Jeffrey S Brenner

Practice Areas

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. Jeffrey is practice group leader for Nixon Peabody’s Construction and Real Estate Litigation practice group and co-leader of the firm’s Commercial Leasing Disputes team. His practice areas include:

• Commercial Litigation

• Contract Disputes

• Construction Litigation

• Land Use Matters

• Real Estate Litigation

• Commercial Lease Disputes

• False Claims Act Litigation

• Licensing

Jeffrey is a frequent speaker and writer concerning real estate disputes, litigation, and construction litigation issues. He 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.

Career

Jeffrey primarily represents businesses and people with disputes regarding litigation. Although he regularly handles many types of commercial disputes, he focuses on construction and complex real estate, commercial, and land use matters. He appears regularly in state courts, federal courts, regulatory agencies, and municipal bodies in Rhode Island and Massachusetts. He has developed strong relationships with judges, arbitrators, and mediators, and understands their particular nuances to achieve clients’ objectives. His deep understanding of his client’s business and objectives enables him to become a trusted advisor and knowledgeable advocate for them. Jeffrey works with clients in the construction, healthcare, franchise, hospitality, energy, and manufacturing industries.

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

Representative experience includes:

• National coordinating counsel for a Fortune 500 company concerning toxic tort litigation and claims.

• Outside general counsel for the largest manufacturer in Rhode Island and a New York City construction industry business.

• Representing a national pharmacy retailer in multiple real estate lawsuits and disputes in Rhode Island and Massachusetts.

• Obtained a judgment in court for a commercial building owner in a dispute with a tenant that operates a personal training fitness studio, securing substantial compensation for the tenant’s failure to pay rent.

• Obtained a court judgment to resolve a title issue for an individual client involving a multiple-unit luxury residential building.

• 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.

• 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.

• 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.

• 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.

• 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.

• 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. 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.

• 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. 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.

Professional Memberships

• Admissions:

o Rhode Island

o Massachusetts

o U.S. District Court, District of Rhode Island

o U.S. District Court, District of Massachusetts

o U.S. Court of Appeals, First Circuit

Personal

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

• University of Pennsylvania, B.A.

• Previously served as a member of the Barrington Zoning Board and the Barrington Town Council, and currently a member of a school building committee that orchestrated and supervised the design and construction of a new middle school in Barrington.