Sometimes You Get Away with Unwritten Contracts

ContractsOne area where the distinction between written versus unwritten agreements makes a difference is in the calculation of the statute of limitations, points out Christopher G. Hill in his Construction Law Musings blog.

Virginia’s 5- year statute of limitations for written contracts — compared to the 3-year statute unwritten contracts — came into play in  M&C Hauling & Constr. Inc. v. Wilbur Hale in the Fairfax, Virginia Circuit Court.

M&C provided hauling services to the defendant through a subcontract with Hauling Unlimited. No separate written contract between M&C and Hauling Unlimited or Hale existed. Hauling Unlimited filed a plea in bar to have the matter dismissed as being brought beyond the 3-year statute and argued that no signed or other written contract existed.

“The Court determined that Hauling Unlimited and Mr. Hale assented to M&C’s terms and did not insist on a signature to make their contract a written one,” writes Hill.

Read the article.



Has the Government ‘Waived’ Goodbye to Strict Compliance with Your Contract Specifications?

A recent Armed Services Board of Contract Appeals decision confirmed that waiver defenses can defeat government demands for strict compliance with contract requirements, reports Cohen Seglias Pallas Greenhall & Furman.

Authors Maria L. Panichelli and Alissandra D. Young explain that the Board found in Appeal of American West Construction, LLC that the U.S. Army Corps of Engineers had effectively waived the right to enforce a construction contract specification.

“This meant that the government could not recover from the contractor the difference in the price it paid for the original specification and the lower amount spent by the contractor to perform the deviation,” they write. “In a world where the government often has the right to strictly enforce contract requirements and hold contractors financially responsible for any deviation, this decision is a big win for construction contractors.”

Read the article.



Negotiating Commercial Contracts – Insurance Words of Wisdom

Risk signOne of the key insurance policy provisions that is often included in commercial contracts to transfer risk is the requirement that one contracting party make the other contracting party an additional insured on their insurance policy, according a website post for SandRun Risk.

The authors discuss the 2013 Insurance Services Office revisions to the standard additional insured endorsement form.

The three significant changes are:

  • Insurance provided to an additional insured will apply only to the extent permitted by law
  • If additional insured coverage is required in a contract or agreement, the additional insured will not be provided coverage that is any broader than required in that contract or agreement with the named insured
  • The limits available to an additional insured will be the lesser of the limits required by contract or available under the policy

Read the article.



Barnes & Noble Fires Its CEO Without Severance Pay

Image by Mike Mozart

Barnes & Noble Inc. fired Chief Executive Officer Demos Parneros for violating company policies and said he’ll exit the post without severance, report multiple sources.

USA Today reports that the move  came on the advice of  Barnes & Noble’s law firm, Paul, Weiss, Rifkind, Wharton & Garrison.

“Parneros will not receive any severance payments after his departure and he is no longer a member of the company’s board of directors,” writes reporter David Pan. “He will not be replaced in the interim by an individual, but rather that his duties will be shared by several executives, including Chief Financial Officer Allen Lindstrom.”

Read the USA Today article.




Contracts: Are You Accepting an Offer or Not?

A lack of precision in responding to an offer can lead to confusion as to whether or not a contract has been formed, warns an article published by Burns & Levinson on

The article discusses  APB Realty, Inc. v. Geogia-Pacific LLC, a case involving a contract negotiation for the purchase of 88 rail cars. During the negotiation, Georgia-Pacific offered two options to APB, the buyer. After APB said it was leaning toward one of the options, Georgia-Pacific’s broker told APB that his client had accepted a higher offer.

APB sued for breach of contract.

The article says that “the First Circuit held that because APB might be able to prove that a contract between it and Georgia-Pacific was formed, it would be improper to throw out the lawsuit on a motion to dismiss. Thus, while APB is a long way from winning its suit, at least it is in the fight.”

Read the article.




Fixed-Price Contracts Are Simple – Or Are They?

A podcast posted by Pepper Hamilton discusses the definition of fixed-price contracts and cases in which the audit provision in the contract has been unsuccessfully used to assert claims for reimbursement and False Claims Act liability.

