While both relatively simple concepts, allowances and contingencies are often confused with one another. Conflating the two can lead to pitfalls, warn Randolph E. Ruff and Jonathan M. Mraunac of Ogletree Deakins.

“An easy way to remind oneself of the difference is: allowances are for known unknowns, and contingencies are for unknown unknowns,” they write.

In their article, they explain the differences between allowances and contingencies, how they are used, and how they can be drafted.

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There are a few things every lawyer is expected to be able to do — but every lawyer should be able to review a contract, writes Gary J. Ross for Above the Law.

The first tip Ross offers is “make sure your client can get out. This is most important.”

Other topics include renewal terms, termination, indemnification, collections expenses, amendments, governing law and jurisdiction, and notification.

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A small trading exchange on Thursday filed an antitrust lawsuit accusing Bank of America Corp., Citigroup Inc., JPMorgan Chase & Co. and nine other banks of conspiring to shut it out of the $9.9 trillion credit default swap market, reports Reuters.

The plaintiff, Tera Group, alleges the banks organized a boycott of its seven-year-old TeraExchange platform by refusing both to send it any CDS transactions, and to clear and settle any CDS trades that customers wanted to handle there, according to reporter Jonathan Stempel. The complaint said the banks used their 95 percent market share to require that trading follow a protocol known as “request for quote,” which Tera described as opaque and inefficient.

“Tera said this enabled banks to boost profit by keeping traders in the dark about prices, defeating a goal of the 2010 Dodd-Frank financial reforms, while instilling a “great fear of retaliation” against traders who defected to rival platforms,” Stempel writes.

Read the Reuters article.

While a primary goal of any well-crafted commercial agreement is durability — terms that work for the life of the agreement—the only certainty in the course of a long-term commercial relationship is the inevitability of change, write Peter M. Watt-Morse and Glen W. Rectenwald for Morgan Lewis.\

“Once a customer has become dependent on a third party for essential goods or services to operate its business, an unforeseen shift in its business requirements or a change to applicable laws can create holdup problems for customers, leading to costly renegotiations of the original agreement,” they explain. “The right change management mechanisms can manage these risks by allocating the responsibility and costs for changes and creating clear and effective procedures for managing and implementing changes to the agreement.”

They discuss the issues of mandatory changes and allocating the costs of changes.

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Bloomberg Law offers a backgrounder on Walt Disney Co.’s ABC News upcoming trial in South Dakota, where the network faces as much as $5.7 billion in potential damages over allegations that it made false and misleading statements about the food additive “pink slime” in a 2012 series of reports.

South Dakota’s Beef Products Inc. claimed the coverage caused sales to plummet, costing the company $1.9 billion and forcing layoffs.

The question-and-answer article covers such issues as What’s pink slime? What is the lawsuit about? What does this do to the industry? and What does this mean for Disney and ABC?

Read the Bloomberg article.

BloombergBusinessweek reports on the story behind the accountant who might end up the best-paid whistleblower of all time, with a potential paycheck of $600 million, while Caterpillar, the 92-year-old pride of American industry, will experience something unfamiliar: public humiliation.

“In a 2011 deposition, a Caterpillar attorney asked [accountant Daniel] Schlicksup if his actions threatened to hurt shareholders. write Bryan Gruley, David Voreacos and Joe Deaux.

“It is absolutely in the shareholders’ best interests to have the most accurate financial statements they can have,” Schlicksup replied. “I don’t think that the shareholders of Enron would think it would have been such a bad deal if somebody would have caught that before it bankrupted the company and they lost everything they had.”

Read the BloombergBusinessweek article.

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Health records software developer eClinicalWorks has agreed to pay a $155 million to the federal government for civil fraud and kickback charges, according to HIT Consultant.

“Both the government and the whistleblower alleged that eClinicalWorks falsely represented to customers that its EHR [electronic health record] system complied with Meaningful Use requirements,” the publication says. “The settlement marks the first time an EHR vendor is being charged for the truthfulness and accuracy of representations made when seeking government certification of its EHR system and the government applying the federal Anti-Kickback Statute (AKS) law to the promotion and sale of EHR systems.”

The whistleblower alleged the company modified its software to pass testing, without being fully functional. The lawsuit listed several allegations against the company, such as kickbacks for recommendations, and failure to test its software adequately before releasing it.

Read the HIT Consultant article.

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The U.S. Supreme Court has handed a victory to consumer groups in a case about printer cartridges — or more specifically, toner cartridges, the kind used by laserjet printers. The case has huge implications for the way we think about technology ownership in America, and your rights as a user, according to The Washington Post.

As IPWatchdog explaines it: The court ruled “that when a patent owner sells a product the sale exhausted patent rights in the item being sold regardless of any restrictions the patentee attempts to impose on the location of the sale. In other words, a sale of a patented product exhausts all rights — both domestic and international.”

The Post‘s Brian Fung explores how the ruling can affect commerce:

The practical question is how much Lexmark or any other company can control what you do with the things you buy. This debate isn’t limited to printer cartridges. If you buy a car, how do you know you really own it? What does ownership actually entitle you to do with your property, anyway?

