Publications: Litigation


  • Wisconsin Court of Appeals Strikes Down Noneconomic Damages Cap in Medical Malpractice Cases

    July 10, 2017

    On July 5, 2017, the Wisconsin Court of Appeals ruled that Wisconsin’s cap on noneconomic damages in medical malpractice cases (found in Wis. Stat. § 893.55) is unconstitutional on its face. The court ruled that the Plaintiff Ascaris Mayo, should receive her jury award of $15 million in noneconomic damages and her husband, Antonio Mayo, should receive his jury award of $1.5 million for his loss of society and companionship. See Ascaris Mayo v. Wisconsin Injured Patients and Families Compensation Fund (accessed at https://www.wicourts.gov/other/appeals/caopin.jsp?docket_number=2014AP002812). We expect this ruling will be reviewed by the Wisconsin Supreme Court. The current statutory cap, which...



  • U.S. Abandons Ban On Nursing Home Arbitration Agreements

    June 6, 2017

    The federal government’s effort to ban pre-dispute arbitration agreements in nursing homes is essentially over, given a proposed revised rule released on June 5, 2017. Last fall, the U.S. Centers for Medicare and Medicaid Services (CMS) issued a regulation banning such agreements in nursing homes and other long-term care facilities participating in Medicare or Medicaid. However, yesterday CMS proposed a revised rule that drops the ban. Just three days earlier, the U.S. Court of Appeals for the Fifth Circuit granted the government’s motion to dismiss its own appeal of a preliminary injunction against the ban. The ban was issued in the final...



  • Supreme Court Limits Venues in Patent Suits

    May 23, 2017

    On Monday, May 22, 2017, the United States Supreme Court issued a decision in which it reined in the venues where an action for patent infringement against a corporate defendant can be brought - T.C. Heartland LLC v. Kraft Foods Group Brands LLC. Previously, and going back to 1990, a “special purpose” venue statute applicable only to patent suits had been construed to allow patent owners to file suit in venues wherever the court had “personal jurisdiction” over the defendant. That construction effectively resulted in a diminishment of the special purpose patent venue statute to that of a general venue statute....



  • U.S. Supreme Court Rebuffs Challenge to Nursing Home Arbitration Agreements

    May 15, 2017

    The U.S. Supreme Court on Monday issued a ruling which further demonstrates the Court’s view that federal law trumps efforts in the states to attack nursing home arbitration agreements. Monday’s ruling overturned the Kentucky Supreme Court, which had declined to enforce two arbitration agreements executed by residents’ family members who held powers of attorney. In the view of the Kentucky court, the agreements were invalid because the powers of attorney did not specifically grant the representative the power to waive the resident’s right to a jury trial. Because that rule specifically targets arbitration agreements, the U.S. Supreme Court held Monday that the...



  • New Business Docket to Help Resolve Business Disputes

    May 15, 2017

    Wisconsin may tweak the way its courts handle business disputes. Beginning July 1, a Commercial Court Docket, or “business docket,” will undergo a three-year trial period in Waukesha County and the Eighth Judicial District (which comprises Brown, Door, Kewaunee, Marinette, Oconto, Outagamie, and Waupaca Counties). After that, the Wisconsin Supreme Court will consider whether to broaden the docket to the entire state. Which cases will go on the business docket? Many business disputes involve federal law, or a party from another state, and those cases generally end up in federal court. That will not change. However, where the parties cannot or...



  • Supply Chain Fraud: What You Can Do

    February 16, 2017

    The potential for fraud has always existed in the construction, lending and real estate world. However, as electronic communications continue to reach new heights in innovation so has the permeation of complex and sophisticated fraud schemes affecting these and other industries. These trending schemes make it imperative for in-house counsel, business owners, and finance departments to continually review and update your billing practice policies and procedures to protect yourself against this new wave of fraud. In its simplest form, Supply chain fraud occurs when you make a payment to someone you believe to be a legitimate vendor or supplier within that...



