Gardere Wynne Sewell LLP  announces that 36 of the firm’s Texas attorneys have been recognized on the 2016 Texas Super Lawyers list. In addition, Denver partner Leonard M. MacPhee was named to the 2016 Colorado Super Lawyers list.

“Super Lawyers works diligently to create a credible, comprehensive and diverse listing of reputable attorneys,” says Gardere Chair Holland N. O’Neil. “We applaud our 37 attorneys who have worked hard to be recognized as go-to lawyers in their respective areas.”

For the third consecutive year partner Geoffrey H. Bracken earned additional honors as one of the Top 100 Attorneys in Houston. Bracken’s litigation practice focuses on commercial, construction, copyright infringement, wrongful death and personal injury disputes, particularly disputes related to oil and gas exploration, as well as production.

Gardere attorneys named to the 2016 Texas and Colorado Super Lawyers lists, and their areas of practice, include: 

Austin:

• Mark Vane – Government Relations
• Kimberly A. Yelkin – Government Relations

 Dallas:

• Marshall J. Doke Jr. – Government Contracts
• Craig B. Florence – Business Litigation
• Ronald M. Gaswirth – Employment and Labor
• Kenneth R. Glaser – Intellectual Property
• Lawrence B. Goldstein – Mergers and Acquisitions
• Douglas A. Harrison – Family Law
• Carrie B. Hoffman – Employment and Labor
• Kevin L. Kelley – Real Estate
• Joyce Mazero – Franchise/Dealership
• Stephen A. McCartin – Bankruptcy and Creditor/Debtor Rights
• Todd Murray – Securities Litigation
• Cynthia Brotman Nelson – Real Estate
• Keith V. Novick – Estate and Probate
• Holland N. O’Neil – Bankruptcy and Creditor/Debtor Rights
• Alan J. Perkins – Mergers and Acquisitions
• Clifford J. Risman – Real Estate
• Deirdre B. Ruckman – Bankruptcy and Creditor/Debtor Rights
• Robert Sarfatis – Mergers and Acquisitions
• Larry L. Schoenbrun – Mergers and Acquisitions
• Kay Lyn Schwartz – Intellectual Property
• Paul V. Storm – Intellectual Property Litigation
• David H. Timmins – Insurance Coverage
• Richard A. Tulli – Securities and Corporate Finance
• Peter S. Vogel – Intellectual Property Litigation
• Richard L. Waggoner – Mergers and Acquisitions

Denver:

• Leonard H. MacPhee – Franchise/Dealership

Houston:

• Eric A. Blumrosen – Mergers and Acquisitions
• Geoffrey H. Bracken – Business Litigation
• Daniel L. Cohen – Mergers and Acquisitions
• Jeffrey S. Davis – Civil Litigation: Defense
• Craig D. Dillard – Business Litigation
• Douglas K. Eyberg – Mergers and Acquisitions
• John P. Melko – Creditor Debtor Rights
• Lawrence J. Pirtle – Estate Planning and Probate
• Rachel Powitzky Steely – Employee Litigation: Defense

Super Lawyers, a division of Thomson Reuters, is a rating service of outstanding lawyers in more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. Each year, no more than 5 percent of attorneys are designated for this honor in each participating state. The Texas Super Lawyers list will be included in the October 2016 issues of Texas Monthly and the Texas edition of Super Lawyersmagazine. The Colorado Super Lawyers list was featured in the Colorado edition of Super Lawyers magazine published earlier this year.

By Katie Cook
ContractRoom

Image by Steve Jurvetson

The third season of HBO’s Silicon Valley is now complete and Pied Piper has just released its product to market. Several hurdles have been overcome in the journey to this level of fruition including one of the key executives of the company being trapped in a self-driving car and large amounts of code being accidentally deleted. Legal complications have also played a large role in the plot lines, including many issues related to contractual agreements. These include:

1. Intellectual property theft due to terms in employment agreement

The first term in a contract that became important in the plot line was that about intellectual property in Richard Hendricks’s, Pied Piper’s CEO’s, employment agreement with Hooli. Hooli was the company he was working with before leaving to work full time for Pied Piper. This term specified that the fruits of work done on his work computer would become Hooli’s intellectual property. In trial, evidence showed that Richard had performed some work for Pied Piper on his Hooli computer and so all the intellectual property according to this term was Hooli’s. However, unexpectedly and thankfully for Pied Piper, the judge noted there was also a non-compete clause in the employment agreement which was unlawful. Due to this, the entire employment agreement, as well as the employment agreements of all other Hooli employees were declared by the judge to be null and void and Pied Piper was allowed to keep the intellectual property that Richard had created.

