Elliot loves being a lawyer, and his favorite part of practicing law is working closely with clients to resolve complex problems. He represents sureties in all manner of disputes and regularly negotiates and litigates performance bond claims, payment bond claims, bad faith claims, and claims against indemnitors. He often gets involved in matters before a lawsuit is filed and takes a business approach to resolve matters early on and in creative ways. Elliot thinks the best solutions to a client’s problems are not always the most obvious and that in order to resolve a matter most favorably for the client, lawyers need to think outside the box.
On the transactional side of his practice, he has negotiated surety workouts with bonding programs ranging from $5,000,000 to $130,000,000 and has worked with sureties to transition accounts during mergers and acquisitions. In surety default situations, he has negotiated takeovers, tenders, completion agreements, subcontractor ratifications, construction contracts, financing agreements, and collateral agreements. Elliot has also worked with several surety underwriting departments to refresh or draft new general indemnity agreements, collateral agreements, subordination agreements, capital retention agreements, powers of attorney, producer agreements, and preferred bond forms.
He has also litigated numerous cases through appeal. Elliot has handled litigation in state and federal courts, including bankruptcy courts, as well as in arbitration proceedings. Although most of his work is in Louisiana, he has also handled matters in Texas, Mississippi, Alabama, Oklahoma, Arkansas, California, Delaware, and New York. The amount in controversy has ranged between $25,000 and $70,000,000. Elliot understands that each case is different, requiring different staffing needs. He is cognizant of legal costs and expenses, especially when the amount in controversy is low, but he also knows how to build and manage a trial team for large exposures.
In addition to his contract surety work, he also assists sureties in handling plug and abandonment bond claims and negotiating workouts for troubled accounts. Elliot’s practice primarily involves Gulf of Mexico assets, and the amount in controversy is often in the tens of millions of dollars. In connection with that practice, he has worked with investment banks and petroleum engineers to develop favorable solutions to his clients’ problems.
Elliot also enjoys working with insurers on subcontractor default insurance claims. He provides coverage opinions that set out his clients’ rights and obligations under the policy, clearly define the issues, and give strategies for resolving coverage disputes. He also litigates disputed claims, including defending against bad faith attacks. The amount in controversy has ranged between $2,000,000 and $45,000,000. Finally, he was able to leverage his experience in defending subcontractor default insurance claims to assist two major insurers in refreshing or drafting new subcontractor default insurance policies.
Southern Environmental Management and Specialties, Inc. v. City of New Orleans, __ So. 3d __, 2022 WL 1492511 (La. App. 4 Cir. 2022). The firm represented a surety that issued a statutory payment bond under the Louisiana Public Works Act. The payment bond claimant alleged that the surety adjusted the payment bond claim in bad faith under the Louisiana Insurance Code. The appellate court upheld the trial court’s granting of summary judgment in favor of the surety, holding that Louisiana Public Works Act payment bond sureties are immune from Louisiana Insurance Code penalties as a matter of law.
RLI Ins. Co. v. Roberts, 819 Fed. Appx. 227 (5th Cir. 2020). The firm represented a surety that issued decommissioning bonds on several oil and gas properties in the Gulf of Mexico. The firm brought a lawsuit against an individual indemnitor for payment of outstanding premium, indemnity for the surety’s losses and expenses, and specific performance of the indemnitor’s collateral security obligations. The appellate court affirmed district court’s judgment on all counts, resulting in an award of over $250,000 in indemnity losses and unpaid premium and ordering the indemnitor to deposit an additional $1.25 million in collateral security. The district court’s order may be found at RLI Ins. Co. v. Roberts, 2019 WL 1979931 (S.D. Tex. 2019)
A.B.S. Servs., Inc. v. James Constr. Group, LLC, 269 So. 3d 723 (La. App. 1 Cir. 2018) (en banc). Following a two-week jury trial in state court in Baton Rouge in 2015, the jury completely exonerated the firm’s client, a major surety company, from all contractual and extracontractual claims and ordered its reimbursement in the amount of $477,569 for sums previously paid under a reservation of rights. The judgment was affirmed by an en banc Court of Appeal.