Read the Washington Post article.

Migrating applications and workloads to a cloud provider has obvious benefits — scalability, flexibility, efficiency, and cost considerations are all driving the dramatic increase in the use of cloud services, write Peter M. Watt-Morse and Glen W. Rectenwald of Morgan Lewis.

In their article on the firm’s Tech & Sourcing blog, they discuss how enterprises that start utilizing proprietary application programming interfaces (APIs) and other vendor-specific development and integration tools can easily become locked into their cloud providers.

“The efficiency and low cost of using cloud services, including form vendor agreements that are provided with such services, can lead to vendor lock-in, making it difficult and expensive to migrate applications in-house or to a new provider,” they write.

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Loans secured by stock are an important and popular product offered by many lenders to individuals and other borrowers, according to a post on the website of Loeb & Loeb LLP.

“The ability of a lender to sell the stock held as collateral is very much dependent on the documentation governing the loan. When and to what extent a lender may realize upon (or liquidate) the stock to repay the indebtedness under the loan should be carefully and clearly set forth in the loan documents,” write Bryan G. Petkanics and Anthony Pirraglia. “A recent federal court case analyzed the ability of a lender to act upon stock pledged to secure a loan, and provides insight into valuable language to be included in the loan documentation.”

They discuss Kinzel v. Merrill Lynch, in which the Sixth Circuit affirmed the judgment of the district court in favor of Merrill Lynch, finding that the financial services company breached neither the contract nor its duty of good faith under the terms of the loan management account agreement.

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Fox Rothschild’s Labor and Employment and Securities Industry practice groups have updated the firm’s quick reference  on restrictive covenants for in-house counsel and human resource professionals.

“The law in this area not only varies considerably from state to state and changes frequently, but its application is fact-specific,” the firm says in its introduction to the updated guide.

The guide breaks down the use of restrictive covenants for each state. It gives details about each state’s factors on the topics of non-competes, non-solicitation, non-hire/”raiding,” and confidential information.

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Reuters is reporting CVS Health Corp’s Omnicare unit has agreed to pay $23 million to resolve a whistleblower lawsuit alleging that it took kickbacks from a drugmaker to promote two antidepressants, according to settlement papers.

The agreement comes out of a 2007 lawsuit against the pharmacy operator by two former employees of drugmaker Organon USA Inc on behalf of the federal government and various states.

“The lawsuit claimed that from 1999 to 2005, Omnicare and certain pharmacies it acquired sought and received kickbacks from Organon in the form of discounts in exchange for promoting the antidepressants Remeron and Remeron SolTabs,” writes Nate Raymond.

Former Organon employees Richard Templin and James Banigan filed the suit, which reached a related $31 million settlement in 2014.

Read the Reuters article.

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In the sale of family-owned business interests, parties can be bound by term sheets or similar documents, even when such documents expressly contemplate the preparation of further documents to finalize the transaction, explains Michael Connolly, a partner in Murtha Cullina’s litigation department.

Writing in the firm’s Family Business Perspectives blog, Connolly discusses a case in which a court “recently ruled upon a claim by one family member against another to enforce a ‘Settlement Memorandum’ which provided for the purchase and sale of stock in the family business, even though the Memorandum contemplated the drafting of later documents to finalize the transaction.”

“Parties to negotiations involving the sale of family-owned business stock or assets should therefore be cautious in their drafting and conduct in order to ensure that it is clear to all parties what documents are – and are not – intended to create enforceable rights and obligations,” warns Connolly.

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Bloomberg BNA and World Services Group are partnering to deliver business intelligence, drawn from market-leading news and data analysis, tailored for the advisers of international business.

The forum will be at Bloomberg LP’s office at 120 Park Ave., New York 10017, on Tuesday, June 20, 2017. A pre-forum briefing will be 1-3 p.m., and the forum will be 3-5 p.m.

The Cross-Border Deals Forum will explore strategies for handling business and regulatory challenges impacting the industry, including:

• Tax reform, trade agreements, and policy shifts;

• Cross-border risk assessment;

• Expanding privacy and data security requirements; and

• Market and industry opportunities to watch.

Connecting deal-makers with a global group of peers and actionable insights, the Cross-Border Deals Forum covers the market shifts, opportunities and long-term trends executives are watching, and the political and regulatory changes affecting cross-border success.

Request an invitation.

Fortune is reporting that AbbVie’s Humira, the best-selling drug on the planet with a staggering $14 billion in 2016 sales, has lost a key patent battle with a prospective rival product by the small biotech Coherus Biosciences.

Reporter Sy Mukherjee explains that “The rheumatoid arthritis and psoriasis medicine has recently been a target of biopharma companies that are trying to make generic Humira copycats called ‘biosimilars.’ That’s not surprising given both Humira’s market reach and the steep price of the brand name medication — which has a list price of about $4,500 for a set of two syringes before discounts and rebates, making it a prime target for cheaper alternatives.”

