Performance bond matters can present some of the most complex issues in contract surety law.  Questions of financing – “look see money” or “back door,” whether to complete through takeover, tender, using the principal or some other approach.  Multiple projects in various stages of completion, spread out over multiple jurisdictions with different owners and millions of dollars at risk can be a serious cause of concern for any surety company.

Our Surety and Fidelity Law Group has extensive experience in addressing performance bond matters.  We have been involved in some of the largest performance bond matters in the industry for some of the largest sureties in the country and we have also handled small, single project performance bond claims for some of the smaller surety companies and everything in between.  We literally wrote the book on surety financing and we have one of the largest surety practice groups in the country, so we can quickly and easily get a handle on those mega performance bond matters.

We literally wrote the book on surety financing and we have one of the largest surety practice groups in the country. . .

Our attorneys have a thorough understanding of how clients are affected by federal, state, and local obligations throughout the mid-Atlantic region.  We routinely advise our surety clients on the Miller Act, Little Miller Acts, and private obligations such as the AIA – A312 and manuscript performance bonds.  We work closely with clients to provide counsel on performance bond claims in a variety of ways, including assisting the surety in fulfilling its performance bond obligations, asserting and protecting its rights, asserting affirmative claims, as well as, defense of the surety in litigation.  The Surety and Fidelity Law Group has the depth of staff to cover all the bases and mitigate potential exposure in all performance bond matters.

Our attorneys have extensive experience representing sureties in the claim investigation, resolution and litigation stages of payment bond claims.  We offer invaluable experience in investigating, evaluating and valuing claims, and negotiating resolutions by working with the principal, consultants, obligees and claimants to understand the claims, determine the defenses and other practical concerns that surround such claims and charting a path toward resolution.  We have acted as third party claim handlers for payment bond claims and have represented sureties with large national principals in default and have handled thousands of payment claims.  Our attorneys have substantial expertise in dealing with the AIA – A312 Payment Bond and the 45 day response deadline.

Litigation may result if the claim cannot be fairly and reasonably resolved. With the necessary depth of staff, knowledge and experience, we provide clients throughout the Mid-Atlantic with the representation required in these types of matters.  We have litigated all of the payment bond issues: pay-if-paid and pay-when-paid clauses, statutes of limitations, failure to provide timely or proper notice under the Miller Act, Little Miller Act or the private payment bond, improper venue, improper claimant, scope of payment bond coverage, damages claimed, failure to satisfy conditions precedent, and more.

The bankruptcy of a principal or obligee adds a whole new layer of complexity on top of what may already be a complex default situation.  When bankruptcy is filed by one of the parties, the surety must seek out experienced bankruptcy counsel, but more than that, the surety must seek out counsel that also is experienced in surety law.  Protecting the surety’s rights and navigating the labyrinth of the bankruptcy code requires specialized knowledge and experience that only attorneys who are both surety lawyers and bankruptcy lawyers can provide.  The Wright, Constable & Skeen Surety and Fidelity Law Group includes several attorneys who have developed national reputations in representing the surety in bankruptcy.  We have authored numerous articles and book chapters on the subject of the surety and bankruptcy and we have spoken at every major surety conference around the country.

Our attorneys have represented sureties in major national/international bankruptcy matters and defended sureties from trustees and debtor-in-possession claims and preference litigation.  We have extensive experience addressing:

• Automatic stay issues
• Financing and executory contract issues
• Reorganization plans
• Objections and confirmation hearings
• Proofs of claims
• 2004 examinations
• Litigation over contract funds, including trust funds under Section 541
• Non-dischargeability under Section 523

We also handle involuntary bankruptcy, which may become necessary as a tool to protect the surety´s rights in collateral or other property.  The Surety and Fidelity Law Group has the experience and staff necessary to effectively guide our surety clients through the bankruptcy process.

