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.

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.

The ABA Journal reports that a Florida attorney is suing San Antonio lawyer Heather Clement Tessmer for using “Ever Argue With A Woman?” on billboards, the internet and business cards to pitch her legal services.

Florida lawyer Melissa Wilson claims in a federal lawsuit that Tessmer and her Tessmer Law Firm are infringing her trademark by using a confusingly similar slogan.

Journal reporter Debra Cassens Weiss explains: “Wilson says she has been using the slogan since at least September 2007, and she sent an email telling Tessmer to stop after she learned of the infringement from confused consumers around April 2014. Her lawyers also tried to contact Tessmer, but Tessmer never responded, the suit says.”

Read the ABA Journal article.

A recent case from the United States District Court for the Western District of Pennsylvania highlights how expensive a Fair Labor Standards Act case can be when an employee prevails for unpaid overtime compensation, writes Jay Carr in Vorys, Sater, Seymour and Pease’s Energy & Environmental Law Blog.

The article describes Sammy Mozingo v. Oil States Energy Services L.L.C., in which oil field workers in Texas filed a class action alleging that their employer Oil States had misclassified them as exempt from overtime laws. Most of the employees settled, but eight went to trial, resulting in Oil States paying damages, fees, and costs totaling $3,385,884 for just these eight employees.

Read the article.

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.

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.

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.

Jeff Sessions

President Donald Trump believes Attorney General Jeff Sessions will likely leave his Cabinet at the end of the year, and so far has five potential replacements in mind who could take his place, reports Business Insider.

“Possible successors include retired federal appeals judge Janice Rogers Brown, transportation department counsel Steven Bradbury, Health and Human Services secretary Alex Azar, deputy Secretary of State John Sullivan, and Bill Barr, who served as attorney general under President George H.W. Bush,” according to the article, based on a Wall Street Journal report.

The Washington Post also reported that President Trump talked recently with Sessions’ own chief of staff, Matthew G. Whitaker,  about replacing Sessions as AG, according to people briefed on the conversation, signaling that the president remains keenly interested in ousting his top law enforcement official.

Read the Business Insider article.

Pac-12 general counsel Woodie Dixon interfered with an official review of a foul in a game between USC and Washington State, resulting in the NCAA conference deciding to change its policy on non-trained officials weighing in on such reviews.

CBS Sports reports that Pac-12 commissioner Larry Scott addressed the incident in which Dixon interfered with a targeting review during the game in September.

Tom Fornelli writes that reports indicate that Dixon, who is not a formally trained official, called into the Pac-12 replay booth and said he didn’t think a targeting penalty applied to the play. In the official game report, Gary McNanna, who was the replay official in the booth for the game, wrote that “a third party did not agree so the targeting was removed.”

Read the CBS Sports article.

Bloomberg Law reports that the U.S. Senate has confirmed Eric Dreiband, a Jones Day attorney who defends companies accused of discrimination, to lead the Justice Department office that enforces anti-bias laws and investigates police civil rights cases.

“Dreiband represented the University of North Carolina when it implemented policies under the state’s since-repealed ‘bathroom bill,’ requiring people to use gender-designated restroom facilities based on the biological sex listed on their birth certificates,” writes Bloomberg’s Chris Opfer. “He also won a case for R.J. Reynolds Tobacco that made it harder for workers to sue for age discrimination under federal law.”

Read the Bloomberg Law article.

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.

Jeremy R. Cnudde has joined FisherBroyles, LLP as a partner and corporate and tax attorney in the firm’s Detroit office.

“We are thrilled to welcome Jeremy to FisherBroyles,” said FisherBroyles Detroit office Managing Partner Lisa A. Carroll. “Jeremy brings diverse experience in a wide range of corporate and tax matters. He is a great addition to our team of partners serving clients in Michigan and throughout the Midwest.”

Cnudde said, “I am very excited to join FisherBroyles and be a part of the firm’s innovative cloud-based partnership model that delivers exceptional value and a high level of service to clients. The level of partner talent and broad reach of practice areas and office locations will be a great benefit to my clients and practice.”

The firm said Cnudde works in complex mergers and acquisitions, business succession planning, tax planning and reorganizations, and other corporate and financial transactions. In addition, he works on operating and shareholder agreements, shareholder disputes, buy-sell agreements, and drafting of supplier, customer and representative agreements. He has represented companies on corporate finance and capital acquisition matters, including private equity investments, recapitalizations, bank financing, and private placement issuance. Cnudde also has experience with federal, state, and local tax planning, Michigan property tax appeals, and nonprofit/tax-exempt formation and governance matters. Cnudde’s clients include middle-market entrepreneurial businesses in industries including engineering, manufacturing, aerospace and defense, distribution, professional services and retail grocery.

Prior to joining FisherBroyles, Cnudde was a shareholder with Kemp Klein Law Firm in Troy, Michigan. Previously, he also was an attorney with Butzel Long PC and Kotz Sangster Wysocki PC.