“Fixed-price contracts are well-known among contractors,” the firm says on its website. “These agreements seem simple — they do not allow the contract price to be modified after the award unless the parties expressly agree. But is it really that simple? In reality, there is very little case law guiding the practical approach to these types of contracts.”

In the podcast, Marion Hack, a partner in Pepper’s Construction Practice Group, discusses these types of contracts.

Listen to the podcast.




Drafting the Arbitration Provision in Commercial Contracts: Back to Basic

More and more cases are being submitted to arbitration as a result of pre-dispute contractual clauses, point out John P. DiBlasi and Jacqueline I. Silvey in an article for National Arbitration and Mediation.

“In other words, at the time of entering into the contract, it is wise to make sure the contract contains a clause that provides for arbitration in the event of a future dispute,” they write. “These clauses are found in all types of agreements and in a myriad of contract forms involving construction, consumer financing, employment, insurance, rendering of professional services, sale of goods, and others.”

The article covers the basics of the arbitration clause and the administration of the process in a dispute.

Read the article.



Eliminating the Surprise Factor from Construction Contracts: Tips for Owners and Developers

Construction design planningOn construction projects, owners and developers often are familiar with standard contract language and provisions, but the industry is continually evolving, according to a paper published by Zetlin & De Chiara LLP.

The paper discusses 10 key contract provisions and tips to help parties avoid pitfalls.

Those areas include scope of work, compliance with schedule, meeting the owner’s target for the budget, contingency, changes in the work, indemnification, insurance, dispute resolution, general conditions, and subcontract issues.

Read the article.



IP Indemnification in Contracts

A post on the Morgan Lewis Tech & Sourcing blog reviews issues related to the defense and indemnification aspects inn contracts impacting intellectual property ownership.

Authors Peter M. Watt-Morse and Michael R. Pfeuffer write that “an IP indemnity clause typically includes the obligation to defend against third party IP claims. However, the potential costs and risks associated with this obligation can be impacted by the language of the provision.”

“Like any indemnitee, the user will want indemnification for IP infringement to be as broad as possible, including any losses, costs, damages or expenses whatsoever sustained by virtue of the third-party claim,” the explain.

Read the article.



Progress Payments: What to Do When the Money Stops Trickling In

A post on the Faegre Baker Daniels website asks the question: What does a contractor do when the owner stops making progress payments?

The contractor has two options: it can either continue to perform the work or cease the work, neither of which is a perfect solution.

“The owner’s failure to pay progress payments that are ‘clearly due and owing’ generally entitles the contractor to stop work until the progress payment is made. While this rule seems clear, it is not that simple,” according to the post.

The contractor should look to its contract with the owner to find answers to two questions: Does the contract require the contractor to take a certain action? And, is payment”clearly due and owning?”

Read the article.



Contracts with Foreign Companies May Require a Rewrite

A recent California case may force companies doing business with foreign entities to reconsider—and maybe rewrite—their contracts, points out Sheppard, Mullin, Richter & Hampton in its Corporate & Securities Law Blog.

In Rockefeller Tech. Invs. (Asia) VII v. Changzhou Sinotype Tech. Co., No. B272170, the California Court of Appeal held that parties may not contract around the formal service requirements of the Convention on the Service Abroad of Judicial and Extrajudicial Documents, commonly referred to as the Hague Service Convention.

Authors Hwan Kim and Neil Popovic write that the decision could have profound implications for international business.

“The Rockefeller decision arguably makes it impossible to require foreign companies from some of the largest economies including China, Japan, Germany, U.K., India, Korea, Russia and Mexico, to show up in a California court based on notice provided by mail, courier (FedEx), or email even if the parties agreed to such forms of notice in their contract,” the authors warn. “This will have profound consequences for companies with global supply chains such as Apple and GM, for investment funds with foreign investors, for engineering and construction companies that procure materials and handle projects around the world, such as AECOM, and potentially for any company that imports or exports goods to or from the United States.”

Read the article.



PA Court Rejects Fracking Company’s Appeal In ‘Rule Of Capture’ Decision

Below-ground look at frackingA Pennsylvania appeals court rejected a request by a natural gas production company to rehear a case whose outcome could affect drillers across the country, reports WSKG.