2. Services Agreement between End Frame and Intersite

End Frame is a rival company of Pied Piper. In the first season, some of the people who go on to form End Frame trick members of Pied Piper into disclosing some of their intellectual property to them. In season two, Pied Piper becomes aware of End Frame’s existence after they lose their partnership with “Homicide,” an energy drink, to live stream a stunt for them. Instead Homicide engages End Frame for this. In an act of desperation, when it looks like Pied Piper is losing its funding, some of the Pied Piper team get their hands on the services agreement between End Frame and an internet porn company called Intersite and set out to convince Intersite to contract with them instead of End Frame. Intersite agrees to have End Frame and Pied Piper compete to see which product is the best and Pied Piper wins this competition.

3. Non-disclosure Agreement (NDA) signed by Big Head (Nelson)

Big Head (also known as Nelson) was originally part of the Pied Piper team and a friend of Richard. They knew each other from when they both worked at Hooli. After Pied Piper obtained funding, Big Head was cut from the team, but at the same time was offered a large promotion at Hooli, which he took. CEO of Hooli, Gavin Belson, continued to promote him in an attempt to outsmart Pied Piper, believing he had poached one of their best developers and that Hooli, with Big Head, could create a better product at a company inside Hooli called Nucleus. Once it became clear that Nucleus was a flop and all employee contracts at Hooli were null and void due to a non-compete clause, Hooli offers a redundancy package of $20 million to Big Head which he accepts. However, he takes this on the condition he abides by an NDA which he breaches by talking to tech blogger, C.J. Cantwell, about how Hooli covered up bad reviews about Nucleus by changing how their search engine operated.

4. Sales agreement for Pied Piper’s “box”

One investment firm Raviga takes over the funding of Pied Piper at the end of season 2 and early season 3, Richard is removed as CEO. The new CEO, Jack Barker, believes that creating a ‘box’ to contain the compression product will be more quickly adopted by the market and quicker to sell to enterprises. Richard and his team are not interested in creating the box as they have always wanted to use their compression algorithm to create a product available to consumers. His team devise a plan to create a product for consumers, while pretending to create the box product. However, Jack Barker becomes aware of this plan. In the meantime, Monica, who works for Raviga notices a term in the sales agreement for the box that gives exclusive rights to the owners to use Pied Piper’s algorithm for five years. This deal would prevent Richard and his team from creating the consumer product within that time. In the meantime, Hooli acquires End Frame for $250 million. End Frame is creating a consumer compression product and not a box. This purchase effectively sets the value of Pied Piper if it was creating a consumer compression product and makes obvious that developing a consumer product will be a much more valuable option. Jack Barker is fired by Raviga and the way is paved for the team to continue building the consumer product.

5. Partnership agreement between Erlich and Big Head

Erlich convinces Big Head to go into business with him and drafts a manipulative partnership which gives Erlich complete control over Big Head’s assets but no access for Big Head to Erlich’s Pied Piper shares. Big Head signs the agreement unaware that he is essentially giving Erlich the same financial rights as a spouse. Erlich sets about planning an extravagant party to celebrate the launch of his and Big Head’s new company which is to be called “Bachmanity”.

6. Vendor contracts for Bachmanity Insanity

The extravagant launch party for Bachmanity is held at Alcatraz and it is Hawaiian themed. Erlich engages event planner, Sasha, to organize this party and details of the party include, among other things, pukka shells, roasted pigs and flamethrowers. During the party Sasha informs Erlich that a number of vendors have called to complain that their checks have bounced and just before the main speech that Erlich and Big Head are to give Arthur Clayman, Big Head’s business partner, informs Erlich that Bachmanity is bankrupt.