  • Knock, Knock…Tips for Managing a Regulatory Inspection

    February 16, 2017

    Many state and federal regulatory agencies, including OSHA, EPA, and the Wisconsin Department of Natural Resources, may inspect a business with or without advance notice to ensure compliance with applicable rules and regulations. Here are a few tips to help ensure that your inspections go smoothly. Before an inspection. As the saying goes, to be prepared is half the victory. Plan for an inspection before it occurs: conduct internal audits of compliance keep relevant documents organized e.g. permits, sampling data, compliance documents keep attorney-created documents separate, marked “privileged” create an inspection plan designate a facility contact and his/her backup identify where relevant records are located identify where...



  • Key Insurance Coverage Decisions Affecting Businesses in 2017

    February 10, 2017

    Although insurance coverage is to be determined by the language of the policy at issue, court decisions addressing standard policy language can, and do, affect whether or not an insurance company will cover a claim. Throughout 2016, Wisconsin courts issued a number of decisions that may have wide-ranging impact on the interpretation of insurance policies moving forward. As summarized below, the Wisconsin Supreme Court’s 2016 decisions have the potential for negatively impacting coverage for policyholders. In a decision that may affect the interpretation of liability policies held by most Wisconsin manufacturers and suppliers, the Wisconsin Supreme Court addressed whether or not...



  • Nursing Home Arbitration Rule Put on Hold

    November 8, 2016

    A federal rule that was to have banned pre-dispute arbitration agreements in nursing homes and other long-term care providers was put on hold by a federal judge on Monday. The new rule, which would apply to facilities participating in Medicare or Medicaid, was to go into effect on November 28, 2016. The rule was postponed indefinitely by Monday’s ruling by U.S. District Judge, Michael P. Mills of the Northern District of Mississippi. The ruling granted a preliminary injunction preventing the U.S. Centers for Medicare and Medicaid Services (CMS) from enforcing the rule. CMS had published the new rule only a month...



  • School and Higher Education Law Newsletter

    October 28, 2016

    Featured News: U.S. Supreme Court to Weigh in on Transgender Issue as Wisconsin Federal Judge Allows Transgender Discrimination Lawsuit to Proceed Under Title IX Court Denies Teachers' Attempt at Pre-Act 10 Protections Playing with Fire - Are You Using PBIS Appropriately with Disciplinary Removals? Wisconsin Court of Appeals Upholds School District's Post-Act 10 Reduction of Retirement Benefits Are Your District Websites Accessible to Individuals with Disabilities? Save the Date! Davis & Kuelthau's 29th Annual School Law Seminar US Supreme Court to Weigh in on Transgender Issue as Wisconsin Federal Judge Allows Transgender Discrimination Lawsuit to Proceed Under Title IX On October 28, 2016, the U.S. Supreme Court agreed...



  • Temporary Workers and the FMLA: What You Don’t Know Can Hurt You

    October 25, 2016

    Temporary Workers and the FMLA As most employers know, the federal Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Employers covered under the FMLA include public agencies, state, local and federal employers, and private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year. Further, to be eligible for FMLA leave, an employee must have...



  • Nursing Home Arbitration Rule Challenged in Court

    October 19, 2016

    The nation’s largest association of long-term care providers filed a lawsuit this week asking a federal court to block enforcement of new federal regulations that will prohibit pre-dispute arbitration agreements in nursing homes and other long-term care facilities participating in Medicare and Medicaid. The Centers for Medicare & Medicaid Services (CMS) published the new regulations on October 4, 2016. The rules allow post-dispute arbitration agreements, but such agreements may only be entered into voluntarily, and not as a condition of remaining at the facility. The rules also require facilities to take other steps to help ensure the resident’s understanding and not...



  • New Federal Regulations Prohibit Pre-Dispute Arbitration in Long-Term Care

    October 6, 2016

    Disputes over care in nursing homes and other long-term care facilities will increasingly be decided in litigation, rather than arbitration, as a result of new federal regulations banning pre-dispute arbitration agreements in facilities that participate in the Medicare and Medicaid programs. The Centers for Medicare & Medicaid Services (CMS), an office of the U.S. Department of Health and Human Services, on Tuesday published new, sweeping regulations that govern long-term care. In addition to the new rule on arbitration agreements, the regulations make major revisions to rules regarding staffing, care planning and many other aspects of long-term care. The regulations set standards...