Suretyship is not to be confused with insurance. Contrary to risk underwriting in insurance, a surety looks to its principal and indemnitors for reimbursement when it incurs a loss in order to be made whole.  Typically, a surety requires the execution of an indemnity agreement in exchange for its agreement to issue bonds for a principal.  These indemnity agreements are common place and give the surety very broad powers and rights with respect to reimbursement for losses, costs and expenses, including attorney´s fees, incurred by reason of having issued the bonds; payment of collateral; access to books and records; holding contract funds in trust; and other rights.

In addition to its contractual rights afforded by most written indemnity agreements, sureties also enjoy numerous rights under common law, such as: equitable subrogation, exoneration and qui tam rights. Pursuing and protecting the surety’s indemnity and subrogation rights is critical to the surety´s ability to be made whole.

The Wright, Constable & Skeen Surety and Fidelity Law Group is very experienced at aggressively pursuing principals and indemnitors for reimbursement through investigation, asset location, negotiation, temporary restraining orders, injunctions, confessed judgment, summary judgment and litigation.  Our partner, George Bachrach, was a co-editor of the ABA/TIPS/FSLC publications – The Contract Bond Surety’s Subrogation Rights and The Surety’s Indemnity Agreement: Law and Practice, 2d ed.  Our partner, Cynthia Rodgers-Waire co-authored a chapter in the Subrogation book entitled The Surety’s Subrogation Rights and Claims Against the Federal Government and a chapter in the Indemnity book entitled Documents and Agreements related to the Indemnity Agreement.  Our knowledge and experience in indemnity and subrogation is unparalleled in the industry.

Our Surety and Fidelity Law Group works closely and personally with clients to advise on applicable laws, rules and regulations governing commercial surety bonds and the best manner to resolve claims regarding such bonds.  Over the many years we have been representing surety clients, our attorneys have been involved with virtually every type of commercial surety bond available. We have represented sureties in matters involving bonds such as: probate, bid bonds, license and permit, utility, customs/importer, bail, subdivision, supersedes/injunction, mortgage broker, tax payment, health care, notary, automobile dealership, and other statutory bonds.  We have extensive experience dealing with the impact of bankruptcy on commercial bonds as well.  Our attorneys have addressed and litigated numerous issues relating to collateral, including collateral agreements, return of collateral, letters of credit and collateral demands on principals.  We authored the chapter The Commercial Surety’s Collateral in a Principal’s Bankruptcy Case in the ABA/TIPS – FSLC publication The Law of Commercial Surety and Miscellaneous Bonds, 2d ed.  Commercial bonds can be a difficult area of surety law because of the many statutes and regulations and the wide variation of bond types and forms.  Let the experience and knowledge of the Wright, Constable & Skeen Surety and Fidelity Law Group bring clarity to your commercial bond claims.

False Claims Act litigation has exploded in recent years with billions of dollars in damages being recovered.  One of the primary reasons for this increase in False Claims Act litigation is the proliferation of whistleblower plaintiffs known as “relators.”  Relators need not have been injured or damaged by the alleged violation of applicable law, they only need to have information relating to the issue.  Thus, a cottage industry, spurred on by plaintiff’s bar attorneys and the lure of treble damages has grown.  Recently, surety companies, surety agents and brokers have been dragged in to the False Claims Act arena and can face significant damages.  The attorneys at the Wright, Constable & Skeen Surety and Fidelity Law Group have developed expertise in this growing area of the law and have represented and advised our surety clients regarding such claims. Indeed, our attorneys obtained summary judgment in favor of our surety client in the Scollick False Claims Act case; an important victory for the entire surety industry. In addition to representing the surety in defense of such claims, we can also advise the surety proactively on best practices and methods to avoid such claims in the first place.

