Contract management is a distinct profession with a well understood body of knowledge, writes Mark Little of Berkman Solutions.

“Contract management is not the practice of law. That said, contracts have a life of their own which requires monitoring and nurturing. In many organizations the legal department simply throws an executed contract over the wall into the contract management department. The legal department may hear about it again when it is time to renew, amend, or terminate the contract. This approach to contractmanagement misses revenue opportunities and causes unexpected risk to materialize,” he explains.

“A shared contract management system that focuses on the contracts which are fully executed promotes collaboration between the general counsel and the management team. Effectively managing the contract portfolio together allows both general counsel and contract managers to make a measurable impact on revenue and contract risk management. No one will remember that you drafted the force majeure clause just so, but everyone will remember that you identified an opportunity to decrease prices during the term of the purchasing contract.”

Read the article.

President Trump declared the opioid crisis a public health emergency, stopping short of calling it a national emergency. The announcement expands access to treat the epidemic, but doesn’t free new federal funding for cities and states to use.

Dallas attorney Jeffrey Simon of Simon Greenstone Panatier Bartlett, who represents Texas counties suing drug manufacturers, says more federal funding is needed.

“I commend the president for using his platform to highlight the epidemic of opioid abuse in America,” said Simon. “Opioid addiction is a disease rather than a character flaw, and the president’s effort to draw this distinction is welcome. But the financial costs of successfully treating opioid addiction are substantial, as are the costs of effective educational programs to stem the epidemic. I remain hopeful that our federal government will devote the financial resources necessary to combat this health crisis, but that remains to be seen.

“I contend that the second essential step to addressing any problem, after acknowledging its existence, is to identify the source of the problem. Our Texas county governments, which pay high costs to combat the opioid abuse epidemic in their communities, are doing this very thing. They are fighting back. Counties we represent, such as Bowie County and Upshur County, have filed lawsuits against drug manufacturers and wholesale distributors for the purpose of holding them financially accountable for their roles in promoting and selling so many of these addictive drugs.

“On behalf of their citizens, these county governments are confronting the opioid abuse epidemic in their communities. We are proud and privileged to serve Texas counties as legal counsel in this fight.”

North Texas lawyer Paul Hewett has joined the family law boutique Orsinger, Nelson, Downing & Anderson, LLP, as a partner in the firm’s newly opened Frisco, Texas office.

“We are very pleased to bring an attorney with Paul’s reputation and deep ties to the Frisco community to our firm,” said firm partner and co-founder Keith Nelson. “Family law requires a unique level of trust with a client and a special understanding of what is most important in order to deliver the results that matter. That is exactly what Paul does.”

In a release, the firm said Hewett’s practice involves complex family law, including divorce, property characterization and valuation, and pre- and postmarital agreements. A former child support enforcement officer with the Texas Attorney General’s Office, Hewett also focuses on child custody and enforcement actions.

He joins the firm from the Frisco-based family law boutique Woods, May, Rachel, Matlock & Hewett.

“The attorneys at ONDA are hands-down the best in Texas, and the opportunity to join a firm with such a phenomenal reputation was something I could not let pass by,” said Hewett, a longtime Frisco resident and a graduate of Leadership Frisco.

Board Certified in Family Law by the Texas Board of Legal Specialization since 2008, Hewett is a member of the Texas Academy of Family Law Specialists. He is a member of the State Bar of Texas and the bar associations of Collin and Denton counties. In recognition of his family law work, Hewett has been selected to the Texas Super Lawyers listing of top attorneys in the state annually since 2013.

Respondents to Dykema’s 13th Annual M&A Outlook Survey expressed an overall bullish viewpoint of the economy and U.S. merger and acquisition market, bringing a new level of optimism, not seen in several years.

According to the firm, 39 percent of respondents in this year’s survey expect the M&A market to strengthen over the next 12 months, up from 33 percent last year and 37 percent in 2015. With a record-breaking robust stock market and uncertainty surrounding the presidential election fading, this revelation mirrors the 60 percent of respondents who predict a strong U.S. economy in the next 12 months, doubling last years’ results.

