agree to share the risk and the efficiencies of a particular project. There are generally strict provisions in the contract that require the parties to engage in discussions to resolve issues that arise through consensus and dispute resolution.
The dispute between Kiewit-Turner and VA arises from a nearly $200 million cost overrun on the project that Kiewit-Turner contends is the result of the VA signing off on a design that became impossible to build for the cost the VA demanded. Kiewit-Turner relies upon a handwritten note (or memorandum of understanding – as Kiewit-Turner refers to it) signed by representatives of the VA and Kiewit-Turner that the parties would use their best efforts to stick to a $604 million price tag for the project. The note contains language suggesting that the parties agreed that such efforts would include making design changes, but according to Kiewit-Turner the VA never took any steps to revise the design to reduce costs despite Kiewit-Turner’s warnings. The VA contends that Kiewit-Turner was heavily involved in the design review phase of the project and failed to provide the necessary input identifying problems resulting in the cost overruns.
This dispute highlights one of the major difficulties with an IPD project. A successful IPD contract requires extensive cooperation between the design architect/engineer, the contractor, and the owner, at the outset – particularly in the design review phase. The hallmark of IPD is that the team should be working together as the scope and budget are established. Otherwise, there are likely to be disputes down the road as to who should accept responsibility for problems that arise with the scope or budget for the project.
For more information on professional liability matters, contact Attorney Nathan Fennessy at 603.410.1500 or nfennessy@preti.com or a member of PretiFlaherty's Professional Liability Group.
Legal updates, news and commentary from Preti Flaherty's Professional Services Attorneys
First Major Integrated Project Delivery Dispute: The VA and Kiewit-Turner
Tuesday, September 24, 2013
Lawyer Faces Discipline for Responding to Client's Negative AVVO Review
According to the ABA Journal, an Illinois employment lawyer is facing disciplinary action for allegedly revealing confidential information about a former client when the lawyer responded online to a negative review on AVVO, a legal marketing site.
The client posted a negative review of the lawyer on AVVO. After the client refused to remove the review unless the lawyer refunded his fee, the lawyer posted the following online response to the negative comment:
“I dislike it very much when my clients lose, but I cannot invent positive facts for clients when they are not there. I feel badly for him, but his own actions in beating up a female co-worker are what caused the consequences he is now so upset about.”
According to the disciplinary complaint, this posting was intended to intimidate and embarrass the former client, and to keep him from posting additional information about the lawyer.
Counsel representing the lawyer in the disciplinary matter asserts that when the former client posted the negative statements about her, he waived the attorney-client privilege, and the lawyer had the right to vigorously defend herself.
This disciplinary matter, which remains pending, illustrates the pitfalls for attorneys who interactively advertise. It also presents an interesting test case concerning the duties owed to former clients who choose to publicly criticize their lawyer.
For more information on professional liability matters, contact Attorney Simon Brown at 603.410.1500 or sbrown@preti.com or a member of PretiFlaherty's Professional Liability Group.
The client posted a negative review of the lawyer on AVVO. After the client refused to remove the review unless the lawyer refunded his fee, the lawyer posted the following online response to the negative comment:
“I dislike it very much when my clients lose, but I cannot invent positive facts for clients when they are not there. I feel badly for him, but his own actions in beating up a female co-worker are what caused the consequences he is now so upset about.”
According to the disciplinary complaint, this posting was intended to intimidate and embarrass the former client, and to keep him from posting additional information about the lawyer.
Counsel representing the lawyer in the disciplinary matter asserts that when the former client posted the negative statements about her, he waived the attorney-client privilege, and the lawyer had the right to vigorously defend herself.
This disciplinary matter, which remains pending, illustrates the pitfalls for attorneys who interactively advertise. It also presents an interesting test case concerning the duties owed to former clients who choose to publicly criticize their lawyer.
For more information on professional liability matters, contact Attorney Simon Brown at 603.410.1500 or sbrown@preti.com or a member of PretiFlaherty's Professional Liability Group.
Providing Personal Employee Information to Above the Law Website Means Ropes & Gray LLP Must Try Retaliation Claims
Friday, September 20, 2013
An employment discrimination and retaliation case brought by a former associate at Ropes & Gray LLP will go to trial in November 2013, following a ruling on competing summary judgment motions, rules Judge Richard G. Stearns of the U.S. District Court (Massachusetts) in an Order released on August 16, 2013.
Plaintiff John H. Ray III alleges that Ropes & Gray LLP denied him promotion to partnership because of his African-American heritage. Most of these claims were dismissed following the firm’s summary judgment motion. Ray also argued the firm retaliated against him when he complained of discrimination. Those claims survived summary judgment.
