There has been a lot of discussion about how new technologies such as online negotiation and contract management software are changing the process of getting deals done – either from a legal, sales or procurement perspective, ContractRoom says on a post on its website. Most of this has focused on how it’s accelerating the process and making it more streamlined.

But how will new technology transform future negotiations in situations where companies do not want to move more quickly and for various reasons want to use various different negotiation techniques?

Some companies prefer to take a manual approach because they perceive this provides them with a strategic advantage – by “slow-rolling” the process they believe it makes it more likely they will secure a better deal.

ContractRoom had a discussion with Stanford Law School Professor David Johnson, an expert in negotiation practice, theory and training (https://law.stanford.edu/directory/david-johnson/), and asked him for his thoughts on how technology is changing the negotiation space. He was of the view that contract management software “is changing the way negotiation is done because policy can be more uniformly implemented across contract admins or your point person.”

Read the article.

Gardere Wynne Sewell LLP  has announced that 17 of the firm’s attorneys have been selected for inclusion on the 2016 Texas Rising Stars list. Each year, no more than 2.5 percent of lawyers in the state are honored with this distinction.

“These 17 lawyers represent the many ‘rising stars’ at Gardere,” says Gardere Chair Holland N. O’Neil. “To earn recognition on the official Texas Rising Stars list reflects the exceptional work these lawyers provide for our clients and our Firm, and we congratulate them on this well-earned honor.”

The Gardere attorneys named to the 2016 Texas Rising Stars list and the practice areas for which they are being recognized are:

Dallas:

• Michael S. Haynes, Business: Bankruptcy
• Rick Jordan, Mergers & Acquisitions
• Rachel Kingrey, Business Litigation
• Kimberly P. Mabel, Insurance Coverage
• Virgil Ochoa, International
• Aimee Cook Oleson, Business Litigation
• James C. (Jim) Scott, Business Litigation
• Sarah A. Walters, Franchise/Dealership
• Taylor E. White, Employment & Labor

Houston:

• Katharine D. (Kate) David, Eminent Domain
• Scott D. Ellis, Business Litigation
• Mary Elizondo Frazier, Business Litigation
• Jessica Glatzer Mason, Employment & Labor
• Audrey Momanaee, Business Litigation
• Alfredo Ramos, Energy & Natural Resources
• Mike Seely, Business Litigation
• Rhonda Reed Weiner, Business Litigation

In a release, the firm said Rising Stars recognizes top up-and-coming attorneys who are 40 years of age or younger, or have been in practice for 10 years or less. The annual selections are made by the research team at Super Lawyers, a Thomson Reuters business, using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys, the firm said.

The complete 2016 Texas Rising Stars list will appear in the April 2016 issues of Texas Monthly and Texas Super Lawyers Rising Stars magazine.

Gardere Wynne Sewell LLP, an Am Law 200 firm founded in 1909, has offices in Austin, Dallas, Houston, Denver and Mexico City.

SpringCM, provider of sales contract management solution for Salesforce customers, has announced opening a new office in San Francisco’s Financial District.

“SpringCM’s next-generation sales contract lifecycle management (CLM) platform streamlines sales contract processes to accelerate revenue growth, reduce costs and increase efficiency by bridging the gap between sales and legal toward fulfilling a faster contracts process,” the company said in a release.

The move brings SpringCM closer to the headquarters of some of its key strategic partners, namely Salesforce and DocuSign.

“San Francisco is an ideal location for us to get closer to our customers and partners,” said Greg Buchholz, CEO of SpringCM. “We’ve grown our West Coast accounts by 45 percent, translating to 50 percent growth in annual recurring revenue, so the new office is a milestone in the next stage of our development.”

The company said SpringCM grew its Salesforce contract management customers by 400 percent in Q4 2015, driven by five CLM product releases in 2015.

Photo by Rubenstein

Though many have dismissed the prospect of a Michael Bloomberg run for president as a third-party candidate as pure fantasy due to the challenging electoral math, a source close to Bloomberg says their research shows he would have a good chance in a Trump versus Sanders race, reports New York magazine.