  • Sweeping New Rules Govern Long-Term Care

    October 6, 2016

    Nursing homes and other long-term care facilities across the country must meet stringent, wide-ranging and costly regulatory requirements in order to participate in Medicare and Medicaid programs, under a new rule issued Tuesday by the U.S. Department of Health and Human Services and its Centers for Medicare and Medicaid Services. The new regulations will cost each facility, on average, about $63,000 to implement in the first year. They will be phased in over the next three years. Among the most significant for long-term care operators will be the new regulations regarding staffing and care planning (the new regulations also prohibit pre-dispute arbitration...



  • Attorney McClean Authors Blog Post for State Bar of Wisconsin

    September 8, 2016

    Litigation team chair, Matt McClean authored a post for the State Bar of Wisconsin's Construction Blog. His blog post, The Construction Statute of Repose: More Hammer or Nail Today?, discusses recent appellate cases applying Wisconsin's construction statute of repose. Click here to read the article. ...



  • Protecting Your Business Assets: Nationalized Trade Secret Protection Has Arrived

    May 11, 2016

    Today marks a day of success for inventors across the United States. From recipes and formulas to processes and design, U.S. businesses now have a new method of defense in the quest to safeguard their valuable trade secrets from would-be thieves and rogue employees. President Obama signed the Defend Trade Secrets Act of 2016 ("DTSA") into law, creating a new federal cause of action for the misappropriation of trade secrets. Until today, the owners of trade secrets had to rely on state-by-state protections for their trade secrets – and not all protections were created equal. The DTSA has been a long...



  • Knowing is Winning: How to Trigger Insurance Coverage in Commercial Litigation

    May 5, 2016

    Quite simply, successful litigation from the plaintiff’s perspective is one that results in a net recovery. Whether or not a business should invest in litigation against a supplier, customer, or competitor is a business decision. That business decision often turns on many factors, but one crucial inquiry is whether or not a potential monetary recovery will materially exceed the financial investment in the litigation to make the time and distraction worthwhile. Therefore, of utmost concern before commencing a case is evaluating the potential collectability of the defendant. Regardless of the collectability of the defendant itself, it is imperative that a...



  • Looking Ahead: Restricting Mandatory Arbitration Clauses

    April 28, 2016

    Does your business include mandatory arbitration clauses in its contracts? Such clauses are increasingly common, but restrictions may be imminent. One source of restrictions may be through rulemaking by the Consumer Financial Protection Bureau (CFPB). Congress, through the Dodd-Frank Act, required the CFPB to study the use of mandatory arbitration clauses in consumer contracts and to issue regulations based on its study. In October 2015, the CFPB announced that it is considering proposing rules that ban arbitration clauses that prohibit consumers from participating in class action lawsuits for products and services the CFPB oversees. These products and services include credit cards,...



  • Time-of-Sale Requirements Now Prohibited for Sellers, Buyers, and to Take Occupancy

    April 27, 2016

    The Wisconsin Legislature recently doubled down on its prohibition of municipal time-of-sale requirements. As of July 14, 2015, municipalities could no longer require an owner to make certain improvements and show code compliance before selling a property. As of March 2, 2016, those prohibitions also apply to buyers of real property and to take occupancy of residential property. Under Wis. Stat. § 706.22, created by budget bill 2015 Wisconsin Act 55, a municipality may not restrict an owner’s ability to sell, transfer, or refinance property by requiring the following actions with respect to the property before, at, or immediately after...



  • Battle of the Forms: Practical Tactics to Minimize Risk in Day-to-Day Transactions

    March 7, 2016

    Sales are negotiated and consummated between companies every day. Yet, what often gets overlooked in these negotiations is which company’s terms and conditions govern the transaction. In a typical commercial transaction, a variety of documents may be exchanged between the contracting companies. At minimum, a purchase order and a sales order are usually exchanged. Typically, parties’ affix their terms and conditions to these documents. A standard and simple procedure, right? Not necessarily. In the rush to finalize the deal, companies often fail to adequately take into consideration their contracting partner’s terms and conditions (or ignore them entirely), or the applicability...



