Robert J. MacPherson

Biography

Robbie MacPherson has been practicing construction law exclusively since 1981 and is a Fellow of the American College of Construction Lawyers and former Chair of the American Bar Association’s Forum on Construction Law. Robbie acts as construction contract and disputes counsel for contractors, subcontractors, suppliers, and owners involved in building and heavy civil construction for public and private work.  In addition to his practice counseling clients in construction matters, Robbie regularly serves as an arbitrator and mediator of construction disputes. He is a pro bono mediator for the Southern District of New York and the Supreme Court of New York, New York County and was a pro bono mediator for the Tinton Falls NJ Municipal Court. Robbie is on the Boards of Building For Good (Building for Good (building4good.org))  ACE Mentor (ACE Mentor Program of America :: Home) and the Building Board of Directors of the AGC of New York State (AGC NYS – Associated General Contractors of New York State LLC). Robbie taught ADR and Construction Law at Rutgers Law School between 1998 and 2018.

Memberships & Affiliations

  • American Arbitration Association: Arbitrator and Mediator Panel for Construction; Member Construction Mega Project Panel
  • American College of Construction Lawyers – Board of Governors 2017-2020
  • American Bar Association: Forum on Construction Law-Leadership 2000-2010-Officer 2007-2010
  • New Jersey State Bar Association:  Dispute Resolution Section- Chair 1994-95; Construction and Public Contract Law Section
  • Hon. Marie L. Garabaldi ADR Inn of Court-Original Member 1998-2005
  • Appointed by the New Jersey Supreme Court to the Supreme Court Committee on Complementary Dispute Resolution, 2013-2015; 1994-1996
  • Associated General Contractors of New York State- Building Board of Directors
  • Associated General Contractors of America-Contract Documents Committee
  • Former member, New York City Procurement Policy Board Advisory Council
  • Member of the Construction Cost Reduction Team appointed by Mayor Michael Bloomberg to study and report on New York City’s capital construction program. The report was delivered in July 2008

Education

  • Seton Hall University Law School, J.D., 1980
  • Monmouth University-B.A. Sociology 1976
  • Brookdale Community College-A.A. 1972

Admissions

  • State Bar of New Jersey
  • State Bar of New York
  • United States District Court: District of New Jersey
  • United States District Court: Southern and Eastern Districts of New York
  • United States Supreme Court

Recognitions & Distinctions

  • ABA Forum on Construction Law- Outstanding Service Award 2021
  • New Jersey Bar Dispute Resolution Section- James B. Boskey Practioner of the Year 2001
  • Named Newark, NJ Lawyer of the Year-Construction-2012, 2016 and 2020 by Best Lawyers
  • Martindale & Hubbell AV Rated
  • Listed in Chambers USA, Best Lawyers and Super Lawyers for Construction Law

Publications

Books

  • Sticks and Bricks, A Practical Guide to Construction Technology
    ABA Publishing
    Editor with Christopher C. Whitney and James Duffy O’Connor
    2001
  • New York Construction Law Manual
    West Publishing
    Author with members of Postner & Rubin
    1998
  • 50 State Public Construction Law Source Book- Chapter author
    CCH Incorporated
    2002
  • Partnering in Design and Construction – Alternative Dispute Resolution as a Partnering Tool
    McGraw Hill
    Chapter author
    1996

Periodicals

Articles

Speaking Engagements & Presentations

Robbie has spoken before Construction Law and Construction Industry Organizations locally and nationally. He has the distinction of doing presentations as Elvis, a Beatle and Alex Trebek.

Community Involvement

  • Founding and current Board Member Building For Good
  • National Board Member ACE Mentor
  • New Building Committee- Family Resource Associates

