• Foundation Repair/Retrofit Dispute – Successfully argued appeal in multiparty construction dispute resulting in reversal of trial court’s denial of special motion to strike pursuant to Code of Civil Procedure section 425.16 (California’s anti-SLAPP statute), complete dismissal of all claims against firm’s clients and award of attorneys’ fees and costs.

• Solar Array Power Project Dispute (Minnesota) – Prosecuted claims on behalf of EPC contractor against default-terminated subcontractor and surety for delay, liquidated damages and completion costs and defended claims by subcontractor against EPC contractor and property owner for extra work and mechanic’s lien foreclosure arising out of ten-project portfolio.  Secured full dismissal with prejudice of subcontractor claims as sanction for discovery abuse by subcontractor and secured multi-million dollar recovery against subcontractor and surety.

• Solar Array Power Project Dispute (Massachusetts) – Prosecuted claims on behalf of EPC contractor against subcontractors, suppliers and performance bond surety, defended claims by subcontractors for extra work and mechanic’s lien foreclosure action through week-long arbitration resulting in award of 100% of client’s claimed damages as well as award of attorneys’ fees and complete rejection of subcontractor claims and liens.

• Multifamily Residential Project Dispute – Prosecuted and defended delay, extra work and defect claims totaling over $25 million arising out of construction of 270 unit apartment complex through two-week arbitration resulting in compensation to client of approximately 25% of total project cost.

• Retail Ground Lease Dispute – Defended ground tenant and operator of prominent 800,000 sq.ft. shopping mall against claims for additional percentage rent through three-week arbitration resulting in award of less than half of client’s pre-arbitration offer.

• Solar Array Power Project Dispute (California) – Prosecuted $12 million defective design and construction claim against engineers and subcontractors involved in the construction of 7-project portfolio of carport solar facilities Secured full reimbursement of client’s remediation and claim prosecution costs.

• Communications Project Dispute – Represented telecommunications system owner defending $10 million claim by contractor through four-week federal jury trial, appeal and remand, ultimately securing total defense judgment.   Of plaintiff’s five claims, Mr. Elder’s client prevailed on four at trial, with the jury awarding $1.9 million on the remaining claim.  In the Ninth Circuit, Mr. Elder secured reversal of the $1.9 million judgment on the grounds that the plaintiff failed to comply with required claims procedures.  On remand, Mr. Elder secured complete summary judgment on the grounds that any damages claim was barred by the parties’ contract and the Ninth Circuit’s decision.

• Solar Array Power Project Dispute (California) – Defended and prosecuted claims in arbitration and litigation asserting extra work, liquidated damages, cost-to-complete and backcharges between owner, general contractor and default-terminated subcontractor arising out of multi-site solar PV project.

• Negotiation and Drafting of Construction Contracts –  Drafted and negotiated contracts for owners and contractors on projects ranging from single family and multi-family residential projects to utility-scale power plants. Negotiated and drafted multi-site alternative energy joint development agreements for solar developers, electric vehicle charging facility operators and multifamily residential owners.

• Municipal Bond Securities Fraud Litigation – Defended local municipality against $15 million securities fraud claims brought by purchasers of municipal bonds issued to fund troubled construction of communications system.  Mr. Elder secured complete summary judgment in favor of his client on all claims.  Mr. Elder recovered costs from plaintiff who did not appeal.  Mr. Elder defended the summary judgment on appeal where, in a published decision, the Ninth Circuit affirmed judgment in favor of Mr. Elder’s client.

• Toxic Tort (Asbestos) Litigation – Represented publicly-traded shopping mall REIT, as lone non-settling defendant, through four-week jury trial defending claim by ironworker alleging that exposure to asbestos during construction caused terminal lung cancer.   

• Trademark Infringement Dispute – Prosecuted $20 million trademark infringement case between publicly-traded medical device manufacturer and competitor founded by client’s former CEO.  Secured settlement on eve of trial, forcing infringing competitor out of business and causing client’s stock price to more than double in the thirty days following the settlement.

