In late April, the Federal Trade Commission issued a final rule, effective on September 4, 2024, that banned nationwide noncompete clauses—generally a binding contract that prevents a worker from competing with an employer after they leave its employ. In my latest column for the Daily Journal of Commerce, I look at some of the
WSBA Construction Law Section Midyear CLE Program
On June 14, 2024, the WSBA Construction Law Section is hosting its midyear CLE program, “Back to the Future: Leveraging Technology in Post-Covid Construction Disputes,” which will cover ethics, construction-related case law updates, technology, perspectives from the bench, arbitration, artificial intelligence, and legislative updates and appeals.
As part of the program, my colleague Colm Nelson
License to Build: The Importance of License Terms in Design Agreements
For all their exposure to the plans, drawings, and related design documents needed at all stages of a construction project, owners and contractors, as well as many highly experienced practitioners involved in development and construction disputes, are only vaguely familiar at best with the law that governs ownership and use of architectural works. Architectural drawings
Lesser-Known Insurance Policies for Addressing Risks of Construction Projects
Bringing a construction project to fruition involves significant risks to project owners, designers, and contractors. Many of those risks will be allocated in the parties’ contracts, in turn requiring those parties to obtain insurance and further allocating risks to insurance companies. Several commonly used insurance policies are at the heart of any construction project insurance
Washington Court of Appeals Upholds Assessment of Tax Liability Against Prime Contractor in Lanzce G. Douglass, Inc. v. Department of Revenue
Under Washington law, prime contractors perform construction for consumers, while speculative builders construct on property they own. The differentiation between these classifications is important because prime contractors are subject to Washington’s business and occupation (“B&O”) tax and retail sales tax, while speculative builders are not. In Lanzce G. Douglass, Inc. v. Department of
A Case in How to Delegate and Avoid Landowner Liability for Contractor Employees
In a case of first impression in Washington, the Washington State Supreme Court held that a landowner may satisfy its duty to guard an invitee “against known or obvious dangers on the premises by delegating the duty of protection to an independent contractor.” Eylander v. Prologis Targeted U.S. Logistics Fund, LP, 539 P.3d
Strategies for Getting Difficult Construction Contracts to the Finish Line
Parties negotiating a design and construction contract for a large project will often leave for the end discussions of a few provisions that one side or the other has characterized as “deal-breakers.” Though the deal may be doomed to fail, one of the parties may also make a concession or concessions, have its bluff called
5 Keys to Early Mediation Success When Project Disputes Arise
Purchase agreements for construction, development, or real estate-related projects frequently offer parties the option of early mediation for settling a dispute before proceeding to arbitration or court litigation. While in my experience early mediation sessions tend to fail, additional mediation sessions held months later have a better chance of succeeding. In my latest column for
Washington Supreme Court Weighs in on Notice Requirements for Labor Liens: Velazquez Framing LLC v. Cascadia Homes, Inc.
Washington’s construction lien statute, RCW 60.04, balances the interests of persons performing work to improve real property with the interests of property owners in avoiding the necessity of paying for the same work twice. An unpaid contractor can assert a lien against property it has improved, but the owner has a right to notice that the work is taking place. On commercial projects, a contractor that is not under contract with the owner or prime contractor (a “lower-tier” subcontractor) usually must give a pre-claim notice to the owner to preserve its lien right. A contractor supplying only labor is expressly exempt from this requirement, though there has been some question regarding whether a lower-tier subcontractor providing both labor and materials is subject to the notice requirement.
The Role of Liquidated Damages Provisions in Construction Contracts
The glue that holds together a construction project—an undertaking that can be massive, with millions of dollars at stake and the coordination of thousands of people required—is the construction contract, the primary purpose of which is to provide a path for parties to apportion the risk involved in any construction at the front end of