Publications: Construction Industry


  • 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...



  • 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. ...



  • New overtime rules announced. Millions of employees impacted. Are you ready?

    May 18, 2016

    Breaking News: Federal Judge Blocks DOL Overtime Rules (November 23, 2016) Original May 2016 article: On Tuesday, May 17, the Department of Labor (DOL) announced new rules on overtime pay, fulfilling President Obama’s 2014 promise to raise the salary level at which employers are required to pay overtime. These changes will have wide impact for virtually all profit and non-profit organizations, and the DOL estimates that almost 4.2 million U.S. workers who are currently exempt will now be eligible for overtime compensation under the new salary level requirements. The rules provide that employers must implement these changes by DECEMBER 1, 2016. It...



  • 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...



  • This Land Is My Land (Now): Wisconsin Modifies Its Adverse Possession Law

    April 7, 2016

    On March 1, 2016, Wisconsin enacted a new statute and repealed and restated another existing statute, both related to the doctrine of adverse possession in the State of Wisconsin. The newly created statute § 893.305, Wisconsin Statutes, creates a mechanism for property owners to delay a potential adverse possessor’s claim by allowing the record title holder to record an “Affidavit of Interruption” with the register of deeds’ office, which will restart the time period that an adverse possessor must continuously meet the requirements of adverse possession.¹ The repealed and recreated statute, Wisconsin Statutes § 893.29, prohibits adverse possession by or...



  • 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...



  • Real Estate Attorney Joe Tierney Discusses Tax Incremental Financing districts (TID) in New North B2B Publication

    March 1, 2016

    Joseph Tierney of Davis & Kuelthau’s corporate, construction and real estate teams authored an article, The Shrinking TID May Be Coming, for New North B2B's March 2016 publication. To read the article, please click here....



  • Wisconsin’s Controlled Highway Access – Property Owners and Developers Beware

    February 9, 2016

    For those who own property abutting a highway or are thinking of developing in such a zone, a recent Supreme Court decision may impact your right to compensation should the Wisconsin Department of Transportation (“DOT”) ever need direct access to a portion of your property. The ability to demonstrate a notable deprivation of the beneficial use of the property will be critical. In an opinion decided on February 4, 2016, the Supreme Court of Wisconsin affirmed an unpublished Court of Appeals case which stood for the proposition that the DOT does not have to compensate an owner of property when...



  • Change in Sales and Use Tax Affects Contractors, Municipalities and Nonprofits

    February 4, 2016

    Certain local Wisconsin governmental entities and nonprofit organizations have historically been exempt from payment of sales and use tax. Under a change in Wisconsin law which took effect on January 1, 2016, contractors may purchase construction materials on behalf of certain tax-exempt entities and organizations without paying Wisconsin sales or use tax. In essence, as long as the construction materials are incorporated into a construction project for those tax-exempt entities, the contractor will get the benefit of its client’s tax exemption. Before the change in the law, the contractor would be required to pay sales or use tax on the...



  • 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...



  • Corporate Attorney Tom Rohan Discusses Commercial Contract Provisions in New North B2B Publication

    September 1, 2015

    Tom Rohan of Davis & Kuelthau’s corporate, commercial finance, M&A, and real estate teams authored an article, Don’t Let Your Contract Turn Litigation Into a “Road Game”, for New North B2B's September 2015 publication. To read the article, please click here....



  • Table of Experts: The Benefits of Design-Build

    June 17, 2015

    D&K's Real Estate practice chair, Joseph E. Tierney, recently sat down with D. Phillip Corbin of J. F. Ahern and Craig Coursin of MSI General Corporation to discuss the benefits of what's trending within design-build. Their commentary was featured in the Milwaukee Business Journal's Table of Experts column on June 12, 2015. Why use a design-build firm? What should you look for when selecting a design-build firm? What types of projects are best-suited for this approach? What’s the difference between a DBIA and AIA contract? Click here to read the full article....



  • 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...



  • Considering a Condominium for Your Development Project? Benefits vs. Drawbacks.

    March 26, 2015

    As medical office, multi-family, retail, and mixed-use development continues to remain strong throughout southeastern Wisconsin, developers should keep in mind the potential benefits and drawbacks of structuring their projects as condominiums. Skillful drafting at the outset of your condominium project can impact a number of key issues facing developers such as ownership, financing, and design. The ability to sell condominium units to tenants or investors – instead of being tied to lengthy lease terms in normal developments – offers a quicker turn of your investment, allowing you to move on to other projects. With respect to financing, carefully drafting the release...



  • 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...



  • Corporate Attorney Tom Rohan Discusses Commercial Contracts in New North B2B Publication

    March 1, 2015

    Tom Rohan of Davis & Kuelthau’s corporate, commercial finance, M&A, and real estate teams authored an article, In Commercial Contracts, We Do Not Want to Be Our Brother’s Keeper, for New North B2B’s March 2015 publication. To read the article, please click here....



  • Businesses Defer Tax Liability On Property Transactions, § 1031 Like-Kind Exchanges Regain Popularity

    February 12, 2015

    In today’s high-tax environment, many individuals and business owners are seeking renewed tax strategies when expanding their businesses and investments. Hence the recent uptick in the number of tax-deferred exchanges under Section 1031 of the Internal Revenue Code (“IRC”) being completed. The increased volume of § 1031 exchanges is attributable to a number of factors including: 1) the need for businesses to expand as the economy continues to improve; 2) the increase in property values since the Great Recession; 3) an increase in financing availability; and most significantly, 4) the increase in the capital gains tax rate as well as...



  • 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...



  • 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,...



  • Completed Contract Decision Gives Developers Wide Latitude

    March 17, 2014

    The United States Tax Court recently decided in the taxpayer's favor in a matter pertaining to the taxpayer's interpretation of the completed contract method of accounting. Under this method, profits from the sale of homes are deferred until the tax year when the builder has incurred 95% of the project’s total cost. In addition, the Tax Court agreed with the taxpayer that the construction contracts consisted of not only the dwelling units, but also the lots and improvements. The IRS argued that the completed contract method should apply to each home to satisfy the final completion and acceptance test...



  • New Wisconsin Crowdfunding Law Designed to Help Businesses Raise Capital

    November 11, 2013

    To facilitate investment in Wisconsin businesses, on November 7, 2013 Governor Scott Walker signed the CASE (crowdfunding and securities exemptions) for Jobs Act (2013 Wisconsin Act 52) (the "Act") into law, creating a state securities law exemption enabling Wisconsin businesses to raise up to $2 Million via online crowdfunding campaigns. Similar to the crowdfunding provisions of the federal Jumpstart Our Business Startups (JOBS) Act, Wisconsin joins only two other states – Kansas and Georgia – in enacting state-level securities law exemptions permitting crowdfunding. The Act permits Wisconsin companies to sell equity and debt securities to Wisconsin investors through internet sites registered...



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