3 Things Smart Contracts Need Before They Can Finally Take Off

A new article in CoinDesk provides an overview of the ongoing issues with smart contract development, selecting just three that could remain barriers to mainstream use.

“With more than $17bn in assets stored in just the top 10 cryptocurrencies, there currently is a huge opportunity to give existing blockchain assets additional flexibility and utility by adding smart contract capabilities,” write CEO Arthur Breitman, and COO Kathleen Breitman of Tezos.

The three ways smart constract systems can earn our trust in 2017: Provide formal verification capabilities, ensure transparency so code can be inspected, and provide a clear governance mechanism.

Read the article.

 

 




Artificial Intelligence in Contract Management – Part 2

, writing for Spend Matters, continues his series on artificial intelligence (AI) in contract management by discussing AI and knowledge representation.

“Intelligence is meaningless without knowledge, and vice versa. Albert Einstein as a baby (high intelligence, low knowledge) would be as bad at chess as Wikipedia (high knowledge, low intelligence),” he explains. “Expertise is built on knowledge that adequately models the richness of a certain domain, but high intelligence allows the knowledge to be more effectively and efficiently applied to solve problems.”

He adds his “second main step in a CLM journey is to ‘derive key intelligence from within your contract data … to decipher the legalese down to a granular contract clause level (including metadata).'”

Read the article.

 

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Non-Compete Earns a Preliminary Injunction in Case Involving a Community Publication

Stacey Lantagne writes in ContractsProf Blog about an interesting dispute over a non-compete provision that resulted in a preliminary injunction.

The plaintiff in Our Town v. Rousseau operates a community publication called “Our Town.” The defendants in the case entered into a contract to franchise the “Our Town” brand in a county in New Jersey, with a non-compete provision limiting similar businesses or names for three years, and within 50 miles.

The plaintiff later learned that the defendants were operating a similar publication called “Home Town” in the franchise location and sought a preliminary injunction.

Lantagne explains how the court came to grant the injunction.

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Billable Hour Pricing is Effectively Dead Because of Budget Caps, Report Says

Billable hoursUp to 90 percent of law firm work is done outside of the traditional billable hour model, according to the 2017 Report on the State of the Legal Market.

The ABA Journal reports on a study released by Georgetown Law’s Center for the Study of the Legal Profession and Thomson Reuters Legal Executive Institute.

“One of the most potentially significant, though rarely acknowledged, changes of the past decade has been the effective death of the traditional billable hour pricing model in most law firms,” the report says. “Plainly, the imposition of budget discipline on law firm matters forces firms to a very different pricing model than the traditional approach of simply recording time and passing the associated ‘costs’ through to the client on a billable-hour basis.”

Read the ABA Journal article.

 

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Online Lenders Seeking to Boost Their Influence Under Trump

money-currency-loan-cash-payOnline lending companies are seeking to exert more influence in Washington under President-elect Donald Trump and a Republican-controlled Congress, reports Bloomberg.

Lenders are joining lobbying groups working toward laws that will make it easier for them to attract new borrowers and investors as they look for ways to grow and limit future regulatory scrutiny, writes Elizabeth Dexheimer.

Among the groups she cited are the Marketplace Lending Association, consumer lenders Avant Inc. and Affirm Inc. ,as well as student lender CommonBond Inc., backed by former Citigroup Inc. Chief Executive Officer Vikram Pandit. Founding members include LendingClub Inc. and Prosper Marketplace Inc., according to the report.

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Takata to Pay $1 Bln to Settle U.S. Air Bag Probe – Sources

Reuters is reporting that Japan’s Takata Corp is expected to plead guilty to criminal wrongdoing as Friday as part of a $1 billion settlement with the U.S. Justice Department over its handling of air bag ruptures linked to 16 deaths worldwide, sources said.

David Shepardson writes that the settlement includes a $25 million criminal fine and $125 million in victim compensation. He added that his sources told him the settlement also will include  $850 million to compensate automakers who have suffered losses from massive recalls.

“The company is poised to plead guilty to wire fraud, or providing false test data to U.S. regulators, according to the sources, who were not authorized to discuss the settlement publicly,” according to the report.

Read the Reuters article.