8. The Retainer Agreement for Big Head’s business manager, Arthur Clayman.

This gave Mr Clayman access to Big Head’s funds. After Clayman explains to Erlich that Bachmanity is bankrupt, Erlich gets Jared Dunn, Richard’s assistant and former personal assistant to Hooli CEO Gavin Belson, to assess what has happened with the funds. He finds that $6 million has been misplaced, which they later realise Clayman has used to pay other clients. Big Head and Erlich consult the District Attorney’s office about taking legal action against Clayman but are told their case would be a low priority. Erlich is told he may have to liquidate his shares in Pied Piper to repay the debts of Bachmanity that are outstanding.

By Stephen F. Pinson
Scott & Scott, LLP

In a previous blog, I spoke about what an indemnification provision is and how it operates. In this blog, I will discuss questions that licensors and licensees should ask when negotiating an indemnification provision within a software contract: (1) what are the licensor’s objectives in the indemnification section, (2) what are licensee’s objectives in the indemnification section, (3) what is a checklist of elements and questions that should be negotiated in a indemnification section, and (4) what is a general checklist of provisions that should be included in a indemnification section.

(1) Licensor’s objectives in an indemnification section

The licensor’s (software vendor) objective is to protect itself from any claims resulting from the licensee (business) from breaching the license grant. For example, if the licensee modifies the software contrary to the license grant, then the software vendor may be exposed to third-party claims. The licensor often will seek indemnification from those types of claims through the indemnity clause called “IP Indemnity.”

On the other hand, another objective of the licensor is to indemnify the least amount of loss or liability possible. For some contracts, and indemnification section will not exist for a licensor to indemnify, and for others it will be detailed and extensively negotiated. Usually, a licensor at the very minimum will indemnify for intellectual property infringement for its own liability.

(2) Licensee’s objectives in an indemnification section

Alternatively, the licensee is looking to be protected from third-party lawsuits for intellectual property infringement resulting from a situation where the licensor has intellectual property (typically software code) that infringes on the property of someone else (third-party claimant). In this scenario, the licensee is also infringing on the rights of the third party and can be sued for infringement. For this reason, the licensee would want to seek protections in the indemnification provision.

(3) Checklist of questions that should be asked when negotiating a warranty section on performance warranties:</bold

Consider the following negotiation elements when drafting, negotiating or entering into a contract with an indemnity provision:
1. Applicability – Who is indemnifying whom? Is the indemnification mutual or unilateral?
2. Scope of Indemnity – What is the scope of the indemnification? Will the Indemnitor indemnify/reimburse for losses, defend (a duty to provide a defense), or hold harmless (bar claims against the Indemnitee)?
3.Nature of covered claims – What risks of doing business under the contract are being indemnified, i.e., inter-party claims based on breach of representation, warranty, or other contractual obligation, third party claims based on product liability, infringement, fraud, or negligence, governmental claims based on regulatory matters, or other specified claims such as: personal injury, property damage, economic loss, and attorneys’ fees and costs of defense?
4. Exceptions – Are there any exceptions to indemnification such as taking control of the claim? Or not causing the indemnifying circumstances such as not modifying code?
5. Limitations – Should there be a monetary limit on the extent of the indemnity? If so, the limitation should bear a reasonable commercial relationship to the contract. Is there a limitation as to the time a party can bring an indemnification claims (i.e., within a 6 months, 1 year, etc.)? Is there a limitation on the amount that can be recovered for an indemnified claim in the Limitation of Liability (i.e., preferably a licensee will want an exclusion where the limitation of liability does not apply and damages are uncapped)? Or, does the contract include a provision requiring coverage of certain risks by insurance such that the indemnity is limited to the amount of the insurance coverage (i.e. contractual liability insurance)?
6. Procedure – Does the indemnity provision specific procedural requirements for recovery, like submitting a claim within a certain time period, of follow certain procedures to submit a claim for Indemnitee? Is there a duty to mitigate any portion of the claim before submitting it to the Indemnitor?
7. Exclusivity of remedies – Do the terms of the contract determine whether the Indemnitor is obligated to reimburse the Indemnitee for a particular claim, and if so, when? Does the contract clearly express an intent to indemnify a party against its own negligence, and if so does it make sense under the circumstances?
8. Review other corresponding provisions in the contract – Does the indemnification provision harmonize with the warranty and limitation of liability section in the contract? Does the insurance section of the contract harmonize with the indemnity section? Are there enough insurance limits for this type of claim scenario for the licensor? Is the limitation of liability uncapped for intellectual property claims for the licensee?

