Practice Areas
International Arbitration and Litigation
Ross Forensics professionals have been instructed to advise on cost, quantum and damages issues and provide expert evidence on many engagements involving large international disputes. These have primarily involved major construction projects, including renewable and fossil-fueled power plants, subway and rail infrastructure, airports and resort hotels. We have demonstrated the ability to effectively and efficiently assist clients around the globe. Our work has been performed in the United Kingdom and elsewhere in Europe, the Middle East, Africa, the People’s Republic of China, and the Caribbean. Our clients include major U.S.-based EPC contractors operating globally, as well as foreign corporations.
We have significant experience in international arbitration, and thus are keenly aware of the differences in procedure and presentation in matters in these forums as compared to that typical in the United States. We have demonstrated our ability to successfully adapt our work approach and presentation accordingly. We believe our deep experience with both “U.S.-style” litigation and international arbitration provides our professionals with unique skills and perspectives that distinguish us from other experts.
Our experience in international arbitration includes working jointly with opposing experts to narrow issues in dispute. In past cases, we have been successful in reaching agreement on numerous matters of principle with respect to quantum, substantially reducing the contentious issues to be decided by the tribunal. In addition to claim analyses and preparation, our services typically also include: assistance with pleadings; assistance with discovery requests; assistance with witness statement preparation; preparation of individual expert reports; responding to opposing expert’s reports; and coordinating with other technical experts retained by the client. Our personnel have extensive experience serving as experts before arbitration tribunals and have participated in expert “hot-tubbing” and other forms of expert examination. We also have performed a variety of ad hoc tasks to assist and inform the tribunal.
Ross Forensics professionals have provided expert evidence in trials and arbitration in the High Court of Justice - Technology and Construction Court (London); the London Court of International Arbitration; the International Dispute Resolution Centre; the London International Arbitration Centre; and the Singapore International Arbitration Centre. We also have been retained to provide expert opinions in International Chamber of Commerce and Dispute Adjudication Board proceedings.
Case Studies in International Arbitration and Litigation
Our professionals were retained by an EPC contractor in an ICC arbitration to assist in analyzing the contractor’s claims in excess of $100 million arising from construction of a $26 billion petrochemical facility in the Middle East. The claims related to the additional costs of offshore (expatriate) and onshore engineering and project management personnel involved in delivery of the project.
Under the contract with the Employer, the contractor was entitled to periodic wage, benefit, travel and subsistence rate adjustments for its offshore and onshore personnel in the event the project was extended and the contractor’s actual costs exceeded the rates currently in effect. The rate adjustments were subject to audit by the parties. Disputes arose regarding the audit results and the means by which the rate adjustments should be implemented. There were also disputes regarding significant invoices issued by the contractor for completed work which were unpaid by the Employer. Our work included review of the rate adjustment mechanism, the results of the audits and opining as to the appropriate adjustment amounts. We also reviewed the unpaid invoices and addressed various cost-allowability issues. In performing our work, we liaised with two quantum experts retained by the Employer and issued several joint expert statements in an effort to narrow issues in dispute.
We were also instructed by the three member tribunal to develop a model which would allow the tribunal to calculate interest on those claims and counterclaims for which the tribunal made an award (the claims exceeded 60 in number and spanned various years).
Steve Ross served as expert witness on quantum and provided testimony at the London Court of International Arbitration. Following the hearing, our personnel were asked to assist in preparing the EPC contractor’s legal and expert costs submission. We were also asked to review and evaluate the Employer’s costs submission.
The tribunal subsequently issued an award substantially in favor of the EPC contractor, including recovery of significant legal and expert costs.
Our professionals were retained by an EPC contractor in an ICC arbitration to assist in analyzing damages claims arising from the construction of a $10 billion subway/rail project in a large metropolitan area in the Middle East. Specifically, we were asked to evaluate and respond to the designer’s claims against the contractor which exceeded $150 million and to review and opine upon the contractor’s counterclaims against the designer which exceeded $500 million.
Our work included quantifying the EPC contractor’s additional costs resulting from changes, delays, re-work and additional work scope asserted to result from alleged design defects attributed to the design team. We also evaluated the designer’s claims for delays, re-design and scope changes alleged to be attributable to the EPC contractor. Included in this work was an assessment of the designer’s actual costs associated with these issues.
