While Statements of Work (SOWs) have been, and will continue to be a major part of the professional services framework, they can sometimes be a major barrier to properly scoping, estimating, completing, or even performing the work correctly, reports ContractRoom.

“Even the most liberally written SOWs contain limiting parameters such as budgeting and task descriptions, which often send these documents into an awkward Change Request process which may or may not happen favorably,” the article says.

The article lists the top four scenarios where businesses can benefit using automated (negotiation and) contract management software, especially in the statement of work process (automating statements of work).

Read the article.

The Texas-based trial and appellate law firm GODWIN PC has named Houston appellate attorney and firm President R. Alan York as Managing Shareholder and Chief Operating Officer, effective January 6, 2016.

“Alan’s appointment as Managing Shareholder is another indicator of the importance of our Houston office to the Firm,” says GODWIN PC Chairman and Chief Executive Officer Donald E. Godwin. “As President, Alan has bolstered the Firm’s reputation for strong leadership, and, as Managing Shareholder, his leadership skills will benefit GODWIN PC even further.”

York succeeds Godwin as Managing Shareholder. Godwin will continue in his roles as Chairman and CEO.

Rounding out the firm’s Executive Committee, Bruce W. Bowman Jr. will continue in his dual role as Executive Vice President and General Counsel, while Jenny L. Martinez will maintain her position as Executive Vice President and Secretary/Treasurer.

In addition to his roles as Managing Shareholder, President and COO, York will continue to serve as Chair of the GODWIN PC Appellate Practice Section. Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization, York provides trial support and error preservation, as well as appellate briefing and argument, on significant civil cases.

York has earned selection to The Best Lawyers in America for the past two years. He also has been honored as one of Houston’s Top 100 lawyers three different times on the annual Texas Super Lawyers list published by Thomson Reuters’ legal division, where he has been listed since 2003. York has also been recognized seven times among Texas Magazine‘s Top Lawyers in Houston, in addition to similar recent honors from Houstonia magazine. He is AV Preeminent rated by Martindale-Hubbell, the highest ranking for ethics and legal ability. York also serves as a trustee for the Houston Grand Opera and serves on the National Leadership Council of Lambda Legal.

According to a release, GODWIN PC, founded in 1980, is a mid-sized trial and appellate firm with a national practice. With offices in Dallas and Houston, GODWIN PC represents Fortune 500 and middle-market industry leaders in Mission Critical Litigation® throughout the United States. The firm is known for handling some of the biggest business litigation cases in Texas and elsewhere, including its successful representation of Halliburton in the landmark environmental litigation stemming from the 2010 Deepwater Horizon oil spill, the release says.

Christopher Barnett
Scott & Scott

There are many good reasons that businesses often cite in seeking to transition their IT operations to a vendor-delivered Cloud environment.

It’s scalable.

It’s more reliable and secure than what the business may be able to deliver for itself.

It’s (often) cheaper than keeping the environment in-house.

Then there’s this one:

“All I have to do is pay a monthly fee, so no stressing over software-licensing rules.”

Not quite.

In many cases, it is true that, where the vendor is providing licensing for software products to be used in the company’s Cloud, the licensing requirements that are directly applicable to the company may be significantly reduced. Often, the only requirements that remain are things like: “don’t copy or reverse-engineer the hosted software,” or “don’t provide third parties with access to the hosted software.” Pretty easy.

However, even though some of the more technical requirements may no longer be the company’s contractual obligation, the vendor’s failure to adhere to them can cause trouble.

For example, a Cloud vendor may propose offering hosted virtual desktops-as-a-service (DaaS) running the Microsoft Windows operating system. Unfortunately, Microsoft currently offers only two options for DaaS service providers:

1. DaaS through the Microsoft Services Provider License Agreement (SPLA) via the Microsoft Windows Server Operating System, or

2. DaaS through Dedicated Outsourcing using your customer’s Microsoft Volume Licensing agreement.

Option 1 is incompatible with the proposed services, because it entails use of desktop “experience” functionality included in the Windows Server operating system, not the Windows operating system itself. That leaves Option 2. However…

Option 2 also usually is problematic, because “Dedicated Outsourcing” in Microsoft-speak means that the physical server infrastructure used to deliver the DaaS services must be dedicated exclusively to the company receiving those services and must not be used by any other customers of the DaaS vendor. Spinning up one or more new, physical servers for each customer often is something that many DaaS providers simply cannot afford to do.

