"2 Sign or Not 2 Sign:" Which Statute of Frauds Governs Oil & Gas Leases?

By George A. Bibikos, K&L Gates, Harrisburg and David I. Kelch, K&L Gates, Pittsburgh

In a recent decision, the Pennsylvania Superior Court resolved an open question of state law regarding which one of two alternative statutes of frauds apply to oil and gas leases, in the process making clear that for an oil and gas lease, only the grantor of the interest must sign. 

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No License? No Problem. The Ninth Circuit Holds That Unlicensed Contractors May Maintain Claims For Compensation Under The Miller Act

By Heather W. Habes and Tyler J. Cesar, K&L Gates, Los Angeles

In a matter of first impression in Technica, LLC ex rel. United States v. Carolina Casualty Ins. Co., No. 12-56539, 2014 WL 1674108 (9th Cir. April 29, 2014), the Ninth Circuit held that California’s contractor’s licensing law, does not bar unlicensed contractors from recovering on Miller Act claims. The Ninth Circuit’s refusal to impose state law limitations on a contractor’s remedies under the federal Miller Act is consistent with prior rulings of the Supreme Court and the Eighth and Tenth Circuits. In the interest of uniform enforcement of federal law and the reduction of hurdles to recovery by federal subcontractors, the Ninth Circuit reversed the district court’s grant of summary judgment to the prime contractor and its surety.

The underlying dispute arose from work performed in connection with the federal work of improvement located in California on the ICE El Centro SPC - Perimeter Fence Replacement/Internal Devising Fence Replacement (the “Project”). Candelaria Corporation, as prime contractor, secured a payment bond from its surety, Carolina Casualty Insurance Company (“CCIC”), in connection with the Project. Candelaria’s sub-subcontractor, Technica, LLC (“Technica”) provided almost $900,000 worth of labor, material, and services to the Project, yet only received payments for this work in the amount of $300,000. Technica did not possess a California contractor’s license during its performance of the work at issue. Invoking its rights under the Miller Act to recover the outstanding amounts, Technica filed a complaint in district court against Candelaria and CCIC. Pursuant to California Business and Professions Code section 7031(a), which bars a contractor from recovering compensation for work that was performed without a license, Candelaria and CCIC sought, and were granted, summary judgment of Technica’s claims. Technica appealed.

On appeal, the Ninth Circuit emphasized that the purpose of the Miller Act is to provide a remedy to contractors and materialmen denied compensation on federal construction projects. The Miller Act requires a general contractor on a federal project to obtain a payment bond for the benefit of “persons supplying labor and material in carrying out the work provided for in the contract.” 40 U.S.C. § 3133(b)(2). Since it is the Miller Act, and not California state law, that provides Technica with a right to recover on the Project, the Ninth Circuit reasoned that the scope of this federal remedy should not be conditioned by state law. In reaching this conclusion, the Ninth Circuit drew upon the holding of the Supreme Court in F.D. Rich Co. Inc. v. United States ex rel. Indus. Lumber Co., 417 U.S. 116, 127 (1974), and other similar Circuit Court decisions. In F.D. Rich, the Supreme Court relied upon the federal interest in uniform application of the law in determining that state law could not be used to provide an award of attorney’s fees to a Miller Act claimant when federal law provides no such right. F.D. Rich, 417 U.S. at 127-28. In Aetna Casualty & Surety Co. v. United States ex rel. R.J. Studer & Sons, 365 F. 2d 997 (8th Cir. 1966), the Eighth Circuit held that a Colorado law requiring a partnership to record an affidavit with the county recorder’s office was not applicable to the contractor’s Miller Act claim. Likewise, in Hoeppner Constr. Co. v. United States ex rel. E.L. Magnum, 287 F.2d 108 (10th Cir. 1960), the Tenth Circuit acknowledged that the Miller Act is highly remedial, and therefore the contractor’s remedies thereunder should not be limited by a South Dakota statute forbidding enforcement of a contract on behalf of a foreign corporation.