Working alongside the quantum expert for the designer, we issued three joint statements in an effort to narrow the issues in dispute.
Our assistance in the arbitration extended over nearly three years with work being performed primarily in London and Seattle with some work undertaken in Saudi Arabia.
Steve Ross served as expert witness on quantum and provided testimony (in a virtual hearing) before a three-member tribunal at the London International Arbitration Centre. The parties reached an amicable settlement prior to the tribunal issuing its award.
Our professionals were retained by an EPC contractor in a quantum trial heard in the High Court of Justice, Queen’s Bench Division - Technology and Construction Court (“TCC”). The dispute arose from weld defects discovered in wind turbine foundations (monopiles) used in construction of a large offshore windfarm in the North Sea manufactured by a Chinese supplier in Shanghai. The Court had previously ruled in favor of the contractor in an earlier TCC trial on liability.
Our work involved quantifying the EPC contractor’s damages caused by corrective work and ensuing project delays resulting from testing and remediation of the defective structures. It was necessary to quantify the contractor’s damages within the construct of the Court’s earlier ruling on liability. Our damages analyses addressed the costs of additional testing and remediation of the structures, vessel standby and re-deployment costs (vessels for monopile, transition piece and WTG installation) and other delay / prolongation-related costs. This involved addressing issues including NDT scanning techniques, construction sequencing, vessel availability, weather downtime, and the like.
Steve Ross served as expert witness on quantum and provided testimony before the Judge in Charge of the Technology and Construction Court (Sir Antony Edwards-Stuart).
The Court issued an award substantially in favor of the EPC contractor. The award also included recovery of a significant proportion of RFG’s fees and costs.
Our professionals were retained by an EPC contractor to assist in preparing two separate damages claims resulting from delay and disruption to the contractor’s work in connection with a large upgrade project involving a major subway system in the UK.
Our primary focus was analyzing the financial impact of delay, asserted to be nearly three years in duration, on the cost of the project. We also addressed numerous subcontractor claims. Our professionals worked closely with the employer’s quantum expert in an effort to narrow issues of disagreement over quantum. We produced more than ten joint expert statements and were successful reaching a large measure of agreement regarding claim pricing issues and support.
Our work also included: assistance with witness statement preparation; preparation of expert reports and rebuttal reports; coordination with the client’s technical experts; and, assistance at mediation. Our involvement in this project extended over nearly three years with work
being performed primarily in London.
Steve Ross served as expert witness on quantum and provided testimony in two separate arbitrations at the International Centre for Dispute Resolution in London.
Our professionals were retained by an EPC contractor to assist in preparing a damages claim arising from the construction of an offshore wind farm in the UK.
In addition to working with the contractor’s programming expert, we liaised with nearly twenty PhDs, academics, and other technical experts recognized internationally for their expertise in issues such as metallurgy, fracture mechanics, the effects of wind and wave loading on structures, and weld testing and inspection procedures.
Our work included quantifying the EPC contractor’s damages resulting from delays and additional work scope as well as analyzing the employer’s counterclaim. Our assistance in the arbitration extended over nearly three years with work being performed primarily in London with some work undertaken in Shanghai.
Steve Ross served as expert witness on quantum and provided testimony before a three party tribunal under London Court of International Arbitration rules.
Our professionals were retained by an EPC contractor to assist in preparing a damages claim resulting from the termination of a contract to construct a five star luxury hotel in the Caribbean.
Our analysis focused on the costs incurred by the contractor to complete the work in place through termination. We also analyzed the amounts claimed by numerous subcontractors as well as the support and methodology utilized to quantify the developer’s counterclaim.
Steve Ross provided expert testimony concerning the results of our analyses in a jury trial in U.S. District Court for the Southern District of New York (Manhattan).
Our professionals were retained to assist an EPC contractor prepare a damages claim in excess of $100 million arising from the alleged breach of an agreement with the developer to award an EPC contract to construct a major power plant in North Africa.
We were also retained by the contractor’s Egyptian partner to assist in developing its damages claim. We worked with principals of both contractors in Switzerland and the UK.