The sources say the former NYC mayor could easily pass the 270 electoral vote mark by winning in New York, New Jersey, Connecticut, Pennsylvania, Ohio, Illinois, Florida, Maryland, California, Georgia, Virginia, North Carolina and Texas.

“And yet … Hillary Clinton’s post–New Hampshire recovery and crushing Super Tuesday victory has tempered Bloomberg’s lust for the highest office in the land. He’s told friends he does not want to challenge Clinton directly. ‘He doesn’t want to be Ralph Nader,’ a close friend says. Bloomberg and Clinton have maintained a respectful relationship over the years. In fact, in 2012, Bloomberg lobbied her to run for mayor as his successor. At the very least, he is comforted by the fact that the Democratic nominee likely won’t be an avowed socialist,” the story says.

Read the article.

The rise of local bans on hydraulic fracturing, or “fracking,” by local governments has sparked a recent backlash in carbon-producing states, writes Kristen Van de Biezenbos of Texas Tech University School of Law in an article posted on the Social Science Research Network.

“In 2015, Texas, Oklahoma, and North Carolina passed laws that forbid any city, town, or other municipal body from banning fracking or passing certain regulations on the practice, by popular vote or otherwise. Other states are likely to follow suit,” she writes.

In an abstract, she says her article is the first to propose that cities and towns in those states could incorporate and enforce existing state environmental laws. “By doing so, those municipalities may be able to ensure compliance with those environmental regulations by oil and gas companies and minimize some of the environmental harms associated with fracking, even when they cannot enact outright bans on the practice. Further, this Article explains why the incorporation and enforcement of state environmental laws by cities and towns — and particularly cities and towns in states that have taken away local power to enact fracking bans — should not be expressly or impliedly preempted by those laws. Indeed, taking this approach would also further important policy goals inherent in federalism and help restore voter confidence in the democratic process.”

Read the article.

While most corporate counsels are still trying to figure out what the Cybersecurity Act of 2015 (CSA) does for them, Rob Knake, a Senior Fellow for Cyber Policy at the Council on Foreign Relations, discusses five ways the U.S. Congress can make the law better during 2016.

He  wrote the article for Defense One.

In the article, he provides details on his five suggestions: Antitrust may have gone too far (or not far enough), whether Internet Service Providers are “information systems,” benefits of letting the Department of Defense establish information sharing programs with defense companies, classified sharing requires a classified network, and It may undermine sharing.

Read the article.

The statute of limitations on an unsuccessful job applicant’s Fair Credit Reporting Act claim began to run when he discovered that his credit report had been pulled, not when he learned that the employer’s action was an FCRA violation, according to the U.S. Court of Appeals for the Sixth Circuit.

Richard A. Roth wrote in Wolters Kluwer‘s Law & Business website that the general rule is that a statute of limitations begins to run when the facts giving rise to a claim are discovered, and the FCRA adheres to that general rule. The case is Rocheleau v. Elder Living Construction, LLC, Feb. 18, 2016, Siler, E.

“The job applicant asserted that the two-year limit began to run not when he discovered that the background report had been ordered but rather when he discovered that doing so was an FCRA violation,” Roth explained. But the appellate court disagreed.

Read the article.

Businesspeople spend a lot of time and take a lot of pride negotiating deals, points out lawyer and author Jack Garson in the Huffington Post.

“They high-five when they get key points. But understand what it takes to win if there is a fight later. You only win a ‘feel-good’ battle in the negotiation. You win the real war in the contract. That’s where the killer contract clauses rule,” he writes.

He provides examples of contract language  that can make a contract much more favorable. “Contracts and the law are not about common sense. They’re about rules. Know them and win. Ignore them and forget about retiring on time.”

Read the article.

Seven Beck Redden attorneys have been named as 2016 Texas Rising Stars by Thomson Reuters Super Lawyers.

The Super Lawyers list recognizes no more than five percent of attorneys in each state and the Texas Rising Stars list recognizes no more than 2.5 percent of Texas attorneys. Selections are determined through peer nominations and research. To be eligible, attorneys must have been in practice for fewer than 10 years or be 40 years of age or younger.

