Contract Management: From Business Controller to Business Enabler

Deal Key Meaning Contract Hot Deals Or AgreementTim Cummins, President & CEO of  the International Association for Contract & Commercial Management, discusses the ongoing evolution of commercial contract management in a podcast posted by Determine Inc.

He says the future of contracts will be far more versatile and adaptive, with technology and dynamic processes driving the way organizations structure.

He has seen a dramatic increase in senior executive interest and awareness of the potential that contracting holds. More and more organizations are recognizing that misalignment is stunting their ability to be flexible, agile and creative, Determine says on its website.

Listen to the podcast.




When Smart Contracts are Outsmarted: The Parity Wallet “Freeze” and Software Liability in the Internet of Value

The recent Parity wallet “freeze” provides yet another example of a coding vulnerability in a smart contract (rather than a flaw in the underlying blockchain or cryptography) resulting in an exploit that compromises cryptocurrency worth millions, according to Proskauer Rose LLP’s Blockchain and the Law.

Wai Choy and Pengtao Teng write: “It again highlights some of the pitfalls of insecure code in the context of digital assets and raises questions regarding the extent to which software developers can be held liable to its users for losses suffered due to those oversights. As blockchain-related software that serve as storage vaults for digital assets continue to proliferate, it will be interesting to see how industry standards and the existing software liability regime in the U.S. and other jurisdictions evolve to reflect the critical role of secure software in the ‘Internet of Value.'”

Read the article.



Is Your Service Contract Protecting Your Company? 9 Essential Clauses that Limit Fallout Damage

Gabriela Smith, writing for Nearshore Americas, discusses several key standard clauses that should be included to make a contract strong and reliable.

“As lawyers, we constantly encounter less than ideal scenarios day in and day out when parties – for whatever their reasons – fail to sign a good contract, or even sign a contract at all,” she writes. “However, having a good service contract that is tailored to the particular situation can be one of the best decisions that a company can make.”

She discusses recitals, payment terms and timing, commissions, law and venue, work product, confidential information, termination, assignment, and modification and amendment.

Read the article.




Regulatory Whirlwind 2018: What’s Ahead for Third-Party Risk Management?

NAVEX Global will present a complimentary webinar on recent and anticipated enforcement and regulatory changes as they relate to third-party risk.

The online event will be Thursday, Jan. 25, at 1 p.m. EST / 10 a.m. PST.

Michael Volkov, renowned FCPA and third-party due diligence expert, will help participants learn about new FCPA policies and DOJ advice, data privacy regulations coming in May and more.

Participants also will learn what’s ahead in the world of anti-bribery, corruption and third-party risk management efforts.

Anyone who can’t watch the live online event may register to receive a recording of the webinar afterwards.

Register for the webinar.



Suit By 22 State Attorneys General Seeks to Block FCC’s Net Neutrality Repeal

A group of 22 Democratic state attorneys general, including those from California and New York, filed a lawsuit Tuesday seeking to block the Federal Communications Commission’s repeal of tough net neutrality rules for online traffic, according to The Los Angeles Times.

The AGs’ complaint argues that the vote last month by the Republican-controlled FCC was an “arbitrary and capricious” change to regulations, writes reporter Jim Puzzanghera.

“The repeal of net neutrality would turn internet service providers into gatekeepers, allowing them to put profits over consumers while controlling what we see, what we do and what we say online,” said New York Atty. Gen. Eric T. Schneiderman, who is leading the suit.

Read the LA Times article.



Download: How to Prepare Your Business for 2018 GDPR Requirements

Zapproved has published a report providing insights from a PREX17 summary on meeting the new GDPR rules by May 2018. The summary may be downloaded free of charge.

In May 2018, the General Data Protection Regulation (GDPR) will go into effect, requiring companies that do business in Europe to adjust their strategies for data management. The GDPR standardizes data protection law across the member countries, but it doesn’t specifically address preservation and discovery for U.S. legal proceedings.

The PREX17 session summary, “Data Privacy, the GDPR and Security All in One” explores the practical considerations for this transition with insight from Intel’s Dan Christensen, U.S. Magistrate Judge Elizabeth Laporte and Jeane Thomas, Partner at Crowell & Moring LLP.

It discusses strategies to address:

  • Article 30 requirements for detailed record keeping
  • U.S vs EU perspectives on cross-border discovery and personal privacy rights
  • ISO2l701 certification

Download the summary.



Earning Trust in Contract Negotiations

Dennis Garcia, an assistant attorney general of Microsoft Corp., offers a collection of best practices that all lawyers can embrace to help earn trust during the contract lifecycle.

“In our rapidly changing and highly competitive legal and business environments, earning trust is more important than ever—especially during contract negotiations as that may be the first opportunity for parties to work with each other,” Garcia writes for Bloomberg Law.

He discusses several practices under the headings: actively learn about the other party, be empathetic, provide thoughtful rationales on contract issues, meet face-to-face, embrace smart risk-taking, don’t over-lawyer, little things mean a lot, small and empowered negotiating teams, always keep your cool, and post-contract signing.

