What You Need to Know About Contract Management Software and Small Legal Teams

Contract managementContractWorks has published a new guide:  Contract Management Software for the Small Legal Team: Why It’s Not Just for the Big Fish Anymore, to navigate contract management options so the right solution can be found.

The guide discusses:

• How small legal teams are benefiting from contract management software
• How new solutions are designed to be easy and affordable
• How customization and cloud storage means there’s software for every legal department
• How automation, AI and machine learning can elevate contract management

Download the free ebook.



Four Decisions Conclude Claims Outside Scope of Arbitration Agreement

ArbitrationIn a new post on the Arbitration Nation site of Stinson Leonard Street, Liz Kramer has collected four recent decisions in which courts have found the parties’ dispute over the scope of an arbitration clause is not covered by their agreement.

Kramer considers the question: “Is this the new arbitration resistance? Some kind of “scope-a-dope,” in which courts that don’t take kindly to arbitration can hold up their hands and say ‘I accepted that the arbitration agreement was formed, and that it was valid, but under state contract law, I interpret this claim as outside the scope.’”

Read the article.



Electronically Signed Email Exchange May Constitute Enforceable Real Estate Contract

If you don’t want your emails to be binding contracts, don’t sign them, or better yet, don’t write them in the first place, warns a post in the Ohio Real Estate Law Blog of Kohrman, Jackson & Krantz.

The case involved the attempted sale of a high-end residential property in Ohio. The buyers argued that the sellers had agreed by a series of email exchanges (electronically signed) to sell their home to the buyers and that the sellers breached that agreement.

An appellate court remanded the case, explaining: “Given the circumstances surrounding the parties’ email exchange and later discussions, including that other terms of the sale had yet to be agreed upon, an issue of fact exists as to whether the parties had a present intention to be bound at the time of the email exchange, or whether the parties did not intend to be bound until execution of the more formal contract.”

Read the article.





Best Practices in Commercial Real Estate: Commitment Letter

Banking -financeWhile a commitment letter in the real estate lending process fleshes out any issues or misunderstandings between the parties prior to the preparation of the ultimate loan documents, it is important to be aware of some potential pitfalls and issues that it can present, warns Benjamin Bruner in a Dickinson Mackaman Tyler & Hagen web post.

The post outlines some of the dangers that cause problems for parties to the contract and then discusses some fundamental terms  that a commitment letter should include for the protection of the bank.

Read the article.



Court Reconsiders and Reverses Earlier Ruling Finding That Contractual Consent Cannot Be Revoked

TCPAland reports on a reversal of fortune: The Northern District of Alabama has officially been reconsidered and reversed itself on a contractual consent decision.

The court originally ruled that the plaintiff “could not unilaterally revoke her consent to receive debt-collection calls because she agreed to provide that consent as part of a bargained-for exchange.”

The court revisited some of the authorities surrounding its original ruling, and decided that it was wrong, and that a consumer may freely revoke contractual consent unless some term in the contract limits that right. explains Shane Micheil of Womble Bond Dickinson.

Read the article.



Non-Compete Cautionary Tale

A recent post on Robinson+Cole’s Manufacturing Law Blog discusses a recent court decision that underscores the need for manufacturers to exercise caution when seeking to impose post-employment restrictions on key employees.

Author Matthew Miklave explains that manufacturers often seek to bind employees to such restrictions (non-compete, non-solicitation and confidentiality obligations) in order to protect customer lists, pricing information and other confidential or “inside” information which gives them a competitive advantage in the market-place.

The case, Oxford Global Resources, LLC v. Hernandez, is an example of why these agreements must be carefully drafted to be effective when needed.

Read the article.




Court Holds That Arbitration Clauses Bind Nonsignatories Who Seek to Enforce Contracts

A post on the website of Pepper Hamilton describes a North Carolina case that involved non-signatories to a construction contract attempting to avoid the contract’s arbitration claim.