A demand for arbitration was filed under ICC rules, however the parties resolved the matter shortly thereafter.
Our professionals were retained to assist an EPC contractor in preparing a preliminary damages claim for delay and disruption arising from the construction of an airport terminal building in the Middle East. The damages quantified included prolongation, labor inefficiency and additional engineering.
Our professionals were retained by an EPC contractor to prepare a claim for damages resulting from additional work outside the scope of the contract and contract extension related to the construction of a luxury resort hotel in the Bahamas.
Our work included the review and analysis of accounting and other project records. We also evaluated the financial condition of the developer and identified recurring cash flow shortfalls during the period of construction.
Steve Ross provided expert testimony in deposition. The case was resolved prior to arbitration.
Our professionals were retained to support a consortium with its pricing submittal with respect to the second term of a 30-year Public Private Partnership (PPP) contract involving maintenance and operation of various lines on the London Underground.
The work performed included review, analysis, and assessment of: the bases and processes utilized to develop the tender pricing; supporting data for unit rates; program management and contingency; and, overall consistency with industry practice and guidelines.
Our findings were presented in a report submitted to the Office of the PPP Arbiter in London.
Construction Claims and Disputes
Ross Forensics professionals have broad expertise assisting clients in the construction industry. We are experienced in both the analysis and preparation of construction damages claims, including the quantification of damages relating to issues such as changes in work scope, work package coordination, differing site conditions, project schedule delays, construction defects, adverse weather, contract termination (whether for convenience or default), and, job site access constraints. Our work frequently addresses: delay and disruption; lost labor productivity and inefficiency; equipment pricing; and, extended site and home office overhead, among other issues.
We also have been retained to address False Claim allegations and to analyze claims for consequential damages, such as loss of profits and business loss arising from the performance of construction contracts.
Our professionals have a balanced perspective, which is the result of having been retained over the years on behalf of numerous parties to construction projects, including EPC contractors, general contractors, subcontractors, project owners and employers, engineers, and, design professionals.
We are very familiar with all phases of the construction process and are experienced in analyzing project records, including, for example, bid and budget documents; project cost reports; variance reports; unit rate, production, and productivity reports; subcontractor documents; equipment utilization reports; and, material distribution reports.
We have been retained on a broad array of projects, including: fossil fuel and renewable energy power plants; resort hotels; subways; museums; educational facilities; airports; correctional facilities; tunneling and underground construction; mixed-use structures; and, pipelines. These projects have included EPC, design-build, expansion, and renovation works.
Ross Forensics professionals have provided expert testimony on a broad range of construction damages issues in numerous depositions and trials in state and federal courts nationwide, domestic arbitration, international arbitration and before Dispute Review Boards and other ad hoc tribunals.
Case Studies in Construction Claims and Disputes
Our professionals were retained by the defendant general contractor to analyze various subcontractor claims in excess of $30 million in connection with construction of a $1.2 billion memory chip (wafer fab) manufacturing facility.
We also were asked to respond to the owner’s $40 million claim for alleged business losses due to construction delays. With respect to the business loss claim, our analysis demonstrated that a global surplus in DRAM chip supply and attendant fall in market prices led to production curtailment and plant shutdowns worldwide. As a consequence, the construction delays resulted in no loss of profits to the owner.
On the basis of our findings, the business loss claims were resolved. With respect to the subcontractor claims, only one (totaling $17 million) proceeded to arbitration. Our analysis of that claim demonstrated the damages approach advocated by the opposing expert was pervasively flawed.
Steve Ross provided expert testimony at arbitration wherein the tribunal granted a directed verdict on damages in favor of our client.
Our professionals were retained to assist a general contractor with the quantification of a claim for damages resulting from owner delays in completion of a maximum security state correctional facility.
Our analyses focused on quantifying the contractor’s time-related costs as well as assessing subcontractor claims. We also were asked to respond to the State’s $13 million counterclaim.
With respect to the counterclaim, our analysis demonstrated that the damages claimed by the State were speculative and unrelated to matters asserted to be the contractor’s responsibility.
