We defend and represent clients in construction law matters, from complex class actions involving billions or millions of dollars and many parties or installations, to multiple individual matters with recurrent issues, and in advisory matters. Each of these types of matters requires a different approach and skill set. Through our recurrent work as construction lawyers, we have access to many experts in multiple disciplines, which can be a critical component to a successful representation.
Our litigation, claims handling, and advisory work for clients in the construction industry has included the following:
Class Action Defense
- Twice put down plaintiff’s attempts to certify a class on behalf of window manufacturers throughout the United States, then won summary judgment in favor of U.S. subsidiary of $90 billion petrochemical company in action involving alleged defects in insulating glass sealants used in $4 billion worth of windows over a 20-year period, then argued and won affirmance in the Ninth Circuit U.S. Court of Appeals, then defeated petition for certiorari in U.S. Supreme Court. Wasco Products v. Southwall Technologies, et al., 435 F.3d 989 (9th Cir.), cert. denied, 127 S. Ct. 83 (2006).
- Defeated class certification in putative class action in Los Angeles federal court involving 29,000 installations, where the alleged damages ranged between $25,000 and $55,000 per installation, arising out of the use of an allegedly defective flooring material, then settled action without any settlement payment.
- Avoided class certification in 1,000-home construction defect litigation, then negotiated a minimal four-figure settlement involving the five named plaintiffs.
- Obtained dismissal for lack of subject matter jurisdiction of putative construction product defect class action in San Diego federal court where alleged damages exceeded $1.8 billion.
- Successfully defended product manufacturer in construction defect putative class action, where the manufacturer was brought into the action as a third party well into discovery.
Mass Alleged Defect Defense
- Argued and won affirmance in the U.S. Court of Appeals for the Second Circuit of the dismissal of a massive action alleging $4 million in damages. Four Seasons Solar Prods. Corp. v. Black & Decker Corp., et al., 2004 U.S. App. LEXIS 10688 (2d Cir. June 1, 2004).
- Won dismissal – based on plaintiff’s failure to collect all but 40 of the alleged thousands of failed units (250 per week) spanning the United States – of virtually all claimed damages in alleged $30 million construction products defect action filed by the largest U.S. manufacturer of such units in its own home town; then defeated plaintiff’s petition for interlocutory appeal. Shortly thereafter, when we refused to negotiate a settlement and communicated our intention to proceed with 70 depositions over the 40 remaining units, plaintiff agreed to dismiss the action in exchange solely for a waiver of costs.
- Aggressively defended $2.1 million, 17,000 failed-window action in Montreal, Canada, filed by manufacturer with known organized-crime connections, resulting in a voluntary dismissal on the eve of trial without the payment of any money, following a successful motion to preclude the manufacturer’s evidence at trial.
- Defended client in multiple actions alleging failures in construction material in California, Hawaii, Illinois, and Oregon, then counseled R&D personnel of client in discovery of the cause of the alleged failures and in reformulating the material.
- Participated in coordinating national defense and trial strategy for Fortune 100 company in approximately 150 products liability asbestos-in-buildings cases involving tens of thousands of buildings located throughout United States, including virtually every public utility building, public school, public office building, bridge, and tunnel in the City of New York.
- Through statistical and economic modeling, avoided litigation and negotiated minimal settlement on behalf of alleged manufacturer of polybutylene water pipes in multimillion-dollar claim asserted by utility company.
- Disposed of potential claim by major mid-western university involving alleged defects in all of its swimming pools, without the payment of any settlement funds, by persuading the university and other impacted parties that the client’s product was not the cause of the defects.
- Through pre-complaint correspondence demonstrating client’s products were not at fault, avoided client’s inclusion in subsequently filed litigation regarding failure of membrane on exterior balconies on newly built Atlanta high rise luxury condominium building where damages exceeded $2 million.
- Without litigation or settlement payment, disposed of $1 million claim alleging defect in roofing materials used in hundreds of roofs in Illinois.
- Defended claims, avoiding litigation and payment of any settlement funds, alleging defects in caulking materials used in luxury yachts located in seas and ports throughout the world.
Advice and Counseling
- Advised and counseled client regarding testing to verify prior claims the client’s documentation had made about the product that had become a critical issue in a multi hundred-million dollar putative class action, thereby undercutting the plaintiffs’ case and assisting the client in avoiding liability.
- Analyzed potential risks and exposure and advised and counseled concerning reformulation of construction products.
- Claims management, crisis management, manufacturing and sales allocation counseling, and coordination of communications relating to regulatory agency investigations, OSHA citations, potential claims arising out of Force Majeure, and other potential exposure arising from explosion at plant utilized for manufacture of construction products.
- Structured and wrote customer-oriented warranty programs for client for construction products for both commercial and consumer sales.
- Advised and represented client in connection with the licensing, toll manufacturing, and potential divestiture of construction products business.
- Advised clients concerning scope, adequacy, and coverage provided by builder’s risk insurance, and coordinated and negotiated with insurance brokers.
- Advised clients concerning additional insured designations and certificates of insurance (including waivers of subrogation, disclaimers contained in certificates, and establishing additional insured status).
- Reviewed, revised, and negotiated more than 500 agreements related to construction and construction products, including supply agreements, indemnification agreements, private label agreements, leases, toll manufacturing agreements, toll packaging agreements, shipping agreements, consultancy agreements, employment agreements, vendor agreements, compliance agreements, terms and conditions of sale, terms and conditions of purchase, sales representative agreements, consignment agreements, distributor agreements, service agreements, joint-venture agreements, licensing agreements, and non-disclosure agreements.
Other Defect Litigation
- Successful defense, with no payment of any settlement funds, of product defect litigation involving a hotel constructed in Deadhorse, Alaska.
- Won early dismissal on the pleadings, without leave to amend, in Atlanta federal court of $3.5 million fraud and breach of warranty claim by client’s private label customer alleging sale of defective construction products.
- Defended and successfully resolved litigation in Hawaii alleging failure of flooring product in prominent construction defect plaintiffs’ lawyer’s home.
- Successfully moved to dismiss action alleging defects in caulking product used in hospital installation of fiberglass reinforced panels.
For further information, please contact David R. Scheidemantle at David@Scheidemantle-Law.com or (626) 660-4434.