When the building’s current owner asserted various claims against the original owner, architect and general and subcontractors, the general contractor moved to have the suit dismissed on the ground that they were subject to arbitration. Plaintiffs argued that the arbitration clauses were not binding on them because the contracts that contained them were not assigned to plaintiffs when they purchased.

“The court held that the plaintiffs’ argument could not be squared with the language of the Contractor Warranty. On its face, the Contractor Warranty stated that [the general contractor] performed all work ‘in accord with the Contract Documents.’ This express reference to [the contractor’s] construction contract put the plaintiffs on notice of the contract’s existence,” explains the article’s author, Jane Fox Lehman.

Read the article.



Podcast: Dos and Don’ts for Drafting Severance Agreements

In a new podcast, two shareholders in Ogletree, Deakins, Nash, Smoak & Stewart discuss a number of important considerations for employers to keep in mind when drafting a severance agreement.

Milwaukee shareholders Bud Bobber and Brian Radloff offer some practical tips for drafting severance agreements, from how to go about deciding how much to offer an employee to the key terms of the agreement.

The [podcast can be accessed on the Ogletree Deakins website.

Listen to the podcast.



New York State Takes the Lead to Settle International Contract Disputes

International business - globe -worldNew York State has taken steps to smooth the often rough road for resolving international contract disputes, and parties are finding the new procedures comparatively easy to follow, according to post on the website of Daniel Kron.

He explains that “when international contracts have no forum selection clause, New York can be the only — or best — place to obtain personal jurisdiction. At the same time, given the relatively broad views of personal jurisdiction found in New York, foreign individuals may find they are taken to court in New York despite their desires.”

Read the article.



Trends in M&A Provisions: Indemnity Caps

In addition to representations and warranties, merger and acquisition purchase agreements generally include indemnification provisions, pursuant to which any given party agrees to defend, hold harmless, and indemnify the other party or parties from specified claims or damages, according to a post on  the Goulston & Storrs website.

Daniel R. Avery explains that these typically include claims arising from a breach of the indemnitor’s representations and warranties or covenants set forth in the purchase agreement, or with respect to other specific matters.

“Indemnity caps are often one of the most intensely negotiated provisions of an M&A purchase agreement,” Avery writes. “The market amount for indemnity caps has historically been a direct reflection of the relative strength of buyers and sellers in the private company M&A market.”

Read the article.



Federal Courts Uphold Arbitration Agreements Via Email

Federal district courts in New York and New Jersey recently turned aside employee attacks on arbitration agreements challenged on the grounds that the employer’s communication of its arbitration policy via email was inadequate, reports the Gibbons Employment Law Alert.

“The courts in both Lockette v. Morgan Stanley and Schmell v. Morgan Stanley held that the employees’ assertions that they never saw the email forwarding the terms of the arbitration agreement were insufficient to overcome the employer’s evidence that the email had been delivered to the employees’ email inboxes,” explains Richard S. Zackin.

But employers must keep in mind that they must comply with relevant state contract law, cautions Zackin.

Read the article.




Paul Hastings Faces Malpractice Claims Over Cleanup Advice

A California appellate court has given Tokai Intl. Holdings Inc. the go-ahead to proceed with cleanup cost-related malpractice claims against law firm Paul Hastings LLP, according to a Bloomberg Law report.

“The firm allegedly failed to properly advise the Delaware-based company about environmental cleanup costs taken on by a subsidiary when it bought a holding company in 2005. Paul Hastings provided advice during the acquisition,” writes Bloomberg reporter Peter Hayes.

Tokai alleges an agreement in a contract for the purchase of a holding company left it, rather than the seller, with $2 million or more in reimbursed cleanup costs related to contamination at a former manufacturing site in California.

Read the Bloomberg Law article.



Argument Preview: How Should Courts Decide If Parties to an Arbitration Contract May Aggregate Their Claims?

