Firms Cite 1851 Law in Fatal Missouri Duck Boat Accident, Seek Mediation

Two companies facing multiple lawsuits over a summer tourist boat accident in Missouri that killed 17 people have invoked an 1851 law that allows vessel owners to try to avoid or limit legal damages as they also seek settlement negotiations with victims’ family members, reports the Chicago Tribune.

“If a judge concluded that the federal law cited by Ripley [Entertainment Inc.] and Branson Duck Vehicles applies, claims for damages over the July 19 accident on Table Rock Lake near Branson, Missouri, could be consolidated into a single federal court case,” explains the article, from the Associated Press. “The companies’ petition states that under the federal law, they would not owe any damages because the boat carried no freight and was a total loss.”

Read the Chicago Tribune article.



Dallas Firm Named Tops in U.S. Law for Business Disputes

Loewinsohn Flegle Deary SimonDallas business trial law firm Loewinsohn Flegle Deary Simon won the No. 1 spot for the Elite Trial Lawyers award, based on research by VerdictSearch, The National Law Journal and

Three of the firm’s co-founders, Alan Loewinsohn, Craig Simon, and Matt Ray, accepted the award during a reception at the Las Vegas Bellagio Hotel on October 5.

The firm’s recent litigation includes a trial victory that resulted in a $6 billion verdict – the largest verdict of 2017 and one of the Top 10 verdicts in U.S. history.

Read details about the honor.



Backdating—When is it Appropriate?

Backdating legal documents is frequently permissible. However, under other circumstances, it can be fraudulent or illegal, warns Elizabeth A. Whitman in a post on the website of Whitman Legal Solutions LLC.

Her article discusses when legal documents might be backdated and how legally to do so when it is appropriate.

She explains that sometimes a document must be backdated to make it accurate, how backdating is accomplished, when it is illegal to backdate a document, and how to assure the use of backdating is legal.

Read the article.



3 Key Takeaways: How Blockchain Technology will Reshape Legal Contracting

A recent presentation at the ACC Colorado Fall Frenzy in Denver addressed how blockchain platforms are reshaping contracting, particularly how blockchain can be used to protect the security and integrity of contracts and automatically execute based on external conditions.

A post on the website of Kilpatrick Townsend expands on the three takeaways: Blockchains have important uses besides cryptocurrencies; smart contracts are already in use by companies; and the technology is in its infancy and several pitfalls exist.

Read the article.




Champagne Remark May Cost Lawyer $289 Million Bayer Award

The lawyer most responsible for winning a $289 million verdict against Bayer AG may end up wiping it out, according to a Bloomberg Law report.

Brent Wisner, the lead trial attorney who in August convinced a jury that Monsanto Co.’s Roundup weed killer caused his client’s cancer, irked the judge handling the case so profoundly that she’s considering tossing the verdict and ordering a new trial.

From the Bloomberg report: “The lawyer told jurors that Monsanto executives in a company board room were ‘waiting for the phone to ring’ and that ‘behind them is a bunch of champagne on ice,’ according to a court filing. He said that ‘if the damages number isn’t significant enough, champagne corks will pop.’”

Read the Bloomberg Law article.



New Decision Highlights (Again) the Importance of Defining ‘Commercially Reasonable Efforts’

If your client is going to contractually commit to using commercially rea­son­able ef­forts to do something — and if your client expects that obligation to require some­thing less than “all reasonable efforts” — then you’ll want to make that expectation clear in the contract itself, advises D.C. Toedt III in the On Contracts Blog.

He discusses a case in which the influential Dela­ware chancery court noted the chasm be­tween the meaning of that term to transactional lawyers versus to courts.

“Seemingly disregarding practitioners’ views, the chancery court continued the Delaware trend —which that court itself started — of treating com­mer­­ci­al­ly rea­sonable efforts as requiring the obligated party to take ‘all rea­son­able steps.’”

Read the article.



Duty of Good Faith, Tortious Interference, and Statutes of Limitation

A new Seventh Circuit Court of Appeals case demonstrates the importance of filing suit in a timely manner in order to retain one’s contractual rights, writes Myanna Dellinger in ContractsProf Blog. It also shows just how nasty contractual parties may act towards each other in violation of the duty of good faith and fair dealing.

The article details the case in which JTE distributed products in Chicago for Bimbo Foods Bakeries Distribution Company for over a decade. The contract had no duration, but stipulated that it could be terminated in cases of non-curable breaches by one of the parties.

Bimbo allegedly did not meet the standard of good faith because, according to JTE, Bimbo “began fabricating curable  breaches.” However, because the four-year statute of limitations had run, JTE could still not have asserted that argument, the court found.

Read the article.



A Basic Compliance Requirement: A Contract Management System

Michael Volkov of Volkov Law group has posted an article that says a contract management system is imperative for businesses.

