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Andrews Myers
We Mean Business in Texas
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Construction
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What do You Mean They Still Have a Lien?
Constitutional Mechanics and Materialman's Liens
by Mike Schiff   A consistent theme in Texas construction litigation throughout the chain of contracting, from financiers and title companies, to owners, general contractors and down through the chain all the way to material suppliers, is the confusion that even veteran participants in the process experience when confronted with a constitutional lien. 
 
While this issue may not be at the cutting edge of legal developments, it is nonetheless at the very basis of lien practice in Texas, and sends lien claimants and litigators alike scrambling for their reference materials with surprising regularity.  This confusion is only worsened by the near universally acknowledged-to-be-confusing statutory framework for traditional M&M liens.  The wary contractor should therefore be familiar with both statutory and constitutional liens, as well as the interplay between the two, which isn’t actually codified, and exists mostly in decades old case law. Read more...
Texas Legislative Update
by Andrew Scott   The legislative session ends May 27th. Among the more than 7,400 bills filed to date, many concern the construction industry.  So far, a few of those bills have been well-received, while others are unlikely to go very far. And with the recent hang-up on the priority bills—namely, school finance and taxes—many of the remaining construction bills will likely get lost in the shuffle. Nevertheless, below are updates on some notable construction bills.
 
HB 2135 – Retainage on Public Works Projects   HB 2135 seeks to clarify and limit retainage on public works projects with contract amounts greater than $1,000,000. If the contract exceeds $1,000,000, retainage would be capped at 5% of the contract price.  Governmental entities also could not withhold retainage during the warranty period or, after the contract is completed, for repairs to goods or systems that were properly installed by the contractor. Moreover, the governmental entity may withhold retainage if there is a bona fide dispute related to the contractor’s non-compliant provision of labor or materials under the contract. Yet even then, the contractor would be afforded an opportunity to cure the non-compliance or offer a reasonable amount of money as compensation.   Read more...
The Beauty of Standard Form Arbitration Provisions
by Manny Schoenhuber   Time and again, Alternative Dispute Resolution has been recognized as a more cost- and time-efficient manner to resolve disputes between parties as compared to litigation. More specifically, the Texas Supreme Court described arbitration as an efficient method for settling disputes outside the courtroom. The Texas Supreme Court also explained that one purpose behind arbitration is to avoid large litigation expenses, particularly the costs of longer proceedings, complicated appeals, discovery, investigations, fees, and expert witnesses. Due to these and other benefits, arbitration has become the preferred means to resolving construction disputes in Texas and elsewhere.
 
Today, standard form arbitration provisions, such as the ones provided by the American Arbitration Association Construction Industry Arbitration Rules or AIA Form Contracts, not only offer signatories the benefits Texas courts have continuously pointed to when addressing contractual arbitration provisions, but also guarantee the component that is arguably the most important one to any arbitration provision: finality of the arbitration award. Read more...
Real Estate
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When the Taxman Cometh...
by Josh Harrison  “The only difference between death and taxes is that death doesn't get worse every time Congress meets.”  -Will Rogers
 
Tax Day has come and gone for 2019, which is a relief for most of us.  We have filed our taxes, or at least hit the snooze button on them for another six months, and hopefully the sting was not too bad.  But for many commercial tenants, taxes are still very much on the mind, as the ever-increasing property tax bills in the great state of Texas are affecting the total rent payable to landlords in their office, industrial, and other commercial net leases.  Unexpectedly high taxes are wreaking havoc on many tenants’ profitability, and sometimes their viability. 

Even though the Texas legislature has been looking into ways to address our skyrocketing tax bills, is there anything else that a commercial tenant can do to help protect itself in this sort of a situation?  As for future leases, there is certainly hope.  And for those leases that are already in effect, there may still be at least some measure of relief.  For commercial tenants that are interested in protection from unexpected increases in property taxes, here are five ways that they can try to ease the burden being passed through to them by their landlords. Read more...
Record Number of AM Attorneys Recognized in Texas Construction Law Rankings
Chambers USA, America’s Leading Lawyers for Business recently announced Andrews Myers as having a top construction law practice in Texas, awarding it an elite “Band One” rating, and recognizing six AM attorneys as leading individuals in their fields. The 2019 Guide showcases a record number of Andrews Myer’s attorneys, highlighting that the firm has the deepest construction law bench within the state of Texas.
The Six Chambers Ranked Attorneys are:
Employment
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Recent ICE Raid in Texas
by Tony Stergio  On April 4, 2019, ICE officially raided CVE Technology Group in Allen, Texas, arresting 280 workers determined to be illegally working in the United States. With a workforce of around 400, just 125 workers were determined to be legally employed. Thus, almost three-quarters of CVE’s workforce at the facility were eliminated in one fell swoop. 
 