The Ninth Circuit’s decision does not change any current California law. Nonetheless, the decision is significant for its fresh look on the purpose of the Miller Act. Construction counsel should take note that courts may be unwilling to limit the remedies of contractors under the Miller Act in accord with state law requirements.

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New LEED Credential Exams Test Skills and Sustainability

By Alexander M. Moss and Jesse G. Shallcross, K&L Gates, Chicago

Starting June 30, 2014, the updated LEED credential exams become available for practitioners who want to demonstrate their competency in green building principles and practices. The new exams incorporate LEED v4 content for the first time, which the U.S. Green Building Council (USGBC) released last fall. See Erin Emery Hartz, LEED v4 credential exams coming June 2014, USGBC (Feb. 7, 2014). Specifically, the LEED Green Associate exam and LEED AP specialty exams feature the new rating system. See id. Several important changes to these exams reflect the growth of green building construction and development in the last several years, especially in Illinois.

The LEED AP certifications are designed for professionals who are working on LEED projects and have acquired expertise in green building and sustainability. See id. Originally, the AP exams did not evaluate LEED project experience within the exam itself. See id. Under the new format, exam questions will require proficiency in cognitive areas as well as particular skills involved in LEED processes. See id. For example, it is not enough for the candidate to simply know what LEED Online is, but rather he or she must know how to use it too. See How is project experience assessed within the LEED AP exam?, USGBC,  Notably, because the AP exams will now inherently evaluate experiential knowledge, the requirement to submit proof of LEED project experience at the time of the application is no longer necessary. Hartz, supra. However, the Green Building Certification Institute still encourages applicants to gain project experience in order to be successful on the skills-based portions of the exams. Id.

The exams will reflect LEED v4’s heightened focus on the lasting impacts of new buildings on the environment. One significant change under LEED v4 is the enhanced Materials and Resources category. LEED MR now includes credits for product optimization and disclosure as well as assessments of the structure’s life cycle in terms of climate change and nonrenewable energy sources. See Theresa Lehman, LEED Credential Exams to Feature v4 Material, Constructor Mag. (Mar. 26, 2014). Furthermore, the Indoor Environmental Quality credits will now include a low-emitting material credit that requires more sophisticated testing and monitoring procedures. See id. Overall, the LEED v4 changes align with the contemporary push for more sustainable and environmentally friendly human development.

As of September 2013, Illinois had the fourth-largest number of LEED-accredited professionals in the United States at 4,688 total credentials held. LEED Professionals at a Glance: September 2013, USGBC (Sep. 23, 2013). In February 2014, the USGBC revealed the top 10 states in the United States for LEED green building, and Illinois ranked first with over 29 million square feet certified, or 2.9 square feet certified per resident. Jacob Kriss, USGBC Releases the Top 10 States in Nation for LEED Green Building, USGBC (Feb. 18, 2014). Illinois ranked third in the top 10 in the number of buildings LEED-certified last year at 171. Id. Only California (595) and New York (259) had more LEED projects. Id. Some of the top LEED projects in Illinois included the Holocaust Museum in Skokie, a 57-story tower on LaSalle Street in Chicago, the Caterpillar Visitors Center in Peoria, and Lincoln Hall at the University of Illinois at Urbana-Champaign. Illinois Leads Nation in “Green” Buildings, NBC CHICAGO (Feb. 19, 2014, 12:15 PM).

The demand for LEED-certified buildings in Illinois and the rest of the United States creates an incentive for construction industry professionals to consider becoming LEED accredited. It remains to be seen whether the new version requirements and exam content will significantly impact the number of new applicants seeking certification. For those who do decide to take the tests, the LEED v4 credentials can be one effective way to express a commitment to green building practices in the 21st century.

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No Compensation for Clandestine Employment in Germany!

By Christoph Mank and Kristina Fischer, K&L Gates, Berlin

In Germany, it is prohibited by law to hire clandestine workers. But what happens if a principal nevertheless hires a clandestine worker and does not pay the agreed compensation? Is the clandestine worker entitled to claim his compensation before court? In a recent judgment dated 10 April 2014, the German Federal Court of Justice (“Bundesgerichtshof“) said “no“ and decided that clandestine employment must not be compensated.