The complete list of Beck Redden 2016 Rising Stars:

Austin

• Chris Cowan – Business Litigation

 Houston

• Patrice Childress – Civil Litigation: Defense
• Chad Flores – Appellate
• William Peterson – Appellate
• Bryon Rice – Business Litigation
• Alex Roberts – General Litigation
• Andrea Whitley – General Litigation

Photo by Gage Skidmore

The revelation that the Justice Department has granted immunity to a former State Department staff member who worked on Hillary Clinton’s private email server is a likely indication that the investigation is nearing a conclusion, reports The Washington Post, but should not be read as a sign that the leading Democratic presidential candidate is going to face criminal charges, legal experts said.

“That Bryan Pagliano — a 2008 presidential campaign worker who set up the server in Clinton’s home — will avoid charges as he cooperates with FBI agents is a significant, if incremental, development, according to former federal prosecutors and white-collar defense lawyers who have been following the case,” the report says.

The granting of immunity to Pagliano “could be an indication that agents and prosecutors are winding down an inquiry that will not result in charges, said Justin Shur, a former deputy chief of the Justice Department’s Public Integrity Section who now works in private practice at the MoloLamken firm,” the Post report continues.

Read the story.

New York Attorney General Eric Schneiderman said that evidence of the fraud perpetrated by Trump University is “pretty straightforward,” reports CNN Money.

“It [was] a bait and switch scheme,” he said on CNN’s New Day Friday, defending his and other lawsuits against the school. “He did ads saying my hand-picked instructors will teach you my personal secrets. You just copy what I did and get rich.”

While Schneiderman said it’s clear that Trump was not involved in hiring instructors or creating the program’s curriculum, “If you tell people we’re going to teach you Donald Trump’s secrets, and he never had any part in writing the curriculum, that’s fraud,” Schneiderman said.

In the CNN interview, Schneiderman said thousands of students paid millions of dollars to the school, which closed in 2010. While the attorney general’s suit is a civil suit rather than a criminal action, Trump could face millions in fines, Schneiderman said.

Read the story.

Two high-profile Texas attorneys were sued by a fishing boat captain who said they were involved in a scam to cheat BP Plc out of millions of dollars with false compensation claims for the Gulf of Mexico oil spill, reports Bloomberg.

Houston lawyer Tammy Tran said in a complaint Thursday that thousands of Vietnamese-American fishermen and women had their identities faked or stolen in the fraud, bankrolled by lawyers Bob Hilliard and John Cracken. Plaintiffs blame the lawyers in part for obstructing their efforts to pursue their own claims for payments under BP’s restitution program, the report says.

“Tran is seeking more than $100 million in punitive damages from Hilliard and Cracken to compensate the immigrants,” according to Bloomberg. “Many of them claim to have suffered mental anguish from “nightmarish memories” of Vietnam’s communist regime, revived by federal agents knocking on doors to investigate the identity thefts. Compensation is also sought for homes and businesses lost while waiting for BP to pay under its seafood accord.”

Hilliard denied the allegations.

Read the story.

Checkpoint Systems, Inc., a leading global supplier of merchandise availability solutions for the retail industry, has announced that it has entered into a definitive agreement to be acquired by an affiliate of CCL Industries Inc., a world leader in specialty label and packaging solutions for global corporations, small business and consumers, for $10.15 per share in cash, for a total transaction value of approximately $443 million. The transaction is subject to specified closing conditions, including approval by a majority of Checkpoint’s shareholders.

Latham & Watkins LLP represents Checkpoint in the transaction with a corporate deal team led by partners Charles Ruck and Thomas Malone in New York, partner Joel Trotter in Washington, D.C. and associate Michael Young in Orange County, with associates Jeffrey Holgate, Amro Suboh, Brett Urig, Michael Daniels, Kristen Juhan, Philip Houten and Wesley Horton in Orange County and Jessica Munitz in Washington, D.C. Advice was also provided on antitrust matters by partners Michael Egge and Jason Cruise and counsel Farrell Malone with associate Brady Cummins in Washington, D.C.; on benefits and compensation matters by partner Adam Kestenbaum with associate Marysia Mullen in Washington, D.C.; on intellectual property matters by counsel Kieran Dickinson in Washington, D.C.; on tax matters by partner David Raab with associates Matthew Dewitz and Aaron Bernstein in New York; and on environmental matters by partner Christopher Norton in Orange County.

