Michael Severino is pleased to announce that he has been selected to the Maryland Super Lawyers List for business litigation for the fourth year in a row. Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.

Recently, Mike Severino secured a victory for a client in a bid protest involving the electronic receipt of a bid. With bid protests, timing is paramount. Contractors almost always need to file protests within a very short time period – often as short as five or seven days. Also, procurement agencies – either the State, a county, an individual school system, a state agency, etc. – often have their own specific procurement regulations that one must review and analyze.

Flying Dog Brewery is known for its unique beer names and labels, which are often provocative and eye-catching. After North Carolina rejected one of Flying Dog’s labels, Flying Dog sued and prevailed on First Amendment grounds. Analyzing constitutional protections for commercial speech, the court ruled that North Carolina’s regulation was an impermissible infringement on Flying Dog’s First Amendment rights.

One of the most important provisions for a subcontractor in any subcontract is a “pay if paid” clause. That clause, when used with the proper language, conditions payment by the general contractor to the subcontractor on payment by the owner to the general contractor. Last month, Virginia took steps to remedy this risk-shifting mechanism by amending current law to prohibit “pay if paid” clauses and impose new contract requirements on public and private jobs.

The 4th Circuit Court of Appeals, interpreting West Virginia law, recently took up an insurance coverage issue that arose from COVID-related shutdowns. Like many others, the insured claimed business-related losses from the closure of two of its locations. As with these other cases, the insurance policy did not cover the claims due to the physical loss requirement in the policy.

Contractors should be aware that OSHA has launched a National Emphasis Program aimed at preventing heat-related illness and death. Per the NEP, OSHA will conduct workplace inspections in 70 high-risk industries whenever the weather service issues a heat advisory for the area.

The implementation of the District of Columbia’s ban on most non-competition agreements has been delayed by the District of Columbia Council until October 1, 2022.

Maryland recently took the first step in enacting a comprehensive biometric data privacy law. On March 13, 2022, the Maryland House of Delegates passed the Biometric Data Privacy Act. The Act now goes to the Maryland Senate for review and potential passage into law. Maryland joins the growing number of states that are strengthening their data protection laws. The new Act introduces a number of requirements for biometric data (i.e. fingerprint, voiceprint, retina scan, etc.) and prohibits certain practices.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 has cleared both the Senate and House and now goes to the President, who is expected to sign it into law. The Act invalidates any pre-dispute arbitration requirement for sexual assault or sexual harassment claims.

Judicial review of an arbitration decision is extremely limited. An arbitrator misapplying the law, misunderstanding the facts, or misconstruing a contract all fail to meet the high burden a litigant must meet to set aside a decision. Likewise, the arbitrator, not a reviewing court, decides the preclusive effect of a prior decision.

Michael Severino is pleased to announce that he has been selected to the Maryland Super Lawyers List for business litigation for the third year in a row. Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.

The annual selections are made using a process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area.

On December 17, 2021, the Sixth Circuit, in a 2-1 ruling, dissolved the Fifth Circuit’s stay of OSHA’s Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to mandate either (a) employee vaccinations or (b) that unvaccinated employees wear protective face coverings with weekly COVID tests. The ETS permits employers to choose the compliance method, and does not apply to workers who exclusively work outside or from home.

This post is a short Q & A with Matt Smith, who is a relationship manager with Consilio, an eDiscovery, litigation support, and alternative legal service provider for law firms and corporations. In addition to discussing the benefits Consilio can provide, Matt also shares his thoughts on the consolidation in the legal industry, alternative legal services and Brazilian Jiu Jitsu.

On December 7, 2021, the United States District Court for the District of Georgia enjoined the President’s Executive Order requiring federal contractors and subcontractors to be fully vaccinated on all new contracts and renewals by January 22, 2022.

Federal contractors and subcontractors should be aware that the minimum wage for workers on many Federal contracts increases to $15 per hour on January 30, 2022 for new contracts (which includes renewals, extensions, and options).

Practitioners and contractors need to be aware that the State and the Maryland Board of Contract Appeals strictly construe the administrative time limits by which a bidder or offeror must protest an award. Typical extensions found in the Maryland Rules, which apply to litigants in state lawsuits, usually do not apply in bid protests. Contractors and their attorneys should leave nothing to chance in ensuring that they file their protests at the earliest opportunity.

Much like judicial conflicts of interest, arbitrators must avoid even the perception of bias or partiality. Just as important, both parties have a significant interest in ferreting out any possible appearance of an arbitrator’s partiality prior to an arbitration. Even without actual bias, perceived partiality can support a court vacating a significant award and requiring the parties to go through the process a second time.

Litigants should remember that they typically cannot immediately appeal an order denying a motion to compel arbitration. More importantly, they should require plaintiffs to submit a claim to arbitration since it is their claim and not leave it up to the parties to fashion an arbitration process. The default should be in the absence of an arbitration claim, the court proceedings should be dismissed.

The Court found that the terms of a construction subcontract conflicted with the prime contract and applied the subcontract’s order of preference clause. The main takeaway, however, is that subcontractors should apprise themselves of any flow-down provisions contained in their subcontracts.

Anyone who has read my prior posts about student-athlete NIL compensation knows that recent NIL changes permitting athletes to profit from their NIL will be big business for popular, and not so popular, athletes. One needs look no further than Bryce Young, Alabama’s presumed starting QB.