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Andrews Myers
Business Insight from the Ground Up
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Construction
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ICC Arbitration - Bring Your Checkbook 
by Bill Davidson   With more foreign owners becoming involved in the U.S. industrial, infrastructure, and energy markets, there are also increasing numbers of general contractors with ownership located overseas. This has led to a corresponding increase in arbitration agreements that call for International Chamber of Commerce or “ICC” arbitration. Before skimming over the arbitration provision during contract negotiations, you need to know what you are potentially getting into should a dispute arise. These are usually high stakes projects as are the claims that arise out of them. If you are a second or third tier subcontractor or supplier, take a hard, careful look at dispute resolution language in your contract, and any attempts to flow-down the provisions in the general contract.
 
The ICC touts its arbitrations, which are administered by the International Court of Arbitration (the “Court”), as “a flexible and efficient dispute resolution procedure leading to binding and final decisions subject to enforcement worldwide.” One word missing from that sales pitch is “economical.” While an ICC arbitration can and usually does move fast, they are very expensive from the administration and arbitrator compensation perspective. Read more...
Copyright Law and Contractors - A Cautionary Tale
by Colby Hodges   In the world of construction, each new project can be a whirlwind process.  After all, there are a lot of moving parts.  Owners have their demands, often driven by stakeholders, investors, and the almighty dollar.  For their part, general contractors find themselves in a never-ending of cycle of jockeying to be the winning bidder while maintaining (and retaining) business relationships with dependable subcontractors who can perform good work on time and on budget.  And then there are the architects and engineers; the skilled professionals that make the design shine and the structure stand straight, but often are forced to tread the middle ground between the owner’s “vision” and the general contractor’s “reality.”
 
Projects can move fast, but what happens when everyone involved fails to take a few minutes to read through the drawings and other documents and ask some basic questions:  potentially a multi-party copyright lawsuit.  Read more...
Real Estate
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Understanding the Work Letter Attached to Your Lease
by Phillip Williams   When a client calls and asks me, “How long do you think it will take to review an approximately 30-page lease I just received for some new space we’re looking at?” I always say, “It depends,” which is usually no surprise to anyone who deals with lawyers on a regular basis.  Aside from finding out if the text is in 8-point font and the lease is printed on legal paper (which this author believes landlords do as a way to make the prospective tenant think its attorney is taking too long in his or her lease review), I always ask if there is going to be an initial build out of the new space.  If the answer is yes, then there will almost always be a “work letter” attached as an exhibit to the lease. 
 
These work letters deal with the initial improvements to be performed by landlord and/or tenant in the leased premises and can be anywhere from half a page to several pages long.  Despite its importance, this part of the lease is often largely overlooked by both the tenant and its counsel in favor of what may appear to be more pressing legal and economic issues in the body of the lease.  This is unfortunate because the work letter itself presents several important issues and merits a large proportion of the legal time and attention devoted to the lease negotiation process.  Read more...
Employment
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OSHA Targeting Inspections Based Upon 300A Log Submissions
by Tony Stergio    As most are aware, construction industry employers must now electronically submit their 300A injury summary logs to OSHA.  The 300A log for calendar year 2016 was due to be submitted on December 15, 2017.  The 300A log for calendar year 2017 was due on July 1, 2018.  Further, 300A logs for this calendar year 2018 are due on March 2, 2019
 
We now know one way in which OSHA is using the information that is being submitted: The Agency has announced that it is using the calendar year 2016 information as a means of targeting programmed inspections. OSHA indicates that inspections may be targeted toward:
  • employers with a high rate of injury, as reported on the Form 300A; and
  • employers who failed to submit a Form 300A
OSHA has made it clear: Failing to submit a 300A log will increase the likelihood of OSHA showing up at your door, as will an elevated number of injuries recorded on an electronically submitted 300A log (even if none of those injuries were severe enough to constitute a reportable injury or incident).
5th Circ. OKs OSHA's Multi-Employer Worksite Citation Rule
by Tony Stergio and Andy Clark   A Fifth Circuit panel held this week that OSHA can cite general contractors and other “controlling employers” for workplace safety violations that put only subcontractors’ workers in danger.  The Panel deferred to OSHA’s interpretation of the Act, reversing established Fifth Circuit law that “OSHA’s regulations protect only an employer’s own employees.”  The Panel concluded that “the Secretary of Labor has the authority under… the Occupational Safety and Health Act… to issue citations to controlling employers at multi-employer worksites for violations of the Act's standards.” A “controlling employer” is a general contractor or other employer having control over a worksite who should have detected and prevented a violation through the reasonable exercise of its supervisory authority.

Given the Panel’s ruling, OSHA can now issue citations to a general contractor if that contractor is found to have created or controlled a hazard which exposed the employees of a subcontractor to potential harm—regardless of whether the contractor’s own employees were exposed.  The unanimous panel reasoned that “[i]n a place of employment like a construction workplace… only the general contractor maintains supervisory authority over... the entire space.  Read more...
Bankruptcy
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Selling Claims in Bankruptcy: Risk vs. Reward
by Josh Judd    Creditors in a large Chapter 11 bankruptcy often receive offers to purchase their claims on terms that sometimes appear too good to be true. Buyers of claims obtain the name and address of all the creditors through the publically available schedules filed during the first few weeks of a bankruptcy case and then additional information about each claim by reviewing the proof of claims filed in the case.
 
Buyers:  Anyone can purchase a claim in bankruptcy but most purchasers are investment banks, hedge funds or independent broker-dealers. Claims can be purchased on simple buy low, sell high strategy, or as part of a larger strategy to gain influence or exercise control in the debtor’s bankruptcy case.  Buyers are seeking to reap the benefit of paying a low price, along with the right to vote on the debtor’s plan of reorganization or gain some other advantage in the bankruptcy case.
 
Seller’s Perspective:  From a seller’s standpoint, claims trading offers a minimum level of return in a bankruptcy case.  In addition, sellers can avoid the risk of a delayed recovery, obtain a tax deduction if the claim is sold for a loss, and potentially avoid the expense of evaluating, filing and potentially litigating a claim.  Read more...
Join Us at Any of the Upcoming Special Events in December

12/4 - Jason Walker and Lisa Norman hold Contract Clause Seminar for ASA
12/4 - AM sponsors AGC of Texas Holiday Party
12/4 - AM sponsors ABC PAC Holiday Party
12/5 - AM sponsors CREW Holiday Party
12/5 - AM Women's Initiative sponsors ASA She Builds It Holiday Party
12/5 - AM supports ABC Central Texas Holiday Party
12/5 - AM sponsors NACM Holiday Lunch & Toy Drive
12/6 - AM supports AGC Holiday Happy Hour
12/6 - AM sponsors the HBA Holiday Party Honoring the Judiciary
12/6 - AM supports the HBA Construction Law Section Holiday Party
12/7 - AM supports HCA Holiday Dinner & Dance
12/11 - AM supports AGC Austin Annual Holiday Party
12/12 - AM supports ABA CLS Holiday Party
12/19 - AM sponsors MCA Holiday Lunch with The Nehemiah Center
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