The defendant was building serial houses; the plaintiff was instructed by the defendant to do electrical installations. As compensation, plaintiff and defendant had agreed that the defendant would pay a lump-sum of EUR 13,800 including VAT and another EUR 5,000 cash and without invoice. From the agreed amount of EUR 5,000, the defendant had paid EUR 2,300 but refused to pay the remaining EUR 2,700. The claim with which the plaintiff (inter alia) requested payment of these EUR 2,700 was, however, dismissed:

The agreement between the parties, obliging the defendant to pay the cash amount of EUR 5,000, is null and void. According to Section 134 of the German Civil Code, an agreement which violates a statutory prohibition is void, unless the statute leads to a different conclusion. In this case, the parties´ understanding has violated Section 1 no. 2 (2) of the German Act to Combat Clandestine Employment (“Schwarzarbeitsbekämp-fungsgesetz“), which classifies as clandestine employment the nonfulfilment of statutory tax liabilities. According to the Court, it was evident that the parties´ agreement to provide works without an invoice was meant to conceal the plaintiff´s turnovers from German tax authorities and to provide a price advantage for the defendant. Even if the „cash understanding“ referred to only a part of the agreement, the violation of Section 1 no. 2 (2) of the Act leads to a nullity of the entire agreement. As a consequence, the clandestine worker was not able to claim the agreed compensation from the principal.

What makes the decision of the German Federal Court of Justice particular? In a former decision of 1990, the Court had decided that although the agreement between principal and contractor was violating the (former) Law on Clandestine Employment the contractor was nevertheless entitled to claim restitution according to the value of his work. The Court argued that the principal who mostly is the economically stronger party, would otherwise be in unjust advantage if he was allowed to keep the clandestine worker´s performance without any consideration. Since 1990, the Laws on Clandestine Employment have tightened. Accordingly, in 2013, the Court heralded a change of its case law and ruled that a principal has no warranty claims against a clandestine worker, if the worker´s performance was poor, inadequate or insufficient. With its 2014 decision, the Court emphasized the importance to enforce the Laws on Clandestine Employment effectively: A person who deliberately violates the Law does not deserve to be protected by civil law. By denying the principal´s warranty claims on the one hand and the clandestine worker´s claim for compensation on the other hand, parties shall be restrained from concluding a prohibited clandestine agreement. Whether or not this judgment will have the expected deterrent effect on clandestine contractors and principals remains to be seen.

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Challenging an Arbitrator's Appointment: A study of the position in Qatar and in ICC Arbitration

Harriet Jenkins, Associate in the Doha office, recently presented a study setting out how to challenge the appointment of an arbitrator in a domestic arbitration in Qatar, as well as in international ICC arbitrations. This study was prompted by potential conflict issues as to the nomination of arbitrators which recently arose on two of Harriet’s construction arbitration claims, one being an ICC arbitration seated in London, England and the other a domestic arbitration seated in Doha, Qatar. In this presentation, Harriet explains the standard of an arbitrator to act independently and impartiality, and its duty to disclose potential conflicts of interest to the parties. She also examines the mechanisms available to parties to challenge a suspect appointment and provides insight of the practical issues to consider when deciding whether to mount a challenge to an arbitrator.

To view the full presentation, click here

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Encore Presentation: EPA's Expanded "Waters of the U.S." Definition: Navigating the Unprecedented Reach and Scope of New Rule