(4) Provisions that should be included in a typical Indemnification section:
Licensor Provisions:
Licensor will defend, indemnify and hold harmless licensee for third party intellectual property infringement.
Licensor will pay all costs and damages awarded.
Conditions – Licensor’s obligations for indemnification are conditioned on the following:
(a) Licensee notifying Licensor promptly in writing of such action.
(b) Licensee giving Licensor sole control of the defense or settlement thereof.
(c) Licensee cooperating with Licensor in such defense.
Exclusions – Licensor will have no liability if the following occurs:
(a) any use of the Software not in accordance with the Agreement
(b) any modification of the Software made by any person other than Licensor.
Entire Liability – This is the entire liability of licensor and exclusive remedy.

Licensee Provisions:

Licensor will defend, indemnify and hold harmless licensee for third party intellectual property infringement.
If Licensee’s continued use of the Software is restricted or prohibited as a result of any such infringement, Licensor shall, at Licensee’s option and at no charge to Licensee:
(a) secure for Licensee the right to continue using the Software
(b) modify or replace the infringing components of the Software so that they are non-infringing
(c) refund to Licensee all amounts paid by Licensee for the Software.
Exclusions – Licensor will not be obligated to indemnify Licensee to the extent of the infringement claim based upon:
(a) use of the Software in breach of this Agreement
(b) any modification of the Software made by Licensee (other than at Licensor’s direction)
Defense of Third-Party Suits – Licensee will notify Licensor of third party suits promptly. If licensee tenders claim to Licensor, Licensor will have right and obligation to defend such claim. Once Licensor assumes defense of a Claim, it will be conclusively presumed that Licensor is obligated to indemnify Licensee. No settlement of a Claim will be binding on Licensee without Licensee’s prior written consent

*This is not an exhaustive list of provisions

Remember, an indemnification section is a specialized risk transfer section within a software contract. It is crucial to understand it and to successfully negotiate it to prevent unwanted risk. It is always important to seek advice from experienced legal counsel in order to understand all the risks involved when negotiating these types of provisions in a software contract.

LawGeex has launched new A.I. Contract Review technology designed to help in-house counsel read, review and understand contracts.

The company says the technology features artificial intelligence that reviews contracts and highlights any issues, reviews contracts based on the user’s own legal checklist, reviews other people’s changes to standard contracts, can review any contract custom built for any industry,  and automatically manages contract approvals and escalations.

The streamlined workflows between sales, operations and legal can save users 80 percent of the time and 90 percent of the costs while cutting the time to close deals by two-thirds, the company reports.

The artificial intelligence program can recognize when any clauses are rare, missing, or potentially problematic, and provide a plain English report.

• Interactive contract reports with recommended fixes
• Lightning fast turnaround – 80% time saved reviewing and approving contracts
• Legal speak translated into simple English
• Checked by real life lawyers for quality and accuracy

Learn more.

Wednesday, Sept. 21
2-3 p.m. EDT

eSignLive by Vasco is sponsoring an online presentation providing an overview of the basic terminology, concepts, and laws related to electronic signatures and answer the most frequently asked questions on the topic.

The free webinar will be Wednesday, Sept. 21, beginning at 2 p.m. EDT.

The speaker will be Richard Medina, co-founder and principal consultant of Doculabs.

Topics will include:

• What is the difference between an electronic signature and a digital signature?
• How can you prove who e-signed?
• What legal and compliance requirements do we need to consider?
• What ROI metrics have others reported?
• What do signers need in order to e-sign?
• How do we get started? What’s the cost? What’s the effort?

