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"Yardstick" Measures Failure to Progress in A-12 Default Termination

Client Alert | 1 min read | 05.11.07

In the latest opinion in the 16-year A-12 litigation, McDonnell Douglas Corp. v. United States, No. 91-1204C (Fed. Cl. May 3, 2007) the Court of Federal Claims, on remand from the Federal Circuit, upheld default termination of the fixed-price research and development contract based upon a failure to make progress -- even though the full contract "had no completion date at [the time of] termination." With no completion date for the full contract, the Court instead used a "yardstick" to measure the contractors' progress, holding that (1) the Court could use a series of interim deadlines for the production of prototype aircraft to define both the "performance required" and the "time remaining for performance"; and (2) at the time of termination, there was sufficient information available for the contracting officer to have concluded there was no reasonable likelihood of delivery under those deadlines (even if the contracting officer did not, in the event, make the default termination decision based upon that "available" information).

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Client Alert | 5 min read | 07.28.26

Data Centers in the Crosshairs: The Plaintiffs' Bar Has Begun Filing New Claims Using Old Tricks

The rapid buildout of AI infrastructure has placed data centers at the heart of a new and expanding wave of class action litigation. Over the past several months, plaintiffs’ firms with significant experience in mass tort and environmental class actions have begun recruiting plaintiffs and filing lawsuits against data center operators, alleging that noise generated by their facilities — from cooling systems, diesel generators, and HVAC equipment — constitutes a public and private nuisance and reflects actionable negligence. Companies currently operating or constructing data centers near residential communities should treat this as a material and growing legal risk....