Privity of Contract

News & Analysis as of

Developing Issues in Utah Construction Defect Litigation

Following the Utah Supreme Court’s decision in Davencourt at Pilgrim’s Landing Homeowners’ Association v. Davencourt at Pilgrim’s Landing, which clarified the law regarding the claims for which homeowner’s associations (HOAs)...more

Ninth Circuit Holds California Can’t Double-Dip By Seeking Restitution for Citizens Bound By Class Settlement

In the wake of a nationwide class action settlement of litigation against a manufacturer of a test claimed to accurately predict the gender of a fetus, the State of California (“State”) brought an enforcement action against...more

Recent Developments in California Construction Law

Notable 2014 Case Law - Liability for owners, developers, contractors, subcontractors, suppliers and design professionals - This year, California courts decided a variety of cases with important relevance to...more

State Enforcement Actions Following Class Settlements Addressed By Ninth Circuit

A recent Ninth Circuit decision caught my eye. It addressed whether a state enforcement action can be barred by a class action settlement on the same issue, finding that it was barred in part, to the extent the suit sought...more

The Ninth Circuit Holds That Res Judicata Bars State Recovery of Restitution for Members of a CAFA-Compliant Class Action

In California v. Intelligender, LLC, the Ninth Circuit ruled that final judgment in a CAFA-compliant class settlement barred the State of California from seeking restitution on behalf of members of the settlement class for...more

Untouchable? – New York Court Rules that Policyholders Have No Claims against Reinsurer (NICO) or Third-Party Claims Administrator...

In recent years, more than two dozen insurance companies, including Liberty Mutual, AIG, and CNA, have entered into reinsurance arrangements with National Indemnity Company (“NICO”), a subsidiary of Berkshire Hathaway Inc....more

New York Court Revisits Architect’s Duty Under Contract and Tort Principles

Issues of privity and whether claims sound in breach of contract or negligence are common in construction defect cases involving architects and New York is no exception. Indeed, New York courts have long wrestled with...more

The PTAB Authorizes the Patent Owner to File Its Motion for Leave to Take Discovery of General Electric on Possible Privity with a...

In General Electric Co. v. Transdata, Inc., the patent owner requested authorization to file a motion for leave to take discovery of petitioner General Electric regarding whether GE is in privity with a defendant in...more

A Rare Judicial Look at the Contracts (Rights of Third Parties) Act

The recent Part 8 decision in Hurley Palmer Flatt v Barclays Bank Plc considered the application of the Contract (Rights of Third Parties Act) 1999 (the Act) and whether a third party could rely on the contractual right to...more

Louisiana’s Direct Action Statute Does Not Modify Terms of Coverage

“Direct action” statutes permit an injured plaintiff to sue an insurer for coverage under someone else’s policy — the liability insurance policy of the tortfeasor who caused the injury. They have been enacted in only a...more

Federal District Court in New Jersey Holds that Economic Loss Rule Does Not Bar Contractor’s Tort Claims Against Architect Where...

The University of Medicine and Dentistry of New Jersey contracted HDR Architects and Engineers, P.C. (“HDR”) to design a medical school building. After the project went to bid, the Bedwell Company (“Bedwell”) contracted with...more

Caveat Venditor (Let the Seller Beware):Consumer Protection Laws Can Have Significant Implications

A decision by the District of Columbia Court of Appeals emphasizes the need for real estate developers to proceed with caution when making representations to potential home buyers in jurisdictions with consumer protection...more

California Supreme Court Expands Architect’s Duty of Care to Future Homeowners

A new decision issued by the California Supreme Court holds that, even in the absence of contractual privity, an architect on a residential building project owes a duty of care to future homeowners to provide design services...more

In This Case, Placement Agent Status Was Better Than Underwriter Status

As a general matter, California Corporations Code Section 25401 declares it unlawful to make an untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the...more

The Duty to Indemnify Does Not Create Privity

Apple Inc. v. Achates Reference Publishing, Inc. - In the final written decisions of two related inter partes reviews (IPRs) concerning patents in the same family, the U.S. Patent and Trademark Office’s Patent Trial...more

Virginia’s Privity of Contract Defense Continues to Protect Defendants in Economic Loss Cases

I am often told by clients that they are protected from a lawsuit because they have a corporation. The advice I usually give them is that while the corporate shield is strong it does not protect them if they are negligent...more

IP Newsflash - June 2014 #2

FEDERAL CIRCUIT CASES - FRCP 19(a) Cannot Be Used to Involuntarily Join an Unwilling Patent Co-Owner to Infringement Litigation: On June 6, 2014, the Federal Circuit affirmed a decision by the District of New...more

Federal District Court in Pennsylvania Allows Negligence Suit Against Builder Despite Lack of Privity of Contract Between the...

A Federal Court in Pennsylvania has handed down a ruling that may expand the pool of potential plaintiffs in construction litigation. See AMCO Insurance Co. v. Emery and Associates, 926 F. Supp. 2d 634 (W.D. Pa. 2013). In...more

Ten myths of government contracting: Myth No. 4 - Subcontractors aren’t as exposed as primes

How many times have you heard this? My response is always the same: Have you actually read any of your subcontracts? I already know the answer to that question, of course, because no one who has read a properly drafted...more

In This “Unreliable” Opinion, Court Requires Privity For Action Against Unlicensed Broker-Deale

Since California Corporations Code Section 25501.5 was enacted ten years ago, I’ve been repeatedly asked “What do it mean?“. The statute provides that a person who purchases a security from, or sells a security to, an...more

Condominium Warranties Do Not Apply to Some Florida Projects Built as Rental Housing

Florida’s Condominium Statutes provide unit owners with express statutory warranties from a Project Developer and Contractors that perform construction services. See F.S. 718.203. Such warranties have been the source of much...more

Developers Beware: Consumer Protection Procedures Act Strikes Again in D.C.

A recent court decision emphasizes the need for real estate developers to proceed with caution when making representations to potential home buyers in the District of Columbia, as well as in other jurisdictions with similar...more

The State and Impact of Florida’s Economic Loss Rule

In March of this year, the Florida Supreme Court departed from established precedent and limited the application of the economic loss rule to product liability cases. The court explained that this was necessary given the...more

Options to Repurchase Property – A Cautionary Tale on Drafting

A recent Ohio Court of Appeals decision highlights the importance of careful drafting in real estate documents and the need for due diligence in property transactions. Sellers of land sometimes intend to reserve a right to...more

Under Construction - September 2013: Utah’s Economic Loss Rule

In Utah, a plaintiff must generally in be in privity with the “original contractor, architect, engineer or real estate developer” to bring an “action for defective design or construction.” Utah Code Ann. §78 B-4-513(4). This...more

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