Briggs v. Southwestern Energy Production Company involves the legal principle known as “rule of capture,” which means a property owner has the right to extract or “capture” an underground resource such as water, oil or gas, even if it flows from beneath another property owner’s land, explains reporter Susan Phillips. The case calls into question the longstanding practice as it applies to fracking, which requires subsurface rock to be deliberately broken in order to release trapped gas.

“In 2015, the Briggs family sued Southwestern Energy for trespass and conversion, arguing that the company’s fracking efforts were illegal and it should not be allowed to use wells on neighboring properties to tap gas beneath their land,” writes Phillips. “The family owns about 11 acres of land in Susquehanna County and did not lease its land for gas drilling.”

The trial court rejected their arguments, but an appellate court found that the Briggs’ arguments had legal merit.

Read the article.



‘Gross Up’ Provisions in Office Leases

Few concepts are as confusing as the “gross up” of operating expenses to those who do not regularly deal with office leases, writes William Hof in a white paper for Husch Blackwell.

“Most tenants understand that in addition to base rent, tenants often directly reimburse their landlords for a portion of the building’s operating expenses (e.g., real estate taxes, casualty insurance, maintenance, utilities, etc.),” explains Hof.

In the paper, he defines “gross up” and explains how it works, and he discusses variable vs. constant expenses and tenant protection.

Read the article.



An Arbitrator’s Power May Be Greater Than That of a Judge

Arbitration is a creature of contract, and an arbitrator’s powers are in effect defined by the parties’ arbitration agreement, points out a post on the Mintz, Levin, Cohn, Ferris, Glovsky and Popeo blog ADR: Advice From the Trenches.

“Paradoxically, although an arbitration agreement can be written (double-spaced) on one side of a cocktail napkin, in some cases it may grant greater authority to an arbitrator than a judge has,” writes Narges Kakalia.

In the post, she discusses Timegate Studios, Inc. v. Southpeak Interactive, LLC, in which the Fifth Circuit confirmed an arbitration award in which the arbitrator substantially reformed the parties’ commercial agreement by, among other things, awarding one a broad perpetual license to certain of the other’s intellectual property, despite the fact that the original agreement had granted only a more narrowly drawn ten-year license.

Read the article.



Supreme Court Closes Sales Tax Loophole in E-Commerce

Taxes - IRS - Internal Revenue ServiceThe Supreme Court ruled Thursday that states can force retailers to collect state and local sales taxes no matter where the seller operates its business, saying those taxes support local police and fire departments and other services.

“The decision, in South Dakota v. Wayfair Inc., was a victory for brick-and-mortar businesses that have long complained they are put at a disadvantage by having to charge sales taxes while many online competitors do not,” explains The New York Times. “And it was also a victory for states that have said that they are missing out on tens of billions of dollars in annual revenue.”

Justices split 5-4 on the ruling, with Anthony M. Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Samuel A. Alito Jr. and Neil M. Gorsuch in the majority.

Read the Times article.



Seventh Circuit Hands Win to Merchants in Data Breach Case

Cybersecurity - hacking - hackerThe number of cases involving consumer data breaches is rapidly growing, points out Ehren M. Fournier in a post on the website of Schoenberg Finkel Newman & Rosenberg LLC. Data breaches inflict additional costs on financial institutions, leading those institutions to turn to litigation to recoup their losses from merchants.

Fournier discusses a recent case in which the United States Court of Appeals for the Seventh Circuit Court dealt a significant blow to attempts by financial institutions to bring negligence claims against merchants for failing to adequately safeguard their customers’ data:

In 2012, hackers infiltrated Schnuck Markets, a large Midwestern grocery chain, and stole the data of about 2.4 million credit and debit cards. Financial losses from the unauthorized purchases and cash withdrawals made with the stolen data reached into the millions. Because federal law requires the consumers’ banks to indemnify the consumers for losses incurred as a result of fraudulent activity, four banks brought a class action lawsuit against Schnucks to recover their losses. The plaintiff banks had no direct contract with Schnucks, and instead resorted to common-law negligence/tort claims, common-law contractual claims, and several claims under Illinois statutes. The Seventh Circuit affirmed the lower court’s decision to dismiss all claims, and its decision on the economic loss doctrine bears some discussion. The federal appellate court anticipated that the high courts of both Illinois and Missouri would reject imposing tort liability under these circumstances.