Of course, if the vendor messes up in licensing its hosting environment, that is primarily going to be the vendor’s problem. When Microsoft discovers the compliance problem, then it likely will look to the vendor to remedy the problem, not to the recipients of the vendor’s services. However, our experience is that SPLA audit exposure in particular can be very significant and occasionally even financially crippling. If a vendor builds a service model around a misunderstanding of fundamental licensing concepts, then the remedy sought by Microsoft following an audit could jeopardize the vendor’s business operations. The result could be a discontinuation of the DaaS services, a need to transition to another provider within a short window, and, potentially, unexpected and permanent service interruption.

Businesses therefore need to develop and to maintain a working knowledge of software-licensing rules, even if they are not going to be directly responsible for adhering to those rules within the context of a hosted-service relationship. Contract language related to warranties, indemnification and limitation of liability may help to mitigate some of the risk associated with inadequately licensed hosting environments, but a better bet would be to go into a vendor relationship knowing that the services to be delivered do not, on their face, violate applicable licensing policies.

Lex Machina has published an article highlighting IP trends and data from 2015, including the fact that the distribution of patent cases among district courts remains highly uneven, with the Eastern District of Texas receiving 2,540 cases comprising 43.6 percent of all cases filed in 2015.

Patent litigation in U.S. district courts grew in 2015, with 5,830 patent cases filed, a 15.0 percent rise from 2014 (5,070 cases). Except for 2013, which remains the high-water year for patent litigation (6,114 cases), 2015 surpassed all other previous years.

The report, written by Brian Howard, covers statistics showing filing by quarters for the most-active districts.

Another section of the report covers activity at the Patent Trial and Appeal Board (PTAB), charting petitions by quarter.

The section on trademark litigation reports that fewer trademark cases were filed in 2015 than in any of the previous 10 years, although 2015’s total of 3,449 cases is only 11.6% lower than the median over the same time frame.

Lex Machina’s Copyright Report explains the difference between file sharing cases (those having John Doe or anonymous defendants and accusations based on file sharing technology such as BitTorrent), and other, more traditional cases, detailing the trends.

Read the report.

The Consumer Financial Protection Bureau has proposed prohibiting application of pre-dispute arbitration agreements to class litigation involving certain consumer financial products, according to a report published by Carlton Fields on its website.

“Citing concerns that such agreements ‘effectively prohibit’ class litigation and prevent consumers from obtaining remedies for harm caused by providers of consumer financial products or services, the proposal would apply to most products subject to Bureau oversight,” the report says.

“The Bureau’s proposal would prohibit inclusion of arbitration clauses that block class action claims in contracts with consumers for credit cards, checking and deposit accounts, prepaid cards, money transfer services, certain auto loans, auto title loans, small dollar or payday loans, private student loans, and installment loans.”

Read the report.

Dickinson Wright LLP will present a free webinar highlighting many of the “must do” or “must consider” matters for compliance with franchise disclosure legislation in U.S. The event will be Tuesday, Jan. 19, at 3 p.m. EST.

This webinar will provide basic practical assistance to those preparing, registering and delivering franchise disclosure documents, the firm says on its website. Some of the information is directed to all persons involved in the disclosure process and some of the information is intended for those persons that must make determinations about what disclosures must be made. The emphasis of the webinar will be on common disclosure errors and how to avoid them.

Register for the webinar.

A juror involved in the homicide case that spawned the popular Netflix series “Making a Murderer” says she stands by the verdict, reports the Associated Press.

“The 10-part series raises questions about whether Steven Avery and his nephew Brendan Dassey were wrongly convicted, spurring new scrutiny of the case and prompting armchair sleuths to flood online message boards and flood local officials with requests for case records,” according to the report. “The show includes comments from an excused juror in Avery’s case suggesting his conviction was based on flawed evidence.”

But one of the regular jurors told the AP by phone that she was “comfortable with the verdict we reached. The thing on Netflix was a movie, not a documentary.”

