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Contract Disputes

Kingdomware Technologies v. United States - Post-Argument SCOTUScast

SCOTUScast 3-30-16 featuring Michael Toth
Michael Toth March 31, 2016

On February 22, 2016, the Supreme Court heard oral argument in Kingdomware Technologies v. United States. Kingdomware Technologies is a certified, service-disabled veteran owned small business, or SDVOSB--a special type of veteran-owned small business, or VOSB. In 2012, Kingdomware filed a bid protest with the Government Accountability Office (GAO) when the Department of Veterans Affairs (VA) awarded a contract to a Federal Supply Schedule (FSS) contractor who was not a VOSB.  Kingdomware argued that the award violated 38 U.S.C. § 8127(d)’s “Rule of Two.” That provision directs that VA contracting officers, except under certain circumstances, “shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States.” 

Although the GAO agreed with Kingdomware and recommended a re-bid, the VA declined to follow the GAO recommendation and Kingdomware sued the VA in the Court of Federal Claims. That Court ruled in favor of the VA and Kingdomware appealed to the U.S. Court of Appeals for the Federal Circuit.  A divided panel of the Federal Circuit affirmed the judgment of the Court of Claims, concluding that Kingdomware’s interpretation of “shall award” failed to account for qualifying provisions elsewhere in the statute. 

The question before the Supreme Court is whether the Federal Circuit erred by adopting a construction of § 8127(d)'s mandatory set-aside for VOSBs that arguably rendered the “Rule of Two” discretionary at the option of the VA.

To discuss the case, we have Michael Toth, who is a lawyer in Washington, D.C.

The Future of Arbitration Agreements after the CFPB Study - Podcast

Litigation Practice Group Teleforum
Deepak Gupta, Andrew J. Pincus July 17, 2015

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 instructs the Consumer Financial Protection Bureau to study “the use of agreements providing for arbitration of any future dispute . . . in connection with the offering or providing of consumer financial products or services,” and to provide a report to Congress on the same topic.  This past March, the CFPB issued its study, pursuant to the statutory requirement.  Is the “arbitration study” an anti-arbitration study?  Our experts discussed the report and its implications.

  • Mr. Deepak Gupta, Founding Principal, Gupta Wessler PLLC
  • Mr. Andrew J. Pincus, Partner, Mayer Brown LLP

Argentina Bond Case Decided by U.S. Supreme Court - Podcast

International & National Security Law and Litigation Practice Groups Podcast
Michael D. Ramsey, Thomas H. Lee June 19, 2014

Central Bank of ArgentinaThe Supreme Court decided a complex but important case on June 16, 2014, Republic of Argentina v. NML Capital, Limited. The Republic of Argentina issued bonds to American investors, correspondingly waiving its sovereign immunity and consenting to jurisdiction in New York State. Argentina subsequently defaulted on those bonds. Plaintiff bondholder NML did not participate in a renegotiation of the bonds and sued to prevent Argentina from paying other bondholders that agreed to settle their claims.

At issue were whether NML Capital could bring suit against Argentina under the Foreign Sovereign Immunities Act (FSIA) and the extent of discovery to which plaintiffs are entitled. In court, the United States sided with Argentina. Argentina asserted it should be able to block third party disclosure of its assets, since some assets might be sensitive diplomatic or military assets. The Supreme Court ruled, 7-1, that Argentina is subject to the FSIA, and thus liable to suit pursuant to it, and that American banks can be ordered to disclose Argentina’s assets in the U.S. as part of discovery in the default lawsuit. This decision has potential ramifications for government debt restructuring around the world. Our experts examined these and other possible effects of the decision.

  • Prof. Michael D. Ramsey, Hugh and Hazel Darling Foundation Professor of Law, Director, International & Comparative Law Programs, University of San Diego School of Law
  • Prof. Thomas H. Lee, Leitner Family Professor of International Law, Director Graduate and International Studies, Fordham University School of Law

Northwest, Inc. v. Ginsberg - Post-Decision SCOTUScast

SCOTUScast 4-28-14 featuring Lee Strang
Lee Strang April 28, 2014

Lee StrangOn April 2, 2014, the Supreme Court issued its decision in Northwest, Inc. v. Ginsberg. The question here is whether the Airline Deregulation Act of 1978 (the “ADA”) preempts Ginsburg’s claim that Northwest Air Lines breached an implied covenant of good faith and fair dealing when it unilaterally terminated his membership in Northwest’s frequent-flier program.

In an opinion delivered by Justice Alito, the Court unanimously held that the Airline Deregulation Act preempts a state-law claim for breach of the implied covenant of good faith and fair dealing if it seeks to enlarge the contractual obligation that the parties voluntarily adopt. The opinion of the Ninth Circuit was reversed and remanded for further proceedings.

To discuss the case, we have Lee Strang, who is a Professor of Law at the University of Toledo College of Law.