84 Lumber Co. v. F.H. Paschen, S.N. Nielsen & Assocs., LLC, 2017 WL 467679 (E.D. La. 2017). The firm defended a surety that issued subcontractor performance bonds with dual obligee riders on two construction projects in the New Orleans area. The trial court granted the surety’s motion for summary judgment and motion to dismiss, discharging the dual obligee’s multi-million dollar claims against the performance bonds.
Law Enforcement Dist. of Jefferson Parish v. MAPP Constr., LLC., 196 So. 3d 896 (La. App. 5 Cir. 2016). On an interlocutory appeal, the Court of Appeal reversed the trial court’s denial of a motion for summary judgment. The surety was fully discharged due to a time-limitation defense.
Plaquemines Parish Gov’t v. Byrd Bros. Emergency Servs., LLC, 2016 La. App. LEXIS 864 (La. App. 4 Cir. 2016). The surety and a bank with a UCC security interest in the principal’s accounts receivable both sought the remaining contract funds on a Louisiana public works project. The Court of Appeal affirmed a summary judgment in favor of the firm’s client, the surety, holding that the surety’s rights in the remaining contract funds were superior to the rights of the bank.
Practical Advice to a Surety to Protect Collateral in Bankruptcy, Surety Bond Quarterly (Summer 2022)
Elliot Scharfenberg and Chris Simmelink, Warehouse and Customs Bonds, in The Law of Commercial Surety and Miscellaneous Bonds (Samuel J. Arena, Jr., Kathryn M. Truman, Julie S. Alleyne, and Justin D. Wear, eds., 2022)
Practical Advice to a Commercial Surety Taking Collateral, Fidelity & Surety Law Committee Newsletter (Summer 2021)
EVENTS & SPEAKING ENGAGEMENTS
Presenter, Russia, Ukraine, and the War Exclusion in Insurance Policies, Midwest Surety and Construction Claims Conference (2022)
Presenter, Warehouse Bonds and Contracts of Deposit, Spring Meeting of the Fidelity & Surety Law Committee of the Tort Trial & Insurance Practice Section, American Bar Association (2022)
Presenter, Effectively Handling Energy Surety Bond Claims in Bankruptcy, Southern Surety & Fidelity Claims Conference (2021)
Presenter, Takeovers, Tenders & Completion Agreements: Key Provisions To Mitigate the Surety’s Risk, Midwest Surety and Construction Claims Conference (2019)
Presenter, Handling Plug & Abandonment Bond Claims, Zurich CE Seminar (2019)
Presenter, Evolution of the Surety’s Rights Under the General Indemnity Agreement, Atlanta Surety Claims Association (2019)
Panel Leader, Blockchain and Cryptocurrency, Legal Netlink Alliance Global Meeting (2019)
Presenter, Case Law Update: An Historical Perspective, Southern Surety & Fidelity Claims Conference (2019)
Presenter, Handling Performance Bond Claims: Dealing With Difficult Obligees, Zurich CE Seminar (2018)
Presenter, Pollution Insurance, Mid-Winter Meeting of the Fidelity & Surety Law Committee of the Tort Trial & Insurance Practice Section, American Bar Association (2018)
PROFESSIONAL AND CIVIC ACTIVITIES
American Bar Association, Tort Trial & Insurance Practice Section and Fidelity and Surety Law Committee
Louisiana State Bar Association
New Orleans Bar Association
New Orleans Office
400 Poydras Street
New Orleans, LA 70130
Complex Commercial Litigation
Super Lawyers Rising Stars in Surety Law (2023)
Best Lawyers: Ones to Watch in Construction Law and Construction Litigation (2021-2022)
J.D., magna cum laude, Tulane University Law School (2013); Order of the Coif; Articles Editor, Tulane Law Review
B.A., Baylor University (2007)
BAR AND COURT ADMISSIONS
U.S. Court of Appeals for the Fifth Circuit
U.S. District Courts for the Eastern, Middle and Western Districts of Louisiana