• District of Columbia Bar Association
• Maryland State Bar Association
• American Bar Association – Fidelity and Surety Law Committee
• American Bar Association – Forum on the Construction Industry
• Defense Research Institute
• Surety and Fidelity Claims Institute
• National Bond Claims Association
• Chicago Surety Claims Association
• Baltimore Building Congress & Exchange, Ambassador Committee
• Professional Women in Construction – D.C. Chapter
• American Bar Association – Public Contract Law Section
• Federal Bar Association
• Board of Contract Appeals Bar Association
• Associated Builders & Contractors – Baltimore Metro Area
• Washington Building Congress
• American Subcontractors Association
• Associated General Contractors
• The Philadelphia Surety Claims Association

• Co-Author, “The Performance Bond Surety´s Rights to the Contract Funds,” Chapter 4 of THE LAW OF PERFORMANCE BONDS, 2D ED (Lawrence R. Moelmann, Matthew M. Horowitz and Kevin L. Lybeck, eds) (2009).
• Author, “The Surety Performance Bond Lifeboat – Bailing Out and/or Salvaging Someone Else´s Wreck” (2007), republished as “A Primer for the Surety´s Handling of Performance Bond Claims” (2008).
• Co-Presenter: Hot Topics For The Performance Bond Surety, Northeast Surety & Fidelity Claims Conference, New Jersey 2008;
• Contributing Author to The Performance Bond Manual (Maryland section). Tort and Insurance Practice Section, American Bar Association (Lawrence Lerner and Theodore M. Baum, Eds. 2006).
• Author, The Surety and the Federal Government: Negotiating a Minefield, Surety Claims Institute (2005);
• Co-Author, “Financing the Principal,” Chapter 4 of the BOND DEFAULT MANUAL, 3D ED (Duncan L. Clore, Richard E. Towle and Michael J. Sugar, Jr., eds.) (2005).
• Co-Author, “The Financing Surety as a Performing Surety – Law and Practice” (2003).
• Co-Author, “The ABC´s of the Surety Claims Process” (primarily the surety´s financing of the principal) presented to the Construction Industry CPAs/Consultants Association (CICPAC) (2003).
• Editor for the Surety Program Written Materials for TAKEOVER BY THE SURETY, 2002 ABA/TIPS Fidelity and Surety Law Committee Spring Program in New Orleans, Louisiana in May, 2002.
• Chair and Moderator, “Takeover by the Surety: The Obligations That You Forget About (and Wish You Hadn´t)” (1999).
• Co-Author, “The Surety and the Court of Federal Claims” (1995) and “The Surety and the Court of Federal Claims – Revisited” (1999).

• Contributing Author to The Payment Bond Manual, Third Edition (Maryland section). Tort and Insurance Practice Section, American Bar Association (Wayne D. Lambert, Todd R. Braggins, and J. Blake Wilcox, Eds. 2006).
• Author: Perils and Pitfalls in Payment Bond Claims, A Discussion of Unusual Case Law, Northeast Surety & Fidelity Claims Conference, New Jersey 1997.

• Author, “Surety Underwriting and Claims Handling With a Principal in Bankruptcy” (2009).
• Author, “The Surety´s Claim in Bankruptcy – Obtaining Reimbursement for the Surety´s Loss” (2009).
• Author, “Money and Time – The Critical Issues in Construction Industry Bankruptcies” (2009).
• Author, “The Principal´s Bankruptcy: What You Really Need to Know” and “The Surety´s Strategy and Rights When the Principal Files for Bankruptcy” (2009).
• Author, “Do You Have Trust Issues? The Surety´s Use of Trust Fund Rights in Bankruptcy”, Surety Claims Institute 2009;
• Author, “The Surety´s Proof of Claim – Obtaining Reimbursement for the Loss” (2008).
• Author, “The Surety´s Proof of Claim and Obtaining Reimbursement for the Surety´s Loss” (2005).
• Author, “The Principal´s Sale of Substantially All of Its Assets in Bankruptcy – Who, What, Where, When, Why, and How, and the Rights of the Surety” (2002).
• Co-Author, “The Principal´s Bankruptcy – Practical Problems and Potential Solutions in Handling Payment Bond Claims” (2001).
• Co-Author, “The Surety´s Rights to the Contract Funds in the Principal´s Chapter 11 Bankruptcy Case,” 35 TORT & INS. L.J. 1 (1999).