  • Beware of Suspicious Patent and Trademark Solicitations

    February 8, 2016

    A rash of unsolicited patent and trademark related mailings to clients has prompted this news alert. Specifically, there has been a dramatic increase in the number of mailings to clients with pending patent or trademark application matters. The sources of the mailings are companies that hold themselves out as governmental agencies, or companies associated with such agencies. The mailings are typically very official looking and are in the form of an invoice asking for payment of some sort of registration fee. The sources of the mailings target individuals and companies whose trademark or patent applications have appeared in official journals, such...



  • Intellectual Property Attorney Joe Heino Discusses Cybercrimes in New North B2B Publication

    February 1, 2016

    Joseph Heino of Davis & Kuelthau’s corporate, and intellectual property teams authored an article, Cybercrime – Costly Threats to Your Intellectual Property, for New North B2B's February 2016 publication. To read the article, please click here....



  • Cybercrime – Costly Threats to Your Intellectual Property

    December 29, 2015

    For most people, the terms “cybersecurity” and “cybercrime” conjure up visions of futuristic and rather ill-defined or abstract activities. But the trending attacks on businesses — of all sizes — are neither futuristic nor abstract. They are clear and present dangers to your intellectual property. First, definitions – “Cybersecurity” is the state of being protected against the criminal or unauthorized use of electronic data, or the measures taken to achieve this. “Cybercrime” is any crime or criminal activity that is conducted via the Internet or some other computer network. Second, a question – Is the threat real? The simple answer is...



  • Take Heed Before Launching New Products and Processes – Supreme Court to Review Enhanced Patent Infringement Damages Standard

    November 19, 2015

    The Supreme Court announced that it accepted Halo Electronics, Inc. v. Pulse Electronics, Inc., No. 14-1513 and Stryker Corp. v. Zimmer, Inc., No. 14-1520, two cases that could lower the bar for awarding enhanced damages to patent owners upon a finding of infringement. Either way, the court’s decision will have a significant impact in determining whether to bring infringement claims and deciding whether to risk a claim of infringement. Under federal patent law, a court “may increase damages awarded in a patent case by up to three times the amount found or assessed.” Under the current Federal Circuit test, in order...



  • Don’t Overlook the Basics — Minimizing Litigation Risk in Commercial Deals

    November 6, 2015

    Business relationships are driven by a business’s agreements, both with customers and with suppliers. Over the years, I have come to recognize issues that arise again and again that, if addressed at the outset, would have saved businesses from the headaches, stress, and expense of a lawsuit later on. While you can never totally eliminate litigation risks, developing and implementing a good program to minimize those risks will more than pay for itself over time. Here are ten seemingly obvious yet often overlooked fundamentals that will help avoid some of the most frequent issues that arise. The Devil Is in the...



  • Businesses and Inventors Should Consider Design Patent Protection Due to Right to Recover Infringer’s Profits

    November 4, 2015

    Because design patents provide for significantly greater damages when infringed than utility patents, inventors and businesses should always consider seeking a design patent to better protect their interests and ward off potential infringers. Unlike utility patents which protect the functional aspects of an invention, design patents cover the ornamental designs of articles of manufacture (see Recent Design Patent Cases Clarify Scope, Expand Protection of Design Patents). Although design patents share many provisions of the federal patent statute with utility patents, the damages available for infringement of a design patent are different. Under federal patent law, the owner of a utility patent...



  • Shifting Sands: Uncertainty Emerges for Businesses Expecting Insurance Companies to Defend Their Coverage

    June 16, 2015

    In the wake of recent pro-insurance company rulings in Wisconsin courts, businesses and their owners will need to proceed with extra caution when asking their insurance company to defend lawsuits that may arise from their business dealings. While many suits are typically covered under a policy, all too often an insurance company disputes coverage, which leads to the business having to expend time and resources out of pocket to fight with its insurer. Historically, Wisconsin courts have placed strong incentives on insurance companies to proceed with caution in disputing coverage. However, recent decisions have curtailed those incentives. When an insurance company...