• Mexican Liquid Natural Gas Plant Construction Dispute – Defended claims by subcontractor against EPC contractor client arising out of construction of $500 million natural gas pipeline terminal in Mexico.  Case involved claims by contractor totaling over $75 million, alleging delay, disruption and changed conditions and nine-figure liquidated damages claims by owner.  Successfully settled matter for return of a portion of liquidated damages assessed against subcontractor and waiver of all subcontractor and owner claims.

• Dispute Regarding Disrupted Operation of Mexican Liquid Natural Gas Plant – Defended claims of more than $15 million by owner of pipeline terminal in Mexico arising out of the disrupted operation of the facility.  The matter was defended and resolved successfully with a minor modification of the facility.

• Performing Arts Center Dispute - Defended a property owner and developer against a $4 million delay and extra work claim by a contractor, settling shortly before trial for return of a fraction of retention.

Notable Decisions:

• Michael v. Sabin, 2020 WL 3496422 (Cal. Ct. App. 2020)
• Nuveen v. City of Alameda, 730 F.3d 1111 (9^th Cir., 2013)
• Vectren v. City of Alameda, 536 Fed.Appx. 681 (9^th Cir., 2013)
• Provencher v. Dell, Inc., 409 F.Supp.2d 1196 (C.D. Cal., 2006) 
• Palmer v. Schindler Elevator Corp., 108 Cal.App.4th 154 (2003)
• Arnold v. Dow Chemical Co., 91 Cal. App. 4th 698 (2001)

 

 

Publications

• Oakland Housing Developers Turn To New Ways Of Building To Reduce Costs, June 28, 2018 by Julie Littman, Bisnow (Mentioned)
• Alameda, California Muni Bond Case Raises Novel Securities Issues, April 7, 2014 by Keeley Webster, The Bond Buyer (Quoted)
• City Immune From Securities Fraud Liability, January 2014, Commercial Lending Litigation News (Mentioned)
• California City Prevails Against Investor Lawsuit, October 3, 2013 by Keeley Webster, The Bond Buyer (Quoted)
• Nuveen Suffers Blow in Suit Over Muni Bond Losses, September 24, 2013 by Peter Ortiz, Ignites (Quoted)
• 9th Circuit Affirms Win for California City in Securities Row, September 19, 2013 by David McAfee, Law 360 (Mentioned)
• Ninth Circuit Nixes Vectren’s $1.9 M Win in Telecom Contract Suit, May 13, 2013 by Jeff Sistrunk, Law 360 (Mentioned)
• California City Sold Bonds Doomed to Fail, Ninth Circuit Hears, May 13, 2013 by Beth Winegarner, Law 360 (Mentioned)
• Nuveen Takes $12M Bath in Muni Bond Blow-Up, May 23, 2011 by Peter Ortiz, Ignites (Mentioned)
• Language Barriers: International Service Abroad Under the Hague Convention, April 29, 2009 by Richard Elder and H. James Wulfsberg, San Francisco Daily Journal

Speaking Engagements

• Bisnow Bay Area Office Market Update, “Unlocking the Value In The Office Market” September 29, 2022, San Francisco, California (Moderator)
• Bisnow Multifamily Annual Conference – “New Developments In Northern California” November 4, 2021, San Francisco, California (Moderator)
• “California Residential Development Briefing” October 15, 2019 (Presenter)
• Bisnow San Francisco Construction & Development “San Francisco State of the Market: Construction, Development and Design” June 20, 2019, San Francisco, California (Moderator)
• "California Residential Development Briefing” October 2, 2018, Walnut Creek, California (Presenter),    
• Bisnow Oakland Construction & Development “Getting Developments Off The Ground - Zoning, Approvals and Labor Shortage” June 14, 2018, Oakland, California (Moderator)
• “California Residential Development Update” September 19, 2017, Walnut Creek, California (Presenter)
• Bisnow San Francisco Construction & Development “Hot Projects in Multifamily, Office, Mixed Use and Beyond” June 7, 2017, San Francisco, California (Moderator)
• Bisnow San Francisco Construction & Development “The Future of Office” May 18, 2016, San Francisco, California (Moderator)