Read the article.



Reducing the Cost of Arbitrating Large Complex Cases

The American Arbitration Association has introduced the Streamlined Three-Arbitrator Panel Option to help parties in large cases lower the costs and escalate the speed of the dispute resolution process.

“When parties’ agreement calls for three arbitrators to hear and decide their case, the Streamlined Three-Arbitrator Panel Option allows them to utilize a single arbitrator for the preliminary and discovery stages of a case,” the AAA explains on its website. “The full panel of three arbitrators then participates in the evidentiary hearing and renders the final award—a more efficient and less expensive process.”

On its website, the AAA describes the three options and alternatives available.

Get more information.




Rent-A-Center to Be Acquired by Vintage Capital for $15 Per Share in Cash

Rent-A-Center, Inc. announced that it has entered into an agreement with Vintage Rodeo Parent, LLC, an affiliate of Vintage Capital Management, LLC, for Vintage to acquire all of the outstanding shares of Rent-A-Center common stock for $15 per share in cash. The transaction, which is not subject to a financing condition, and is expected to close by the end of 2018, subject to customary closing conditions including the receipt of stockholder and regulatory approvals, represents a total consideration of approximately $1.365 billion, including net debt.

Under the terms of the agreement, Rent-A-Center stockholders will receive $15 in cash for each share of Rent-A-Center common stock, which represents a premium of approximately 49 percent over the company’s closing stock price on Oct. 30, 2017, immediately prior to the announcement that the company’s board of directors initiated a process to evaluate strategic and financial alternatives focused on maximizing stockholder value.

The Rent-A-Center board has unanimously approved the transaction and recommends that stockholders vote in favor of the transaction. Upon completion of the transaction, Rent-A-Center will become a privately held company and its common shares will no longer be listed on any public market.

B. Riley Financial, Inc. and certain of its affiliates have committed to serve as equity and debt participants in the transaction.

J.P. Morgan Securities LLC is acting as exclusive financial advisor to Rent-A-Center and provided a fairness opinion to the Rent-A-Center Board of Directors. Winston & Strawn LLP is serving as legal advisor to Rent-A-Center, and Sullivan & Cromwell LLP is serving as legal advisor to the Rent-A-Center Board of Directors.

B. Riley FBR, Inc. is serving as financial advisor and lead arranger and Guggenheim Corporate Funding LLC is serving as administrative agent and joint lead arranger. Wilson Sonsini Goodrich & Rosati, Professional Corporation is serving as legal advisor to Vintage.



Contractual Allocation of Intellectual Property Ownership

Intellectual property IPMorgan, Lewis & Bockius lawyers, writing in the firm’s Tech & Sourcing blog, discuss the typical ways that parties can use contracts to determine intellectual property ownership.

“In the context of negotiating an agreement where intellectual property rights are addressed, most parties will readily agree that those intellectual property rights owned by a party before the effective date of the agreement or developed outside of the agreement (commonly referred to as background rights) should be owned by that party,” write Vito Petretti and Cindy L. Dole.

Their article discusses the common allocations of foreground IP rights.

Read the article.

$17M Target Data Breach Settlement Affirmed on Second Try

Image by Mike Mozart

Target Corp.’s $17 million class settlement to resolve consumer claims over a 2013 data breach passed Eighth Circuit scrutiny on its second trip to the appeals court, reports Bloomberg Law.

The court rejected an objector’s challenge that the named plaintiffs weren’t adequate representatives for the whole class because they received compensation while others didn’t, according to reporter Perry Cooper.

He explained:

“All class members had the ability to register for credit monitoring, and all of the compromised payment cards undoubtedly were canceled and replaced by the issuing banks,” Judge Bobby E. Shepherd wrote for the U.S. Court of Appeals for the Eighth Circuit.

“Any risk of future harm is therefore entirely speculative,” the court said.

Read the Bloomberg Law article.