Representative Experience

  • On behalf of a geotech specialty contractor established the existence of a Type II  Differing Site Condition encountered during the construction of a major infrastructure project in New York City.
  • Defended a public authority against a $95 Million claim before a Dispute Review Board. The DRB found the claim barred by contractual notice provision, but declined to enforce the provision.
  • Represented the design-builder of a power plant in a dispute with the supplier of two 315 MW CFB Steam Generators. Primary issue was the use of 3D modeling in the design process. Other issues included design deliverable liquidated damages and concurrent delays.
  • Defended a cooperative housing corporation in an action by a municipality seeking over $20 million for the repair of the concrete encased columns and slab supporting the co-op’s building over a major urban highway. Issues included the legality of an emergency contract let without public bidding, access rights to a public roadway to maintain co-op’s structures, impossibility of performance, breach of implied contractual duties, and liability of the municipality for corrosive effect of road deicing materials on the co-op’s concrete structures.
  • Negotiated a $120 million contract for the design and construction of the headquarters campus of a major pharmaceutical company.
  • Acted as construction contract and claims counsel for the owner/developer of several hydroelectric projects in upstate New York. Prepared and negotiated contracts with designers, contractors, and major equipment suppliers. Provided advice on claims and disputes that arose during construction and litigated extra work, delay, and warranty claims.
  • Advised a public agency on construction contract issues involving a public-private partnership or, “P3,” project.
  • Negotiated EPC, Fuel Supply, and Operation and Maintenance agreements for a 50 MW bio mass fueled combined heat and power plant with a value in excess of €120 million.
  • Assisted a German wind turbine manufacturer in redrafting its supply contracts for use in the U.S.
  • Negotiated EPC contracts for several solar projects in New Jersey.
  • Represented a nonprofit foundation in the negotiation of a $500 million construction management agreement.
  • Negotiated a $180 million construction management agreement for a major retail development on a Brownfield site in Brooklyn, New York. Advised the construction manager on issues that arose during construction.
  • Provided advice to design-builder on issues related to P3 projects.
  • Assisted a wind turbine manufacturer and supplier in the preparation of master contracts between the manufacturer and private power developers. Also provided advice in connection with disputes including design and construction defects and performance warranties for projects throughout the U.S.
  • Arbitrator in a dispute between the owner and design-builder of a gas-fired peaking plant. The design-build contract value was in excess of $40 million, and a separate turbine supply contract between the owner and turbine manufacturer was approximately $60 million. Issues included coordination between the design-builder and the turbine supplier, delays, construction defects, manufacturing defects, and performance guarantees.
  • Arbitrator in a dispute involving a design-build contractor’s $30 million claim against an insurer under a policy providing coverage for certain payment obligations of the project owner and a performance bond surety arising out of a landfill closure project.
  • Arbitrator in a dispute involving the sale of a construction company where the future revenue from a public construction project was the source of the funding for the purchase price.
  • Arbitrator in a dispute arising out of contracts for roof systems on two office buildings. Issues include statute of limitations, choice of law, limitations of liability provisions, and warranty claims, including a claim that the warranty failed of its essential purpose.
  • Arbitrator in a dispute between a contractor and subcontractor on several public housing authority projects. Issues included the subcontractor’s claim that it was the general’s joint venture partner; a project suspension by the owner and the application of the Eichleay formula for a home office overhead claim arising out of the suspension; and extra work claims.
  • Since 1990 Mediator in construction contract, construction defect, insurance, and surety disputes involving from two to more than 40 parties with claims ranging from thousands to millions of dollars.

Anne E. Penix

Biography

Anne’s analytical and detail-oriented approach to the law stems from her background in science and mathematics.  A native of the Midwest, she obtained her Bachelor of Science in Molecular and Integrative Physiology in 2003 as a Chancellor’s Scholar at the University of Illinois at Urbana-Champaign.  True to her major, she has always remembered that even the smallest details can have drastic impacts on a case.

Her experience proved useful at Georgetown Law, where she worked as a research assistant in the field of income taxation and edited numerous articles for the Georgetown International Environmental Law Review, earning her Juris Doctorate in 2006.

Anne particularly enjoys tackling and briefing the complex legal questions that are at the heart of construction and insurance litigation.  But she also recognizes the importance of and has devoted much of her career to the legal issues impacting every business, including employment discrimination, wage and hour disputes, ethics compliance, and employment eligibility.

Memberships & Affiliations

  • American Bar Association
  • New Jersey State Bar Association, Construction Law Section
  • D.C. Bar
  • Federal Bar Association
  • Georgetown Alumni Association

Education

  • Georgetown University Law Center – J.D., 2006
  • University of Illinois at Urbana-Champaign – B.S., Molecular and Integrative Physiology, 2003

Admissions

  • State Bar of New Jersey
  • Bar of the District of Columbia
  • United States District Court for the District of New Jersey
  • United States Court of Appeals, Third Circuit

Representative Experience

  • Successfully briefed opposition to appeal filed by insurance carriers in complex multiparty insurance litigation, disposing of notice issues and preserving contractor’s right to recover under policies
  • Successfully briefed opposition to summary judgment filed by local government entity in multimillion-dollar construction litigation where main issues included contractual notice requirements, characterization of defects, and entitlement to liquidated damages
  • Successfully briefed motion to dismiss indemnity and contribution claims filed against engineer in litigation concerning environmental contamination

John P. DiBiasi

Biography

Prior to starting his legal career in 2003, John was heavily involved in the construction industry in New York and New Jersey. He started in the construction industry by working as a laborer, progressing to labor foreman, assistant superintendent, and ultimately superintendent on many heavy highway and heavy civil construction projects throughout the Northeast. John’s hands-on field experience includes bridges, piers, highways, airports, and underground construction. While working in the field, John also attended New Jersey Institute of Technology, where he received his B.S. degree in Civil Engineering in 2000, with honors.  John is a member of Chi Epsilon – the Civil Engineering Honors Society – and is also the recipient of the 1998 Robert Ridgeway Award acknowledging him as the top engineering student in New Jersey for 1998.