“With the uncertainty around the presidential election in the rearview, our survey respondents are abandoning the ‘wait and see’ mantra, with an increasing number predicting that deal activity is back on the rise,” said Thomas Vaughn, co-leader of Dykema’s M&A practice. “In this year’s survey, we are, however, still hearing that uncertainty around the Trump administration’s priorities and regulations will have the greatest impact on M&A from a global perspective.”

More than half (50 percent) of respondents expect Donald Trump to be a positive force in U.S. markets as a whole this year. Likely factors playing a role in this optimistic sentiment include expected reduction in corporate tax rates, more favorable business regulations, and the Trump administration’s perceived business-friendly positive economic policies.

The survey yielded a number of other interesting conclusions, including:

• Half of respondents said President Trump will have a positive impact on the U.S. economy and M&A market in 2018.
• Seventy-percent of respondents predict the volume of small deals (under $50 million) will increase over the next 12 months, with 53-percent predicting an uptick in deals valued between $50 million and $100 million.
• Sixty-eight-percent of respondents said they would be involved in an acquisition in the next 12 months, which is fairly consistent with 2016’s 70 percent.
• For the fourth consecutive year, respondents expect technology and healthcare to see the most M&A activity in the next year. Fifty-nine-percent of respondents also predict an increase in M&A activity between fintech startups and established financial services organizations in 2018.
• Almost 80-percent of respondents expect an increase in M&A activity involving privately owned businesses in the next 12 months, increasing by 10-percent from last year’s results.
• Mirroring prior years, dealmakers say the leading driver of cross-border deals will be companies seeking growth via entrance into foreign markets. More companies in Asia are expected to pursue deals in the U.S., and outbound M&A activity from the U.S. to Mexico and Canada is expected to increase in the next year, despite ongoing public statements by the Trump administration around the renegotiation of the North American Fair Trade Act (NAFTA).

“The middle market is quickly becoming the focus of M&A,” said Jeff Gifford, co-leader of Dykema’s M&A practice. “Technology and healthcare are two of the more active spaces, with fintech becoming an increasingly popular area of interest. Megadeals have lost some of their steam and we are seeing more and more companies pursuing small to middle market strategic transactions.”

Survey results are being released this week at Dykema’s exclusive annual M&A Outlook events in Detroit and Chicago. The full report is available here.

A recent State Department ITAR enforcement case involving a supplier of military spare parts sends a valuable message to small and mid-sized government contractors of every type, writes Thomas B. McVey of Williams Mullen.

In an article on the firm’s website, he explains the case involves Bright Lights USA, Inc., a small New Jersey defense manufacturer.  According to the Directorate of Defense Trade Controls Charging Letter, the company’s business primarily consists of “manufacturing minor spare parts (including rubber stoppers, seals assemblies, and grommets) for both private- and public-sector customers.” Many of these parts transitioned off of the U.S. Munitions list (USML) beginning October 2013 as a result of Export Control Reform.

When supplying military parts, the company periodically sought to obtain components from foreign suppliers.  According to the DDTC Charging Letter, when ordering foreign-made parts the company sent drawings of export-controlled components to foreign suppliers to obtain quotations without obtaining the requisite export licenses.  Similarly DDTC claimed the company posted drawings of controlled items online to solicit quotations, including posting on a manufacturing sourcing website where the drawings could be accessed by foreign persons.  DDTC also stated that the Company misclassified certain components as being subject to EAR instead of ITAR.

DDCT concluded that Bright Lights had “significant training and compliance program deficiencies” and charged the company with a number of violations.

Read the article.

The International Association of Defense Counsel (IADC) has dedicated the October 2017 edition of its Defense Counsel Journal (DCJ) to the exploration of privacy issues.

