November 2011 Archives

The Walls Come A' Tumblin Down: Implosion of CityCenter's Harmon?

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OK, the walls haven't come a' tumblin down yet. But stay tuned.

It wasn't enough to chop a 47 story building down to 26 floors -- in the middle of construction. Engineers for CityCenter, in Las Vegas, have said they need to implode the unfinished building before it collapses in an earthquake. Now, we all know that imploding any building is no trivial task. Imploding a building in the middle of an urban area like downtown Las Vegas is downright daunting. But when the lawyers get involved, it gets so complicated it'll make your head spin.

The contractors and the subcontractors say that the building can be repaired and made safe. And of course, if the building is imploded, regardless of what the rules of evidence and any jury instructions say, it will be difficult to convince people that it had been repairable.

Steve Green writes about the proceedings here.

Battling Unfair Unsats (Todd Construction, L.P. v. U.S.)

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Historically, when a government contractor received an "unsatisfactory" performance rating ("Unsat") that was issued without proper procedures being followed or was substantively erroneous, the contractor's only immediate recourse was to ask the agency to reconsider. Otherwise, the contractor had to wait to seek judicial review through a bid protest on a subsequent procurement - forcing the contractor to wait for the Unsat to potentially deprive it of more work.

This presents a major problem for contractors. This article examines recent judicial developments in which the U.S. Court of Federal Claims opened the door for contractors to seek immediate review of erroneous Unsats.

Under the Contract Disputes Act, if a contractor wishes to pursue a claim against the federal government arising out of a contract, the contractor can turn to one of two places: an agency's Board of Contract Appeals (BCA) or the U.S. Court of Federal Claims. However, it does not follow that both of these bodies are willing to take up a contractor's appeal of an erroneous Unsat.

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U.S. Supreme Court Narrows Definition of Corporate Citizenship - Opening Door to Federal Courts

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Article Co-Authored with Christian Henel

The United States Supreme Court has settled a long-standing split among lower courts on the definition of a corporation's "principal place of business" for purposes of diversity jurisdiction in federal court.

The Court held a corporation has a single principal place of business for purposes of diversity jurisdiction and that place is defined as the state where the corporation's headquarters is located. Hertz Corp. v. Friend, No. 08-1107 (Feb. 23, 2010).

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Expert Reports, Communications Get Work Product Protection in Amendment to Federal Rules

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Don't email our testifying expert! Keep it all verbal - phone calls or in person. And for crying out loud, never let your expert keep drafts of his report!

For the last 17 years, this sort of talk has been commonplace for lawyers and clients working with testifying experts in federal court cases. But that changed at the end of 2010. A new Federal Rule of Civil Procedure 26 went into effect December 1, 2010, and it brought significant changes to the treatment of communications with experts and to draft expert reports.

Draft reports from testifying experts are now subject to work product protection. The new Rule 26 also confers work product protection on communications between lawyers and experts. But, it carves out three exceptions to that work product protection, and those exceptions may create as many problems as are solved by the work product protection conferred on the other communications.

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