Audits conducted during the Obama administration, which generally took months and involved no arrests, were considered the general rule.  The Trump administration has now added raids to ICE’s arsenal.  While raids of this nature are still the exception to ICE’s usual audit enforcement tactics, such raids are becoming more frequent, especially in cases like CVE where the vast majority of its workforce was initially determined to be illegal.  Read more...
EEO-1 Filing Deadline Change
by Elaine Howard and Andy Clark    All private employers with at least 100 employees are required to file an EEO-1 report with the Equal Employment Opportunity Commission (EEOC). Because of a change in the regulations, the EEO-1 report has been broken into two components: (1) counting employees by job category and race, ethnicity, and sex; and (2) providing extensive aggregate earnings and hours information based on job category, race, ethnicity, and sex.
 
The second component was added by the Obama Administration, but then cancelled by the Trump Administration.  The EEOC previously notified employers that only the first component would be required in 2019.  However, a federal judge has ruled that the Trump Administration’s cancellation of the second component was improper.  The parties in that case, which include the EEOC, have spent several weeks arguing over the due date for the second component, as the EEOC is not yet prepared to receive filings from employers for that portion of the EEO-1.
 
Thus, the first component of the EEO-1 report, which is the traditional employee count that many employers are used to, is due by May 31, 2019. The EEOC is not currently accepting the second component of the EEO-1 report (i.e., the earnings and hours data). Last week, a federal court decided that the deadline for reporting this second component is September 30, 2019Read more...
Bankruptcy
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Understanding Unsecured Creditor Committees
by Lisa Norman    An unsecured creditor committee represents the group of unsecured creditors (primarily trade vendors) in a Chapter 11 bankruptcy case. The creditors’ committee is appointed by the U.S. Trustee, and is compromised of the unsecured creditors who hold the 20 largest unsecured claims against the debtor. The committee is authorized to retain counsel, accountants, appraisers, and other professionals as necessary, and all such professionals are then paid for by the debtor. These professionals do not represent each unsecured creditor on the committee individually, but rather they represent the interests of the unsecured creditors as a whole.
 
If you join the unsecured creditor committee, you may be able to participate in and influence the debtor’s negotiations with its creditors. Through the creditor committee’s attorney, you can readily access documents and information concerning the debtor’s financial condition, including its operations, assets, liabilities and cash flow. Perhaps the creditor committee’s most important task is negotiating with the debtor and other classes of creditors to formulate a fair and equitable plan of reorganization for the debtor.  Read more...
The Women's Initiative
The Women's Initiative of Andrews Myers is currently planning their 2nd annual "Women Wine Makers Tasting" on Thursday, May 9th.  Adele Corrigan, one of Houston's top female sommeliers, will curate several wines from female vintners across the world. If you'd like to join us for this fun networking event, please contact Brittany Cooperrider to be added to the guest list.
Join Us at the Upcoming Special Events in May

5/1 - Kenton Andrews and Billy Davis present on Contract Law to AGC Greater Houston
5/1 - Jason Walker holds an ASA Lien & Bond Claims seminar
5/1 - Ben Westcott supports the Industrial Appreciastion Golf Tournament
5/3 - AM supports American Constructors' 8th Annual Charity Clay Shoot
5/8 - AM Austin hosts 2nd Annual Crawfish Boil
5/9 - AM Women's Initiative hosts 2nd Annual Wine Tasting
5/9 - AM supports Coastal Conservation Association Banquet
5/14 - ABC Greater Houston LOGIC (Ladies Operating for Growth in Construction)
5/23 - Jason Walker holds "Advanced Bonds & Liens" seminar for NACM SW
5/23 - AM supports TACTAS Judge of the Year Awards
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