 

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E-Discovery Hero Award Finalists Named, Michael Arkfeld Wins Lifetime Achievement Award

Zapproved, Inc. announced the 16 finalists and the Lifetime Achievement Award winner of the Corporate E-Discovery Hero Awards. The category winners will be revealed at the Corporate E-Discovery Hero Awards Celebration, presented by Zapproved, in New York on January 30, 2017 — just preceding the start of Legaltech New York 2017.

Sponsors of the event also include BRG, Corporate Legal Operations Consortium (CLOC), D4, and International Legal Technology Association (ILTA).

At the ceremony, Michael Arkfeld will be presented with the Lifetime Achievement Award in recognition of his career to date that has advanced the practice of electronic discovery. Arkfeld is an attorney, speaker, writer and educator, who is best known for Arkfeld on Electronic Discovery and Evidence (referenced in the landmark Zubulake decision), a comprehensive treatise covering key aspects of the discovery and admission of electronic evidence. He founded the ASU-Arkfeld eDiscovery and Digital Evidence Conference, now in the sixth year that focuses on practical and cutting-edge issues affecting electronic information, information governance and data analytics. Arkfeld is a frequent presenter and author and has worked to educate a wide range of legal professionals ranging from federal judges to law school students. He was an assistant United States Attorney for the District of Arizona.

“All too often, in-house e-discovery professionals toil behind the scenes overseeing cases that are absolutely critical for their companies and agencies. The Corporate E-Discovery Hero Awards are a way to put a spotlight on the great work these unsung heroes are doing everyday as a way to inspire others and bring together this community,” said Brad Harris, Vice President of Product Strategy at Zapproved.

“We were excited to see more than 60 nominations from top e-discovery professionals in every industry and size of company,” added Harris. “Our winners are being selected by an esteemed and impartial panel e-discovery luminaries that will be revealed at the ceremony.”

All finalists and winners will be honored at the Corporate E-Discovery Hero Awards in New York on January 30, 2017. This celebration is free to attend and will also feature an exclusive keynote discussion with National Public Radio’s award-winning legal affairs correspondent Nina Totenberg, who has reported on the United States Supreme Court since 1975.
Tickets are available at https://www.eventbrite.com/e/corporate-e-discovery-hero-awards-celebration-tickets-29874353997?aff=PressRelease1

About the awards
The Corporate E-Discovery Hero Awards, presented by Zapproved, honor e-discovery experts and corporate legal professionals who demonstrate excellence in e-discovery strategy, technology, process, teamwork and overall influence and achievement. An esteemed panel of federal judges, top in-house e-discovery practitioners, and national e-discovery experts will review and choose winners who will be announced at the awards presentation event. Finalists in these five categories represent a range of e-discovery expertise:

Corporate E-Discovery Hero Award for Lifetime Achievement
Winner:

  • Michael Arkfeld, Founder and Director of Education for the eDiscovery Education Center and Director of the Arkfeld eDiscovery and Digital Program at the Sandra Day O’Connor College of Law at Arizona State University

Corporate E-Discovery Hero Award for Strategy
Finalists:

  • Ron Harry, Honeywell International, Inc.
  • Dawn Radcliffe, Transcanada Pipelines Ltd.
  • Brett Tarr, Caesars Entertainment, Inc.

Corporate E-Discovery Hero Award for Technology
Finalists:

  • Michael Chung, S&P Global
  • Michael Knight, U.S. Department  of Housing and Urban Development
  • Cortney Starble, CBRE Group, Inc.

Corporate E-Discovery Hero Award for Process
Finalists:

  • Laura Curran, Comcast Corporation
  • Alexandra Desmond, Sykes Enterprises Incorporated
  • Charlotte Riser Harris, Hess Corporation

Corporate E-Discovery Hero Award for Teams
Finalists:

  • CSX Transportation, Inc.
  • GE
  • McDonald’s  Corporation
  • Southern California Edison

About Zapproved Inc.
Founded in 2008 in Portland, Ore., Zapproved Inc. is a pioneer in developing cloud‐based software for corporate legal departments. The Z‐Discovery Platform returns power to in‐house corporate legal teams and helps them navigate electronic discovery with minimal risk and cost, and it sets new standards for scalability and intuitive design. The company’s flagship product, Legal Hold Pro, is widely adopted by Fortune 500 and Global 2000 corporations and has earned recognition as the Best E‐Discovery Legal Hold Product at the 2015 and 2016 Legaltech News Innovation Awards, Best of the National Law Journal 2014 – 2016. Zapproved was recognized in Deloitte’s 2016 Technology Fast 500, the 2014 Inc. 500 as one of the fastest growing private companies in the U.S., and was named as a “vendor to watch” in the 2015 Gartner Magic Quadrant for E‐Discovery. Zapproved is EU-US Privacy Shield certified and is SOC2 ® Type 2 certified which validates that Zapproved’s systems have controls in place to protect against unauthorized access (both physical and logical).




