Bloomberg Law reports that an importer-exporter who says two former partners and their attorneys at McGuireWoods LLP used dirty tricks to strip their joint venture of its assets has accused the law firm of sitting on the records he needs to prove it.

The complaint claims McGuireWoods won’t give Andrew J.C. Kunian any of the legal work it did setting up a deal to export natural gas from Texas to Chile on behalf of two companies he co-owned with Francis Smollon and Colin Williams.

Bloomberg’s Mike Leonard writes: “According to the Delaware complaint, Smollon and Williams ‘orchestrated Kunian’s freeze-out with the full knowledge, cooperation, substantial aid, and assistance of’ McGuireWoods.”

Read the Bloomberg Law article.

The 5th U.S Circuit Court of Appeals has affirmed a 2016 jury verdict and 2017 trial court judgment that ultimately awarded $9.5 million to a Dallas-based health care company, according to a post on the website of Androvett Legal Media & Marketing.

In a majority opinion, the appellate court found that BlueCross BlueShield of Louisiana failed to properly reimburse Encompass Office Solutions for in-office medical procedures, and distributed a defamatory letter to physicians with false information regarding the company and its services. That letter threatened to terminate the network contracts of doctors who continued to work with Encompass.

Subsequent to the opinion in the case, the court has denied a motion for rehearing.

A trial team from Thompson & Knight LLP represented Encompass throughout the district court hearings and before the 5th Circuit.

“This case has a lengthy history spanning several years, and we’re pleased that finally Encompass will be properly compensated for the services it provided and the damages the company has incurred,” said Jennifer Rudenick Ecklund, a trial partner at Thompson & Knight who argued the case before the trial court and 5th Circuit. The judgment remains subject to the awarding of interest and legal fees to Encompass.

Other members of the Thompson & Knight trial team included William L. Banowsky, Andrew C. Cookingham, Greg W. Curry, Richard B. Phillips, Jr. and Reed Randel.

Encompass provides mobile ambulatory surgery services that allow doctors to safely perform surgeries in their offices. Encompass’s business is primarily focused on women’s health, allowing patients to have sensitive gynecological procedures done in the comfort and safety of the doctor’s offices while providing the necessary anesthesia care. This method reduces the infection risks associated with hospitals and ambulatory surgery centers, and provides both doctors and patients with a more efficient and cost-effective means of delivering medically necessary surgical care.

Apple and Qualcomm have dueled on three continents over the division of billions of dollars of smartphone profits and even how much consumers pay for their phones but as a trial on the issue began Tuesday, the two companies said they had essentially made up.

The San Francisco Chronicle reports:

The companies, one the maker of iPhones and the other one of the largest providers of mobile chips, said they had agreed to dismiss all litigation between them worldwide. They added that they had reached a six-year agreement for Cupertino’s Apple to pay royalties on Qualcomm’s patents, which was effective as of April 1.

Read the SF Chronicle article.

The outcome of a three-day class action trial accusing the nutritional supplement marketer ViSalus of violating the Telephone Consumer Protection Act hinged on the testimony of the named plaintiff, reports Reuters.

Jurors heard Lori Wakefield testify about four automated calls from ViSalus on her home phone line, according to Reuters’ Alison Frankel.

Jurors believed Wakefield and found that the calls violated the TCPA, and that the class Wakefield represents had received a grand total of 1.85 million improper robocalls. Their verdict exposes ViSalus to statutory damages of about $925 million, which could be trebled.

Read the Reuters article.

The Washington Post is reporting that a Boeing shareholder has filed a class-action lawsuit accusing the company of covering up safety problems with its 737 Max, the commercial jet at the center of two crashes that killed 346 people.

Shareholder Richard Seeks claims Boeing “effectively put profitability and growth ahead of airplane safety and honesty.” The suit said investors suffered economic losses because of Boeing’s omissions and is seeking damages for alleged securities fraud violations, writes the Post‘s Hamza Shaban.

Seeks said he bought 300 Boeing shares in early March and sold them weeks later at a more than $14,000 loss.

Read the Washington Post article.

Hertz Global Holdings has filed a lawsuit against its former general counsel and some other former managers after they refused to pay back at least $70 million in incentive compensation for their roles in an accounting scandal five years ago, reports The Global Legal Post.

The company accused the former executives of pressuring employees to use fraudulent accounting techniques to inflate income and earnings, according to a March 25 lawsuit.

Former general counsel Jeffrey Zimmerman has refused to return incentive compensation tied to the erroneous accounting results.