Steve Ross provided expert testimony at arbitration after which the tribunal dismissed the State’s entire counterclaim and awarded the contractor in excess of $6 million. In awarding damages, the tribunal relied on the daily site and home office overhead rates we calculated.
Our professionals were retained by counsel for a public development authority to evaluate significant claims brought by the general contractor and its major subcontractors in connection with construction of a municipal art museum.
We analyzed each of the claims and assisted the development authority at mediation. The contractor and the development authority successfully resolved their dispute though mediation.
We were subsequently retained directly by the general contractor to assist it in negotiating and settling each of the subcontractor claims.
Our professionals were retained by counsel for a general contractor to assist with the quantification of a claim for builder’s risk insurance coverage relating to unprecedented precipitation during the construction of a 28-mile gas pipeline through mountainous terrain.
We undertook an independent assessment of the quantification of the contractor’s claim and issued an expert report with our findings. We also analyzed and responded to reports issued by construction and accounting experts retained by the insurer.
Steve Ross provided expert testimony in deposition in United States District Court. The matter was settled shortly thereafter, following mediation.
Our professionals were retained by counsel for an electric utility in Alaska to assist with preparation of a claim for damages resulting from the alleged of breach of contract by a subcontractor leading to a default termination by the utility.
Our work focused on quantifying the utility’s damages which included: 1) increased costs to complete the unfinished contract work of the subcontractor; 2) additional support costs incurred by the utility; 3) costs to respond to and resolve a resulting government investigation; 4) unpaid vendor costs owed by the subcontractor; 5) increased materials costs attributable to the delay; 6) liquidated damages; and, 7) lost margin on forgone power sales from delayed operation of the plant.
In addition, we evaluated the contractor’s counterclaim for damages related to its allegation of wrongful termination and assisted counsel with deposition preparation for the opposing expert. We issued an expert report summarizing our findings.
Steve Ross provided expert testimony in deposition in Superior Court. The matter settled shortly thereafter.
Our professionals were retained by counsel for an owner to assist with quantification of a claim for termination for default in connection with a $40 million dredging project.
Our work focused on identifying the increased costs to complete the unfinished contract work of the terminated contractor and other damages suffered by the owner. We also were asked to respond to the contractor’s $13 million counterclaim.
Steve Ross provided expert testimony at trial in United States District Court. The jury awarded our client in excess of $6 million (essentially the full value of the claim) and rejected the contractor’s counterclaim in its entirety.
Commercial Claims and Disputes
Ross Forensics professionals have extensive expertise in the analysis of economic damages in a wide variety of significant commercial disputes. In addition to general business disputes, we have performed work in the context of shareholder and partnership disputes, post-acquisition purchase price adjustment matters, and major class action cases.
Our professionals are experienced in both the analysis and preparation of commercial damages claims, including, for example, those relating to breach of contract, loss of profits, contract termination, business interruption, funds tracing, business valuation, business failure, fraud and embezzlement, and, breach of fiduciary duty. We have analyzed historical financial results and financial forecasts, as well as issues such as production capacity and costs, cost allocations, financing availability, market share, competition, industry trends, economic trends, and, discount and capitalization rates, among many others. We are also very experienced in significant and complex class action matters. Our professionals are adept at the cost-effective compilation, analysis, and presentation of large-scale datasets common in such cases.
Our commercial dispute experience spans a vast array of industries, including: high technology/internet; telecommunications; manufacturing; oil & gas; natural resources; utilities; airlines; hospitality; franchising; health care and, real estate.
Ross Forensics professionals have provided expert testimony on a broad range of economic damages issues in numerous depositions and trials in state and federal courts nationwide and in arbitration.
Case Studies in Commercial Claims and Disputes
Our professionals were retained on behalf of a publicly traded internet media company to analyze claims in excess of $175 million for alleged loss of business value and loss of profits asserted to result from tortious interference in the sale of a business involving mobile instant messaging (texting) technology and other bundled assets.
Our analyses focused on the timing of certain milestones in relation to marketing the businesses, economic, and industry trends in the relevant time period, valuations prepared by investment banks, and other related information.
Steve Ross provided deposition testimony on behalf of the defendant. The arbitration tribunal subsequently returned a ruling dismissing all claims in favor of our client.