John received his Juris Doctorate degree in 2003 from Widener University School of Law, located in Harrisburg, Pennsylvania.  His practice focuses primarily on heavy civil construction and commercial litigation.  John remains actively involved in the construction industry and attends meetings and seminars with the various construction associations throughout the country.  John is a member of the state and federal bars for New Jersey, New York, Pennsylvania and Texas.  When John is in Texas he will be in the Austin office.

Recognitions & Distinctions

  • AV Rated – Martindale Hubbell

Memberships & Affiliations

  • American Society of Civil Engineers
  • Chi Epsilon – National Civil Engineering Honor Society
  • American Society of Military Engineers
  • American Bar Association
  • New York, New Jersey, Pennsylvania and Texas – Construction Law Sections
  • Organizations: UTCA (Utility and Transportation Contractors Association), CIAP (Construction Industry Advancement Program); AGC Various State Chapters, AGC of America, the Moles, the Beavers

Education

  • Widener University School of Law – J.D., 2003
  • New Jersey Institute of Technology – B.S., 2000

Admissions

  • State Bar of New York
  • State Bar of New Jersey
  • State Bar of Pennsylvania
  • State Bar of Texas
  • Various Federal Courts in New York, New Jersey, Pennsylvania and Texas

Speaking Engagements

  • Yearly speaker at the American Bar Association Construction SuperConference on construction related issues, including government terminations for convenience, underground tunneling, and OSHA investigations.

Publications

  • Terminating Government Contracts: Overcoming Challenges, in Aspatore’s Inside the Minds: Trends in Government Contracting, (Thomson Reuters/Aspatore, 2012)

Representative Experience

  • Assisted clients with claim preparation, document and damage tracking, and preserved the clients’ rights during actual construction of countless projects to obtain amicable resolutions and avoid litigation. These projects included bridges, tunnels, highways, tunneling and sunken caissons across the country.
  • Ingerman Affordable Housing v. Langan Engineering & Environmental Services (American Arbitration Association, 2014). Successfully defended alleged breach of contract and professional malpractice claims arising out of the development of a Brownfield, located in Jersey City, NJ.  The developer claimed that, because the contractor had needed to export more than 10,000cy of contaminated material, Langan must have erroneously represented the site as being generally balanced.  Successfully proved that the developer’s construction arm knowingly subcontracted with its earthwork contractor to utilize and spread 10,000cy of recycled concrete aggregate on-site for surcharging material without any thought as to the impact and need to then export an equal volume of on-site contaminated material.  Arbitration Panel ruled that Plaintiff’s claims were entirely without merit and frivolous and awarded Langan its defense costs and fees.
  • Intercounty Paving Associates, LLP v. PennDOT, (Board of Claims, 2009). Recovered three-quarters of a million dollars on behalf of the contractor in delay damages caused by PennDOT’s active interference, misrepresentations, defective plans and specifications, and its failure to recognize the legitimate financial interests of the contractor. Overcame no-damage-for-delay exculpatory language in the contract as well as PennDOT’s defense that the contractor was required to “coordinate” utility relocations.
  • Schiavone Construction Co., Inc.  v. MTA, (DRB, 2008). Achieved multimillion-dollar recovery on behalf of the Design-Builder for chemical grouting work directed by the Authority’s Engineer on a new subway station located forty feet below sea level in Battery Park, New York, New York.  Proved that the Authority — despite its post-contractual spin of defective work and deficient notice defenses – prescribed the waterproofing materials and other material design requirements that the Design-Builder was mandated to follow and incorporate into the “final” design; knowingly structured the contract to reimburse the Design-Builder for actual costs incurred for chemical grouting as “extra work”; directed bidders to estimate a prescribed amount of chemical grouting for bidding purposes as a baseline to evaluate bids and to keep all bidders on a level playing field; and contemplated that the actual amount of chemical grouting required would be determined by the Authority’s Engineer based on actual field conditions.  At trial, the Authority’s Engineer admitted that the aforementioned procedure was established because of the complexity and location of the new structure (sited between and under existing subways) and the unknowns associated with actual volumes required for injecting chemical grout in structures well below the water table of the adjacent Hudson River, Hudson Bay, and East River.