When it comes to physician employment agreements, non-compete provisions can be controversial and tricky, warns A. Kevin Troutman in Fisher Phillips’ Non-Compete and Trade Secrets Blog.

Such provisions can “restrict a doctor from practicing in a specified geographic area for a stipulated period of time after termination of their employment,” he writes. “The key question is when do such provisions become unreasonable? The analysis becomes even more complicated when factoring in the unique bond between patients and their doctors. After all, most patients’ sense of loyalty lies with their physician, not with a particular hospital, clinic or medical group.”

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A post by Pepper Hamilton explores whether an enforceable no-damage-for-delay clause in a construction contract is also a bar to recovery of “acceleration” damages, i.e., the costs incurred by the contractor in its attempt to overcome delays to the project’s completion date.

Authors Ted R. Gropman and Christine Z. Fan point out that courts are split as to whether damages for a contractor’s “acceleration” efforts are distinguishable from “delay” damages such that they may be recovered under an enforceable no-damage-for-delay clause.

They discuss  a few ways for a contractor to circumvent an enforceable no-damage-for-delay clause to recover acceleration damages.

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A post by Fredrikson & Byron P.A. highlights five of the most commonly overlooked IT/IP provisions and considerations for banks as they review and negotiate software contracts.

The authors discuss how the banking community has become increasingly reliant upon third-party resources, chief among them: software. This two-part series focuses on these partnerships with vendors that expose banks to a whole new world of risk and liability.

Banks need to ensure the products and vendors in which they invest will operate reliably, compliantly, and safely – and that the bank’s rights and remedies are preserved in the event of failure, according to Fredrikson & Byron’s Caitlin B. Houlton Kuntz and Nadja Baer .

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A post on the Tech & Sourcing blog of Morgan Lewis offers 10 contractual mechanisms for providing meaningful performance commitments and consequences if the commitments in a system development or implementation contract are not met.

For example, system implementation deals costing 300% more than the original budget, go-live dates for development projects being way past the scheduled dates, and deliverables that do not meet the customer’s expectations, write Barbara Murphy Melby and Morgan L. Richman.

They discuss numerous contractual mechanisms that are designed to provide guideposts and checkpoints to enable success.

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The Eight Circuit has rejected a plaintiff’s claim that an arbitration clause in a retainer agreement she signed with a law firm was unconscionable, according to Carlton Fields’ Reinsurance Focus.

The plaintiff claimed she had received a call from a purported agent of the firm informing her of a purported life-threatening medical condition, leading her to have surgery that she considered to be less than successful. She sued the law firm and other defendants, and the firm sought to compel arbitration pursuant to a retainer agreement.

The district court found the arbitration agreement was unconscionable and refused to compel arbitration. Despite acknowledging that the circumstances that gave rise to this lawsuit were “troubling,” the Eighth Circuit determined that the retainer agreement was not procedurally unconscionable.

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Blomberg Law is reporting that a real estate developer is suing New York City litigation boutique O’Shea & Partners for breach of contract, alleging it charged “grossly excessive” and padded fees when it represented the developer beginning in 2013.

Plaintiffs claim the firm charged “almost $1.9 million over a three year period, without engaging in any discovery, or document collection, whatsoever.”

In the complaint in the New York court, plaintiffs Madison Equities LLC and the group’s principal, Robert Gladstone, are seeking at least $900,000 over the “fraudulent” billing, writes Bloomberg’s Melissa Heelan Stanzione.

Read the Bloomberg Law article.

Before agreeing to a real estate sales contract or lease, the parties may prepare a letter of intent, term sheet or other form of preliminary agreement (together, called here an “LOI”), writes Stephen Siegel of Novack and Macey.

An LOI reflects that the parties have agreed on certain important terms of a deal, though not on all of its provisions or details.

“A well-crafted real estate LOI should address the parties’ intentions on such questions in clear terms. An LOI that is unclear as to what, if anything, it obligates the parties to do can invite uncertainty, disagreements and even litigation,” Siegel writes.

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A Davis Wright Tremaine post illustrates the application of a forum selection clause in a contract.

In Down-Lite International, Inc. v. Chad Altbaier, a federal magistrate judge denied defendant’s motion to transfer venue from Ohio to California largely because the parties’ forum selection clause designated Ohio as the venue for disputes.

Down-Lite’s holding illustrates that courts tend to enforce forum selection clauses unless there is a compelling showing of prejudice to the party opposing the agreed-upon forum, according to the post.

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While prohibiting disparagement of co-workers, products and services is lawful, prohibiting disparagement generally of the employer, management, or policies is not, according to a memo from the  National Labor Relations Board, the Office of General Counsel.

Fiona W. Ong discusses the memo in an article for Shaw Rosenthal.

The memo was in part a response to a law firm’s employee agreements that contained a provision prohibiting critical comments about the firm. Several former employees posted negative reviews about the firm on various websites, including Glassdoor.com, Indeed.com, Avvo, Yelp, and Yahoo.business. The law firm then filed suit against them for breach of contract and defamation.

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The Morgan Lewis Tech & Sourcing blog discusses a model agreement developed by the Clearing House as a voluntary starting point to facilitate data sharing between financial institutions and fintech companies.

The model agreement covers such provisions and concepts as flow-down obligations, data breach, liability, warranties and disclaimers, intellectual property, disclosure and consent, termination and suspension, and assignment.

Read the article.

As the launch date approaches for the California Consumer Privacy Act (CCPA) on Jan. 1, 2020, Exterro has published a white paper designed to help legal departments keep their organizations’ privacy processes defensible, and minimize the risk of violating new privacy laws.