  • Strategic Use of Limitation of Liability Provisions in Construction Contracts

    May 28, 2015

    One of the most important strategic approaches in modern day construction contract negotiation is leveraging the extent to which the parties will agree to limitations upon certain liabilities. While such limitations fall into a number of different categories, one of the most common is the mutual waiver of consequential damages. Though agreeing to limit the other party’s liability surely comes at some risk, there are benefits that should be carefully weighed before making a go/no-go decision on such a waiver. In particular, the benefit of limiting the total potential of your project cost. On its face, a mutual waiver of...



  • Take the Mystery Out of the Recoverability of Attorneys’ Fees in Construction Disputes

    May 28, 2015

    In American litigation, all parties are responsible for paying their own litigation expenses (including attorneys’ and experts’ fees) regardless of the outcome of a case. This “pay your own way” rule applies with equal force to claims arising on construction projects, subject to narrow exceptions. For example, a party who successfully prevails on a lien claim is entitled under the statutes to recovery of its attorneys’ fees. The same is true in circumstances where an injury is caused by an OSHA violation. By and large, however, the parties know going in that any litigation that ensues will be an expensive...



  • Runzheimer Decision Signals Change of View Toward Restrictive Covenants

    May 1, 2015

    The Wisconsin Supreme Court has issued its decision in Runzheimer International, Ltd. v. Friedlen, 2015 WI 45, holding that an employer’s agreement to refrain from terminating a current at-will employee, without any further promise or benefit, constitutes lawful consideration for signing restrictive covenants, such that the restrictive covenants at issue would not be deemed unenforceable on that basis. This is an important development in the law governing restrictive covenants in Wisconsin, particularly from an employer’s perspective. Historically, Wisconsin law on the issue of restrictive covenants has been considered more employee-friendly, disfavoring the use of restrictive covenants, resolving doubts about the...



  • U.S. Supreme Court Extends Reach of Administrative Decisions Issued By the Appellate Branch of the United States Patent and Trademark Office

    April 10, 2015

    On March 24, 2015, the Supreme Court issued a rare opinion in a trademark matter. In B&B Hardware v. Hargis Industries, the Court held that findings made by the Trademark Trial and Appeal Board (“TTAB”) of the Patent and Trademark Office can have a “preclusive effect” in subsequent infringement proceedings in federal court. The case arose out of an ongoing dispute between B&B Hardware (“B&B”) and Hargis Industries (“Hargis”) over the mark SEALTITE. In 1993, B&B federally registered the mark SEALTIGHT for its fasteners used in the aerospace industry. Later, in 1996, Hargis applied for federal registration of the mark...



  • Spouses of H-1B Holders Now Eligible to Work in the U.S.

    April 8, 2015

    Starting May 26, 2015, the spouses of many H1-B visa holders will be eligible for employment authorization documents (EADs). Currently, the dependents of non-immigrant workers under the H1-B program are welcome to live in the United States and are granted a special dependent visa, known as an H4 visa. However, an H4 visa holder cannot engage in any work for compensation while they reside in the United States. This restriction puts a lot of H1-B workers and their employers in a tough spot. It forces many to put careers on hold while they live in the United States, it can...



  • Wisconsin Supreme Court Confirms Importance for Businesses to Timely Report Insurance Claims

    March 23, 2015

    The Wisconsin Supreme Court recently issued a decision that drives home the importance for businesses and individuals, as policyholders, to immediately report claims to their insurance company. Even a small delay may result in a loss of coverage thereby increasing the risk that, if a claim against you is successful, you will be left to pay for the legal fees to defend the claim, along with the damages that you may be ultimately responsible for – even if your insurance policy would have paid those costs in full if you had notified the insurance company promptly. In the recent case of...



  • Work Opportunity Tax Credit Extended; IRS Issues Guidance on Certification for 2014 Tax Year.

    March 10, 2015

    Private sector employers are now further incentivized for their efforts in hiring otherwise disadvantaged workers. The IRS recently issued guidance extending the time employers may claim a Work Opportunity Tax Credit (“WOTC”) of $2,400 or more for each qualified employee hired in 2014. Because the Tax Increase Prevention Act of 2014 (see D&K’s Client Alert, President Signs Tax Increase Prevention Act of 2014: Incentives for Employers and Individuals) extended the WOTC retroactively for the 2014 tax year, employers need additional time to comply with the certification requirements of WOTC. Notice 2015-13, summarized below, provides employers guidance on compliance aspects of...



