Jeffrey S. Brenner

My focus

Commercial Litigation

I help businesses and people with disputes regarding litigation. Although I regularly handle many types of commercial disputes, I focus on construction and complex real estate, commercial, and land use matters. I appear regularly in state courts, federal courts, regulatory agencies, and municipal bodies in Rhode Island and Massachusetts. I have developed strong relationships with judges, arbitrators, and mediators, and I understand their particular nuances to achieve my clients’ objectives. My deep understanding of my client’s business and objectives enables me to become a trusted advisor and knowledgeable advocate for them. I work with clients in the construction, healthcare, franchise, hospitality, energy, and manufacturing industries.

In addition, many of my litigation clients have hired me following the conclusion of a lawsuit to act as their outside general counsel. I manage their litigation and non-litigation legal needs drawing upon the firm’s breadth of resources and experience.

I have had a string of successful outcomes for my clients, including in:

False Claims Act Litigation

I successfully defended a regional supermarket chain in a case brought by a qui tam plaintiff alleging that it violated the Rhode Island False Claims Act and committed fraud by failing to collect state sales tax on various items sold in its Rhode Island stores. In granting the motion to dismiss, the Rhode Island Superior Court business calendar’s judge held that the qui tam plaintiff did not sufficiently state his False Claims Act claim with particularity to satisfy the legal standard. This decision is significant because it is the first case to construe the Rhode Island False Claims Act. It is also significant because it thoroughly analyzed a split in the federal Courts of Appeals concerning the level of specificity required in a qui tam plaintiff’s claims/fraud complaint and held the plaintiff to a higher pleading standard.

Contract Dispute

I successfully defended a marine construction company in Rhode Island federal court in a case brought by a property owner alleging that the company owed it over $500,000 in storage fees and was responsible to pay the property owner for amounts sought by a municipality because the company did not remove a barge after the property owner’s lender sold it to the company at a secured party auction. One of the significant aspects of the court’s dismissal of the case was that the property owner had no right to charge a storage fee for the barge because it does not own the river adjacent to its property as the river is a public waterway. This decision resolved a disputed issue in Rhode Island that had been unclear since a federal court decision in 1903.

Construction Litigation

I represented a senior living campus in suburban Boston in connection with a review and analysis of contractor claims and change orders resulting from a $30 million, multi-year renovation/expansion project. We provided contract and claim analysis as well as litigation strategy advice. Ultimately, the matter was resolved in the client’s/owner’s favor at a three-way mediation between the owner, the construction manager, and the primary subcontractor, which resolved the pending lawsuit and all potential disputes. This allowed the project to stay within budget and open to accept residents.

Land Use

I obtained a decision from the Rhode Island Superior Court that reversed the denial of a master plan application for a $20+ million assisted living facility specializing in Alzheimer’s care. As a result of this judicial victory, a stalled development is back on track.

Licensing

I represented an endoscopy practice in a petition to change its license from physician ambulatory surgery center (PASC) to freestanding ambulatory surgery center (FASC). Despite challenges to the client’s certificate of need (demonstration that there was patient-based need for the license change) by a competitor, the Department of Health (DOH) initially approved the license change. Following several appeals and reversals, the case was granted a hearing before the Rhode Island Supreme Court, which ultimately affirmed the practice’s certificate of need and granted the license change.

Commercial Lease Disputes

In the second Zoom trial conducted by the Massachusetts Superior Court Business Session, I succeeded in defending a major Boston commercial building landlord on a tenant’s claim for damages and on the landlord’s counterclaim for breach of contract. The issue presented by the tenant against the landlord at trial was whether the landlord’s original property manager misled the tenant about the compatibility of its fire alarm system, thereby causing the tenant to miss a deadline set forth in the lease to achieve substantial completion for the build-out. During the virtual trial in December 2020, I refuted this argument and re-focused the issue on the clear and unambiguous terms of the lease. In a written decision, the Superior Court Business Session judge denied the tenant’s claim for the tenant improvement allowance—which was contingent on the tenant’s substantial completion of build-out; entered judgment in the landlord’s favor on its breach of contract counterclaim; and awarded the landlord the full amount submitted at trial for the tenant’s failure to pay rent and additional rent as defined in the lease, plus prejudgment interest since each component amount was due. In a subsequent written decision, the court also awarded the landlord attorneys’ fees and costs. 

Real Estate Litigation

I secured a favorable judgment representing two co-trustees of a revocable trust (the plaintiffs) in connection with a complaint for declaratory judgment to clarify title to real property in the Back Bay section of Boston. The original purchaser of the multi-unit property—who is the now-deceased family member of the co-trustees—used a nominee trust as a vehicle to own the property and had his then secretary serve as the initial trustee while he held 100% of the beneficial interest. Years later, the secretary refused to convey record title from the nominee trust to the revocable trust. I filed a quiet title petition in the Massachusetts Land Court seeking a declaratory judgment that the co-trustees are the sole owners in fee of the property and that any claim of ownership by the secretary was invalid, to which I obtained a favorable judgment from the Land Court in less than eight months and resolved the title issue for the family.

Commercial Litigation

I represented a nonprofit research and conservation organization that was sued in Massachusetts federal district court for various misdeeds, including “Whale Fraud.” As part of its mission, our client disentangles whales from ropes and netting throughout the East Coast from the Bay of Fundy in Canada to Florida, freeing more than 200 large whales and other marine animals from life-threatening entanglements. I successfully filed a motion to dismiss and obtained a judgment dismissing the case against our client. Thereafter, the plaintiff subpoenaed our client for a massive amount of documents, which necessitated a motion to quash the subpoena that the federal court granted.

Administrative Appeals

I obtained an appellate victory for 12 insurers in Rhode Island Superior Court in a decades-long dispute between the insurers, which handle auto body repair claims, and several auto body repair shops. The 12 insurers were respondents in an administrative action initiated by the shops before the hearing officer who was appointed by the Rhode Island Department of Business Regulation. The decision by the hearing officer overwhelmingly and substantially rejected the shops’ claims that the insurers violated RIGL § 27-29-4.4 and Regulation 108 when they filed their auto body labor rate survey responses with the state. The shops appealed the decision to Rhode Island Superior Court. I argued that the insurers did not offend the law by relying on factors other than the survey results in setting their prevailing rates, and that the court should reject the arguments put forth by the shops because the decision by the hearing officer was not clearly erroneous and therefore could not be overturned. The Superior Court’s business calendar judge agreed, affirming the hearing officer's ruling.

I am also a frequent speaker and writer concerning real estate disputes, litigation, and construction litigation issues.

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Insights

Jeff is the author of the Rhode Island chapter of Wolters Kluwer’s State-by-State Guide to Design and Construction Contracts and Claims. He has written the state’s annual supplement each year, including the most recent supplement. He also authored the Rhode Island chapter in the American Bar Association's Property Tax Deskbook. The 27th edition of the Deskbook was published in December 2022.