Trial Lawyer Jay Old Joins Texas-based Hicks Thomas LLP

Jay OldVeteran trial lawyer Jay Old has joined commercial litigation firm Hicks Thomas LLP where he will continue to represent construction, insurance, petrochemical and health care companies as part of his client portfolio.

Old’s addition will add offices in Austin and Beaumont. Old joined the firm effective Jan. 1.

“We are thrilled to be adding Jay and his team. He’s an exceptional lawyer with an outstanding track record,” said John B. Thomas, name partner and firm co-founder. “Many of us have known Jay for years, dating back to our days together at Andrews Kurth.”

Old’s clients include refineries, construction contractors, manufacturers, hospital systems and insurers. Joining him is labor and employment lawyer Jim Henges, along with four other lawyers from Old’s firm.

“I like to say I represent the job creators,” Old said. “I’m very excited to be joining the Hicks Thomas team, and hope to add to its reputation as a premier trial firm.”

Old is a frequent speaker at continuing education programs for lawyers across the country. He also is a former president of the Texas Association of Defense Counsel and has chaired the Construction Law Section of the State Bar of Texas.

He has defended national clients in statewide and regional mass tort litigation, in toxic torts, construction and product liability cases. He also successfully defended insurance companies in a series of high-profile trials involving hailstorm claims in Galveston and elsewhere.

Old is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization and has been recognized on the Texas Super Lawyers list every year since 2005. A native of Beaumont, he is a graduate of Texas A&M University and the Texas Tech University School of Law.

 

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Hunton & Williams Launches Sustainability and Corporate Clean Power Initiative

Hunton & Williams LLP announces the formation of a global cross-disciplinary legal team to advise corporations and investors on issues related to sustainability and efforts to increase utilization of renewable energy.

In a news release, the firm said this move, which reflects increased client demand for Hunton’s capabilities in these areas, brings together lawyers with global experience in transactional, finance (including “green bonds” and similar programs), corporate, securities, tax, environmental and real estate law to counsel clients on the complex legal issues arising out of participation in the market for renewable energy and related transactions. This initiative also centralizes the firm’s knowledge and experience with data center development and financing.

The release continues:

“Retailers, manufacturers and technology companies are either entering the renewable energy arena for the first time or are significantly bolstering their current positions,” said partner Eric R. Pogue, who heads the firm’s efforts in this space. “This multidisciplinary initiative will focus on the unique legal issues that companies face in meeting their sustainability and clean power procurement goals.”

As part of the firm’s renewable energy practice group, the sustainability and corporate clean power team will counsel corporations and investors on matters related to

– clean power procurement;
– green bonds and similar clean power financing and investment transactions;
– development of sustainable facilities, including data centers;
– tax equity investments;
– joint ventures with renewable energy companies;
– securities law compliance;
– renewable energy certificate (REC) trading;
– project permitting and real estate; and
– environmental law compliance.

The Hunton & Williams global energy practice dates back to the firm’s founding in 1901, and the firm’s experience in the area of renewable energy and clean power started decades before the current global focus on renewable and clean sources of energy. Since these beginnings, the firm’s renewable energy and clean power practice has grown and evolved to meet the changing needs of clients in this dynamic sector of the energy market.




2017: An Evolving Landscape for Third Party Risk Management – Webinar

Navex Global will present a free webinar discussing how a new administration and anticipated enforcement and regulatory changes will impact third party due diligence programs.

The event will be Thursday, Jan. 26, at 1 p.m. EST (10 a.m. PST).

Topics will include:

  • Potential impacts of the Trump administration on compliance
  • Changes to FCPA enforcement approaches
  • Disgorgement trends
  • Yates Memo impacts
  • Upcoming regulatory changes

Participants also will techniques and technology to help mitigate political and regulatory turmoil with a risk-based approach to modernizing due diligence.

Speakers will be Michael Volkov, CEO, Volkov Law Group, LLC; and Tim Morss & Chris Bailey, of NAVEX Global.

Register for the webinar.