Read the article.



Former American Airlines General Counsel Recalls Turbulent Years

A new book by the former general counsel of American Airlines tells the story of the company’s journey from the brink of insolvency following the loss of two of the airline’s jets in the Sept. 11, 2001 attacks through the most successful corporate bankruptcy and restructuring in U.S. history.

The Dallas Business Journal, with The Texas Lawbook, has an advance copy of Gary Kennedy’s “Twelve Years of Turbulence: The Inside Story of American Airlines’ Battle for Survival,” scheduled for release in February.

According to writer Mark Curriden, the book reveals that American Airlines paid lawyers and financial advisers involved in the bankruptcy proceedings $300 million – or $500,000 a day. It also goes behind the scenes of the terrorist attacks of 2011.

Read the Dallas Business Journal article.



Defend, Indemnify, Hold Harmless – What This Contract Language Means for A/E Professionals

J. Brandon Sieg of Vandeventer Black LLP addresses the question of what is meant when a contract requires an architect or engineer to “defend, indemnify, and hold harmless” the project owner for specific (or not so specific) types of claims that might arise in the future.

Regarding duty to defend, he explains that: “If you agree to similar language in your design contract, then you are agreeing to hire the project owner’s lawyer to defend a lawsuit filed against the project owner.”

He also covers responsibilities that go with indemnification and “hold harmless.”

Read the article.




Vendor Risk Management as Applied to Fintech Contracts

Regulatory compliance is an area of fundamental concern – not only for strategic investors – but also for financial institutions contracting for services from financial technology providers, warns Adam Chernichaw, a partner in the New York office of White & Case.

“Where a financial institution classifies a product or service being procured as an ‘outsourcing,’ its vendor risk management (VRM) function will carefully scrutinise the proposed relationship,” Chernichaw writes. “The VRM function will usually take the position that regulators will look at the service provider as an extension of the institution. Accordingly, the institution is required to impose contractual obligations on the provider so that the provider acts as the institution itself would act when it comes to compliance.”

In his article he emphasizes the importance of parties to align on the contractual VRM requirements that will be sought by the financial institution, and whether the fintech provider can meet those obligations.

Read the article.




2018’s Top 10 Legal Challenges in Privacy and Data Security

In an article for Bloomberg Big Law Business, Wiley Rein LLP’s Kirk Nahra details the top-10 U.S. and international developments in 2018 that companies must be aware of to ensure an effective information security program.

Nahra writes that “it is clear that privacy and data security has moved from an issue impacting primarily healthcare and financial services companies, to an issue that affects, in large and small ways, virtually every company across the globe. These issues affect litigation, mergers and acquisitions, product development, research, corporate strategy, business partnerships, and, in some way most activities of most companies.”

His article covers the European Union’s new General Data Protection Regulation, Privacy Shield and other data transfer obligations, non-EU data transfer programs, cybersecurity, breach litigation, FTC and Office for Civil Rights enforcement, and the role of the states.

Read the Bloomberg article.



Southwest Airlines Reaches $15 Million Settlement in Price Collusion Lawsuit

Fortune is reporting that Southwest Airlines agreed to pay $15 million to settle nationwide antitrust litigation by passengers who accused the four largest U.S. carriers of conspiring to raise fares by reducing seating capacity.

The Dallas-based carrier denied wrongdoing but said it settled to avoid the cost and distraction of further litigation.

The remaining defendants, including American Airlines Group, Delta Air Lines and United Continental Holdings, have not settled.

The report says Southwest agreed to help plaintiffs with their suit against the other three.

Read the Fortune article.



Download: The State of E-Signature Implementation

Esignature - contract -signingeSignLive by Vasco has made available a new report: “Forrester Report: The State Of E-Signature Implementation: Twenty-Five E-Signature Use Cases Show Adoption Trends,” which can be downloaded from the eSignLive website at no charge.

The Forrester Report examines 25 e-signature implementations across the United States and Europe with use cases for receivables, payables, various contracts, onboarding agreements, and travel bookings – uncovering trends in adoption, authentication, and business results.

The report covers:

  • The average implementation time for e signature projects
  • Reported ROI metrics from each project
  • Top challenges, from browser compatibility to user training
  • How solution flexibility mitigates complexity
  • Biometric authentication trends
  • Innovation in mobile signing

Download the report.





Software License Checklist for Licensees: 20 Issues to Consider

When entering into licenses for commercially available, off-the-shelf software products, it is common to use the “vendor’s paper” for contracting, according to a post on Morgan, Lewis & Bockius LLP’s Tech & Sourcing blog.

“Using the vendor’s paper does not mean that the contract shouldn’t be reviewed and negotiated to ensure that key issues are addressed,” point out Barbara Murphy and Eric J. Pennesi.

In part 1 of the article, they discuss license types, use within the enterprise and by third parties, divestitures and acquisitions, nonproduction use, the right to relocate or change users, use outside the United States, the obligation to support, rights to successor products, payments and escalators for renewal terms.

