Laura Fraher

Recently, the Ninth Circuit Court of Appeals affirmed a district court’s decision finding a delegation clause in an arbitration agreement to be both procedurally and substantively unconscionable and, moreover, that California’s prohibition on class action waivers contained in adhesion contracts is not preempted by the Federal Arbitration Act (FAA). More from James "Jim" Sandy: https://lnkd.in/gUhsYuF5 #Litigation #LitigationByte #Arbitration #FAA

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The doctrine of divisibility is well known in contract law, yet there is little discussion by courts and scholars of reverse divisibility, which involves the recharacterization of two or more facially separate but closely related contracts as a single contract. In "'Reverse Divisibility' and 'Subsequent Modification': Expanding the Scope of Justified Non-Performance in Multiple Contract Situations," Professor Gregory Crespi discusses reverse divisibility and its practical applications. https://lnkd.in/eGG-r3dv

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On March 27, 2024, Kibler Fowler & Cave prevailed on a motion for summary adjudication for clients RWB Platinum Vape, Inc. and Red White & Bloom Brands, Inc. (together, "RWB"). RWB is a multi-national cannabis company that in 2020 purchased a group of companies from George Sadler and Cody Sadler for more than $35 million. The Sadlers signed various agreements that contained non-compete and non-solicitation clauses in connection with the sale of their companies. After flagrantly breaching their agreements with RWB, the Sadlers claimed in litigation that the non-compete and non-solicitation clauses were not enforceable under California law. The Superior Court of San Diego County disagreed, granting RWB’s motion for summary adjudication and finding that the clauses are enforceable under California Business & Professions Code section 16601. RWB also defeated a motion for summary judgment filed by the Sadlers for breach of a contractual non-disparagement clause based on cease-and-desist letters sent by RWB to customers and vendors after the Sadlers breached their agreements with RWB. The Court agreed with RWB that, at minimum, there are factual disputes over whether the communications were made in anticipation of possible litigation, in which case the litigation privilege would bar the Sadlers’ claim. These substantial victories follow KF&C’s win in this case before the Court of Appeal for the State of California, Fourth Appellate District, which on October 24, 2023, handed down a unanimous ruling affirming a decision by the Superior Court disqualifying the Sadlers’ prior counsel, Austin Legal Group APC. Trial is set for December 2024. This will be one of many trials for KF&C this year. The KF&C team includes Partner Matt Cave, Counsel Stephen Raiola, Senior Associate Kevin Kroll, Senior Associate Kevin Cammiso, Associate Shiqi (Sara) Borjigin, Senior Litigation Paralegal Samantha Ahlheim, and Paralegal Megan Schneider.

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The U.S. Supreme Court recently agreed to hear yet another case related to the #TCPA, which could have a major impact on TCPA litigation, particularly in light of the recent decision overturning the doctrine of deference to agency interpretations in Loper Bright Enterprises v. Raimondo. The pending case gives the Court another opportunity to limit judicial deference to agency interpretations. Manatt's Bezalel Stern and Patrice Ruane explain more here: https://lnkd.in/e2Xj9kcF

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Construction Materials Cartels: Why is worlds no. 1 construction materials producer CRH plc not properly coming under the antitrust spotlight in the U.S? In 2020, CRH plc settled an antitrust case taken against it by the State of West Virginia for over $100m. The company describes itself as the largest producer in the U.S. "by a country mile" and bigger than its "next four competitors together". Every State Attorney General needs to come together and cooperate in a U.S. wide investigation of the construction materials sector.

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Emerging trends and hot issues in construction, including tech solutions to improve safety and decrease claims, are covered in this article by Tom D. Fama, partner at Wood, Smith, Henning & Berman LLP. Read now: https://bit.ly/3Y7nJmj #Insurance #ClaimsManagement #LitigationManagement #InsuranceDefense #ConstructionInsurance #CLMMagazine

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In a recent article in Construction Business Owner Magazine & Digital Media, Washington, D.C.-based Partners Judah Lifschitz and Laura Fraher dive into the potential legal liabilities for project owners following the recent bridge collapse, specifically which parties will have potentially liability for myriad costs, EPC contracts, investigation processes and key factors that contribute to successful resolution of construction-related disputes. To learn more, click here: https://lnkd.in/gXUYZ3VV #News #Baltimore #LegalLiability #LiquidatedDamages #EPC  

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Partner Cate Stetson, who co-heads our Appellate practice, successfully argued before the United States Supreme Court on behalf of a group of companies challenging the Environmental Protection Agency’s (EPA) cross-state smog protection plan. In a 5-4 decision, the Court stayed the EPA’s plan, concluding that the challengers, which include several states and a broad cross-section of industries, are likely to succeed on their claims that the EPA’s rulemaking process violated the law. The decision was the second major victory in as many weeks for Hogan Lovells’ Appellate practice, following Jessica Ellsworth’s win for firm client Danco in the mifepristone litigation. Read more in our press release at the link in the comments. #SupremeCourt #Litigation #Environment #News

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In many markets, there is no getting away from the fact that contractors and employers each start projects with differing expectations of risks, and differing perspectives as to who holds those risks. Corporate Disputes moderates a discussion between Richard Scott at Accuracy, Rashda Rana SC at National Grid, and James Bremen at Quinn Emanuel on construction dispute management and mitigation. Find out more about this Q&A in the Apr-Jun 2024 issue: https://lnkd.in/etR42kas #constructiondisputes #disputes #mitigation #corporatedisputes

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Congratulations to Miriam Miller Esq on obtaining a summary judgment dismissing the Plaintiff’s Complaint against our firm’s #construction client! Summary Judgement was granted in New York Supreme Court for our client, a curtain wall contractor, in a complex #bodily #injury construction case. Plaintiff asserted five causes of action for: common law negligence; negligent hiring and supervision; #vicarious #liability for assault and/or battery; intentional infliction of emotional distress; harassment and discrimination. Miriam Miller Esq and her team including Austin LaBorwit, Esq. successfully argued that our client bore no liability since Plaintiff’s accident occurred in front of the construction site and our client owed no duty towards Plaintiff, an employee of our subcontractor. Furthermore, we also indicated that since the incident occurred outside of the workplace and had no relationship to the work under the contract, any claims for indemnification are fatal, since the contract with the Ownership entities explicitly limited indemnification to injuries within the scope of work. The court also agreed with our argument that since our client did not employ Plaintiff, nor the other laborers at the Project, who committed the assault , it did not have a duty to institute specific procedures for hiring employees for any of the subcontractors or a duty to investigate any violent propensities of the subcontractor’s employees at the site, unless the client was on direct notice to investigate the subcontractor and its employees, which was absent in our case. As such, our client could not be held #vicariously #liable for Plaintiff’s accident. Another impressive win for Miriam Miller Esq and Austin LaBorwit, Esq. 🏆Cheers🏆

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Read our newly published Legal Insight, "American Arbitration Association Amends Construction Industry Arbitration Rules" by Adam Ennis here: https://lnkd.in/eFGVrgwU

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