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Constructural Dynamics, Inc. v. Thomas P. Carney, Inc., No. 1104 EDA 2021, 2022 Pa. Super. Unpub. LEXIS 1500 (Pa. Super. July 1, 2022), reargument denied (Sept. 8, 2022).

Like many prompt payment acts, Pennsylvania’s Contractor and Subcontractor Payment Act (CASPA) permits owners and contractors to withhold payment for good faith claims — but not forever. Owners and contractors who wait too long could find themselves litigating prompt payment claims and paying the penalties those acts impose on procrastinating payors. A recent decision by the Pennsylvania Superior Court provides some guidance on how long is “too long” to withhold.…

Continue Reading Pennsylvania Superior Court Places Time Limit on Good Faith Withholding Under CASPA

Town of New Milford v. Std. Demolition Srvcs., Inc., 212 Conn. App. 30 (2022)

The case involved cleanup and environmental remediation of a vacant factory contaminated with polychlorinated biphenyls and asbestos. The town of New Milford (Town) contracted with Standard Demolition Services, Inc. (Contractor) to perform the third phase of this cleanup and remediation. Following a series of disputes and project delays, the Town terminated the Contractor. At the time of termination, the Contractor had performed less than 10% of its scope of work. The Town then rebid the remaining work and hired a third-party to complete the project.…

Continue Reading Careful Contract Drafting Could Mean Recovery of Liquidated Damages and Actual and Consequential Damages

Bank of America, N.A. v. ASD Gem Realty LLC, 205 A.D.3d 1, 164 N.Y.S.3d 566 (2022).

ASD Gem Realty LLC and ASD Diamond, Inc. (together, ASD or Owner) contracted Sweet Construction Corp. (Sweet) to renovate a commercial space in Manhattan’s Diamond District (the Project). ASD solicited proposals for the supply and installation of partitions in the space (the Work) and ultimately directed Sweet to hire Arenson Office Furnishings, Inc. (Arenson). Arenson subsequently entered into a subcontract with Sweet to complete the Work (the Subcontract).…

Continue Reading NY Appellate Court Reaffirms Pay-When-Paid Provisions Are Void as Against Public Policy

DonRob Invs., L. P. v. 360 Residential, LLC, 870 S.E.2d 874 (Ga. Ct. App. 2022)

This case arose from a failed real estate transaction. DonRob Investments LP and Donald Robinson Investments, Inc. (collectively DonRob) agreed to sell, and 360 Residential LLC, 360 Sugar Hill LLC, and 360 Capital Company LLC, (collectively 360) agreed to purchase 12 acres (Site) of a 37-acre parcel of property in Sugar Hill, GA (the Agreement). The Site was in the middle of the parcel and flanked by two sections over which DonRob was to retain ownership. 360 planned to build apartments on the Site. DonRob planned to develop the other two sections into townhomes and commercial units.…

Continue Reading GA Court of Appeals Enforces Contract Clause, Excluding Liability for Incidental Damages Where Specific Performance Is Ordered

Taylor Morrison of Tex. Inc. v. Caballero, No. 01-20-00800-CV, 2022 Tex. App. LEXIS 1870, 2022 WL 839429 (Mar. 22, 2022)

Gary and Kelley Caballero contracted to purchase a new home to be constructed by Taylor Woodrow and Taylor Morrison of Texas, Inc. (Taylor). The contract contained an agreement to arbitrate any disputes with the American Arbitration Association (AAA) under the Federal Arbitration Act (FAA).…

Continue Reading Texas Court of Appeals Enforces Arbitration Agreement Provision Delegating Issues of Arbitrability to Arbitrator

The Economic Loss Doctrine and its various analogues (e.g., the Independent Duty Rule and the Gist of the Action Doctrine) vary in form and application, but each is a judge-made rule serving one principle: If a party seeks the same economic losses for breach of contract and breach of a common law tort duty, courts must bar the tort claim to prevent a duplicative, windfall recovery. Most frequently, the Economic Loss Doctrine bars negligence claims. Its outer bounds begin with intentional torts, and most jurisdictions do not apply the Economic Loss Doctrine to fraud claims.
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Continue Reading Fraud as an Exception to the Economic Loss Doctrine: Changing Trends in Colorado and Tennessee

This article summarizes the current landscape in Pennsylvania and California as COVID-19 restrictions are lifted, and highlights important considerations for employers in the construction industry in relation to vaccines and navigating a post-mask mandate world.
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Continue Reading COVID-19 and Remobilization: Returning to the Construction Site Without Mandated COVID-19 Restrictions

The COVID-19 pandemic continues to impact the construction industry, and many countries continue to implement new or more stringent restrictions on entry into their borders. Those travel restrictions can impact any company with cross-border supply chains or employee travel. This article addresses some of the travel restrictions in place in the United States, Canada, and members of the European Union (EU); exceptions to those requirements; and some best practices when navigating across borders.
Continue Reading COVID-19 and Border Crossings: Considerations and Best Practices for Global Constructors and Suppliers Crossing US, Canadian, and European Borders

Mealey’s International Arbitration Report – Nov. 2020
[Editor’s Note: Copyright # 2020, LexisNexis. All rights reserved.]
Commentary by Troutman Pepper Partner Albert Bates, Jr.

Mealey’s International Arbitration Report recently asked industry experts and leaders for their thoughts on what events had an impact on global economy that have led to an increase in filings. We would like to thank the following individuals for sharing their thoughts on this important issue.

  • Sarah Reynolds, Partner, Mayer Brown, Chicago
  • Peter A. Halprin, Partner, Pasich LLP, New York
  • Helen Conybeare Williams, Counsel & Solici­tor Advocate, Haynes and Boone LLP, London
  • Sandra Smith Thayer, Partner, Pasich LLP, Los Angeles
  • Lisa Houssiere, Principal, McKool Smith, Houston
  • Gene Burd, Partner, FisherBroyles, Washington
  • Albert Bates Jr., Partner, Troutman Pepper, Pittsburgh
  • Charlie Lightfoot, Co-chair of International Arbitration Practices and Managing Partner, Jenner & Block, London
  • Thomas Wingfield, Associate, Jenner & Block, London.
    Continue Reading International Arbitration Experts Discuss The Impact On The Global Economy

When is it going to return to “normal”? We all have been asking that question. Well, for the construction industry, it may never return to “normal.” COVID-19 may have permanently changed the landscape of the construction industry in many ways. Depending on your perspective, many changes could be for the better. We may have to alter how we do business to address some new issues and business concerns. Here are just a few issues that the pandemic has brought to the forefront of our industry.
Continue Reading Subtle (and Not So Subtle) Effects of COVID-19 on the Construction Industry