The alleged retaliation included, among other things, the firm’s withholding of recommendation letters, which a jury could conclude was in retaliation for an EEOC filing by Ray. A further retaliation charge concerns the firm’s providing the EEOC’s initial “no cause” determination letter to the profession-oriented website, Above the Law. The letter included details about Ray’s performance reviews and an internal investigation into alleged criminal conduct by Ray. The firm argued the determination letter was not confidential, and providing it to the website was to correct Ray’s one-sided presentation of the facts.
The Court ruled, however, Title VII prohibits an employer from responding to protected activity (like an EEOC filing) by taking an action that would dissuade a reasonable worker from pursuing a charge of discrimination, and that the threat of dissemination of derogatory private information, even if true, would likely deter any reasonable employee from pursuing a discrimination complaint against an employer. The Court also noted that, by knowingly releasing damaging information about Ray, the firm arguably violated its own policy against dissemination information contained in employee personnel records.
For more information on professional liability matters, contact Attorney Bill Saturley at 603.410.1500 or a member of PretiFlaherty's Professional Liability Group.
Plaintiff John H. Ray III alleges that Ropes & Gray LLP denied him promotion to partnership because of his African-American heritage. Most of these claims were dismissed following the firm’s summary judgment motion. Ray also argued the firm retaliated against him when he complained of discrimination. Those claims survived summary judgment.
The alleged retaliation included, among other things, the firm’s withholding of recommendation letters, which a jury could conclude was in retaliation for an EEOC filing by Ray. A further retaliation charge concerns the firm’s providing the EEOC’s initial “no cause” determination letter to the profession-oriented website, Above the Law. The letter included details about Ray’s performance reviews and an internal investigation into alleged criminal conduct by Ray. The firm argued the determination letter was not confidential, and providing it to the website was to correct Ray’s one-sided presentation of the facts.
The Court ruled, however, Title VII prohibits an employer from responding to protected activity (like an EEOC filing) by taking an action that would dissuade a reasonable worker from pursuing a charge of discrimination, and that the threat of dissemination of derogatory private information, even if true, would likely deter any reasonable employee from pursuing a discrimination complaint against an employer. The Court also noted that, by knowingly releasing damaging information about Ray, the firm arguably violated its own policy against dissemination information contained in employee personnel records.
For more information on professional liability matters, contact Attorney Bill Saturley at 603.410.1500 or a member of PretiFlaherty's Professional Liability Group.
Violation of FDCPA Not Necessarily a Violation of Massachusetts' Consumer Protection Act
Thursday, September 12, 2013
A Massachusetts law firm which violated the federal Fair Debt Collection Practices Act while trying to collect unpaid condominium fees did not necessarily violate the Massachusetts consumer protection act, according to a U.S. magistrate judge. McDermott v. Marcus, Errico, Emmer & Brooks, P.C., 09-10159-MBB, August 26, 2013.
The law firm violated the FDCPA by communicating directly with the plaintiff condo owner – not his attorney – and with the owner’s mortgagees without his consent, said U.S. Magistrate Judge Marianne B. Bowler. The judge then went on to find a per se violation of the state’s consumer protection act, Mass.G.L. 93A. But a recent decision of the Supreme Judicial Court, the state’s highest court, found that a violation of Massachusetts regulations designed to protect consumers in other contexts does not necessarily mandate liability under the Act. Klairmont v Gainsboro Restaurant, Inc., 987 N.E.2d 1247 (Mass.2013) established that a violation of such regulations is only a violation of Chapter 93A when the conduct leading to the violation is both unfair or deceptive and occurs in trade or commerce.
Since the law firm’s services to its client were aimed at resolving a private dispute – failure to pay condominium fees – and were not services distributed in a business context, they did not occur in trade or commerce, according to the judge.
Reaction to the decision has been swift, and along predictable lines. According to various news reports, consumer advocates fear the ruling will leave consumers with no remedy if a particular activity is not covered by other laws, pointing out that Chapter 93A has been used acted as leverage against numerous activities seen as violative of consumer interests in the past. Other commentators suggest this ruling is evidence of a continuing effort by the judiciary to prevent every potential claim from evolving into a 93A case.
For more information on professional liability matters, contact Attorney Bill Saturley at 603-410-1500 or a member of PretiFlaherty's Professional Liability Group.