Read the report.

U.S. Sen. Ted Cruz’s foreign birth is raising questions — most notably from Republican rival Donald Trump — about whether Cruz is eligible for the presidency under the Constitution.

“Two prominent lawyers who served as U.S. solicitor general, one under President Obama and the other under President George W. Bush, said the history of the Constitution and the first naturalization law resolved any doubts,” reports The Los Angeles Times.

The report adds that Cruz could expect legal challenges, but those lawsuits probably would gain little traction in the courts.

Read the report.

President Obama’s executive action to expand gun sale background checks has opened up a legal can of worms, specifically the president’s bid to broaden the definition of who’s a dealer — and therefore must get a license and conduct background checks, reports Fox News.

“Under current federal law passed by Congress, only federally licensed dealers must conduct background checks on buyers. The law does not specify whether this applies to online sales and other areas — so those selling or trading guns on websites or in informal settings such as flea markets often don’t register,” the report says.

It adds that questions of interpretation of the executive action may have to be settled by the courts.

Read the report.

In the day-to-day operations of a company, the distinction between owned IP rights and in-licensed IP rights can easily get lost. But what happens if a licensor files for bankruptcy? Will an in-license protect the licensor’s right to continue to use the IP rights? Jason M. Rodriguez and Jessica M. Pelliciotta, associates with Morgan Lewis, discuss those issues in an article published by The National Law Review.

In the article, they lists contract drafting points that can help protect the licensee’s IP rights in the event of a licensor’s bankruptcy.

They also offer a sample provision to use in drafting.

Read the article.

A video posted by TechTarget, featuring Mike Chapple, University of Notre Dame’s senior IT director for service delivery, addresses four areas to consider to maintain cloud data compliance when you migrate workloads and assets to the cloud.

In the video, he discusses:

• The shared responsibility model
• Data locality issues
• The impact on IT security operations
• Documentation from service level agreements to audits

Watch the video.

Writing a comprehensive software contract is challenging, especially when you’re dealing with a large, complex deployment, writes Paul Korzeniowski in a commentary published by InformationWeek.

“Crafting comprehensive requirement documents, monitoring the licensing terms, and being aware of potential gotchas will help ensure a contract works for you, your business, and the vendor with which you’ve chosen to engage. It’s important for you to start the procurement process by outlining the desired features of a software system in a requirements document. Knowing which features are important to your business, and which are not, is vital to the process,” he explains.

The article describes how CIOs need to understand where potential contract potholes lie and steer around them.

Read the article.

An article by Stephen J. Bagge in the Carlton Fields PropertyCasualtyFocus blog describes an Eleventh Circuit’s ruling that provides persuasive language for applying contractual liability exclusions under D&O policies to alleged business torts that are related to or dependent on the existence of contractual liability.

“This is significant, in that plaintiffs are increasingly seeking insurance coverage for contractual disputes,” Bagge writes. “As the court’s opinion demonstrates, D&O policies are not intended to insure contracts entered into by insureds: that is why D&O policies routinely contain contractual liability exclusions.”

The case was Bond Safeguard Ins. Co. v. National Union Fire Ins. Co. of Pittsburgh, Pa., No. 14-15233 (11th Cir. Oct. 5, 2015), in which the plaintiff sought to recover payments it had made under certain surety bonds.

Read the article.

An article published by Norton Rose Fulbright outlines 10 important points of law to consider when leasing or financing aircraft in the United States, ranging from registration to dealing with insolvency.

Alyssa Marie Vazquez, a partner in the firm’s New York office, prepared the list.

Other topics include owners trusts, security perfection, New York choice of law, enforcement of foreign judgments, aircraft requisition, the law governing security over aircraft, deregistration of aircraft, and the use of Irrevocable De-Registration and Export Request Authorization.

Read the article.

Latham & Watkins LLP announces that Jonathan Lippman has joined the firm’s New York office as of counsel in the Litigation & Trial Department.

Lippman retired as Chief Judge of the State of New York and Chief Judge of the New York Court of Appeals last month after a four-decade career, including service in both trial and appellate courts, in the New York State Court system. He will provide strategic counsel to clients, including advice on New York law and appellate matters, investigations and monitorships. Lippman will also continue his efforts to champion access to justice for all, including those most in need, the firm said in a release.