Register for the webinar.

NAVEX Global will webcast a free webinar outlining updates to FLSA requirements, presented by Scott M. Nelson, a national labor and employment law authority from Baker & McKenzie, on Thursday, Sept. 22. The hour-long webinar will begin at 10 a.m. PDT (1 p.m. EDT).

New Fair Labor Standards Act (FLSA) regulations will go into effect on Dec. 2, updating the salary and compensation levels for exempt employees, impacting millions of salaried workers.

Wage and hour cases represent the most significant exposure to employers under workplace laws, NAVEX Global says on its website. This webinar will explain responsibilities and options for complying with the FLSA’s overtime provisions.

Register for the webinar.

When a 5.8 magnitude earthquake centered in Oklahoma shook that state and several others over Labor Day weekend, regulators in the Sooner State ordered 37 oil and gas wastewater disposal wells to shut down because of previous connections to quakes, according to a report by Androvett Legal Media and Marketing.

There also have been earthquakes in Texas that some researchers believe are tied to disposal wells used for wastewater fluids resulting from hydraulic fracturing/fracking operations. While state regulators continue to question a definitive link between these wells and earthquakes, some major oil and gas producers are already taking steps to try to avoid problems.

“The more sophisticated producers are already beginning to use technologies to recycle water used in fracking and to develop new formulas that substantially reduce both water usage and the amount that must be disposed by subsurface injection. Those changes will provide numerous benefits, which may include reducing the potential for seismic activity,” said Leonard Dougal, an environmental lawyer with Jackson Walker LLP in Austin who is also a former petroleum engineer.

“In most cases, however, the disposal of wastewater is contracted out to other service companies, and many producers aren’t involved in decisions about where those wells are drilled or how they are operated. But that separation may not totally free producers from a potential lawsuit given the recent widespread publicity about earthquakes. Producers also should take steps to reduce liability by avoiding use of disposal wells or contractors working in areas of known seismic activity.”

The Treasury Department has released proposed regulations that seek to eliminate valuation discounts for interests in family-controlled entities, according to an Arnold & Porter article.

Authors Laura A. Jeltema, Thomas W. Richardson and Cara M. Koss write that the impact of these new rules is significant and far reaching, and if adopted in their current form, will drastically alter the landscape of wealth transfer planning for family business owners.

In the existing code, Internal Revenue Code Section 2704 was created to prevent families from using valuation discounts to artificially reduce the value of interests in family-controlled entities.

The IRS and Treasury now believe that Section 2704 “has been rendered ‘substantially ineffective’ by the recent trend of states providing restrictive default liquidation provisions. In response, one of the many changes contained in the Proposed Regulations narrows the exception to only those restrictions that are required to be imposed by federal or state law, and not merely those allowable as default provisions,” according to the article.

Read the article.

It is undeniable that the Family Medical Leave Act (FMLA) has a legitimate purpose and many employees benefit from its protections, writes Melissa Dials, of counsel at the Cleveland office of Fisher Phillips for the Ohio State Bar Association. She points out, however, that there also are employees who abuse the law’s protections.

“This is particularly true of those who use intermittent FMLA leave when vacation or personal time is not available. Such abuse is disruptive to the work environment and can leave many managers frustrated. Fortunately, the FMLA regulations provide a number of tools that employers can utilize to curb FMLA leave abuse within the workplace,” she explains.

She discusses 10 pieces of advice: certify and recertify, ask for a second opinion, establish and enforce call-in procedures for all absences, require use of paid leave, count all absences related to the condition, require employees to schedule medical appointments around work schedule, consider temporarily transferring employees who take foreseeable intermittent leave, establish a policy prohibiting employees from working a second job while on leave, follow up on suspicious circumstances, and train front-line supervisors.

Read the article.

Merrick Garland

Hillary Clinton has started talking to reporters again, but Bloomberg Law reports there’s still a big question she hasn’t answered: Would she re-nominate Merrick Garland to the open seat on the Supreme Court?

