Wednesday, December 30, 2015

Articles from D1 Members in the Newest Edition of Under Construction


The most recent edition of Under Construction has been mailed and emailed to Forum members. 

An expanded version is available online -- http://bit.ly/1mpMC7E

If you did not receive either the paper or online copies, please make sure to check your preferences with the ABA.  For detailed instructions on how to receive Under Construction by email, click HERE.

Two Division 1 members wrote articles for this edition of Under Construction:
  • Brendan Carter wrote A Project Manager's Decision to Become a Lawyer.  The article is about Brendan's path to law school after working 10 years in construction. Brendan is the Forum's past law school liaison. Read his story by clicking HERE.
  • Daniel Kapner answered my questions about the 2015 Amendments to the AAA Construction Rules.  You can read his article by clicking HERE.
If you are interested in writing an article for Under Construction, please contact me (rtdunn@PierceAtwood.com).  I would also like to receive ideas from Division 1 members about ways to improve #ABAUnderConstruction. 

Thanks,

Tom Dunn
Associate Editor, Under Construction

Tuesday, December 29, 2015

Mid-Winter D1/D13 Dinner Social

Divisions 1 and 13 are pleased to announce they will be teaming for their social event in San Francisco at the Mid-Winter meeting this year.  

After the Welcome Reception we will be venturing down to the Pier 23 Restaurant on the waterfront for heavy hors d’oeuvres and some great comradery – so join us! 

Sign up early and see you all soon!!


Nick Holmes
Division 1 Chair


Division 1 Construction Law Practicum: Written Advocacy in Construction Litigation

Lawyers often decry the reduced role that jury trials play in deciding construction disputes. As all of us recognize, most cases settle prior to trial because of the inherent risks involved with taking a major dispute all the way through a verdict. 

What that means, however, is that written advocacy has become far more important to obtaining a result with which our clients can be happy.  Advocacy takes many forms, whether in discovery requests and responses, dispositive motions, motions in limine, pretrial statements, or post-hearing briefs.  Each of these forms is a unique way to help our clients to achieve their goals.



On the Wednesday of the Midwinter Meeting in San Francisco, Division 1 is proud to sponsor and help present the Construction Law Practicum titled "Written Advocacy in Construction Litigation." This practicum is being presented in conjunction with the Young Lawyers Division and the Forum Leadership Circle.  

Even though the YLD is sponsoring the practicum, lawyers of all ages should attend. For the low price of $50, you will hear from James O'Connor, Cassidy Rosenthal, and Kent Collier regarding topics such as: 

*  How to advance your client’s case through targeted discovery requests including:

  • Interrogatories;
  • Requests for Production; and,
  • Requests for Admission.

*  Crafting automatic disclosures and responses to discovery requests.
*  Tips for drafting well-structured, clear and persuasive written motions including:

  • Dispositive motions;
  • Motions in limine;
  • Pretrial statements; and,
  • Post-hearing briefs.


Seats are limited for the practicum, so sign up today!

Monday, December 21, 2015

Arbitrator’s About-Face: “Perhaps a bit unusual” but not subject to vacatur


Photo Credit: New York State Thruway Authority.

Long awaited construction on the $4 billion project to replace the Tappan Zee Bridge commenced in the Spring of 2015.  Just north of New York City, the new cable-stayed bridge will span the Hudson River offering eight lanes of regular traffic plus dedicated mass transit lanes. (Read more about the project here.) The work obviously is a huge undertaking and disputes have arisen.  Recently, in United Bhd. of Carpenters & Joiners of Am. v. Tappan Zee Constructors, LLC, 804 F.3d 270 (2d Cir. 2015), the Second Circuit considered a unique question concerning vacatur of an arbitrator’s award based upon on manifest disregard.

Underlying the dispute was the delegation of bridge-pilings work. Tappan Zee Constructors, LLC (“TZC”), the project’s design-builder, assigned a small part of the formwork for the bridge piles to Dockbuilders Local 1556 (“Dockbuilders”) and a larger part of the formwork to the Carpenters Local 279 (“Carpenters”).  The Dockbuilders disputed the assignment challenging why so much of the formwork was in the province of the Carpenters.  Through negotiation, however, the two unions reached an agreement and directed TZC to assign the disputed formwork to the Dockbuilders. Because the Dockbuilders’ hourly rate was much greater than the Carpenters, to the tune of $7.3 million total, TZC refused to alter the assignment and demanded arbitration.

The single arbitrator, pursuant to the parties’ Project Labor Agreement (“PLA”), was required to consider specific criteria in deciding which union would be awarded the work. Then to issue the award, the PLA required the arbitrator to “render a short-form decision within 5 days of the hearing based upon the evidence submitted at the hearing, with a written decision to follow within 30 days of the close of the hearing.”  

The arbitrator first issued the "Award" assigning the work to the Dockbuilders. Then, a short time later, the arbitrator issued an "Opinion and Award" in direct contradiction.  He decided instead that the Carpenters would do the formwork, which outcome resulted in multimillion-dollar cost savings for TZC.  To explain his decision flip, the arbitrator stated that his “Award” was “not fully considered” and was “hasty, as further review of the evidentiary record revealed.”

The unions and TZC filed cross motions to confirm their respective decisions. The district court sided with TZC. At the Second Circuit, the court likewise affirmed. 

The Second Circuit focused on whether the arbitrator’s interpretation of the PLA, which apparently allowed him to change his mind between the short-form and the written decision, was in manifest disregard of the contract provisions.  In the Second Circuit (in contrast to others) manifest disregard is an available basis to vacate an arbitration award.  Manifest disregard is appropriate if the arbitral award is contrary to “express and unambiguous term of the contract or if the award so far departs from the terms of the agreement that it is not even arguably derived from the contract.”  United Bhd. of Carpenters, 804 F.3d at 272 (citing Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200, 222 (2d Cir. 2002)).

Here, the PLA
required two, separate decisions—a “short-form decision” and “written decision.” Because the PLA did not define “short-form decision,” the Second Circuit reasoned that the arbitrator could interpret that contract term.  By issuing a “written decision” that deviated from the initially rendered “short-form decision,” the court observed that “[w]hile the ultimate result was perhaps a bit unusual” the arbitrator did not exceed his authority.  He could read the contract as permitting the “written decision” to be inconsistent with the “short-form decision.”  Likewise, the court was not persuaded that the arbitrator was acting “functus officio” by changing his mind in the second-issued decision.  The parties agreed that there would be two separate decisions and this arbitrator “fashion[ed] the second decision as he saw fit.” 

The result is another example of the deference afforded to arbitrators and the unlikelihood of vacating an arbitration award.
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The author, Katharine Kohm, is a committee member for The Dispute Resolver. Katharine practices construction law and commercial litigation in Rhode Island and Massachusetts.  She is an associate at Pierce Atwood, LLP in Providence, Rhode Island.  She may be contacted at 401-490-3407 or kkohm@PierceAtwood.com.