The law firm violated the FDCPA by communicating directly with the plaintiff condo owner – not his attorney – and with the owner’s mortgagees without his consent, said U.S. Magistrate Judge Marianne B. Bowler. The judge then went on to find a per se violation of the state’s consumer protection act, Mass.G.L. 93A. But a recent decision of the Supreme Judicial Court, the state’s highest court, found that a violation of Massachusetts regulations designed to protect consumers in other contexts does not necessarily mandate liability under the Act. Klairmont v Gainsboro Restaurant, Inc., 987 N.E.2d 1247 (Mass.2013) established that a violation of such regulations is only a violation of Chapter 93A when the conduct leading to the violation is both unfair or deceptive and occurs in trade or commerce.
Since the law firm’s services to its client were aimed at resolving a private dispute – failure to pay condominium fees – and were not services distributed in a business context, they did not occur in trade or commerce, according to the judge.
Reaction to the decision has been swift, and along predictable lines. According to various news reports, consumer advocates fear the ruling will leave consumers with no remedy if a particular activity is not covered by other laws, pointing out that Chapter 93A has been used acted as leverage against numerous activities seen as violative of consumer interests in the past. Other commentators suggest this ruling is evidence of a continuing effort by the judiciary to prevent every potential claim from evolving into a 93A case.
For more information on professional liability matters, contact Attorney Bill Saturley at 603-410-1500 or a member of PretiFlaherty's Professional Liability Group.
American Arbitration Association Updates Commercial Arbitration Rules
Wednesday, September 11, 2013
The American Arbitration Association has amended its Commercial Arbitration Rules (effective October 1, 2013). The new rules include a number of enhancements intended to provide a more time efficient and cost effective process. Some of the most significant revisions include:
- a mediation step for all cases with claims of $75,000 or more (subject to the parties’ ability to opt-out)
- greater arbitrator control over discovery (including the ability to allocate costs and restrict the scope of discovery)
- the ability to apply for emergency relief
- a specific rule allowing the parties to file dispositive motions
- new preliminary hearing rules as well as remedies and sanctions for non-compliance
- new procedures for dealing with parties who refuse to pay arbitration fees
- Authority to issue sanctions for objectionable or abusive conduct
- Clarification regarding jurisdiction, confirming that the arbitrator has the power to rule on the arbitrability of any claim
11th Circuit Criticizes Employer and Its Lawyer in N-Word Case
According to the ABA Journal, the Eleventh Circuit Court of Appeals has upheld a $1 Million bias judgment on behalf of three black or bi-racial workers at Alabama State University. Those employees asserted they were subjected to a hostile work environment and retaliation, including being called the N-word by an African American superior.
Of particular interest to attorneys was the 11th Circuit’s unusually harsh words for Alabama State University’s lawyers. According to the ABA Journal, in the Opinion, the Appeals Court stated, “We are troubled by ASU’s attorneys’ inability to adhere to court procedures and deadlines…Timeliness is imperative in the practice of law, and attorneys should not expect sympathy from this Court due to their own carelessness.” This criticism stemmed in part from untimely filings of key motions and mistakes which compromised ASU’s appeal, the Court noting, “In short, ASU missed all applicable deadlines for filing a notice of appeal…accordingly, we do not have jurisdiction to decide (certain) issues.”
This Opinion is a reminder of how important it is for counsel to know the rules and procedures required by the court in which he or she is practicing, and to meet all deadlines. The downside of not complying with such rules is the loss of reputation and, worse, the compromising of the clients’ case.
For more information on professional liability matters, contact Attorney Simon Brown at 603.410.1500 or a member of PretiFlaherty's Professional Liability Practice Group.
Of particular interest to attorneys was the 11th Circuit’s unusually harsh words for Alabama State University’s lawyers. According to the ABA Journal, in the Opinion, the Appeals Court stated, “We are troubled by ASU’s attorneys’ inability to adhere to court procedures and deadlines…Timeliness is imperative in the practice of law, and attorneys should not expect sympathy from this Court due to their own carelessness.” This criticism stemmed in part from untimely filings of key motions and mistakes which compromised ASU’s appeal, the Court noting, “In short, ASU missed all applicable deadlines for filing a notice of appeal…accordingly, we do not have jurisdiction to decide (certain) issues.”
This Opinion is a reminder of how important it is for counsel to know the rules and procedures required by the court in which he or she is practicing, and to meet all deadlines. The downside of not complying with such rules is the loss of reputation and, worse, the compromising of the clients’ case.
For more information on professional liability matters, contact Attorney Simon Brown at 603.410.1500 or a member of PretiFlaherty's Professional Liability Practice Group.
Subscribe to:
Posts (Atom)