A Checkpoint release describes the deal:

Checkpoint’s board of directors has unanimously approved the merger agreement and recommends that its shareholders vote to approve the merger agreement. Checkpoint expects to hold a special meeting of its shareholders to consider and act upon the proposed merger as promptly as practicable. Details regarding the record date for, and the date, time and place of, the special meeting will be announced when finalized.

“This transaction represents a highly attractive premium for Checkpoint’s shareholders,” said Checkpoint Systems President and Chief Executive Officer, George Babich. “CCL is a recognized global leader in labeling and packaging. Checkpoint, as a division of CCL upon closing, will be able to invest in and grow Checkpoint’s industry leading hardware, software and consumables to create a unique offering, the future of inventory management for brand owners and leading retailers worldwide,” said Mr. Babich.

In connection with this transaction, Morgan Stanley & Co. LLC is serving as financial advisor and Latham & Watkins LLP and Stradley Ronon Stevens & Young, LLP are serving as legal counsel to Checkpoint.

Checkpoint will file with the Securities and Exchange Commission a report on Form 8-K regarding the transaction, which will include the merger agreement.

The family law boutique Orsinger, Nelson, Downing & Anderson, LLP, has promoted Paula A. Bennett to partner in the firm’s Dallas office.

“Paula is among the most dedicated attorneys I have ever had the honor to work with,” says firm partner Keith Nelson. “We are very proud of her commitment and hard work on behalf of her clients, confirming her role among the leaders of this firm.”

In a release, the firm says Bennett represents clients in a wide range of family law matters, including divorce and complex property issues with a particular focus on matters that affect the welfare of children. Her work includes dealing with parental custody disputes, the termination of parental rights, custody modification, custody relocation and child support matters.

“I came to law as a second career and could not have asked for a better group of attorneys to work with,” says Bennett, who worked in pharmaceutical sales before attending law school. “There is a wonderful camaraderie that fosters a collaborative atmosphere benefitting not only the attorneys, but ultimately our clients as well.”

A 2008 graduate of Texas Wesleyan University School of Law (now known as Texas A&M University School of Law), Bennett developed an interest in family law while working with victims of domestic abuse at the school’s law clinic. She is a 1991 graduate of North Adams State College in North Adams, Massachusetts. Board Certified in Family Law by the Texas Board of Legal Specialization, Ms. Bennett is a member of the Texas Academy of Family Law Specialists.

With 16 lawyers and offices in Dallas, San Antonio and Frisco, Texas, Orsinger, Nelson, Downing & Anderson, LLP, is one of the largest firms in Texas focused solely on trials and appeals in family law cases, the firm says in a release. Four partners are Top 100 Texas Super Lawyers. Every firm partner is a member of the Texas Academy of Family Law Specialists and all are Board Certified in Family Law by the Texas Board of Legal Specialization. Mr. Orsinger holds additional board certification in Civil Appellate Law.

Quarles & Brady has added Shen Wang and Hao Tan to the Intellectual Property Practice Group in the firm’s Chicago office.

In a release, the firm says Wang focuses his practice on preparing and prosecuting patent applications in the U.S. and abroad. He has experience in computer software, network, and printer control technologies. He also has experience litigating patent and International Trade Commission (ITC) Section 337 cases, as well as with client counseling, including patent analysis and opinion.

Hao works with clients in Asia and U.S. to obtain IP protections all over the world. Hao has drafted freedom-to-operate, non-infringement, patentability, and invalidity opinions. In addition to his prosecution work, he provides advice to prospective and existing clients about patent strategies in the U.S. and China. He has handled patent appeals before the U.S. Patent & Trademark Office.