Read the Global Legal Post article.

A post on the website of Baker McKenzie discusses what a general counsel should consider when looking at a contract for cloud and AI services.

“As cloud-based software will continuously change, the user cannot easily prove that certain functionality used to work fine, but is no longer available or working. For this reason it makes sense to check whether the key features are (or can be) described in a document and to refer to that description in the agreement,” according to the post.

The discussion covers moving to another provider, verification that everything is in check, and spelling out the right restrictions on use of data.

Read the article.

Many considerations go into drafting appropriate audit rights, including the types of services that the customer is receiving, and the industry in which the customer’s business operates, explain Anastasia Dergacheva and Katherine B. O’Keefe in Morgan Lewis Tech & Sourcing blog.

“In many cases, the customer is the auditing party and the service provider is the audited party, but there are situations where the roles will be reversed,” they write.

The article provides an overview of several key issues to consider when drafting audit rights for services agreements.

Read the article.

Flexera will present a complimentary webinar discussing the role of in-house and external counsel in managing open source software in the business environment.

The event will be Thursday, April 18, 2019, at 9 a.m. PT / 11 a.m. CT / 12 noon ET.

“Having some best practice guidelines that more clearly define your role and help you guide companies through license compliance and risk management only reinforces and bolsters one of your most important responsibilities as a legal advisor,” the company says in its invitation.

Speakers will be Amy Chun, partner in Knobbe Martens, and Marty Mellican, vice president and associate general counsel of Flexera.

Register for the webinar.

The San Antonio city council recently voted to exclude Chick-fil-A from its list of airport vendors based on the company’s views on the LGBTQ community. Since then, Texas Attorney General Ken Paxton has opened an investigation into whether the city violated state law and asked the U.S. Secretary of Transportation to explore whether the city violated federal law, according to a post on the website of Androvett Legal Media & Marketing.

“On the one hand, you have the city of San Antonio running a business – the airport, and related restaurants – as opposed to a ‘traditional’ government function like a public park,” said Dallas attorney David Coale of Lynn Pinker Cox & Hurst. “In that setting, the city has a clear interest in anti-discrimination policy as well as an interest in its overall image.”

But, Coale says Chick-fil-A has two related arguments that bolster its case against removal from the airport. “One, it has a right to engage in political advocacy outside of this business setting, and two, that advocacy has nothing to do with the operation of the airport. The city’s legitimate and powerful interests in running its airport the right way is just not in play.”

“So, in sum, the City starts out ahead, but Chick-fil-A could catch up if it shows that this decision was based solely on its unrelated speech rather than a standard contract-procurement process.”

Coale also adds that the underlying issue is the broader question of “unconstitutional conditions.”

“Can the government do indirectly what it cannot do directly? The government clearly cannot ban Chick-fil-A from giving to groups with certain policy views about gay rights. Can it discourage Chick-fil-A from doing so by putting strings on its government contracts? That’s a complex area of law without a lot of clear, general answers.

“The 55-mph speed limit is the most famous example of this issue – Congress cannot directly set speed limits on state highways because, by definition, they don’t involve interstate commerce. But it could condition federal highway funds on states changing their local speed limits to 55 mph.”

Kim Stanger, writing for Holland & Hart, offers a brief summary of some terms or issues that should be considered in provider agreements.

The article discusses such topics as regulatory compliance, written agreements, parties, the nature of relationships, services, schedules, location, independence, intellectual property, use of information, outside activities, qualifications, representations and warranties, performance standards, medical records, employer obligations, compensation, bonuses, benefits, exempt status, referrals, assignment of fees, liability insurance, and more.

Read the article.

Nothing is more fundamental to private equity deal practice than limiting the exposure of private equity sellers for post-closing claims, writes Glenn D. West for Weil, Gotshal & Manges LLP’s Global Private Equity Watch.

He believes that exposure to the discussion of fraud allegations, “whether though extra-contractual fraud claims (because of ineffective anti-reliance clauses or undefined fraud carve-outs), or claims based on less than deliberate and knowing misrepresentations (by the private equity seller itself) regarding the express, bargained-for representations set forth in the acquisition agreement (as a result of undefined fraud carve-outs), requires the most vigilance to avoid.”

Read the article.

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Wells Fargo general counsel C. Allen Parker will take over as interim president and chief executive of the company after the abrupt departure of chief executive Tim Sloan on Thursday.