 

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Dallas’ Bailey Brauer Named Among Nation’s Most Feared Law Firms

Most feared law firmsBTI Consulting Group’s 2017 ranking of U.S. law firms that corporate lawyers never want to face in court includes Dallas’ Bailey Brauer PLLC based on the firm’s successful work in high-stakes litigation across the nation.

In a news release, the firm, founded in 2013 by former big firm lawyers Clayton Bailey and Alex Brauer, said it has successfully represented major corporations, family-owned businesses and high-net-worth individuals in a variety of business disputes by relying on years of expertise trying and appealing cases and negotiating favorable settlements.

“It’s a point of pride to be on this impressive list,” says Bailey, who is widely recognized for his work in state and federal trials and appeals. “General counsel call on Bailey Brauer because we provide the experience and quality they expect while keeping a close eye on the bottom line.”

Read more about the award.

 

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Client Pitches Cost Up to $70K at Latham & Watkins

PresentationBigLaw firm Latham & Watkins spends between $30,000 and $70,000 making client presentations to potential clients, reports Bloomberg Law.

Bloomberg pulled the information out of a New York Times article on the state of the legal industry going into 2017.

Quoting the Times‘ original report:

[Latham & Watkins, according to managing partner William H. Voge] routinely competes for big-ticket legal work, with partners often flying from different parts of the world to showcase Latham’s skills against those of five or six competing firms. The cost is not cheap; the firm pays $30,000 to $70,000 per presentation.

And it works, he said, because most of the firm’s existing clients last year each paid over $1 million in legal fees. Over all, the firm had profit of $1.6 billion in 2016, Mr. Voge noted.

Read the Bloomberg article.

 

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Tillerson’s $180M Exxon Exit Plan Has $72M Tax Advantage

Image by William Munoz

The exit package Exxon Mobil Corp. has agreed to pay Rex Tillerson if he’s confirmed as secretary of state is structured to preserve roughly $180 million in deferred compensation for him — and might let him avoid an immediate federal income tax bill of as much as $72 million, reports Bloomberg.

Reporter Lynnley Browning talked to tax specialists who have reviewed the plan.

“Under the plan, Exxon would make a cash payment into an independent trust managed by Northern Trust Corp. for Tillerson,” explains Browning. “In exchange, Tillerson, 64, would give up his rights to more than 2 million restricted shares and restricted stock units that haven’t vested yet.”

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Trump Beats Libel Lawsuit Over Tweets Directed at Political Strategist

A New York Supreme Court judge on Tuesday agreed to dismiss a defamation suit brought by political strategist  Cheryl Jacobus against Donald Trump, reports The Hollywood Reporter.

The suit was based on a Trump tweet, in which he said that Jacobus had “begged” him for a job and went “hostile” when she was turned down. He also called her a “major loser” with “zero credibility.”

New York judge Barbara Jaffe granted Trump’s motion to dismiss.

She found that a reasonable reader would recognize Trump’s schoolyard type squabble as rendering statements of opinion, writes Eriq Gardner.

Read the Hollywood Reporter article.

 

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Obamacare Replacement May Look Like Existing Law, Without Mandate

It’s hard to predict exactly what President-elect Donald Trump wants in a new health care law, but a repeal of the Affordable Care Act (ACA) is rapidly on track in Congress, according to a report published on the website of Androvett Legal Media & Marketing. Dallas health care lawyer Jeff Drummond of Jackson Walker LLP, who represents doctors, hospitals and other health care facilities, has some predictions about what to expect:

“Repeal is almost entirely certain, and will be near immediate with the new Congress. It will be done using the same reconciliation technique that allowed ACA to pass in the first place, thus avoiding the filibuster and the need for 60 votes in the Senate.

“The changes likely will be phased in over time, with very few, if any, immediately repealed. That will allow the new Congress time to fashion replacement parts. And those replacement parts will mostly resemble the old law.

“For example, the new law will allow insured parents to keep their children on their policies until age 26. It also will likely preserve the ban on lifetime limits.

“The new law will drop the individual mandate to buy health insurance. But coverage for pre-existing conditions will be more like the portability requirement under the Health Insurance Portability and Accountability Act (HIPAA). That law requires insurers to accept people with existing health problems only when they previously had coverage, such as from their current or former employer. So people with pre-existing health conditions now covered under individual policies through the ACA would be eligible for coverage under the new law, but individuals who did not previously have coverage would be subject to potential exclusion for pre-existing conditions.”