Wang received his law degree from Washington University School of Law, his M.B.A. from Washington University Olin Business School, his master’s degree from Old Dominion University, and his bachelor’s degree from Beijing Normal University.

Hao received his law degree from Chicago Kent College of Law at the Illinois Institute of Technology, his Ph.D. from the University of Virginia, and his master’s and bachelor’s degree from Shanghai Jiaotong University.

WB Mills, PLLC, has added Rob S. Ghio as Of Counsel, to the Dallas-based IP law firm.

With his addition to the firm, WB Mills expands its trademark, copyright and business litigation practice to include employment and immigration law.

In a release, the firm said Ghio has 23 years of experience representing businesses and employees with matters involving discrimination, trade secrets, noncompetition agreements, severance agreements, unfair labor practices, wage and hour claims, and immigration. He also counsels employers on employment and immigration compliance issues and with day-to-day advice on hiring, discipline, management and termination of employees, as well as provides in-house training on matters such as litigation avoidance and management practices.

Ghio has represented multinational corporations, Fortune 500 companies and high-ranking executives. He previously practiced at large national law firms in Dallas and was a partner and head of the labor and employment practice at the Dallas office of one national firm.

“We are very pleased to add Rob as Of Counsel for our firm. We often receive requests from our clients for help with complex employment-related matters and by adding Rob, we are better able to address this need,” said Wendy B. Mills, Attorney and Manager of WB Mills, PLLC. “Rob is known not only for his prowess in the courtroom, but also for providing each client, whether it is a small sole proprietorship or a larger corporation, with personal attention to the client’s concerns.  This approach matches the approach that WB Mills, PLLC fosters and as such, Rob will be an extraordinary asset in further serving our clients.”

A 1993 graduate of Stanford Law School, where Ghio served as Editor of the Stanford Law Review and Articles Editor for the Stanford Law and Policy Review. He is a frequent speaker and writer on immigration and employment topics and has published work in the National Law Journal, Texas Lawyer and the Dallas Business Journal. Ghio received his bachelor’s degree in History at California State University, Stanislaus, where he graduated summa cum laude.

By Stephen Pinson
Scott & Scott, LLP

Limitation of Liability ranks as one of the most important contract provisions in a software contract. The limitation of liability limits each party’s liability for all sorts of harm. A software provider’s liability is usually limited to the amount of fees paid to the vendor or a fraction thereof. The risk in not negotiating these terms is that the licensee is capped at the amount of damages. A “cap” is the aggregate upper limit for direct damages associated with a party’s liability. The cap on liability can be a specific dollar amount, but in many contracts the “cap” is tied to the amounts paid for the products or services purchased. This cap may not equate to the actual amount of harm of the licensee. Therefore, successfully negotiating a limitation of liability becomes the key point in finalizing the contract. But, what exactly are the pitfalls when negotiating a limitation of liability, and how do you successfully navigate them?

One of the major pitfalls in negotiating a limitation of liability is contained in the structure of the contract provision. Many contracts include boilerplate limitation of liability language. Thus, contract negotiators must develop a systematic way to review the language and then develop a strategy to address the liability concerns for their side of the deal. To do this, the parties must first understand the risks involved with a particular deal and negotiate for the specific risk type.

The best way to put this into action is to review the boilerplate language and put the language into more concrete roadmap to negotiate the contract by asking the following questions: (1) what damage provisions are typically included in the limitation of liability, (2) what damages will be capped, (3) what claims will be carved-out of the contract (or excluded from the limitation of liability) that will not have a cap, and (4) what type of insurance should be negotiated.

Included and Excluded Provisions:

The following is a list of commonly included “boilerplate” exclusion of damages language in a limitation of liability section of a contract:

* Incidental damages
*Special damages
*Consequential damages
*Exemplary Damages
*Punitive Damages
*Loss of use, data, profits, business, goodwill, or opportunity costs
*Computer failure or malfunction
*Costs, expenses or other losses

Capped & Uncapped Damages:

The following is a brief list of common limitation of liability damages, and whether they are capped, uncapped, or subject to insurance from the perspective of the software publisher.

