Commercial Litigation

Landlord Has Personal Claim Against Officer Of Tenant Corporation For Removing Property From Premises

Landlord Has Personal Claim Against Officer Of Tenant Corporation For Removing Property From Premises

In the recent case of KCE Properties, Inc. v. Holy Mackerel, Inc., a landlord pursued a fairly routine claim against its former tenant for unpaid rent.  In the case, however, the landlord also included a claim against one of the officers of the tenant corporation for “conversion” (wrongful exercise of control over another’s property) claiming that the officer removed certain property from the premises that ...
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Virginia Supreme Court Confirms  Employee Firings on the Spot

Virginia Supreme Court Confirms Employee Firings on the Spot

Law Tips Authored by Neil S. Lowenstein In a recent opinion involving a fired realtor, the Virginia Supreme Court confirmed that at-will employees can be fired on the spot, without any prior notice to the employee. The decision was unanimous, and noted that while the firing notice “must be reasonable,” advance notice was not required because, among other things, that would be contrary to the ...
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SBA Issues Final Rule Regarding Affiliation Calculation of Annual Receipts Limitationson Subcontracting and Joint Ventures

SBA Issues Final Rule Regarding Affiliation Calculation of Annual Receipts Limitationson Subcontracting and Joint Ventures

Authored by Neil S. Lowenstein In its Final Rule issued May 31, 2016, the Small Business Administration issued rules implementing the 2013 National Defense Authorization Act. The Final Rule has a myriad of aspects applicable to awards in various small business programs, and this short summary is not intended to address them all; but rather instead this summarizes some of the provisions regarding affiliation, calculation ...
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The Risks of Using Criminal Statutes to Collect Construction Debts

The Risks of Using Criminal Statutes to Collect Construction Debts

The failure to make payment on a construction contract may not only result in a claim for money damages in a civil lawsuit, but it may also result in a violation of a criminal statute.  For example, Code of Virginia Section 43-13 makes it a felony to use funds received for a particular construction project for any purpose other than paying contractors or suppliers who ...
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False Claims Act: The Fourth Circuit's Triple Canopy Decision

False Claims Act: The Fourth Circuit’s Triple Canopy Decision

Authored by attorney Megan Caramore The False Claims Act, 31 U.S.C. §§3729-3733, also known as the “Lincoln Law,” is a federal law that imposes liability on individuals and companies (often federal contractors) who defraud the government.  The Act prohibits contractors from presenting the government with a false or fraudulent claim for payment. The Fourth Circuit recently examined the issue of what constitutes a false or ...
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Prospective Waiver of Lien Rights by Subcontractors & Suppliers

Prospective Waiver of Lien Rights by Subcontractors & Suppliers

Authored by attorney Jay Rixey On April 15, 2015, the General Assembly enacted legislation amending Virginia Code § 43-3, providing that a subcontractor, lower-tier subcontractor, or material supplier may not waive or diminish his lien rights, right to assert bond payment claims, or the right to assert claims for additional costs in advance of furnishing any labor, services, or materials. Any provision in a contract ...
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Fourth Circuit Clarifies Federal False Claims Standards in January 2015 Majority Decision

Fourth Circuit Clarifies Federal False Claims Standards in January 2015 Majority Decision

Authored by attorney Neil Lowenstein Last month the United States Court of Appeals for the Fourth Circuit (which has Federal Court appellate jurisdiction for Virginia, North Carolina, South Carolina, West Virginia, Maryland and the District of Columbia) clarified a number of aspects of Federal False Claim actions. The case is United States, et al. v. Triple Canopy, Inc., Nos. 13-2190 and 13-2191, decided January 8, ...
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Law Tips: Incorporation by Reference

Law Tips: Incorporation by Reference

Authored by attorney Dustin Paul One of the most dangerous things a business can do is agree to contract terms that it has never read. Hidden in contracts may be a variety of provisions that could become expensive to a project or deal. Contracts may contain a forum selection clause requiring that suit be brought in another state. Contracts may contain a choice of law ...
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New OSHA Reporting Requirements Effective January 1, 2015

New OSHA Reporting Requirements Effective January 1, 2015

Authored by attorney Megan Caramore On September 11, 2014, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced a final rule with respect to new reporting requirements for fatalities and severe injuries.  Previously, the rule required only that employers report fatalities or hospitalizations of three or more workers.  The new rule, which takes effect on January 1, 2015, requires that employers report any ...
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Mechanic's Liens: Part One. Technical Risks

Mechanic’s Liens: Part One. Technical Risks

Virginia law provides for a mechanic lien intended to insure payment to persons who supply labor or materials for construction projects. On first blush, the requirement is simple – to file the mechanic’s lien. But over the years judicial interpretations of the statutory provisions have made the requirements much more complex than that; and any disregard of the technicalities can defeat payment. One example is ...
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Mechanic's Liens: Part Two. Practical Risks

Mechanic’s Liens: Part Two. Practical Risks

A mechanic’s lien is a powerful tool to secure payment for construction work.  As discussed in the last article, however, there are technical requirements to prepare a mechanic’s lien.  Heads Up Sprinkler lost its mechanic’s lien after five years because it failed to include a statement that it “intended to claim the benefit of the lien.”  Unfortunately, Heads Up also faced practical issues trying to ...
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ASBCA Holds that of Contracting Officer's Decision does Preclude Appeal Challenging Performance Evaluations

ASBCA Holds that of Contracting Officer’s Decision does Preclude Appeal Challenging Performance Evaluations

Authored by attorney Neil S. Lowenstein In a recently released decision (11/18/13, Metag Insast Ticaret A.S., ASBCA No. 58616), the Armed Services Board of Contract Appeals reaffirmed its earlier holding that performance evaluation disputes may constitute Contract Disputes Act (CDA) claims, if the contractor has sought a final decision, as being an appealable request for interpretation of contract terms and relief therefore arising under the ...
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Miller Act Payment Bond Protection Do Not Extend to Third-Tier Subcontractors

Miller Act Payment Bond Protection Do Not Extend to Third-Tier Subcontractors

Authored by attorney Megan B. Caramore The Miller Act requires that a contractor who is awarded a government construction contract worth $100,000 or more must furnish a payment bond. It also limits the potential claimants on the bond to persons who provide labor and materials directly to the prime contractor or persons with direct contractual relationship with a first-tiered subcontractor, but no relationship with the ...
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New Restrictions on Mechanic's Lien in Virginia

New Restrictions on Mechanic’s Lien in Virginia

Authored by attorney James R. Harvey The 2013 Virginia General Assembly passed a new law further complicating Virginia’s mechanic’s lien laws. The bill, which passed with wide support in the House of Delegates and Senate amends Va. Code §43-3 to now prohibit liens by those without a valid Virginia contractor’s license. “A person who performs labor without a valid license or certificate issued by the ...
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Am I Responsible for That?

Am I Responsible for That?

Authored by attorney Neil Lowenstein Landowners hire contractors to perform work for the landowner.  Contractors then typically hire multiple subcontractors to perform various portions of that work.  And, subcontractors then hire sub-subcontractors to perform various portions of their work.  And, so on depending upon the nature of the particular project.  Often the work being performed is dangerous, and this can result in personal injury or ...
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