  • President Signs Tax Increase Prevention Act of 2014: Incentives for Employers and Individuals

    January 8, 2015

    On December 19, 2014, President Obama signed into law the Tax Increase Prevention Act of 2014 (HR 5771). Otherwise known as the “Tax Extenders” Act, this law retroactively extended through the end of 2014, over 50 tax breaks that expired on December 31, 2013. While there were discussions of making permanent a number of these extenders, particularly the Bonus Depreciation and Section 179 deductions, Congress ultimately passed on making any of these provisions permanent and punted the fate of the extenders to 2015 and the incoming 114th Congress. So, yes, that means that these very same provisions expired as of...



  • Year-End Strategies Pave the Way for Minimizing Your Tax Burden in 2015

    November 24, 2014

    The final months of 2014 are a great time to finalize your tax planning opportunities and set the stage for minimizing your tax outlay in 2015. As a business owner, please be aware that in the wake of the election, sources indicate tax extenders are likely to pass, with some differences between the two houses in Congress being characterized as “easily resolvable” — one house leaning toward passing tax extenders as one bill, the other addressing tax extenders as six separate bills. Broad tax reform, even if put on a fast track would not likely take effect until late 2015...



  • Federal Circuit Reverses $368 Million Damages Award

    September 19, 2014

    The Court of Appeals for the Federal Circuit, in VIRNETX, Inc. v. Cisco Sys. Inc, recently reversed a $368 million dollar patent infringement verdict because the plaintiff calculated its damages as a portion of the entire market value of the product as opposed to apportioning its damages to the infringing software component of the product. In its ruling, the Federal Circuit confirmed the general rule that a patentee cannot use the value of an entire device to calculate a royalty when the device consists of several non-infringing features with no relation to the patented feature unless the patented feature creates the...



  • Construction Projects Gone Wild: Evaluate Potential for Misrepresentation Claims in Advance

    September 15, 2014

    When making a pitch to perform work on a construction project, architects, engineers, and contractors often tout their experience and their ability to bring a project within budget. When a project goes bad, it may be tempting for an owner to characterize the contractor’s, architect’s, or engineer’s statements about experience, capabilities, or projected cost of the project as misrepresentations. However, an owner claiming misrepresentation – and the party against whom the claim is made – should carefully consider whether the contract will allow such a claim. The first inquiry to consider is whether there has been a representation at all. To...



  • Wisconsin Supreme Court Rejects Constitutional Challenge to Domestic Partnership Law

    August 4, 2014

    On July 31, 2014, the Wisconsin Supreme Court decided Julaine K. Appling, et al. v. Scott Walker, which addressed the limited issue of whether Chapter 770 of the Wisconsin Statutes, the Domestic Partnership Law, violated Art. XIII, Sec. 13 of the Wisconsin Constitution, known as the (“Marriage Amendment”). The Marriage Amendment, added to the Wisconsin Constitution in 2006, provides that “[o]nly a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized...



  • Supreme Court Ruling Impacts Closely-Held Companies

    July 3, 2014

    On June 30, 2014, the U.S. Supreme Court issued a controversial decision affecting certain closely-held corporations. The Court’s 5-4 decision in Burwell et al. v. Hobby Lobby Stores, Inc. et al. resolved a split among the federal appellate courts to hold that the federal government may not tax closely-held corporate employers who, for religious reasons, decline to provide contraception coverage mandated under the Affordable Care Act (ACA). Background The Hobby Lobby decision involved three family-owned businesses (the Corporations) owned by two families whose owners claimed a religious exemption from a portion of the ACA coverage mandates. Under regulations promulgated by the Department...



  • Hiring an Independent Contractor? You Might Be Liable.