*Negligence – Capped
*Personal injury – Not Capped
*Physical property damage – Insurance coverage
*Lost Data subject to failure of adequately having an onsite backup solution – Capped
*Lost profits – Capped
*Lost revenue – Capped
*Consequential damages – Capped
*Infringement of intellectual property – Not capped because they are considered direct damages
*Gross Negligence, willful misconduct, and fraud – Not Capped

Carve-outs:

For those damages that are considered capped to the amount of products of services offered, a successful negotiator will seek to carve these provisions out of the contract by making exceptions to the limitation of liability, making them subject to insurance for different claims scenarios:

*Breach of obligations to comply with laws
*Breach of the parties confidentiality or confidential information / materials
*Breach of data security or privacy obligations
*Indemnification obligations
*Intellectual property infringement
*Gross negligence, willful misconduct, and fraud
*Violations of certain terms to the agreement or payment schedules
*Claims subject to insurance
*Claims for death or personal injury
*Any other forms of liability which by law cannot be limited or excluded

Insurance:

The following is a brief list of insurance provisions that could be negotiated in a software or services contract in excess of the cap for the different types of claims scenarios. Individual and aggregate limits must be negotiated for the types of risks involved:

*Automobile Liability
*General Commercial Liability
*Umbrella Liability Insurance
*Workers’ Compensation
*Employer’s Liability Limits
*Network Security and Privacy Liability
*Professional Liability Insurance, Errors and Omissions, including Cyber Liability
*Data Breach, Data Loss, Regulatory Response
*Evidence of Insurance Policies

Remember, it is always important to seek advice from experienced counsel when negotiating a limitation of liability provision in software and service contracts to make sure the risks are adequately assessed and your interests are protected.

TMF Group has made available for free download the new Benchmark Complexity Index 2015 – a global study of corporate governance.

TMF Group’s report ranks jurisdictions according to their complexity from a corporate secretarial perspective, and is based on results from a survey conducted across TMF Group offices. In addition, it summarizes and comments upon regional differences, providing insight into the factors which influence complexity in corporate secretarial compliance around the world.

The company says the report covers:

• The relative complexity of maintaining compliance around the world.
• What’s driving the changes in different jurisdictions.
• The value of local knowledge and expertise in understanding the nuances of a market complexity.

Download the report.

An article published on the Pepper Hamilton website considers the instance of an appeal of an arbitration award that involved the successful appeal by All-Pro Quarterback Tom Brady and the NFL Players Association of Brady’s four-game suspension based on accusations of complicity in a scheme to gain an unfair competitive advantage in an NFL playoff game.

Richard W. Foltz, Jr. and James M. Kwartnik, Jr. discuss whether members of the construction industry contemplating review of arbitration awards can draw any lessons from the Brady matter.

Based on the discussion of the case, “there are a few takeaways from this case for construction matters,” the write. “Most importantly, a party should not rely on the opinion as establishing expectations for review of arbitration awards.  It appears to be the zenith of aggressive appellate review, and unlikely to be closely followed in situations where it could be factually distinguished.”

Read the article.

Smart contracts today may be similar to e-commerce in the 1990s – poised for widespread adoption and explosive growth even though it may still be a few years off, writes Oliver Herzfeld, chief legal officer of  Beanstalk, in an article published on Forbes.com. So, to avoid surprises or missed opportunities, it may be worthwhile to start now to consider and explore the possible applications of smart contracts to your industry and business.

“Essentially, a smart contract is software that executes commercial transactions and/or enforces legal agreements in a manner that eliminates the need for intermediaries and their associated transaction costs,” he explains.

Herzfeld adds that this system could have “a huge disruptive effect on (i) car manufacturers, since use optimization would presumably reduce sales; (ii) insurance companies, that would sell fewer car policies; (iii) financial institutions, that would underwrite fewer car loans; and (iv) taxi and ride hail companies, parking facilities and other businesses, that would all be displaced by this process. The resulting commercial and social disruption could be huge.”

Read the article.