During his tenure on the Court of Appeals, New York’s highest court, Chief Judge Lippman authored major decisions addressing constitutional, statutory and common law issues shaping the law of New York, the contours of state government and the lives of all New Yorkers.  As the state’s Chief Judge, he championed a broad range of novel pro bono efforts and took an active leadership role in identifying permanent funding streams for civil legal services.

Read the announcement.

Samsung has asked a U.S. appeals court to overturn a jury’s $120 million verdict related to Samsung’s alleged infringement of some of Apple’s patents found on iPhones, reports AppleInsider.

“Apple had originally identified eight primary patents it said Samsung had infringed across at least 17 products, but U.S. courts determined that the country’s judicial system didn’t have the resources to consider the volumes of evidence involved in such a massive patent infringement case, and subsequently narrowed Apple’s trial down to a token hearing,” AppleInsider reports.

“While the jury eventually found Samsung had willfully infringed Apple’s patents, it returned nonsensical damage royalties that awarded Apple $52 million related to Samsung’s Galaxy S3 infringement, but zero for the company’s earlier Galaxy SII, a decision that was so inept that presiding Judge Lucy Koh demanded that the jury either determine the product to be non-infringing or supply a reasonable royalty,” the report continues.

Read the article.

A judge has voided the remaining $5 million of a $7.1-million jury award to a former Los Angeles Times sports columnist, ruling that he was not entitled to any damages on his claims that the newspaper discriminated against him because of his age and a disability, the Times reports.

The ruling nullifies the jury’s findings on key issues in a six-week trial, including whether Simers was forced out or quit his job after he was disciplined for not fully disclosing a conflict of interest, as his editors contended.

“On Monday, MacLaughlin ruled that there was insufficient evidence to support Simers’ claim of constructive termination, namely that the newspaper had created or permitted intolerable working conditions,” the Times reports. “Instead, the judge ruled, Simers had quit his $234,000-a-year job of his own accord.”

Read the article.

No challenge is ever too big for a chief compliance officer, but such an attitude comes with a cost, warns Michael Volkov of the Volkov Law Group in his look at trends in compliance and ethics for the new year.

In his article, he discusses the elevation of the CCO in the boardroom, the consolidation of the CCO-CEO relationship, technology leveraging, the Justice Department’s hiring of Hui Chen as a Compliance Counsel, and ethical decision making.

Read the article.

CobbleStone Systems, a provider of contract lifecycle management software, announced it has enhanced Docusign integration for Contract Insight Enterprise Edition. The latest version of Contract Insight Enterprise allows Docusign users to access additional DocuSign functionality within Contract Insight and provides a new interface for managing documents within DocuSign.

“CobbleStone offers industry-leading contract lifecycle management software which allows users to easily electronically sign contracts with multiple tools,” the company said in a release. “Our clients appreciate the ability to manage the full contract lifecycle from request, to approvals and eSignatures all with CobbleStone’s CLM. Our integration partnership with Docusign brings together our top contract software with Docusign’s leading electronic signature features via a seamless connection.”

The release continues:

CobbleStone Systems Corp. is a leader in user-friendly, enterprise contract lifecycle management software solutions. CobbleStone has been a best-of-breed vendor since 1995, provides the benefit of years of experience, is a Federal GSA vendor, is rated by Gartner, Forrester and Dun & Bradstreet, and offers one of the most feature-rich products on the market.

The pursuit of legitimate corporate strategic goals is increasingly running into the concerns of corporate officers who see themselves at greater personal legal risk if there are ever allegations of corporate misconduct, writes Michael W. Peregrine, a partner at the law firm McDermott Will & Emery in an article in The New York Times.

He writes that new enforcement policies from the Justice Department and Securities and Exchange Commission regarding individual culpability of corporate officials contributed to this tendency.

He outlines some that proposals that “should help reduce the anxiety of gatekeepers and other management team members concerning their personal liability exposure. In so doing, these steps may remove unnecessary barriers to the use of corporate strategies.”

Read the article.