Humira sales make up more than 60 percent of AbbVie’s revenues.

Read the Fortune article.

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Arent Fox LLP recently served as outside counsel to the Seattle Seahawks and its affiliate company, First & Goal Inc., in a renewal of the stadium naming rights transaction with CenturyLink, Inc.

The renewal includes naming rights to CenturyLink Field, home to both the NFL’s Seahawks and the MLS’ Sounders, and CenturyLink Field Event Center, brand exposure at the Seahawks owner Paul Allen-founded Museum of Pop Culture, and sponsorship of Seahawks community outreach programs. The extension of the agreement is subject to approval by the Washington State Public Stadium Authority and is expected to run through the 2033 NFL season.

In a release, the firm said Arent Fox Sports leader Richard L. Brand worked on the transaction with Ed Goines, Seahawks General Counsel and Vice President, Government Affairs, and a negotiating team led by Seahawks President Peter McLoughlin. Additional support was provided by Technology Transactions partner William A. Tanenbaum, and Communications, Technology & Mobile associate Adam D. Bowser.

This transaction is the latest in a recent string of NFL-related naming rights agreements led by Richard Brand, including representing the Miami Dolphins in an 18-year stadium naming rights agreement with Hard Rock International for Hard Rock Stadium, Mercedes-Benz in a naming rights and sponsorship transaction with the Atlanta Falcons and Atlanta United FC for Mercedes-Benz Stadium, the San Francisco 49ers in a naming rights and sponsorship transaction with Levi Strauss & Co. for Levi’s Stadium, and Inova Health System in connection with its multiyear training facility and headquarters naming rights and sponsorship transaction with the Washington Redskins for Inova Sports Performance Center at Redskins Park.

In recent years, in addition to NFL-focused transactions, Brand advised Golden 1 Credit Union in a naming rights and sponsorship transaction with the Sacramento Kings for the Golden 1 Center, the Los Angeles Lakers in a naming rights and health provider rights deal with UCLA Health for the UCLA Health Training Center, and Brooklyn Sports & Entertainment in a naming rights agreement for the Nassau Veterans Memorial Coliseum, presented by New York Community Bank.

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A recent decision of the New Jersey Appellate Division considered the enforceability of arbitration agreements by non-signatories, writes Marissa Tillem in Proskauer Rose’s Minding Your Business blog.

She discusses a case in which the plaintiff filed a putative class action complaint against defendant alleging violations of New Jersey’s Truth-In-Consumer Contract, Warranty and Notice Act, as well as the state’s Lemon Law.

The panel determined, among other things, that by signing a lease agreement, plaintiff agreed to arbitrate her dispute not only with the underlying signatories of the lease, but with any of its affiliates. Now the plaintiff will need to decide whether to pursue her claims in arbitration, Tillem explains.

Read the article.

In a merger-and-acquisition transaction, the convention is for the seller to make representations and warranties to the buyer regarding the target business, according to an article posted by Womble Carlyle Sandridge & Rice.

“When the target business is a private company, the acquisition agreement typically provides the buyer with a post-closing right to indemnification if any of the seller’s representations and warranties prove to be untrue,” writes partner Melinda Davis Lux. “The purchase agreement also typically provides that the buyer’s right to indemnification is the buyer’s exclusive remedy for breaches of the seller’s representations and warranties.”

In her article, she discussindemnification time limits, shortening the statute of limitations and its consequences, time extensions, and lengthening the statute of limitations.

Read the article.

A recent presentation at Apttus Accelerate conference in San Francisco discussed how to take control of a company’s quote-to-cash process.

Diginomica reports that some company lawyers explained how they automate contracts to remove manual, paper-based logjams from the process.

Michelle Swan talked with two companies that have recently invested in Contract Lifecycle Management (CLM) — software that automates the process of managing a contract from initiation through execution, compliance and renewal. People from their legal teams told her about the benefits they are seeing from taking control of these defining moments.

Those companies were: Cadence, a company that sells software and hardware that other companies use to design everything from robotics and mobile phones to jets and medical devices, and Silicon Labs, a semiconductor company that makes the silicon, sensors and other software used in various devices.

Read the article.

San Francisco Business Times is reporting that Uber fired two of its lawyers late last year after they sought advice from other law firms, a move Uber reportedly considered a fireable offense.

Reporter Alisha Green follows up on a report from The Information that says the lawyers reached out for input on proposed policy changes at the San Francisco-based ride-hailing giant related to how long internal documents and company data are retained. The firings were “followed by the departure of three other lawyers over the next few months.”

The article continues:

The unrest in Uber’s litigation team was apparently sparked by a proposal from Uber’s general counsel related to “how the company handles corporate documents and other company data,” according to The Information.

“The two lawyers had expressed concerns to some colleagues about the new policy, according to two people briefed about the issue. The specific concerns couldn’t be learned. The lawyers contacted several outside law firms to solicit an opinion about the proposed policy, a move that Uber deemed to be a breach of their responsibilities to the company, these people said.”

Read the SF Business Times article.

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