Jeffrey S. Brenner - Complex Commercial Disputes - Nixon Peabody LLP

Jeffrey S. Brenner



Jeffrey Brenner is a trial lawyer who represents clients in complex business disputes in federal and state courts in Rhode Island and Massachusetts, arbitrations, mediations, and before regulatory agencies. Jeff concentrates his practice on construction and real estate disputes, and he leads the firm’s Construction and Real Estate practice group.

What do you focus on?

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:

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.

Publications

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 26th edition of the Deskbook was published in December 2021.

Five questions with: Jeffrey Brenner

Providence Business News | April 06, 2022

Construction & Real Estate Litigation practice group leader and Providence partner Jeff Brenner is featured in this Q&A discussing his career background, how the CREL practice helps meet a growing client need, and how the pandemic has impacted the construction industry and property management business.

Nixon Peabody establishes construction and real estate litigation division

Providence Business News | March 16, 2022

This article covering NP’s creation of a dedicated Construction & Real Estate Litigation practice quotes Providence partner and practice group leader Jeff Brenner on how our firm helps clients make a positive impact for their businesses and their communities. Litigation Department head Tony Barron is also quoted in the article.

People in the law

Massachusetts Lawyers Weekly | March 10, 2022

This roundup column of notable attorney moves and expanded roles highlights Providence partner Jeff Brenner for his leadership of NP’s newly formed Construction & Real Estate Litigation practice group.

Nixon Peabody launches new construction litigation group

Law360 | February 24, 2022

The following article covers the creation of NP’s new Construction & Real Estate Litigation practice group, led by Providence partner Jeff Brenner. Jeff is extensively quoted in Providence Business First about the need for a dedicated practice group in this area and the uncertainties in the industry caused by the COVID-19 pandemic. Both articles also include comments from Litigation Department Head Tony Barron of San Francisco.

Providence lawyer to head new Nixon Peabody construction and real estate practice

Providence Business First | February 24, 2022

The following article covers the creation of NP’s new Construction & Real Estate Litigation practice group, led by Providence partner Jeff Brenner. Jeff is extensively quoted in Providence Business First about the need for a dedicated practice group in this area and the uncertainties in the industry caused by the COVID-19 pandemic. Both articles also include comments from Litigation Department Head Tony Barron of San Francisco.

Wake up call

Bloomberg Law | February 23, 2022

This roundup of top news in the legal industry mentions Providence partner Jeff Brenner for his new role as leader of the firm’s Construction & Real Estate Litigation group.

US Chamber backs energy companies in climate suit fight

Law360 | August 02, 2021

This article covers an amicus brief filed by the U.S. Chamber of Commerce in Rhode Island’s climate change lawsuit against several energy companies, arguing the lawsuit should proceed in federal court rather than state court. The story mentions NP for the work of San Francisco partner Jenny Kuenster and Providence partner Jeff Brenner, both of the Complex Commercial Disputes group, in representing Shell Oil Company in the case.

In win for vehicle insurers, labor rate violations tossed

Rhode Island Lawyers Weekly | February 12, 2021

This article, covering a Rhode Island Superior Court ruling that vehicle insurers did not violate state requirements in their reporting of auto body shop labor rates to the Department of Business Regulation, mentions Providence Complex Commercial Disputes partner Jeff Brenner for representing 12 of the 17 insurers in the case.

Rental Struggles, Life Science Boom Marked Boston Real Estate in 2020

Boston Business Journal | December 29, 2020

This article, which discusses office and retail space remaining empty and landlords beginning to sue for rent payment, mentions the formation of NP’s Commercial Lease Disputes practice team in anticipation of a potential wave of cases. Boston Affordable Housing & Real Estate partner Matthew Lynch, Providence Complex Commercial Disputes partner Jeff Brenner, and Washington, D.C. Complex Commercial Disputes partner Vernon Johnson co-lead the new practice team.

Planning Board to hold special meeting tonight on Wakefield Alzheimer’s facility

The Narragansett Times | August 05, 2019

This article mentions Providence Complex Commercial Disputes partner Jeffrey Brenner, who is representing clients who wish to build an assisted living facility for people with Alzheimer’s in Wakefield, Rhode Island.

Contact

Jeffrey S. Brenner

Partner
Practice Group Leader, Construction & Real Estate Litigation

Providence

Phone: 401-454-1042

Boston

Phone: 617-345-1242


Fax: 866-947-0883

American University, Washington College of Law, J.D.

University of Pennsylvania, B.A.

Rhode Island

Massachusetts

U.S. District Court, District of Rhode Island

U.S. District Court, District of Massachusetts

U.S. Court of Appeals, First Circuit

  • Selected, through a peer-review survey, for inclusion in The Best Lawyers in America® 2022 in the fields of Commercial Litigation; Construction Law; Food and Beverage Law; Land Use and Zoning Law; Litigation—Construction; Litigation—Land Use and Zoning; and Litigation—Real Estate. Jeff was named the Best Lawyers® Providence, RI, “Lawyer of the Year” in 2022 for Construction Law; in 2021 for Litigation—Land Use and Zoning; in 2020 for Litigation—Real Estate; and in 2019 for Land Use and Zoning Law.
  • Recognized for exceptional standing in the legal community in Chambers USA: America’s Leading Lawyers for Business 2021 for Litigation: General Commercial (Rhode Island). He has also been recognized in Chambers in previous years. The Chambers USA 2013 edition describes Jeff as “a no-nonsense guy whose work is nothing short of brilliant."
  • Recognized for Construction Litigation as a “Rhode Island Super Lawyer” in 2011–2014 and 2016–2021 based on a peer-review survey by Thomson Reuters. In addition, Jeff was recognized as a Litigation Star in the 2020 and 2021 editions of Benchmark Litigation, the definitive guide to America’s leading litigation firms and attorneys, as well as in prior years’ editions. 
  • AV Preeminent Rating from Martindale-Hubbell, which is the highest rating available for legal ability and professional ethics.
  • Recommended in The Legal 500 United States 2021 editorial for Real Estate—Construction (including construction litigation). He has also been recognized in previous years.
  • Barrington, Rhode Island, Middle School Building Committee, 2013–2022
  • Barrington Town Council, 2004–2012
    • President, 2004–2008
    • Vice president, 2009–2012
  • Barrington Democratic Town Committee, 1996–present
    • Chairman, 1999–2005
  • Barrington Zoning Board, 1992–2004
    • Chairman, 1998–2004
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