The October issue is available for free and without a subscription via the IADC’s website. This current issue is the second part of the IADC’s “Privacy Project V” publication. The first part was published as the July 2017 issue of the DCJ. All past DCJ articles are accessible online.

“In a world where we seem to be moving away from an expectation of privacy because of security concerns arising from worldwide terrorism and rapid advances in technology, it is up to the courts, legislatures, and regulatory bodies to balance these realities with everyone’s prized civil liberty of privacy,” said Andrew Kopon Jr., IADC President and a founding member of Kopon Airdo, LLC in Chicago. “The rule of law requires that these entities safeguard and thoughtfully examine this balance in real time or we may completely lose the expectation of privacy.”

The October DCJ features articles by IADC members that address diverse privacy topics from a global perspective. Frequently and favorably cited by courts and other legal scholarship, the DCJ is a quarterly forum for topical and scholarly writings on the law, including its development and reform, as well as on the practice of law in general. The IADC is a 2,500-member, invitation-only, worldwide organization that serves its members and their clients, as well as the civil justice system and the legal profession.

“The pace of technology is amazing and overwhelming at the same time,” said Michael Franklin Smith, editor and chair of the DCJ Board of Editors and a shareholder at McAfee & Taft in Tulsa, Okla. “Hopefully this issue of the Defense Counsel Journal provides practitioners with added insights to help them navigate their clients’ privacy in today’s rapidly changing world.”

The IADC’s Privacy Project is dedicated to the memory of Joan Fullam Irick, the IADC’s first female president, who made the issue of corporate and personal privacy a key theme for her administration. The project was spearheaded by IADC Privacy Project V Editorial Board co-chairs Eve B. Masinter, a partner with Breazeale, Sachse & Wilson, L.L.P., in New Orleans, and S. Gordon McKee, a partner with Blake, Cassels & Graydon, LLP, in Toronto.

The October 2017 “Privacy Project V” issue of the DCJ includes the following articles:

–“A Look at Canadian Privacy and Anti-Spam Laws” – Promotes compliance with Canada’s comprehensive federal and provincial privacy laws – and specifically the obligations imposed by Canada’s anti-spam legislation – that outline the framework and rules for the collection, use and disclosure of personal information by federally regulated, private-sector organizations operating across Canada.

–“Discovery of the Insurer’s Claims File: Exploring the Limits of Plaintiff’s Fishing License” – Analyzes the objections to a plaintiff’s broad request for the insurer’s claims file and the majority rules governing successful objections by defense counsel to discovery of the materials in that file.

–“Drones: A New Front in the Fight Between Government Interests and Privacy Concerns” – Addresses expansion of the warrant requirement to regulate when drones may be used, as well as legislation on how they may be used, which would allow for incorporating this new technology while also separating the benefits from the dangers it presents.

–“Data Privacy Protection of Personal Information Versus Usage of Big Data: Introduction of the Recent Amendment to the Act on the Protection of Personal Information (Japan)” – Provides practitioners with an understanding of three important changes made by Japan’s recently amended Act on the Protection of Personal Information (PPIA) and how these changes are likely to play out in practice.

–“Global Positioning Systems and Social Media – Anathemas to Privacy” – Focuses on the recent surge in the use of global positioning systems in the automotive industry and the unique set of related privacy and liability concerns.

The top Democrat on the Senate Intelligence Committee berated lawyers for social media giants Facebook Inc., Twitter Inc. and Google for a lethargic response to Russian interference in U.S. politics, as the companies’ lawyers faced a second day of grilling in Congress, reports Bloomberg.

Updating its coverageWednesday morning, Bloomberg reports:

“Your first presentations were less than sufficient,” [Sen.] Mark Warner said at the panel’s hearing Wednesday, saying lawmakers were at first “blown off” by companies that in effect said, “Nothing like this happened. Nothing to see here.”

Warner chided Facebook General Counsel Colin Stretch for his “I will have to come back to you on that, sir” reply to a question on cross-checking fake accounts.