Presented by Strafford Publications
Due to overwhelming popularity, Strafford Publications has scheduled an encore presentation of the May webinar "EPA's Expanded "Waters of the U.S." Definition: Navigating the Unprecedented Reach and Scope of New Rule" with live Q&A for Tuesday, July 1, 1:00pm-2:30pm EDT. Friends of K&L Gates are eligible to receive a 50% discount off the cost of registration.
The speakers on the panel will:
  • Provide environmental counsel with an in depth review of the EPA's newly proposed revision that widely expands the reach of its rule defining "waters of the United States" 
  • Examine the huge number of entities, businesses and local governments that will be impacted and how—and the expected legal challenges that the rule change will precipitate 
  • Outline and analyze practical next steps for counsel in moving forward with transactions involving waters under and not yet under EPA control 
After the presentation, the speakers will engage in a live question and answer session with participants to answer questions about these important issues directly.
James T. Banks, Partner, Hogan Lovells US, Washington, D.C.
Kathryn Kusske Floyd, Partner, Venable, Washington, D.C.
Barry M. Hartman, Partner, K&L Gates, Washington, D.C.
Friends of K&L Gates will receive a 50% discount off the cost of registration. To receive the discount, please register by clicking here, or call 1-800-926-7926 ext. 10 and ask for the Clean Water Act Jurisdiction Expansion program on 7/1/2014, and mention code ZDFCT.
We hope you can join us! 

For more information on this topic, click here to view our recent alert, "EPA and the Army Corps Propose Rules Expanding Clean Water Act Jurisdiction, Potentially Affecting Everyone Who Uses Lands Where Water Might Be Present," published  on April 3, 2014.


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Federal District Court in Pennsylvania Allows Negligence Suit Against Builder, Despite lack of Privity of Contract Between the Parties

By Kimberly L. Karr, K&L Gates, Pittsburgh

A Federal Court in Pennsylvania has handed down a ruling that may expand the pool of potential plaintiffs in construction litigation. See AMCO Insurance Co. v. Emery and Associates, 926 F. Supp. 2d 634 (W.D. Pa. 2013). In AMCO, the court allowed the second owner of a building and its insurer to file suit for negligence against a builder, even though privity of contract did not exist between the parties. See id. at 643.

The case stems from damage to property in Armstrong County, Pennsylvania. The original owners of a property hired a general contractor, Emery, to build a hotel. The owners then sold the hotel to a second owner. Seven years after that, a fire occurred that caused significant damage to the hotel premises. See AMCO, 926 F. Supp. 2d at 637-38.

The second owner filed a claim with its insurance company, AMCO, to recover the cost of the damage due to the fire. AMCO paid their insured $4 million, and then sued the contractor for the claim amount. Among AMCO’s causes of action was an argument that the builder, Emery, acted negligently when it constructed the hotel. Specifically, AMCO alleged that Emery’s failure to comply with local and state building codes attributed (at least in part) to the fire. See id. at 637-39.

Emery petitioned the Federal District Court to dismiss AMCO’s negligence claim, with one reason being that it owed no duty to the second owner and its insurer. See id. at 642. Emery seemed to rely on the lack of direct relationship between the parties to support its claim. See id. at 642-43.

However, the court disagreed. It held that under Pennsylvania law, a “duty of care” could extend from a builder to a second owner and its insurer, even in the absence of a direct relationship (including privity of contract). Quoting a Pennsylvania Superior Court decision, F.D.P. ex rel. S.M.P. v. Ferrara, 804 A.2d 1221, 1231 (Pa. Super. 2002), the AMCO court weighed five factors to determine whether a duty of care was present: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. See AMCO, 926 F. Supp. 2d at 643. Applying these factors to Emery, the court ruled that it is reasonable for a builder to assume that a commercial building may have more than one owner, and negligent acts on the part of the builder could affect subsequent owners. The court also emphasized that it is in the public interest to impose a duty on those who are negligent in following required building codes. See id.

Owners, developers, and builders should be mindful of the AMCO decision before starting a construction project in Pennsylvania. If privity of contract is no longer the sole avenue for recovery, parties must consider all potential plaintiffs who might be owed a duty of care.

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Unions and Benefit Fund Trustees Not "Subcontractors" Under Lien Law, According to Pennsylvania Supreme Court

By Kimberly L. Karr, K&L Gates, Pittsburgh

On April 17, 2014, the Pennsylvania Supreme Court ruled that Pennsylvania’s mechanics’ lien law, 49 P.S. § 1101, et seq., does not allow trustees of union benefit funds to bring claims for non-payment as subcontractors against employers and owners. See Bricklayers of W. Pa. Combined Funds Inc. v. Scott’s Dev. Co., Case No. 36 WAP 2012 (Pa. April 17, 2014); Laborers’ Combined Funds of W. Pa. et al. v. Scott’s Dev. Co., Case No. 37 WAP 2012 (Pa. April 17, 2014). The decision reverses the Superior Court, which previously ruled in favor of the unions.