The article discusses the four important purposes for such a system:

  • To maintain consistency in the formulation and enforcement of contractual relationships;
  • To mitigate business risks between the company and a party (e.g. customer, vendor, supplier);
  • To protect the company’s culture and mitigate compliance risks through imposition of certifications, representations and warranties, and specific compliance obligations;
  • To protect the accuracy of the company’s financial payment and receivables system by verifying the accuracy of payment terms and conditions in accordance with the company’s contractual agreements.

Read the article.



Interpreting Indemnity Provisions in Construction Contracts

Liability in the construction process is usually determined and allocated by contract, explains a post on the website of Faegre Baker Daniels LLP.

“It is quite common for construction contracts to contain indemnity provisions requiring one party to defend and reimburse the other against various expenses or losses. When contracts include express indemnity provisions, they will likely receive more attention, and be the subject of more negotiations between counsel, than any other provisions. Yet, if pressed to state what it means to ‘indemnify’ or ‘hold harmless,’ many are at a loss,” according to the firm.

The post discusses strict construction, express negligence, and the liberal or fair construction rule.

Read the article.



5 Insurance Tips Before the Storm Hits

When a storm is headed in your direction, it’s critical to prepare for an emergency by making sure you have medical supplies and enough food and water to sustain your family. The aftermath of a storm can be devastating. You should be equally prepared on the insurance front to protect your home and get back on your feet as soon as possible.

Dallas insurance litigator Meloney Perry of Perry Law P.C. offers some storm insurance tips to keep in mind before and after a storm hits.

1. Ensure You Have Adequate Amounts of Insurance and Correct Coverage

Unfortunately, insurance is not a “one size fits all” solution. Simply having insurance coverage sometimes isn’t enough. Educate yourself and understand the adequate types and amounts of insurance that fit your needs.

Extra Credit: Research and compare multiple insurance plans while revisiting your coverage often.

2. Talk with Your Insurance Agent

Do this at least twice a year to revisit coverages—this needs to be done before a storm hits or you may find yourself without coverage you thought you had. Tap into your agent’s knowledge and don’t be shy about asking questions.

Extra Credit: Keep agent information in your telephone and in the cloud for easy access in case of an emergency.

3. Don’t Just Take Out ID Cards, Read Your Insurance Policies

Knowledge is power. If you know what your policy does and doesn’t cover, you’ll be in a better position to work with your insurance carrier. If you don’t understand what is included in our policy, call your agent. (See tip No. 2.)

Extra Credit: Research the Texas Department of Insurance Website for easy Q&A and forms. They’re a great resource.

4. In the Event of Damage or Loss, Take Pictures and Keep All Receipts Handy

Insurance carriers want all the supporting evidence for your claim they can get their hands on. This will allow them to assess the situation and process your claim faster than others.

Extra Credit: Make and keep multiple copies. Upload everything to the cloud for easy access and keep hard copies with a relative or in a fire-proof box.

5. Have A Proof of Loss Form Available for Easy Filing

A proof of loss form will identify the value of the items damaged or lost in the storm. Completing this form quickly and accurately can help with the claims process and avoid possible headaches, such as underpayment, delay or denial of your claim.

Extra Credit: Keep a printout of your insurance policy to determine what to include in the form.



In Rare Bipartisan Move, 31 States Ask SCOTUS to Undo Ban on Consumer Antitrust Claims

Reuters points to an effort illustrating a rare show of bipartisanship as state politicians rally around the cause of overturning U.S. Supreme Court precedent that protects monopolists from consumer suits.

Alison Frankel writes that “31 state attorneys general from across the political spectrum united in an amicus brief asking the Supreme Court to overturn its 1977 precedent in Illinois Brick v. Illinois, which blocks downstream purchasers from asserting antitrust claims under federal law. The state AGs – including GOP stalwarts from Texas and Florida as well as activist Democratic AGs from New York, California and Massachusetts – argue that the Supreme Court’s Illinois Brick doctrine was ill-advised, judge-made policy that has been repudiated by decades of antitrust litigation under state laws passed in its wake.”

Read the Reuters article.



Contract Roulette: The Top Five Agreements That Get Businesspeople into Trouble

You can do a lot of damage with a signature, warns Jack Garson of Garson Law LLC in Bethesda, Maryland. You can go broke.

In an article on the website of Forbes, he discusses five types of contracts that have caused the most disasters.

First, he warns of the dangers of assuming that leases are standard, so there’s no reason to read every clause.

On the subject of loan agreements, Garson’s advice is to negotiate, consult advisors, and bargain. Most of all, he adds, get the right to prepay the loan.

He also covers construction contracts, partnership agreements, and personal guarantees.

Read the article.



Vizio Reaches Potential Settlement for Its Spying TVs – And Victims Could Receive Less Than a Dollar

Vizio has announced a potential $17 million settlement in a recent class action lawsuit, which could result in a pay-out that is as little as a few cents for each of the millions of people claiming the company’s smart TVs collected and shared their private viewing data without their consent, reports the New York Daily News.

A ProPublica 2015 expose alleged Vizio used its smart TVs to spy on an estimated 16 million Vizio TV owners who purchased and connected their televisions to the internet between Feb. 1, 2014 and Feb. 6, 2017, writes reporter Jessica Schladebeck.