“We’ve had this hearing scheduled for months,” Warner of Virginia replied. “I find your answer very, very disappointing.”

The Associated Press reported on Tuesday’s grilling of the companies’ top lawyers: “Senators blast Facebook, Twitter, Google in Russia probe.”

Read the Bloomberg article.

Paul Manafort
Image by Disney | ABC Television Group

A little-noticed court filing unsealed this week as part of special counsel Robert S. Mueller III’s ongoing probe could have big consequences for his other targets — showing he’s willing to use suspects’ lawyers to provide evidence against them, according to The Washington Post.

An opinion by U.S. District Court Chief Judge Beryl A. Howell found that one of Manafort’s former lawyers could be compelled to testify to the grand jury. She found a “crime fraud” exception to the attorney-client privilege, writing:

When a person uses the attorney-client relationship to further a criminal scheme, the law is well established that a claim of attorney-client or work-product privilege must yield to the grand jury’s investigatory needs.

Above the Law reports (sourcing the National Law Journal) that the attorney in question is Melissa Laurenza, partner at Akin Gump Strauss Hauer & Feld whose practice focuses on campaign law and lobbying registration.

Read the Washington Post article.

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A large group of U.S. states accused key players in the generic drug industry of a broad price-fixing conspiracy, reports Reuters.

Reporter Karen Freifeld writes: “The states said the drugmakers and executives divided customers for their drugs among themselves, agreeing that each company would have a certain percentage of the market. The companies sometimes agreed on price increases in advance, the states added.”

The suit names 18 companies and subsidiaries and named 15 medicines. Mylan NV, Teva Pharmaceuticals USA, Ascend Laboratories and Encure Pharmaceuticals are among the 18 companies named.

The Los Angeles Times also covered Mylan’s challenges: “A price-fixing noose tightens around Mylan, the company that profiteered from the Epipen.”

Read the Reuters article.

Farrell Fritz announced that, for the sixth consecutive year, the firm has received a Tier 1 Ranking by Best Lawyers. The firm will be listed in the 2018 edition of U.S. News – Best Lawyers’ “Best Law Firms.”

Farrell Fritz has been ranked as a Tier 1 firm on Long Island in Employment Law – Management, Litigation – Trusts & Estates and in Trusts & Estates Law. It also has been ranked as a Tier 2 firm on Long Island in Health Care Law and as a Tier 3 firm in Real Estate Law.

Within New York City, Farrell Fritz has been ranked as a Tier 2 firm in Litigation – Bankruptcy and as a Tier 3 firm in Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law.

Rankings were derived from a combination of clients’ feedback, ratings from attorneys at other firms and the information the firm provided in response to a Best Lawyers survey.

DLA Piper announced that Michael Krauss has joined the firm’s Litigation practice as partner in the Minneapolis office.

Krauss, a former assistant U.S. attorney in New York, advises trustees, creditors and lenders on complex financial disputes. He has represented leading national banks in corporate trust and structured products matters, such as residential mortgage-backed securities litigation and indenture claims, and has secured over US$150 million in related settlements. Krauss also advises clients on creditor litigations and insolvency.

“Michael is a top-notch litigator with an impressive track record representing clients in the financial services sector,” said Loren Brown, co-chair of DLA Piper’s global and US Litigation practices. “That background, coupled with his enforcement experience as an AUSA, makes him an important addition to our representation of some of the world’s largest financial institutions.”

In a release, the firm said Krauss also has experience working on financial issues and potential liabilities in the highly-regulated field of tribal gaming, and has won judgments and settlements for lenders and developers nationwide.

“Michael is known in the Twin Cities and nationally as an impactful litigator with the ability to efficiently manage the spectrum of financial disputes that a company may face,” said Kathleen Smith Ruhland, managing partner of DLA Piper’s Minneapolis office. “Those skills will be immediately beneficial to our clients based here and throughout the country.”