    July 2, 2014

    The Wisconsin Supreme Court recently clarified in Brandenburg v. Luethi the law in Wisconsin concerning owner liability for damages caused by an independent contractor. The Brandenburg case involved a homeowner who contracted with a company to spray herbicide on trees on his property. In the course of spraying the homeowner’s trees, herbicide drifted onto 79 trees on an adjacent property, causing permanent damage to those trees. The independent contractor was insolvent and the owner of the damaged trees, Brandenburg, sought damages from the homeowner, Luethi. Luethi denied liability, relying upon the general rule in Wisconsin, i.e., that an individual or entity...



  • Take Control: Customize Construction Agreements to Limit the Time and Costs of Potential Arbitration

    June 30, 2014

    Arbitration was once the industry’s preferred mechanism for resolving construction disputes. This has changed significantly in recent years as construction disputes addressed via arbitration have become no less costly, timely, or efficient than traditional litigation. Often a party’s (or its attorney’s) zeal to engage in broad discovery efforts virtually double or triple the transactional costs of arbitration and prolong ultimate resolution by many months or even years. Similarly, post-decision litigation fights over an arbitration award’s enforceability sometimes unduly prolong the achievement of finality, which is one of arbitration’s most valued benefits. Burned by one or more of these experiences, construction...



  • Buyers, Owners and Lenders Take Note: HUD Adopts New Standards for Phase I Environmental Site Assessments

    April 23, 2014

    On April 16, 2014, the Department of Housing and Urban Development (HUD) published notice that it has adopted an updated standard for conducting the Phase I environmental site assessments required by the Office of Housing and Federal Housing Administration’s guidance documents. Those planning to buy or refinance property after May 16, 2014 or serve as a lender to real estate purchasers for property subject to HUD’s guidelines should be aware of the new requirement, outlined below. HUD Requires a Phase I Assessment: HUD requires all property proposed for use in its programs be free of hazardous materials, contamination, toxic chemicals and gasses,...



  • Your Disclaimers Don't Matter! The Seventh Circuit Expands the Reach of Successor Liability

    April 9, 2013

    When a company is sold in an asset sale (as opposed to a stock sale), the buyer acquires the company's assets but not necessarily its liabilities. Whether the liability is passed to the buyer is referred to as "successor liability". In Wisconsin--as in most states--a buyer must expressly or implicitly assume liabilities to be considered a successor. However, if the liability is based on a violation of certain federal labor and employment laws, the federal common law standard for successor liability will be applied. The federal standard is more favorable to employees than state law standards and generally will result...



  • Compensatory and Punitive Damages Once Again Precluded in State Court Employment Discrimination Actions

    April 18, 2012

    The Wisconsin Fair Employment Act (WFEA) returned to its pre-2009 status on April 5, 2012, when Governor Walker signed a bill repealing a 2009 amendment that had allowed employees who prevailed on a discrimination claim to sue their employers for compensatory and punitive damages in state court. The WFEA prohibits employment discrimination based on an individual's "age, race, creed, color, disability, marital status, sex, national origin, ancestry, arrest record, conviction record, military service, use or nonuse of lawful products off the employer's premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious...



  • Duty to Preserve Electronic Records

    February 11, 2011

    A recent Supreme Court order, effective January 1, 2011, amended some of the rules for the discovery of electronically stored information in state court actions. These changes make it clear a party is required to retain electronically stored information for discovery in subsequent litigation; however, the response to any request to produce electronically stored information is only as good as the steps taken by the client to properly preserve this information. The purpose of this memo is to alert all clients to the duty to preserve electronic records that may originate long before the commencement of litigation. Under federal law...



  • Tort Reform Will Change Wisconsin's Litigation Landscape

    February 3, 2011

    Governor Scott Walker signed into law on January 27, 2011, a “tort reform” package of measures that significantly change the litigation landscape in Wisconsin. These measures limit punitive damages, limit non-economic damages against long-term care providers, limit disclosure or use of certain information of health care providers, and raise standards for allowing expert witness testimony.These new laws took effect February 1, 2011. Here are the key provisions: Punitive damagesPunitive damages will be limited to twice the amount of compensatory damages recovered by the plaintiff, or $200,000, whichever is greater. Previously there was no statutory cap on the amount of punitive...



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