Our professionals were retained by a group of international oil companies that owned and operated a major West Coast gas pipeline to analyze claims in excess of $485 million for alleged loss of profits at a large oil refinery. The claims arose due to an explosion and shutdown of the pipeline, resulting in reduced transportation capacity for refined products.
Our analyses focused on refinery operations before and after the shutdown, and addressed issues including: actual historical and projected refinery capacity; crude supply; tanker offload turnaround time; fixed and variable production costs; alternate transportation costs; and, available capacity at other west coast refineries.
The results of our analyses were set out in an expert report used by the parties in mediation. The matter was subsequently settled.
Our professionals were retained jointly by a group of defendants to analyze claims in excess of $17 million for alleged loss of business value asserted to result from tortious interference in connection with a start-up telecommunications company.
Our analyses addressed: company capitalization and cash flow; industry trends and competition; macroeconomic trends; and, venture capital availability, among other issues.
Steve Ross provided expert testimony at trial in United States District Court. A favorable verdict was returned by the court.
Our professionals were retained by the defendant software developer to analyze a claim for business devastation brought by an internet company operating in the business-to-business (“B to B”) space.
Through its integrated website, the company provided services such as supply chain management, material purchasing, document management, and file sharing for medium- to large-scale construction contractors. The plaintiff alleged that software reliability issues resulted in website outages and other stability problems that caused the company to fail. Our analyses addressed the financial condition of the company, its cash flow, and its capital requirements as it continued in its start-up phase.
In addition to analyzing the financial performance of the plaintiff, we also addressed industry trends, competition, as well as macroeconomic trends. Steve Ross provided expert testimony at trial in Superior Court.
Our professionals were retained to address a series of purchase price adjustment disputes arising from the divestiture of properties and service contracts by one of the largest cemetery operators in North America.
We evaluated the extent to which the seller complied with state laws governing trust funding requirements related to customers’ “pre-need” purchases of cemetery plots and burial products and services.
Our analyses included: review of the accounting records for historical sales transactions, which often dated back several decades and frequently involved installment payments made over a number of years; examination of the sales contracts to determine the specific products or merchandise sold and the applicable trust funding requirements; and, review of the funeral home's or cemetery’s business records and annual report filings with the Secretary of State.
Steve Ross provided expert testimony in deposition. The cases were successfully settled over a period of many years.
Environmental Claims and Disputes
Ross Forensics professionals have diverse and substantive expertise in a wide variety of environmental claims and disputes. Our personnel have served as cost and damage experts in numerous significant environmental cost recovery and contribution cases, beginning with the Exxon Valdez grounding in Prince William Sound in 1989.
Our work typically involves detailed analyses of: the nature and timing of costs incurred in investigation and remediation; supporting documentation; and, consistency with Consent Decrees, the NCP and other regulatory requirements. We also are retained frequently by PRP groups, steering committees and other parties undertaking response and remediation activities to perform an accounting for costs incurred, including compiling underlying documentation. In this context, our reports are often used in support of private party and government settlement discussions, cost allocation negotiations and methodologies and contribution participation from other PRPs. We also have been retained to address government oversight costs, economic benefit from non-compliance and ability to pay issues and government penalty assessments.
Separate from cost recovery/contribution assignments, we have served as experts on behalf of defendants in numerous large-scale residential property value diminution matters involving issues such as airport noise, odors from landfills, composting operations and waste water treatment plants and impacts from industrial facilities.
Our work has encompassed a wide variety of sites, including: mines; industrial facilities; landfills; waterways; rail yards; and, airports.
Ross Forensics professionals have provided expert testimony on a broad range of environmental damages issues in numerous depositions and trials in state and federal courts nationwide.
Case Studies in Environmental Claims and Disputes
Our professionals were retained by the State of Alaska to quantify its claims for economic damages resulting from the Exxon Valdez Oil Spill. As part of the Governor’s Oil Spill Coordinating Office team, we developed and maintained an oil spill cost accounting and claims administration system and coordinated claim preparation activities for all affected state agencies. This required the identification, cost tracking and reporting of state expenditures totaling more than $100 million.
