counterattack: utilizing and responding to tros and other litigation

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2. 2 How Do TRO Applications Arise in Construction? Alleged Public Approval Process Violations Procedural or substantive requirements for permits, zoning, etc. Alleged Environmental Law Violations and Environmental Impacts

3. 3 How Do TRO Applications Arise in Construction? Historic Preservation Native American Sites Community and Neighborhood Opposition Traffic, noise and blight

4. 4 How Do TRO Applications Arise in Construction? Alleged Violations of Public Contracting Requirements Competitive bidding laws and other special requirements for awards of public construction contracts Public owner directs that a contractor perform out-of-scope (cardinal change)

5. 5 How Do TRO Applications Arise in Construction? Alleged Violations of Public Contracting Requirements (cont’d) Public owner terminates a contractor and engages a replacement contractor without competitive bidding Prime contractor seeks to replace a subcontractor

6. 6 How Do TRO Applications Arise in Construction? Consumer fraud, unlicensed contracting and unfair competition Safety issues Abandonment and/or removal of work Infringement of intellectual property rights

7. 7 How Do TRO Applications Arise in Construction? Violations of labor laws and/or union agreements Revocations of licenses, pre-qualifications, or building or other permits Spoliation of evidence Misuse of or absconding with funds

8. 8 Logistical and Strategic Issues Regarding Emergent Relief What Relief Is Potentially Available? Administrative remedies Jurisdictional issues ADR Gathering Information Client documents Public records Discovery Don’t Forget the Bond!

9. 9 HYPOTHETICAL A competitively bid bridge project Owner: City of New Hope Contractor: Go-To Contractors City-funded with State matching Contract Time is of the essence Termination for default Arbitration clause

10. 10 HYPOTHETICAL Performance Delays Defects Directive to accelerate Deck failure Termination Notice Locked out of site, including own trailer Arbitration demand Completion contract with Reliable Contractors

11. 11 ISSUES 1 AND 2 Impact of Arbitration Clause on Availability of Emergency Relief What Emergency Relief Might Be Available?

12. 12 MORE HYPOTHETICAL Go-To files suit in federal court Seeks a TRO to prevent the City from proceeding with replacement contract with Reliable Seeks writ of mandate to regain access to its trailer Seeks a TRO to protect all project records

13. 13 ISSUE 1

14. 14 Issue 1 Argument Arbitrability is question for courts Here have a party to suit who is not party in arbitration Majority: courts have jurisdiction for preliminary relief despite arbitration clause Courts have power to preserve status quo pending arbitration

15. 15 Issue 1 Opposition Strong federal policy favoring arbitration FAA mandates arbitration of issues subject to agreement to arbitrate “Substantive” rights for arbitrators to decide Court intervention improper when entangled with merits of underlying dispute Non-party (i.e. replacement contractor) to arbitration clause is simply a red-herring

16. 16 Issue 1 Rebuttal Arbitration clause is not a waiver of compatible remedies Injunctive relief from court and arbitration are not incompatible Without preliminary relief from court, arbitration will be “hollow formality”

17. 17 Issue 1 Sur-Rebuttal Claims for injunctive relief not excepted from agreement to arbitrate Filing of arbitration demand changes the game The requested TRO effectively passes upon the merits

18. 18 ISSUE 2

19. 19 Issue 2 Argument FRCP 65 authorizes injunctions and TRO’s State law permits injunction to challenge award of public contracts Standards are met: Likelihood of success on merits Balance of hardships Public interest

20. 20 Issue 2 Argument: Likelihood of Success Statutory duty to competitively bid contracts Contract was terminated and new contract awarded No exception to competitive bidding No “emergency”

21. 21 Issue 2 - Argument:Balance of Hardships and Public Interest Greater hardship to terminated contractor Public interest in protecting taxpayer funds and integrity of public contracting

22. 22 Issue 2 - Opposition:Irreparable Injury No “immediate and irreparable” injury here Go-To’s potential harm strictly financial

23. 23 Issue 2 Opposition:Likelihood of Success Termination of “contract” v. “right to proceed” Contract contemplates City of New Hope’s “right to proceed” without competitive bidding “Emergency” exception to competitive bidding requirements

24. 24 Issue 2 - Opposition:Balance of Hardships and Public Interest Greater hardship to City of New Hope Public interest favors timely and safe completion of significant transportation project

25. 25 Issue 2 - Rebuttal Importance of competitive bidding Seriousness of injury to contractor and public Loss of ability to compete for public contract is irreparable harm Ambiguity re nature of termination to be construed against owner Disguised “emergency”

26. 26 Issue 2 Sur-Rebuttal Go-To has adequate remedy at law Lack of proof of improper termination Competitive bidding impracticable when “time is of the essence”

27. 27 ISSUE 3

28. 28 MORE HYPOTHETICAL Go-To requests expedited discovery Physical evidence re deck failure Spoliation of project documents Propriety of termination City moves to dismiss all claims arbitration clause City opposes TRO City opposes discovery request

29. 29 ISSUE 3

30. 30 Issue 3 Argument Request for injunctive relief makes expedited discovery “particularly appropriate” Notaro standard is met “Reasonableness” standard is met “Good cause” exists The discovery is appropriately tailored

31. 31 Issue 3 Opposition Go-To’s burden of proof Failure to satisfy criteria for granting of expedited discovery Notaro, “reasonableness” and “good cause” standards Failure to tailor discovery request to injunctive relief Availability and scope of discovery are for arbitrators to determine

32. 32 Issue 3 Rebuttal Discovery is reasonably related to the injunction proceedings Discovery is necessary to preserve status quo Discovery is necessary to prevent irreparable harm

33. 33 Issue 3 Sur-Rebuttal Discovery request improperly encompasses merits of dispute Failure to demonstrate arbitration-related discovery inadequate

34. 34 RULINGS