 

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Texas Firm Adds Seven

Houston-based law firm Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. has added seven attorneys to the firm.

The seven include:

  • Ifti Ahmed, an engineer who focuses on patent litigation and complex technical cases
  • Weining Bai, who focuses on patent litigation
  • Jason Ballard, a former software engineer who focuses on intellectual property litigation
  • Rey Flores, a trial lawyer and combat veteran
  • Sammy Ford IV, who has tried over 20 cases in the last five years
  • Kelsi Stayart, who focuses on commercial litigation
  • Jordan Warshauer, who focuses on commercial litigation

Read about the new hires.

 

 

 




Download: Eight Practices to Oversee Risk Effectively

Risk managementThe National Association of Corporate Directors (NACD) has published a complimentary executive summary of “Eight Key Practices for Overseeing Risk Management.”

“As the number and magnitude of business risks increase, so do the expectations for stronger risk oversight — through both greater board awareness of risk and more disciplined board review of enterprise-risk management,” the NACD says on its website.

The reports offers key practices that all directors can use to oversee risk more effectively, such as:

  • Clarify the roles of the board, committees, and management.
  • Understand the company’s risk profile.
  • Define the company’s risk appetite.

Download the executive summary.

 

 




Catalyst Announces Purpose-Built E-Discovery Platform for General Counsel

Catalyst, a developer of e-discovery solutions, has introduced Insight Enterprise, a platform the company says is specifically designed for corporate general counsel to centralize, simplify and reduce the cost of e-discovery across all their litigation, investigation and compliance matters and teams.

The company’s news release contiues:

Insight Enterprise enables corporate legal departments to centralize e-discovery management and data, simplify management through streamlined business processes, and reduce the total cost of discovery through efficiencies far greater than just the cost per gigabyte.

“Cost concerns are driving legal departments to shift more work in-house, exercise tighter management over outside legal matters, and expect more precise reporting and accountability from their legal teams,” said John Tredennick, Catalyst’s founder and CEO. “Until now, however, general counsel have not had a platform specifically designed for corporate e-discovery. Insight Enterprise gives them the centralization, automation and reporting they need to most effectively manage their legal matters.”

According to a recent Gartner report, in addition to cost pressures, rapid data growth is also forcing GCs to grapple with greater security challenges and compliance risks. These concerns are causing many organizations to carefully re-examine their e-discovery practices and technology.

Insight Enterprise: A Better Way to Reduce Litigation Cost
Designed specifically for corporate legal departments, Insight Enterprise reduces corporate legal costs through:
• Automation from processing through production.
• Centrally managed data hubs capable of handling millions of documents across multiple matters.
• Coding consistency across cases and counsel.
• Customized tracking and financial reporting within and across matters.
• Airtight security with multi-level access controls.

Insight Enterprise allows documents to be loaded and processed once in a central repository. They can then be assigned to multiple matters with synchronized review tags to reduce review costs and the risk of inconsistent coding. Additionally, consistent workflows and best practices minimize cost and mistakes by making the process more efficient and predictable.

“Corporate legal professionals are under increasing pressure to stay on top of their cases and ensure matters are progressing as efficiently as possible,” said Tredennick. “Our goal in all of this is really very simple – enable our clients to reduce discovery costs and provide predictability through a central, secure e-discovery platform that they can control from beginning to end.”

 

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29 Partnership Promotions and 37 Promoted to Counsel at Hogan Lovells

Hogan Lovells has announced the promotion of 29 new partners globally, effective Jan. 1, 2017. They will join more than 800 partners in offices across Africa, Asia, Australia, Europe, the Middle East, and the Americas.

Each of Hogan Lovells’ five practice groups is represented in the 2017 promotion round:

• Eight in Corporate (including in Corporate, Real Estate, and Tax)
• Eight in Litigation & Arbitration (including in Investigations, White Collar and Fraud)
• Five in Government Regulatory (including in Competition, Privacy & Cybersecurity, Health and FDA/Medical Devices)
• Five in Finance (in Banking, International Debt Capital Markets and Infrastructure, Energy, Resources and Projects)
• Three in Intellectual Property

The jurisdictional spread reflects the global nature of Hogan Lovells’ practice:

• 19 in the United States & Latin America: Denver, Mexico City, Miami, New York, Northern Virginia, Washington, D.C.
• Nine in Europe: Dusseldorf, London, Munich, Paris
• One in Asia: Shanghai

In addition to the 29 new partners, 37 new appointments to the role of counsel have been made.