Krauss is the most recent addition to DLA Piper’s Minneapolis office, which welcomed partner Michael Fisco earlier this year. The firm’s Litigation practice has also welcomed several partners this year, including Amy Rudd (Austin), Ilana Eisenstein (Philadelphia), Christopher Oprison (Miami), David Sager (New Jersey), John Rah (Washington, DC), Raphael Larson (Washington, DC), Thiru Vignarajah (Baltimore), and Louis Ramos (Washington, DC).

Krauss joins DLA Piper from Faegre Baker Daniels in Minneapolis, where he was the Finance Litigation team leader. He earned his J.D., with distinction, from Stanford Law School and his B.A., with highest distinction and high honors, from the University of Michigan.

Akerman LLP, a top 100 U.S. law firm, has been recognized by Chambers as being among the world’s leading law firms in Latin America, with lawyers handling complex disputes and transactions throughout the region.

The firm’s Cuba practice was again recognized among the six best in the Corporate/Commercial category for law firms based abroad, and among the top 13 law firms worldwide. Akerman was the first U.S. law firm to be recognized in this category starting in 2015. Pedro Freyre, chair of Akerman’s International Practice, and Augusto Maxwell, chair of Akerman’s Cuba Practice, were ranked as leading lawyers in Cuba Corporate/Commercial law.

Akerman’s Cuba Practice achieved the same distinction in the Chambers Global 2017 edition, and Maxwell also was recognized in General Business Law – Cuba. In addition, the Financial Times ranked Akerman among the top 20 most innovative law firms in North America for constructing a groundbreaking legal framework that enables its client Musicabana to launch the largest, most historic music event of its kind in Cuba.

Luis A. Perez, co-chair of Akerman’s Latin America & the Caribbean Practice, was ranked in International Arbitration: Latin America-wide. He was recently recognized in the Chambers Global 2017 edition in Arbitration (International) – Latin America-wide and in International Arbitration – USA (Foreign Expertise, Latin America-wide). Akerman also is ranked nationally in the current edition of U.S. News – Best Lawyers for International Arbitration – Commercial and for International Trade and Finance Law.

Chambers Latin America ranks the world’s leading law firms with practices and lawyers who work across the Latin America and Caribbean region to serve client needs. The listings are based on thousands of in-depth interviews with peers and clients to assess the reputations and experience of business lawyers around the globe.

Jay Sawczak has joined Farrell Fritz’ commercial litigation practice group as an associate. He concentrates his practice in construction law.

Prior to joining Farrell Fritz, Sawczaks, a Hoboken, NJ resident, was general counsel at JRM Construction Management, LLC in New York, NY. He was general counsel and a contract negotiation associate at Ocean Pacific Interiors (New York). He also worked at the Community and Transactional Legal Clinic (Newark, NJ).

Sawczak is admitted in New York State.

He earned his J.D. from Rutgers Law School and his B.S. from the University of Vermont.

A new webinar from LawGeex will cover how to create an internal contract triage process in five steps, all the way from planning through to execution.

The complimentary 45-minute webinar will be Wednesday, Nov. 29, 2017,  at 2 p.m. Eastern time.

The event is intended to provide a practical look at building on-the-ground solutions for contract triage.

The webinar will cover:

• What is contract triage, and how leading legal teams are implementing these solutions today.
• How to dramatically reduce the time and cost of contract review and approval.
• Practical steps to improve your existing triage process and streamline contract review.

Register for the webinar.

Within minutes of attorney Tom Pickert’s murder Wednesday morning at his Kansas City-area home, his colleagues in a recent case started worrying about their own safety, reports The Kansas City Star.

One lawyer had assisted Pickert in an effort to secure assets from the defendant in a multi-million dollar civil case that Pickert and his partner had won in July. Now, he said, he doesn’t walk the dog or get the mail since Pickert’s death.