A link on the article takes the reader to part 2 of the discussion.

Read the article.



Third-Party Risk Management: Aligning Supplier Onboarding to Contract Onboarding

Determine, SIG and Protiviti have posted an on-demand webinar discussing best practices for initiating third-party risk efforts by improving the integration of supplier onboarding and contract management.

Organizations of all sizes and industries are wrestling with how to improve third-party risk management efforts, Determine says on its website. The challenge often comes from a disconnect between processes that are spread out among a wide number of stakeholders; supplier due diligence, ensuring contract compliance, monitoring, renewing or even terminating supplier relationships.

By aligning processes and technology for quick adoption, you’ll have the ability to easily connect the dots between suppliers and contracts and procurement processes, the presenters say.

Topics include:

  • Looking at issues around transition from onboarding to contract award
  • Addressing the challenges of defining a “contract owner”
  • Improving supplier and contract visibility in an environment of constant change
  • Preventing the onboarding of suppliers with expired certifications, or the renewal of contracts with non-performing suppliers

Watch the on-demand webinar.



Keep SaaS And Cloud Contracts Light On Specifics, But Heavy On Revenue Opportunities

Solution providers shouldn’t let long, tedious contracts get in the way of closing deals, advised lawyer Mark D. Grossman when he spoke at the Ingram Micro One conference.

His advise was aimed at users of SLAs, or service level agreements, for cloud-based processes.

CRN reports that Grossman said solution providers should design a “cookie-cutter” contract – one that can be used with multiple clients with little modification – to make the sales process much shorter.

Reporter Joseph F. Kovar writes that Grossman said the key to that is to keep as much of the contract as ambiguous as possible. “None of this is unethical or immoral,” he said. “Everything is agreed to … I want to help you close deals. Don’t get bogged down in legal terms.”

Read the article.



Drafting Matters: Do Your Non-Competes Bind the Correct Parties?

A federal court in Colorado recently upheld a franchisor’s non-competition provision despite that state’s strong public policy against non-competes, reports Alexander S. Radus on Fox Rothschild’s Franchise Law Update.

“The franchisor prevailed due to its thoughtful contract drafting and ability to effectively communicate the unique nature of franchising to the court,” Radus writes.

In the article, he describes the case and concludes that the decision illustrates why franchisors should ensure that their franchisees’ owners and key employees, especially those with access to confidential materials and training, sign non-competes in their individual capacities.

Read the article.



2017 Data Discovery: Celebrity Lessons on Litigation, Legal Ethics, and e-Discovery

Reed Smith LLP will present a webinar offering a look back on celebrity data discovery law in 2017 and how it affects you and your organization.

The one-hour complimentary event will be Thursday, Dec. 14, 2017, at 2 p.m. Eastern time.

Presenters will be U.S. Chief District Judge Joy Flowers Conti (W.D. Pa.), e-discovery authority and Reed Smith partner David Cohen, noted entertainment lawyer Michael Kump of Kinsella Weitzman Iser Kump & Aldisert, and join Relativity’s David Horrigan.

Objectives are:

  • What you should—and should not—do if you or your client suddenly become a news or social media celebrity
  • Understanding your legal obligations to preserve evidence for litigation
  • Knowing the potential pitfalls with data sources, including audio files and text messages
  • Learning ways to protect and avoid waiving the attorney-client privilege

Register for the webinar.



HousingWire Webinar: Digital Montgages – Don’t Get Left Behind

HousingWire will present a complimentary webinar on digital mortgages on Thursday, Dec. 14, 2017, at 11 a.m. Pacific time / 2 p.m. Eastern time.

Anyone who cannot watch the presentation in real-time can register to receive a recording of the webinar afterwards.

eSignLive by Vasco will sponsor the event.

“With emerging alternative lenders aggressively entering the market, traditional banks and lenders are looking to the digital mortgage as a competitive advantage,” HousingWire reports. “While originators have successfully automated the initial stages of the mortgage application and disclosure delivery process with electronic signatures, they haven’t fully digitized the entire mortgage workflow. With the help of eClosing and eVaulting platforms however, the “holy grail” of the digitization of complex mortgage transactions is now at arm’s length.”

Topics will include:

  • How and where the industry is adopting eMortgage technology
  • Legal and regulatory requirements
  • E-apps, e-disclosures, e-closings, e-vaulting… where you should start
  • Implementation options for a phased transition
  • A live demonstration

Register for the webinar.




Assignment and Delegation in Contracts: Not Just Boilerplate

Although an assignment and delegation provision is often placed in the “miscellaneous” or “general” sections of commercial contracts, it should not be thought of as standard “boilerplate” language that never changes, according to the Tech & Sourcing blog at Morgan Lewis.

Authors Peter M. Watt-Morse and Christopher C. Archer provide an overview of some of the key issues that should be considered when drafting an assignment provision for commercial and technology agreements.

Some of the specific topics include “yes or no to assignment,” “assignment of entire contract vs. individual rights and obligation,” “notice and consent,” and “impermissible transfers.”

Read the article.