CEO Steve Immelt said:

“Supporting and growing our internal talent pipeline is a key priority for Hogan Lovells and integral to offering our clients the highest quality service. It gives me great pleasure to promote from within and recognise the hard work and dedication of these individuals, who represent the quality, breadth, and depth of Hogan Lovells around the world, which no other law firm can match. I congratulate all those who were promoted and wish them every success as they continue their career with us.”

New Partners:

• Justin Bernick – Government Regulatory (Antitrust, Competition and Economic Regulation), Washington, D.C.
• Adam Brown – Corporate (Transactional), Northern Virginia
• Roberta Chang – Corporate (Tax), Shanghai
• Bret Cohen – Government Regulatory (Privacy and Cybersecurity), Washington, D.C.
• David Crandall – Corporate (Transactional), Denver
• Tarek Eltumi* – Finance (Infrastructure, Energy, Resources and Projects), London
• Richard Goss – Finance (Banking), London
• Lillian S. Hardy – Litigation and Arbitration (Investigations, White Collar and Fraud), Washington, D.C.
• Jennifer Agraz Henderson – Government Regulatory (FDA/Medical Devices), Washington, D.C.
• Theresa House – Litigation and Arbitration (Commercial Litigation), New York
• Peter Huber – Corporate (Transactional), Munich
• Thomas Kendra – Litigation and Arbitration (International Arbitration), Paris
• Alexander Klicznik – Intellectual Property, Media & Technology, Düsseldorf
• Wylie Levone – Finance (Infrastructure, Energy, Resources and Projects), Washington, D.C.
• Frederick Liu – Litigation and Arbitration (Commercial Litigation), Washington, D.C.
• Miguel Ángel Mateo Simón – Finance (Infrastructure, Energy, Resources and Projects), Mexico City
• Stacey McEvoy – Corporate (Transactional), Washington, D.C.
• Katia Merlini – Finance (International Debt Capital Markets), Paris
• Christopher Pickens – Litigation and Arbitration (Commercial Litigation), Northern Virginia
• Joseph Raffetto – Intellectual Property, Media & Technology,, Washington, D.C.
• Leslie Reese – Corporate (Transactional), Washington, D.C.
• Rafael Ribeiro – Litigation and Arbitration (Commercial Litigation), Miami
• Meghan Rissmiller – Government Regulatory (Antitrust, Competition and Economic Regulation), Washington, D.C.
• Christopher Schott – Government Regulatory (Health), Washington, D.C.
• Matthias Schweiger – Litigation and Arbitration (Commercial Litigation), Munich
• Jane Seager – Intellectual Property, Media & Technology,, Paris
• Nathan Searle – Litigation and Arbitration (International Arbitration), London
• Michael Szlamkowicz – Corporate (Transactional), New York
• William Yavinsky – Corporate (Transactional), Washington, D.C.

New Counsel:

• Jon Aurrecoechea – Litigation & Arbitration (Litigation), Madrid
• Meryl Bernstein – Intellectual Property, Media & Technology, Northern Virginia
• Darcy Bisset – Finance (Infrastructure, Energy, Resources and Projects), Baltimore
• Briana Black – Litigation & Arbitration (Litigation), Washington, D.C.
• Craig Brook – Finance (Infrastructure, Energy, Resources and Projects), Dubai
• Dorina Inès Bruns – Litigation & Arbitration (Investigations, White Collar and Fraud), Munich
• Fred Cristman – Finance (Banking), Washington, D.C.
• Riccardo Fruscalzo – Intellectual Property, Media & Technology, Milan
• Sylvie Gallage-Alwis – Litigation & Arbitration (Litigation), Paris
• Juan C Garcia – Litigation & Arbitration (International Arbitration), Miami
• Anthonia Ghalamkarizadeh – Intellectual Property, Media & Technology, Hamburg
• Paola La Gumina – Corporate (Commercial), Rome
• Victoria Hordern, Government Regulatory (Privacy and Cybersecurity), London
• Leonie Huisman, Corporate (Transactional), Amsterdam
• Elizabeth Jose – Litigation & Arbitration (Litigation), Washington, D.C.
• Louise Leung – Finance (Banking), Hong Kong
• Julia Marlow – Government Regulatory (ACER), London
• Susan R McAuliffe – Government Regulatory (Environmental), Washington, D.C.
• Ariane Mehrshahi – Finance (International Debt Capital Markets), Luxembourg
• Daniel Metroka – Litigation & Arbitration, (Investigations, White Collar and Fraud), Philadelphia
• Anna Mills – Litigation & Arbitration, (International Arbitration), London
• Leanne Moezi – Corporate (Transactional), London
• Patrice Navarro – Corporate (Commercial), Paris
• Nga Nguyen – Intellectual Property, Media & Technology, Hanoi
• Laura Oliver – Corporate (Real Estate), London
• Lindsey Owings – Finance (Banking), Denver
• Luis Ernesto Peon Barriga – Litigation & Arbitration, (International Arbitration), Mexico City
• Elzbieta Rablin-Schubert – Finance (Banking), Warsaw
• Alexander Stefan Rieger – Finance (Infrastructure, Energy, Resources and Projects), Frankfurt
• Fabien Roy – Government Regulatory (FDA/Medical Devices), Brussels
• Matt Rozier – Intellectual Property, Media & Technology, Denver
• Abigail C. Smith – Corporate (Transactional), Washington, D.C.
• Thierry Somma – Corporate (Transactional), Luxembourg
• Jane Summerfield – Corporate (Commercial), London
• Jenna L. Watson – Corporate (Transactional), New York
• Mary Helen Wimberly – Litigation & Arbitration (Litigation), Washington, D.C.
• Kristin Zielinski Duggan – Government Regulatory (FDA/Medical Devices), Washington, D.C.

* Tarek’s appointment as a partner will take place at a later date following the satisfaction of certain regulatory conditions.

 

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Be Cautious in Navigating Microsoft’s Forest of EA Documents

By 
Scott & Scott LLP

MicrosoftCompanies with experience licensing Microsoft software and services through Enterprise Agreements know that small forests could be felled to produce the paper required for the typical document stack. EAs often incorporate a dozen or more different components, including some or all of the following:

  • Microsoft Business and Services Agreement or Microsoft Business Agreement (Microsoft sometimes will agree to use existing master agreements)
  • Online Services Supplemental Terms and Conditions (if an existing, older-form master agreement is to be used)
  • Enterprise Agreement (Microsoft sometimes will agree to use existing base EAs)
  • Enterprise Enrollment
  • Customer Price Sheet
  • Product Selection Form
  • One or more custom terms amendments (if custom terms have been negotiated)
  • One or more standard-form amendments (to cover product-specific or service-specific matters for which Microsoft offers off-the-shelf terms)
  • Product Terms (typically incorporated by reference)
  • Online Services Terms (typically incorporated by reference)
  • Service Level Agreement for Online Services (sometimes incorporated by reference)
  • Supplemental Contact Information Form
  • Tax Terms and Conditions Form
  • Signature Form

Many of the standard forms are administrative in nature and rarely incorporate substantive terms or conditions. However, Microsoft occasionally will incorporate substantive or potentially substantive language in forms that otherwise would appear to have only administrative purposes. A good example is the Customer Price Sheet (CPS).

The primary purpose of the CPS is to list the products and services being ordered under an EA, the order quantities, and the prices to be paid. The CPS also typically identifies the prices that will apply to true-up orders during the term as well as end-of-term buy-out prices for subscription licenses.

Toward the end of the CPS, there usually are included sections labeled “Product Notes” and/or “Terms and Conditions.” Ideally, those sections should be used exclusively to help navigate the CPS and to clarify any custom license metrics that may apply to the EA transaction. However, Microsoft sometimes will include language in those sections that should be the subject of legal negotiations or even that contradicts substantive terms that may have agreed in a custom terms amendment. For example, the parties may reach a special agreement regarding the mechanics for placing incremental true-up orders, but the notes in the CPS may reference standard true-up procedures. This can be especially problematic in time-sensitive negotiations, because the CPS often is among the last documents to be finalized for legal review and approval.

Businesses neglect a thorough review of all EA document components at their peril. Business and legal teams need to push early and often to insist that Microsoft circulate final-form versions of each and every part of the document stack as soon as possible to ensure a smooth transaction. Those teams also need to be prepared to scrutinize every page of that stack to ensure that there are no surprises that are inconsistent with the business’s expectations.