Senate Republicans have refused to hold hearings on Garland’s nomination, saying the next president should be the one to select a nominee to replace the late Justice Antonin Scalia.

The Democratic presidential candidate has studiously avoided saying whether she would renominate Garland for the vacancy if it is still pending next year, writes Bloomberg’s Greg Stohr.

“Clinton’s decision would shape both the direction of the court and tone of her presidency. She could stick with Garland, a 63-year-old moderate whose nomination has languished since March. Garland would shift the court to the left but not as far as some liberals would like,” Stohr writes. “Or she could opt for a younger, more progressive nominee, as well as the bigger confirmation fight that would invite.”

Read the article.

A common result of mergers in the business world is the layoffs of employees whose jobs have become redundant after two units are combined.

“What some people may not know is that the same thing applies to in-house legal departments following corporate mergers and acquisitions,” writes Staci Zaretsky for Above the Law. This time around, in-house counsel at beverage giant SABMiller will need to grab a drink after the company’s merger with Anheuser-Busch InBev closes next month.”

And The Global Legal Post reports:

The redundancies form part of a company-wide structural overhaul that will also see SABMiller general counsel John Davidson stand down next year once the merger is complete. Senior lawyers have already been notified of the lay-offs by Mr Davidson himself, though consultations are still ongoing and staff won’t be formally notified of the management’s decision until the middle of next month. SABMiller company secretary and deputy general counsel Stephen Shapiro has already been confirmed as one of those affected by the lay-offs, as well as deputy GC for M&A Stephen Jones and deputy GC for regulatory and industry affairs John Fraser. The company has indicated that up to 35 in-house staff will be likely be affected by the cuts.

Read Above the Law and Global Legal Post.

CNN Money poses a question that may be on the minds of people in the executive offices of Wells Fargo after more than 5,000 employees have been fired as a result of a scandal involving phony bank accounts: Do the CEO or other senior executives need to be fired, too?

The Los Angeles City Attorney and Consumer Financial Protection Bureau found that Wells Fargo employees had secretly set up new fake bank and credit card accounts in order to meet sales targets. That practice led to a fine of $185 million.

“CEO John Stumpf made $19.3 million in compensation in 2015,” reports Paul R. La Monica. “That makes him one of the top-paid bankers in the United States as he has been for years, along with these others: JPMorgan Chase’s Jamie Dimon, Bank of America’s Brian Moynihan and Lloyd Blankfein of Goldman Sachs. Stumpf, and his predecessor Dick Kovacevich, are well-known in banking circles for leading the bank’s efforts to cross-sell, or get customers to sign up for more and more accounts, with Wells Fargo.”

Read the article.

The producers of motion picture “Middle Men,” a drama about the birth of the business of internet pornography, filed a breach of contract lawsuit against Paramount Pictures claiming the movie studio failed to properly promote, distribute, and pay royalties on the film, according to an article published by Androvett Legal Media & Marketing.

The article says the movie was set up for success with director George Gallo and well-known actors Luke Wilson, Giovanni Ribisi, and James Cann. Despite buzz around the film at Cannes, the lawsuit explains that Paramount purposely depressed the film’s box office performance by withholding marketing and only releasing the movie in limited cities – showing only one screening of the movie in New York City on a Sunday afternoon for opening weekend.

The article continues:

In addition to failing to fully uphold a $7 million marketing agreement, Paramount sold the movie to the premium cable channel EPIX for streaming to services such as Amazon Prime and Netflix. Paramount holds a 43-percent stake in EPIX. The lawsuit says that Middle Pictures Inc., the film’s producers, have not received their fair share of the profits from streaming “Middle Men.”

“We plan to prove that when Paramount agreed to distribute ‘Middle Men’, it only saw the film as an opportunity for their own financial gain at the expense of the independent film company,” says Jeffrey Simon of Dallas-based Simon Greenstone Panatier Bartlett, PC, which represents Middle Pictures Inc. “Evidence shows us that the studio simply bundled the critically-acclaimed film with other Paramount products.”

Simon says the movie studio giant either can’t or won’t show auditors in full detail  if, or how, the $6.8 million that Middle Pictures provided for marketing was spent.