Cnudde received his J.D. (cum laude) from the Michigan State University (MSU) Detroit College of Law and his Bachelor of Arts in accounting from MSU.

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.

Appellate attorney Brett D. Kutnick has joined Jackson Walker as a partner in the Dallas office.

The firm said in a release that Kutnick has more than 20 years of experience as a litigator and the managing partner of an appellate boutique law firm.

“Having Brett join our team is a significant triumph for both the Firm and our clients. He is a premier appellate lawyer with a proven track record,” said W. Ross Forbes Jr., Chair of the Trial & Appellate Litigation practice.

Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization, Kutnick has served as lead appellate attorney in courts throughout the state, including the Texas Supreme Court and the Fifth Circuit Court of Appeals.

The firm said his experience includes commercial cases and business appeals, encompasses oil and gas issues, contract disputes, business torts, professional malpractice, breach of fiduciary duty claims, shareholder oppression, and intellectual property rights.

“Moving to Jackson Walker was a natural choice for both me and my clients. At Jackson Walker, I’ll be able to expand my practice while focusing on the cases I enjoy,” Kutnick said.

While working toward his J.D. at the University of Texas School of Law, Kutnick was a member of the Texas Law Review, Chancellors, Order of the Coif, and the Legal Research Board.

Zapproved recently partnered with Corporate Ediscovery to commission an in-depth survey of corporate ediscovery professionals. The resulting benchmark report uncovers key insights about the ediscovery community, including common challenges, aspirations, and approaches to managing each stage of the EDRM.

The 2018 Corporate Ediscovery Benchmarking Report can be download from Zapproved’s website at no charge.

The results and detailed benchmarks include:

• The volume and types of matters that require ediscovery support
• How corporate teams are managing each stage of the EDRM – from data preservation through document review
• Common challenges and goals for 2019 and beyond
• Best practice adoption rates and barriers

Download the report.

To be most effective, crisis planning has to start now, before there’s a crisis to respond to, advises Androvett Legal Media & Marketing in a new video and post on the company’s website.

“When there is a crisis, you want to be ready to jump into action as fast as possible, not starting from scratch. But remember, being fast doesn’t mean being sloppy. You can take a very strategic approach to putting your plan together,” according to the post.

The authors discuss some simple steps to follow, including: identify what matters, identify your audiences, list the questions, write out your answers, designate a single spokesperson, identify clear lines of authority, and consider media training.

See the video and post.

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.

Plaintiffs’ lawyer John McCraw of Dallas is facing possible disciplinary action because he filed a motion asking two appellate court justices to remove themselves from a case, implying that the pair voted to overturn his clients’ $1 million jury verdict because of donations they’d received from two political action committees.

Dallas Observer reports that the justices not only declined to recuse themselves, they and their fellow justices sent McCraw’s name to the general counsel of the State Bar of Texas for possible disciplinary action for insulting the court.

A three-judge panel of the 5th Court of Appeals had overturned a $1 million award to McCraw’s clients, two women who had sued their apartment owner after an intruder entered through a window and violently assaulted both women.

Reporter Nashwa Bawab writes: “McCraw asked the entire 13-member appeals court to reconsider — minus Justices Craig Stoddart and Molly Francis, two of the three judges who unanimously voted to overturn the verdict. Stoddart and Francis each received $2,000 from the Texans for Lawsuit Reform PAC and the Apartment Association of Greater Dallas PAC a few days apart from each other and less than a month before they were assigned the case.”

Read the Dallas Observer article.

Image by Håkan Dahlström Photography

Housing Wire is reporting that HSBC will pay $765 million to the federal government as part of a settlement that covers the bank’s mortgage bond activities in the run-up to the housing crisis.

An announcement from the U.S. Department of Justice outlines the resolution of an investigation into the bank’s mortgage origination and securitization activities from 2005 to 2007, according to editor Ben Lane.

While previous HSBC statements on the case didn’t disclose the conduct in question, the DOJ’s announcement alleged the bank allegedly knew it was putting toxic loans into residential mortgage-backed securities and sold the bonds anyway, Lane explains.

Read the HousingWire article.

Image by Steve Jurvetson

Of the all fixes the SEC wants Tesla Inc. to make in the wake of Elon Musk’s now-infamous tweet, one stands out for its novelty: “An experienced securities lawyer” to review all social media communications by the company’s senior officers, reports Bloomberg Law.

“In resolving its fraud claims against Tesla and Musk, the Securities and Exchange Commission specified in the fine print of its settlement proposal that the lawyer hired or designated to vet tweets must have qualifications that’“are not unacceptable to the staff,’” writes reporter Peter Blumberg.

The head of the legal department now is a lawyer who represented Musk through two divorces, Todd Maron.

Read the Bloomberg Law article.