The white paper can be downloaded from Exterro’s website at no charge.

The launch of the CCPA means that consumers have more information and control over a business’s data practices, which creates challenges for businesses, mostly: Do they have their arms around their data? Do they understand where it lives within in their organization, and where it’s shared?

The paper breaks down the key questions that arise in keeping an organization’s privacy processes defensible, such as:

• The final “checklist” questions that you should be asking about your organization’s data preparedness
• Tips for breaking down the elements of the CCPA into actionable processes
• Tips for maintaining a trim data inventory

Download the white paper.

Lewitt Hackman discusses two recent cases concerning franchise agreements, one involving a forum selection clause and the other covering indemnification.

Inn the first case: “A California Court of Appeal held that courts should not enforce forum selection clauses in contracts that also contain a jury waiver. For franchisors that have California franchisees, this ruling could complicate the ability to litigate claims in their chosen forum.”

And in the second case, a federal appellate court held that a franchisee must indemnify a franchisor for its litigation defense costs, vacating a district court’s order of summary judgment for the franchisee.

Read the article.

The office of the National Labor Relations Board’s general counsel has released an advice memorandum finding an employer violated federal labor law by requiring employees to sign a broad non-disparagement agreement at the time of hire, according to a Kramer Levin post.

The memo referred to a case in which a law firm required all newly hired support staff and attorneys to sign an employment agreement containing a non-disparagement provision, according to the post’s authors, Kevin B. Leblang and Emily M. Wajert.

The GC rejected the law firm’s reasoning for the broad provision, explaining that “[t]he employer’s asserted interest . . . is not a unique interest nor strong enough to outweigh the significant interference the [provision] has with employee rights.”

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A post by Davis Wright Tremaine proposes that professional services and particularly IT outsourcing agreements provide a better model for analytical artificial intelligence services than the widely used cloud services contracts.

“AI services have already become an important component of the IT portfolio for many large and small businesses,” writes Patrick E. Basinski. “The easy application of existing cloud services agreements as a contractual structure for AI services has helped accelerate AI’s adoption. As the reach of AI expands, new structures are needed to drive adoption of a set of potentially valuable AI solutions.”

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The U.S. District Court for the Northern District of Texas compelled arbitration in a putative Fair Labor Standards Act class action based on language in a “notice to employees” that put the plaintiffs on notice that they were agreeing to arbitrate claims in an incorporated (and hyperlinked) arbitration agreement, according to Carlton Fields; Reinsurance Focus.

Author Brendan Gooley adds that the court also rejected various other defenses to arbitration raised by the plaintiffs in an attempt to avoid arbitration.

The court found that the notice to employees contained sufficient language to incorporate the arbitration agreement by reference, and the notice to employees was also clear on that point.

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U.S. District Judge William Alsup of San Francisco has berated lawyers for big tech companies before, and now an attorney for DoorDash found himself the target, reports the San Francisco Chronicle.

The issue was the way the meal-delivery startup pushed its couriers into arbitration, writes the Chronicle‘s Mallory Moench.

Courthouse News Service describes an exchange Alsup had with DoorDash lawyer James Fogelman, of Gibson Dunn & Crutcher:

“Your law firm and all your firms have tried for 20 years to keep plaintiffs out of court, and you’ve gotten a lot of success in the courts,” U.S. District Judge William Alsup said. “Then someone says, ‘OK. We’ll take you to arbitration,’ and suddenly it’s not in your interest anymore. Now you’re wiggling away, trying to find a way to squirm out of your agreement.”

DoorDash had been ordered to pay more than $11 million in arbitration fees.

Read the SF Chronicle article.

John B. McFarland, writing in the Graves Dougherty Hearon & Moody Oil and Gas Lawyer Blog, updates a legal fight over whether a producer can continue to flare gas from its wells.

The dispute, between Williams MLP Operating and Exco Operating Co., has moved to district court in Travis County in Austin.

McFarland describes the background of the case, which involves the purchase of wells, a gathering system and gathering contract, bankruptcy, and a potential net loss of $146 million if the permit to flare gas is not granted.

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Disclosure schedules supplement the purchase and sale agreement in the sale of a business by incorporating disclosures about the business being sold, according to a post on the website of Thompson Coburn.

The authors explains:

“Generally, each disclosure schedule falls into one of two categories: a ‘list’ or an ‘exception.’ A ‘list’ schedule makes a representation that the schedule contains a complete record of certain aspects of the business (i.e., a list of leased or owned real property, registered intellectual property, insurance policies, employee benefit plans, etc.). An ‘exception’ schedule allows the seller to qualify a representation made in the purchase and sale agreement and, therefore, limit the seller’s potential liability.”

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Construction disputes often involve voluminous amounts of discovery, including documents in the hand of third parties, points out Matthew DeVries in Burr & Forman’s Best Practices Construction Law blog.

If the case is subject to arbitration, it is likely there will be a dispute about whether the arbitrator has the authority to compel production of third-party documents or witnesses for deposition, he writes.

DeVries discusses a case in which the 11th Circuit  concluded that Section 7 of the Federal Arbitration Act precludes all pre-hearing discovery from non-parties.

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In a post on the American Medical Association website, AMA senior attorney Wes Cleveland discusses physicians’ letters of intent and when an attorney should be retained during the contracting process.

He explains that the letter of intent represents an effort for the physician and employer to be sure they’re on the same page on such issues as compensation, length of employment, benefits, responsibilities and more.

He also discusses binding versus non-binding agreements.

Read the article.