Managing third-party vendor relationships has recently become a hot topic for state and federal financial bank regulators, writes Jerry Blanchard of  Bryan Cave LLP.

Some examinations have resulted in regulators imposing settlements and impose civil money penalties on vendors, he reports.

He explains that, “The OCC guidance is generally looked at as the ‘gold standard’ for evaluating issues that need to be addressed in a vendor agreement. That does not mean that every contract a bank signs needs to have every one of those issues addressed or that each one needs to be resolved in favor of the bank. Vendor contracts come in many different shapes and sizes and may affect everything from back office processing, internet delivery systems, use of the ‘cloud’ to the people watering the plants at the branch. vendors will vary from small local operations to multi-national companies.”

Read the article.

In reviewing the scope of an arbitration agreement that was part of a supply agreement, the U.S. Court of Appeals for the Federal Circuit affirmed the district court’s decision, determining that the defendant’s breach of contract counterclaims were related to the plaintiff’s patent infringement claims and thus were exempt from compulsory arbitration under the supply agreement, reports Andrea Coronado for McDermott Will & Emery.

She discussed Verinata Health, Inc., v. Ariosa Diagnostics, Inc., Case No. 15-1970 (Fed. Cir., July 26, 2016) in an article published by The National Law Review.

“The Court reasoned that the national policy favoring arbitration when parties contract for that mode of dispute resolution under the Federal Arbitration Act applies only in circumstances where the scope of the agreement is ambiguous as to the dispute at hand, and only where the presumption in favor of arbitration cannot be rebutted,” Coronado wrote.

Read the article.

A “force majeure” clause is a contract provision that relieves the parties from performing their contractual obligations when certain circumstances beyond their control arise, making performance commercially impracticable or impossible, write Raedtha A. Vasquez and Edward Hart Bergin, partners in Jones Walker LLP.

In their article, they explain, that, in Louisiana, absent agreement to the contrary, force majeure excuses parties from liability when they fail to perform due to a fortuitous event that makes performance impossible.

“So, in determining whether the doctrine applies, it is necessary to determine (1) whether performance is impossible and (2) whether the impossibility was caused by a fortuitous event.”

They discuss some of the points to consider when confronting force majeure issues.

Read the article.

In orders issued just six days apart last month, the U.S. Securities and Exchange Commission (SEC) rejected language in severance agreements requiring employees to waive rights to receive additional monetary recovery, particularly awards for providing information to government enforcement agencies, reports Ogletree, Deakins, Nash, Smoak & Stewart.

“The Commission’s actions underscore its continuing scrutiny of any provisions that might impede the flow of information to the government, even where there is no evidence of any such effect. They also drive home that employers must continue to stay abreast of legal developments and modify their policies, practices, and agreements promptly.” write the authors, Margaret H. Campbell and Karen L. Vossler.

The advise employers to review and revise policies, practices, and employment agreements, including confidentiality, severance, separation and similar agreements. “In particular regarding recovery-limiting language, employers should consider carefully whether to use it at all, given that an enforceable waiver cuts off additional recovery from the employer,” they write.

Read the article.

Freeborn & Peters LLP announced the formation of its Environmental Law & Toxic Torts Practice Group.

Headed by Philip Comella, the group focuses on emerging – and long-standing – issues in environmental law and toxic torts, with concentrations in the areas of waste disposal and treatment, recycling, PCBs, enforcement and defense, and environmental clean-ups, the firm said in a release. Comella, who began his career working in-house for a major waste-management company and then spent 22 years at a large law firm, recently joined the firm in May as a partner.

The firm’s release continues:

“As more awareness is brought to the impact that industry has on the environment, we are seeing increased litigation and regulatory scrutiny in this area,” said Michael A. Moynihan, Co-Managing Partner. “We believe our clients will benefit greatly from the depth of experience of this new group, including the vast knowledge that Phil Comella brings to the firm.”