SCOTUSblog reports that in Lamps Plus Inc. v. Varela, the U.S. Supreme Court will decide whether the U.S. Court of Appeals for the 9th Circuit correctly held that an employer consented to class arbitration.

The employer in that case included language in the arbitration contract that committed the parties to use arbitration “in lieu of any and all lawsuits or other civil legal proceedings,” specified that arbitral claims include those “that, in the absence of this Agreement, would have been available to the parties by law,” and authorized the arbitrator to “award any remedy allowed by applicable law.”

Lower courts have found that the arbitration agreement could be read to authorize class arbitration, and that California contract law called for ambiguity on that point to be resolved against the contract’s drafter, Lamps Plus, writes Charlotte Garden.

Read the article.




Contract Case: Lack of Consideration – Or Not!

Money-payment-cashWriting in ContractsProf Blog, Myanna Dellinger discusses a case that “nicely demonstrates how the consideration doctrine is still relevant and, as always, the importance of getting contracts in writing even though they do not have to be.”

The plaintiff had agreed to do some work for the defendant for $10 an hour, with the understanding that he would receive a $150,000 bonus after nine months. Somewhere along the way, the employer gave him a raise to $11, and then, after a total of 18 months of labor, fired him and refused to pay the bonus.

Dellinger explains that the court apparently found that because the plaintiff actually received one single dollar more per hour over nine months, there was no consideration for the original promise of working for a “reduced salary.”

Read the article.




Data Safeguards in Services Agreements

A post on the website of Morgan, Lewis & Bockius takes a look at some of the issues involving the latest contracting trends for services agreements.

“At the outset of the contracting process, it is important for the deal team and the key stakeholders to evaluate and properly define the types of data that the service provider will access or process as part of the services,” advise the authors, Edward J. Hansen and Christopher C. Archer.

The assessment should consider the scope and types of data, and define company data and personal data.

Read  the article.



Contract Analytics: A New Artificial Intelligence Endeavor

Computer technologyLawyers generally associate artificial intelligence with predictive coding software that is used for analyzing data during the discovery phase, but there also isAI software specifically designed for contract analytics, according to a post on the Epiq website.

“AI contract software is ideal for organizations regularly involved in contract analysis and negotiations. For example, both corporate and estate lawyers would likely benefit from this technology because they are frequently exposed to a large number of contracts,” the post states.

The author writes that AI can speed up review and negotiations, strengthen contract capabilities, promote consistency, and give lawyers a competitive edge.

Read the article.



Spotlight on No-Poach Agreements Continues, Expands to New Industries

Employment contractSome state attorneys general and the U.S.  Department of Justice are looking into no-poach agreements that some companies are including in their franchise operating agreements, reports Skadden, Arps, Slate, Meagher & Flom.

“Such clauses typically prohibit franchisees from hiring employees directly from the franchisor or other franchisees for up to six months following the end of their employment. [Washington State Attorney General Bob] Ferguson has been touting the ongoing success of his investigation with respect to fast food chains, and franchise-based chains in other industries appear to be his next target,” according to the authors.

“Any employers that currently utilize no-poach agreements or are considering doing so should be sure to examine whether there are valid pro-competitive justifications for the agreement that outweigh any anti-competitive effect and whether the benefits of the no-poach agreement are worth the risk of the potential governmental or private challenge that is likely to occur.”

Read the article.



Ten Key Issues in Addressed Lease Agreements for Companies

Equipment leasing presents a company with an opportunity to acquire the use of equipment without using its own cash or its bank line of credit, according to a post on the website of Steptoe & Johnson.

“An understanding of the unique features of equipment lease contracts should help a company work with its bank to structure and document a mutually acceptable lease agreement,” writes Andrew J. Kalgreen.

His article discusses end-of-term purchase and return options, maintenance requirements, tax benefit protection, third-party liability protection, disclaimers of product warranties, and termination risks.

Read the article.



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.