Reporters Glenn E. Rice and Donald Bradley quote the victim’s associate: “We became pretty religious about setting the alarm system at home and I started looking over my shoulder. But I’m still going to the office. I’m not letting this change my life.”

And a judge in a civil case where Pickert secured a $5.7 million judgment sealed records of the case to prevent jurors from being identified.

Pickert, 39, was fatally shot just after he returned to his home in Brookside early Wednesday after walking his children to school.

Read The Kansas City Star‘s article.

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A U.S. District Court recently addressed issues associated with a producing vertical well’s claim for damages related to another company’s subsequent installation of a horizontal well, reports Walter G. Wright for Mitchell, Williams, Selig, Gates & Woodyard.

Specifically, the court addressed whether various damage claims were waived by the execution of a consent and release agreement.

Wright explains that the defendant cited the second paragraph in the agreement in support of its assertion for the waiver of most damages. In contrast, the plaintiff cited the last sentence of the first paragraph for the proposition that it was not restricted in its ability to “seek relief.”

The court found the agreement to be ambiguous because of this inconsistency and contradiction and found that the terms should be construed against the defendant, who drafted the agreement.

Read the article.

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Most companies are rethinking data breach risk and cost allocations in new and existing vendor agreements, points out Anne S. Peterson in McGuireWoods’ Password Protected blog.

“Limitation of liability and indemnification clauses form the framework for reducing unforeseeable, and potentially devastating, data breach costs,” she writes. “To defend against unpredictable damages, these clauses are fast becoming the most fiercely negotiated language in service provider agreements.”

“Under most state statutes, a service provider’s obligations, and liability for costs, end with notification to the customer. Simply put, if the organization’s sensitive data is breached while under the control of a vendor, the vendor’s only obligation is to notify the organization. It is then the customer’s obligation to handle the fallout, unless the customer’s contract with the vendor provides otherwise.”

Read the article.

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Lawyers – particularly those representing plaintiffs – should give thoughtful attention to the timing of a release clause in any settlement agreement, advises Lisa B. Markofsky in a post for Proskauer Rose LLP.

Failure to do so, she writes, could result in the plaintiff finding that its “compromise” was nothing more than a unilateral agreement to reduce the value of its claim.

The case could turn on “whether the settlement agreement is construed to be (i) a “substituted contract” wherein Plaintiff accepted the promise to perform the compromise as satisfaction of its underlying claim or, alternatively, (ii) an ‘executory accord’ wherein Plaintiff accepted actual performance of the compromise as satisfaction of its underlying claim.”

Read the article.

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Any attorney who regularly drafts stock purchase agreements, voting agreements, or other contracts that use the term “voting power” would do well to take note of a recent ruling, suggest Benjamin F. Jackson and Stephen P. Younger of Patterson Belknap Webb & Tyler LLP.

They write that the New York case Special Situations Fund III QP, LP. v. Overland Storage, Inc. raises several questions: What does the contractual term “voting power” mean? Does it refer only to the power to elect corporate directors, or does it refer to the power to vote on any fundamental matter of corporate governance? Is voting power an attribute of stock, or is it something that shareholders possess?

Leaving this term undefined in a contract could be risky business, they warn.

Read the article.

A recent decision by the United States Court of Appeals for the Third Circuit is a reminder that — for an arbitration clause to apply in certain situations or to certain parties — that intention must be built into the plain terms of the contract.

In a post on the Blank Rome website, partners Stephen M. Orlofsky and Deborah Greenspan discuss White v. Sunoco, Inc. The case involved the “Sunoco Awards Program,” under which customers who used a Citibank-issued “Sunoco Rewards Card” credit card were supposed to receive a 5-cent per gallon discount on gasoline purchased at Sunoco gas stations.

A dispute over the discount led to arbitration.

In its ruling the appellate court found: “[n]owhere does the agreement provide for a third party, like Sunoco, the ability to elect arbitration or to move to compel arbitration.”

Read the article.