Freeborn’s Environmental Law & Toxic Torts Practice Group consists of a diverse group of environmental law practitioners whose skills range from the traditional areas – such as Superfund, hazardous and solid waste, PCBs, and Brownfields – to emerging areas – such as naturally occurring radioactive materials, landfill gas, vapor intrusion and electronic waste. The attorneys also possess hard-to-find experience in the zoning and permitting of waste disposal and treatment facilities, the nuances of landfill gas projects, PCB clean-ups, and the intricacies of the Resource Conservation and Recovery Act.

“I am pleased to call the talented attorneys at Freeborn my colleagues,” Mr. Comella said. “Our team strives to approach environmental matters as business issues to be resolved as opposed to ends in themselves. We believe that taking a real-world, practical approach to solving environmental problems is the best way to serve the interests of our clients.”

Other attorneys who serve as members of the new Environmental Law & Toxic Torts Practice Group include, Robert M. Baratta Jr., Gerald P. Callaghan, Ryan G. Rudich, Randall G. Vickery and Ann M. Zwick.

Wilson Elser announced this week that its Albany office, formerly known for its lobbying/government relations practice, will refocus its business on the firm’s core services – commercial and civil litigation and corporate transactions – and will launch a government affairs advisory services practice.

Newly appointed regional managing partner Peter Lauricella, an Albany-based attorney for 20 years, who has been with Wilson Elser since 2005, will lead the office.

“Albany has always been a full-service office, but the stature of our former lobbying practice and the fact that we are located in the New York State capital often overshadowed our other practice areas,” said Lauricella. “With a deeper focus on litigation and corporate transactions, our practices are more closely aligned with the firm’s core services offered by our other 29 U.S. offices. By adding an advisory practice, we expand our capabilities and are able to advise clients in a way we couldn’t until now.”

The firm’s release continues:

Wilson Elser attorneys in Albany represent clients in high-stakes lawsuits and commercial transactional matters related to a variety of practice areas including:

• Complex commercial litigation, with an emphasis on contracts, noncompete agreements, trade secrets, unfair competition, corporate dissolution, shareholder derivative actions, intellectual property, construction, real estate, creditors’ rights and employment matters
• Professional liability matters, involving the defense of accountants, engineers, architects, directors, officers, attorneys, and financial and insurance brokers
• Premises liability, toxic tort and Labor Law actions.

For the newly formed advisory practice, attorneys in Albany, White Plains and the New York City offices will leverage their collective experience and reputations in government affairs and municipal law to help clients pursue their interests on legislative and regulatory fronts. They also will continue to represent clients before New York’s municipal and state agencies and legislative bodies providing regulatory and lobbying compliance advice, and represent clients in government investigations brought by the office of the New York State Attorney General and other state and federal agencies.

“Our experience in the government affairs and municipal law sectors has provided us with a deep understanding of the legislative and regulatory process that we can now parlay into a government affairs advisory services practice,” explained Lauricella.  “We see potential for new growth opportunities because for the first time in more than 20 years, we can work with numerous lobbying firms and serve clients in a consulting role that advances our offerings beyond our core legal business. This was a key factor in our decision not to reinstitute a traditional lobbying team at this time.”

“There is no one better suited to lead the office into its next chapter,” said Daniel J. McMahon, Wilson Elser’s chairman. “Peter is well respected by his colleagues in Albany and across the firm, and is highly regarded by his clients and the general business community.”

Lauricella joined the firm and founded its Commercial Litigation and Government Investigations practices in 2005; in 2014 he was selected to lead all facets of the Litigation practice. Although based in Albany, Lauricella represents clients across New York state and in federal district courts outside of the state.

A native of Upstate New York, Lauricella has practiced in Albany since graduating cum laude from Albany Law School with his J.D. degree. He also holds a B.A. degree magna cum laude from the University of Albany.

In 2000, Lauricella was selected to participate in the Albany-Colonie Chamber of Commerce “Capital Leadership” program (now named the Tech Valley Leadership program) and received the 2016 Capital District YMCA President’s Award for his board participation and decade-long service to the organization.  In 2010, he was honored by The Business Review as a “40 Under 40” rising business leader and has been selected for inclusion in the Upstate New York edition of Super Lawyers in the Business Litigation category the past four years.