“After payment of notice and administration costs and any approved award of attorneys’ fees, costs and service awards, all funds remaining in the settlement fund will be distributed to the class,” according to court documents.

Read the NY Daily News article.



Webinar: Linux Foundation’s OpenChain Explained

Flexera will present a complimentary webinar discussing the OpenChain Project for a secure and compliant software supply chain.

The event will be Thursday, Oct. 25, 2018, at 11 a.m. Central time.

The Linux Foundation has developed the OpenChain project, a standard that can help software suppliers manage their production process better, to ship secure and compliant software to customers.

In this webinar, Shane Coughlan, general manager – OpenChain at the Linux Foundation, will give an overview of OpenChain; why it is needed and how it helps address issues in software production. Participants will learn how to improve their software production processes.

Register for the webinar.



Understanding Similarities and Differences in Four Oilfield Anti-Indemnity Acts

Indemnity provisions are widely used in the energy industry as a method of contractually apportioning liability between parties. These provisions are a staple in Master Service Agreements and can be unilateral or mutual, explains Zoe Vermeulen in a post on the website of Kean Miller LLP.

The author discusses oilfield anti-indemnity acts in Texas, Louisiana, New Mexico and Wyoming,.

The article also covers construction anti-indemnity acts.

“Like the Oilfield Anti-Indemnity Acts, these construction anti-indemnity acts vary widely from state to state and have many exceptions and nuances. And awareness of and familiarity with these statutes is also critical to adequately evaluating the viability of a contractual indemnity provision,” writes Vermeulen.

Read the article.





Founder of Tea Party Nation Has Been Disbarred for Trying to Scam Timeshare Owners

The Orlando Sentinel is reporting that the founder of Tea Party Nation has been disbarred for trying to swindle timeshare owners into thinking they canceled their timeshares.

Tennessee attorney Judson Wheeler Phillips, a senior partner with Nashville-based Castle Law Group and founding member of the conservative Tea Party group, was accused of taking off with the money he earned from the fraudulent transactions, the Tennessee Supreme Court has ruled.

Federal lawsuits were filed against Phillips by Westgate Resorts and Orange Lake Resorts, both based in Orlando, as well as Las Vegas-based Diamond Resorts and Fort Lauderdale-based Berkley Resorts. More than 90 consumer fraud complaints also were filed.

Read the Orlando Sentinel article.



Where Can I Sue You? Forum Selection vs. Choice of Law

A post on the website of Meislik & Meislik discusses the differences between two contract provisions that sometimes are confused: forum selection and choice of law.

Ira Meislik explains:

What’s a forum selection provision? That’s the one your agreement says where you can file suit to enforce your agreement. What is often confused with a forum selection provision? That would be a choice of law provision. That’s where the parties agree as to which state’s law will apply to their agreement. Once you are properly in any state’s courts, those courts can apply whatever law you’ve agreed should be used.

His article describes how the two provisions work in various states and then concludes with six points to keep in mind during the drafting process.

Read the article.



Inside the Private Justice Department Meeting That Could Lead to New Investigations of Tech Giants

The Washington Post reports on a meeting of the country’s top federal and state law enforcement officials on Tuesday that could presage sweeping new investigations of Amazon, Facebook, Google and their tech industry peers.

Participants voiced lingering frustrations that these companies are too big, fail to safeguard users’ private data and don’t cooperate with legal demands.

“Attorney General Jeff Sessions opened the meeting by raising questions of possible ideological bias among the tech companies and sought to bring the conversation back to that topic at least twice more, according to D.C. Attorney General Karl A. Racine,” according to reporters Brian Fung and Tony Romm.

But other participants steered the conversation toward the privacy practices of Silicon Valley.

Read the Washington Post article.



White Paper: User Authentication for E-Signature Transactions

OneSpan has published a white paper titled “User Authentication for E-Signature Transactions” and made it available for downloading at no charge. (See the download form below.)

The white paper provides guidance on how to select and implement user authentication techniques. It answers questions like:

  • How do I select the right authentication for my requirements?
  • How do I implement strong authentication, without making the process difficult for the customer?
  • Can I leverage existing user authentication credentials?
  • Can I adjust my user authentication criteria for different transactions and processes?



Time to Reconsider No Poaching Agreements? Yes, Emphatically.

Franchisors need to review their franchise agreements and take immediate action in response to the recent onslaught of legal action over “naked no-poaching” provisions in franchise agreements, according to a post in Franchise Law Update on the website of Fox Rothschild.

“In a typical franchise agreement, a franchisor will prohibit a franchisee from poaching its or its other franchisees’ employees during the term of the franchise agreement and for a period of time after the franchise agreement ends,” the authors explain.

In April 2018, the U.S. Department of Justice initiated a criminal complaint against a number of companies respecting naked no-poaching agreements. While the case settled with only civil penalties imposed, the DOJ expressly stated that it was reserving the criminal question and planned to “zealously enforce” the law.

Read the article.