Under the Pennsylvania’s mechanics’ lien law, unpaid subcontractors can record a lien on an owner’s property. See 49 P.S. § 1301. If the primary contractor continues to withhold rightful payment, the subcontractor can foreclose on the lien and force the sale of the property in lieu of compensation. See id. at § 1701.

The question before the Pennsylvania Supreme Court was whether unions and benefit fund trustees could qualify as subcontractors under the mechanics’ lien law. The dispute stemmed from construction work performed by members of two unions on a property in Erie County. General contractor J. William Pustelak Inc. hired the unions using collective bargaining agreements. The agreements specified, among other things, that when the general contractor needed bricklayers and/or laborers, it would obtain them from the unions.

After the work in Erie County went unpaid, the unions filed liens against the property owner, Scott’s Development. The unions sought approximately $42,000 in contributions owed to a fund for the workers’ health, welfare, retirement, and fringe benefits. Scott’s Development objected on the grounds that unions and benefit fund trustees were not considered contractors or subcontractors under Pennsylvania’s mechanics’ lien law. The trial judge dismissed the case, but the Superior Court reinstated it on the basis that the statute should be liberally construed.

The Supreme Court ultimately determined that unions and benefit fund trustees could not be considered subcontractors. It reasoned that a “subcontractor” by definition is a person or business “who performs for and takes from the prime contractor a specific part of the labor or material requirements of the original contract,” as opposed to ordinary laborers. Quoting Clifford F. MacEvoy Co. v. United States for Use & Benefit of Calvin Tomkins, 322 U.S. 102, 109 (1944). The court also cited language from the statute’s official legislative comments, which make a similar distinction between subcontractors and employees. Moreover, according to the court, the trustees could not assert that an implied-in-fact subcontract existed, where the trustees’ claims were based on an express collective bargaining agreement.

The Supreme Court also seemed to consider the effect that the Superior Court’s decision would have if sustained. The court determined that if union workers could be considered “subcontractors” under the mechanics’ lien law, private property owners would then be forced to act as guarantors of contractors’ general employment obligations. According to the Supreme Court, the lower court’s decision would effectively create a new class of claimants that would saddle private property owners with an undue increased risk of litigation. Accordingly, union members and laborers in Pennsylvania are left to recover payment through more traditional theories of liability, such as breach of contract.

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Appellate Division of New Jersey Upholds Jury Verdict in Connection with Misrepresentations Made by Developer

By Christopher A. Barbarisi and Loly G. Tor, K&L Gates, Newark

Builders and real estate developers should take note of a recent decision of the Appellate Division of New Jersey (the state’s intermediate appellate court), in which the Court upheld a jury verdict of $4,817,638.12 in connection with misrepresentations made by a developer in its marketing materials relating to the nature and quality of the views from high-rise riverfront condominium units.

Etelson v. South Shore Urban Renewal, L.L.C.[1], involved a group of sixteen purchasers of ten upper-floor condominium units (“Plaintiffs”) in the South Shore Club building in Jersey City, New Jersey. Plaintiffs contracted to purchase their pre-construction units in 2005. During sales negotiations, the developer (“Developer”), through its sales agents and marketing materials, represented to the Plaintiffs that their units—all east-facing and located on the 19th through 22nd floors—would enjoy unobstructed, panoramic views of the Manhattan skyline. At the time that the Plaintiffs entered into their sales contracts, there were no buildings in the area capable of obstructing the views of Plaintiffs’ units.

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Decennial Liability in Qatar

Darran Jenkins, Associate in the Doha office, recently presented Decennial Liability in Qatar to the Chartered Institute of Building. Decennial Liability is an onerous liability in the event there are problems with the completed Works, which lasts for a 10 year period and is surrounded by much misconception. Darran explained the Qatar Civil Code in this regard and the obligations, implications and responsibilities to the various parties.

To view the presentation slides, click here.

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