February

Feature Story

Message From the Chair-Elect By Andrew D. Ness, Jones Day

Well I can’t say they didn’t warn me, and repeatedly at that. In considering whether to put my hat in the ring for the position of Forum Chair-elect, I talked with many of the recent Forum Chairs. The most common advice was “Whatever amount of time you think it will require, it takes a lot more.” And so it is, right from the start.

Also In This Issue

Message from the Editor: What’s New?

By Jeffrey R. Cruz, E.E. Cruz & Company, Inc.

So what’s new at Under Construction? Everything. Your Forum newsletter is trotting out yet another format to be beamed to your desktop computer, laptop, tablet and handheld device.

Stay on Course in the Changing World of Claim Preclusion Clauses

By Daniel M. Drewry, Drewry Simmons Vornehm, LLP, Julia M.I. Holden Davis, Bankston Gronning O’Hara, Julie Sneed Muller, Wyatt, Tarrant & Combs, LLP

Negotiating, drafting and enforcing claim preclusion clauses can quickly land even an experienced construction practitioner in foreign territory. From notice requirements to “no damage for delay” clauses, the application of claim preclusion clauses varies wildly in content and enforcement from jurisdiction to jurisdiction. This article examines the judicial treatment of claim preclusion clauses, focusing on claim notice requirements and “no damage for delay” clauses, and sets a framework for drafting and negotiating such clauses.

Henry Gifford v. U.S. Green Building Council

By Edward B. Gentilcore

On October 8, 2010, a suit was filed in the U.S. District Court for the Southern District of New York, at Case No. 10 CIV 7747. The matter was initiated by Henry Gifford as a class action suit against not only the U.S. Green Building Council (USGBC), but also a number of other high-ranking officials with the USGBC, including its president, Rick Federizzi. The complaint charged that the the defendants’ collective conduct of promulgating the LEED rating system amounted to misrepresentation, false and misleading advertising, monopolization and, through concert and cooperation, conspiracy.

Recent Developments in Establishing Claims for Delays And Lost Productivity

By Charles V. Choyce, Jr., Esq., PSP, PMP, CFCC

One of the most difficult and complex challenges facing a claimant on a construction contract is establishing entitlement and proper quantification of impacts associated with change orders, delays and lost labor productivity. If these issues are not resolved during the project, they become a battleground for retrospective disputes, arbitration and litigation.

The ABC’s of the Three C’s

By Amy Phillips, Arcadis

Managing client expectations, specifically when more then one group is involved, requires basic skills. In professional practice both counsel and consultant are tasked with addressing and satisfying the clients’ needs effectively and efficiently. Learning the “how-to-do’s” of the Client, Counsel and Consultant relationship can be as simple as reciting the alphabet.

Spotlight on the Corporate Counsel Division: The Corporate Counsel Brief

By Andrea G. Woods, Nabholz Construction Corporation

The awkward conversation on billing arrangements must happen. There is no way around it if in-house and outside counsels are going to assure the best value for the client. No matter how many years of practice you have under your belt, this conversation can be as uncomfortable as confronting a teenager about their romantic activities. Likewise, the closer the relationship, the more difficult this can be to accomplish.