Approximately $50 million were analyzed to verify cost recoverability and the adequacy of supporting documentation under a claims reimbursement agreement between the State and Exxon. Our personnel also prepared cost reimbursement packages that were submitted for payment to Exxon.
Information from the cost databases was utilized by state agencies to monitor oil spill costs and reimbursements, as well as by the attorney general’s office to evaluate settlement options. More than $30 million in State response costs were recovered prior to a $1.0 billion settlement of the oil spill litigation.
Our professionals were retained by several PRP groups in two related litigations involving claims for contribution to the cost of investigation and remediation of two inland waterways within a major marine Superfund site.
We were asked to prepare an accounting of costs incurred which were in excess of $100 million and compile the supporting documentation. Our analyses addressed the nature and timing of the costs incurred, supporting documentation and consistency of the work and related costs with Consent Decrees negotiated with EPA.
Steve Ross provided expert testimony in deposition and trial in two separate matters in United States District Court. In both matters, the court ruled that all the costs claimed were properly considered response costs.
Our professionals were retained by a port authority to respond to claims brought by numerous homeowners alleging that their home values had been diminished as a consequence of noise from aircraft operations at a major West Coast airport. In advance of significantly expanding the plaintiff group, the parties agreed to a trial in federal court to litigate the claims of approximately twenty “bell-weather” plaintiffs.
We analyzed residential property sales and appreciation trends over a fifteen-year period in the airport (subject) area, and then compared the subject area trends to those of similar (control) neighborhoods. The control neighborhoods were selected based on similarities in housing stock, demographics, and area amenities, but without proximity to the airport.
Based on our assessment, we determined that there was no material difference between housing appreciation rates and sales activity in the airport area compared to other similar neighborhoods without airport proximity. Steve Ross provided expert testimony in deposition and trial in United States District Court.
The court ruled in favor of our client, denying in full the plaintiffs’ claims. As a consequence of the favorable ruling, we were asked by a number of other airport owners and operators nationwide to assist them with similar claims.
Our professionals were retained by a large PRP group to analyze a cost recovery claim in excess of $40 million arising from the closure and remediation of a major municipal landfill. In connection with the landfill closure, the EPA designated the facility a Superfund site. The plaintiff, a large West Coast municipality, was the landfill owner/operator.
Our analysis addressed the nature, timing, and support for the costs claimed. In addition, based upon a detailed analysis of the costs of the closure/remediation activities and the relevant regulatory requirements, we were able to segregate the costs incurred to investigate and remediate hazardous waste contamination from the costs that were incurred as part of ordinary closure and decommissioning of the landfill.
Based on this analysis, counsel for our clients argued to the court that only the costs incurred to address hazardous waste contamination at the site could properly be recovered as response costs. Steve Ross provided expert testimony on our findings in deposition in United States District Court.
In what was a landmark decision, the court ruled that ordinary landfill closure costs could not be considered hazardous waste response costs for which our clients were liable. The case settled shortly thereafter.
Our professionals were retained by a large chemical manufacturer to review and evaluate damages claims put forth by an adjacent business, which asserted that environmental contamination of its property was caused by the migration of industrial waste from the chemical company’s facility.
The damages claimed included site investigation and removal costs, as well as alleged loss of profits and loss of business value.
Our analyses demonstrated that the site investigation and removal costs claimed were associated with the plaintiff’s own industrial operations and waste handling and disposal practices. In addition, we demonstrated that the loss of business value claim was based on a flawed valuation analysis and the loss of profits claim was without basis. Separately, we were asked to review and analyze more than $7.5 million in investigation and remediation costs incurred by our client.
Contribution for these costs was sought from the adjacent business as a consequence of contamination alleged to have migrated from its property. Steve Ross provided expert testimony in deposition in United States District Court. The matter subsequently settled.
Our professionals were retained by counsel for an owner to assist with quantification of a claim for termination for default in connection with a $40 million dredging project.
Our work focused on identifying the increased costs to complete the unfinished contract work of the terminated contractor and other damages suffered by the owner. We also were asked to respond to the contractor’s $13 million counterclaim.
Steve Ross provided expert testimony at trial in United States District Court. The jury awarded our client in excess of $6 million (essentially the full value of the claim) and rejected the contractor’s counterclaim in its entirety.