• Co-Editor, THE SURETY´s INDEMNITY AGREEMENT – LAW & PRACTICE, 2D ED (2008).
• Contributing Author, SURETY´s INDEMNITY AGREEMENT – LAW & PRACTICE, 2D ED (2008), Chapter 3, Tort and Insurance Practice Section, American Bar Association (Marilyn Klinger and George J. Bachrach, Eds. 2008).
• Author, “Avoiding Loss and Obtaining Reimbursement in the Event of Loss Under the Indemnity Agreement” (2005).
• Co-Presenter: Salvage Investigation – Resources and Options, Northeast Surety & Fidelity Claims Conference, New Jersey 2005;
• Co-author, “The Surety´s Subrogation Rights,” Chapter 23 of THE LAW OF SURETYSHIP, 2D ED (Edward G. Gallager, ed.) (2000).
• Editor, SALVAGE BY THE SURETY (1998).
• Author, “The Surety´s Rights to Obtain Salvage – Exoneration, Reimbursement, Subrogation, and Contribution,” Chapter 1 of SALVAGE BY THE SURETY (George J. Bachrach, ed.) (1998).
• Co-Author, Pursuit of the Surety; Rights Against a Principal and Indemnitors when the Surety Settles Claims Requiring Future Performance, Surety Claims Institute (1996).
• Editor, THE SUBROGATION DATABASE: CASES CONCERNING THE SUBROGATION RIGHTS OF THE CONTRACT BOND SURETY (1995), updated on January 31, 1998.
• Editor, SUBROGATION RIGHTS OF THE CONTRACT BOND SURETY (1990).
• Editor, THE AGREEMENT OF INDEMNITY: PRACTICAL APPLICATIONS BY THE SURETY (1989).
• Co-Author, “The Agreement of Indemnity – The Surety´s Handling of Contract Bond Problems: The Enforcement of the Surety´s Rights against the Principal and the Indemnitors under the Agreement of Indemnity” (1989).

• Co-Author, Overview and Introduction to the 1986 Form 24 Financial Institution Bond, Tort and Insurance Practice Section;
• Co-Author: “Jury Trial Issues in Surety and Fidelity Litigation” (22nd Annual Northeast Surety and Fidelity Claims Conference in September 2011)

• Co-Author: Federal and State Regulatory Structures for Public-Private Partnerships, Presented at the ABA Mid-Winter Meeting of the Fidelity and Surety Law Committee, New York 2009;
• Co-Author: “A Primer on the Tucker Act” (Surety Claims Institute Annual Meeting in June, 2008).
• Author: “Consultant and Expert Witness Claim Files: Are They an Open Book?” (18th Annual Northeast Surety and Fidelity Claims Conference in September, 2007).
• Co-Author: Fundamentals of Electronic Discovery and the New Federal Rules, Northeast Surety & Fidelity Claims Conference, New Jersey 2007;
• Author: The Surety´s Reservation of Rights, Northeast Surety & Fidelity Claims Conference, New Jersey 2006;
• Author: Look Who´s Bringing Home The Bacon – How Recent Decisions Interpreting the Davis-Bacon Act Can Negatively Affect The Surety, Northeast Surety & Fidelity Claims Conference, New Jersey 2003;
• Author: “The Surety´s Use of Prompt Payment Statutes to Obtain Control of Contract Funds,” presented at the Northeast Surety & Fidelity Claims Conference, October, 1998.
• Author, “Customs Bonds and the Chapter 11 Principal” (1994).
• Co-Author, CONTRACT SURETY (AFSB 152), Chapters 12 and 13 entitled “Contract Surety Claims” for the American Institute for Chartered Property Casualty Underwriters and the Insurance Institute of America (1992).