Sloan had spent more than two years trying without success to convince lawmakers and regulators that the embattled bank is no longer a threat to its customers, according to Renae Merle of The Washington Post.

“Sloan spent more than two years on an countrywide apology tour after Wells Fargo acknowledged a pattern of consumer abuses — from opening millions of fraudulent accounts on behalf of its customers without their consent to mistakenly foreclosing on hundreds of clients and repossessing the cars of thousands of others. Sloan’s pleas often failed to win over frustrated lawmakers,” Merle writes.

Read the Post article.

To get around the unilateral character of adhesive contracting, U.S. courts have, over the past five decades, refocused contract formation on constructive notice, points out Henry Allen Blair in Arbitration Nation.

“If a reasonable person in the position of the recipient of boilerplate should have seen the terms, the recipient will be bound by those terms, regardless of whether she ever actually read or understood the them. Constructive awareness coupled with an individual purchasing something from a commercial party amounts to assent,” he adds.

The article discusses Starke v. SquareTrade, Inc., in which the Second Circuit concluded that the a purchaser of a consumer product protection plan did not have reasonable notice of an arbitration provision contained in the terms and conditions communicated via a hyperlink in a post-sale email.

Read the article.

The Federal Energy Regulatory Commission is continuing to aggressively investigate and bring enforcement action against companies that engage in energy market manipulation, reports WilmerHale in its 10-in-10 Hot Topics in Energy Series.

These investigations and proceedings mirror Commodity Futures Trading Commission (CFTC) action on financial market manipulation in the energy area.

“As the recent Powhatan and Silkman decisions indicate, the body of case law defining FERC’s enforcement authority continues to develop. Regulated companies should be aware that the statute of limitations in market manipulation cases will likely be read permissively. A strong internal compliance program, coupled with self-reporting in appropriate instances, can help reduce risk,” according to the article’s authors.

Read the article.

Expert Webcast will present a complimentary webinar roundtable titled “The Role of Financial Experts in Commercial Litigation.”

The event will be Tuesday, March 26, 2019, 1-2 p.m. Eastern time.

Speakers will be Dan Boland of Pepper Hamilton, Jeff Litvak of FTI Consulting, Clara Chin of FTI Consulting, and Alex Kasan of DelMorgan & Co.

Anyone who wants access to the replay of the webinar may indicate that preference in the last field of the registration form.

Register for the webinar.

A recent Texas Supreme Court opinion provides a definitive answer to the question of whether a party can ignore the written words of a contract that directly contradict what you are being told by your counterparty is the real deal.

Glenn D. West, writing for Weil, Gotshal & Manges LLP’s Global Private Equity Watch, discusses Mercedes-Benz USA, LLC v. Carduco Inc.

“While it is often said that fraud vitiates a contract that was entered into based upon that fraud (and such fraud would also trump the parol evidence rule), that statement is only true if there was actually legally-recognized fraud that induced the making of the contract. But a fraud cause of action does not consist simply of an allegation that the defendant made a false statement of fact to the plaintiff, knowingly or recklessly,” West writes.

The Texas Supreme Court found that “[b]ecause the conduct and action of [the defendants] on which [the plaintiff] relies to establish its fraudulent-inducement claim are directly contrary to the unambiguous terms of the contract it signed, we conclude that [the plaintiff’s] reliance thereon was unjustified as a matter of law.”

Read the article.

Forbes contributor Jack Garson says a company’s contracts can be remendous assets that lock down rights to money, goods and services. But common mistakes can ruin all of that.

In his article, he discusses five mistakes that can turn contracts into liabilities.

They include using a one-sided agreement, bad drafting, using outdated contracts, using agreements that ignore the law, and failing to prioritize.

Read the article.

Companies should use a conservative approach when offering protection plans for products, advises Weil, Gotshal & Manges LLP in its Product Liability Monitor.

The article points out that the terms “extended warranty” and “service agreement” are likely to cause confusion, in relation to the Magnuson Moss Warranty Act, which governs the terms of these warranties.

Two cases discussed in the article cover the differences in “service agreement” and “warranty” and how to avoid potential MMWA issues.

Read the article.

Virtually every business relationship or merger and acquisition these days involves some sort of data sharing, transmission, access or use between the contractual parties, but often there is no contractual language applicable to data privacy and security, writes Linn Foster Freedman for Robinson+Cole LLP.

Writing in the firm’s Data Privacy + Security Insider blog, she explains:

When there is no language to address data privacy and security issues, the parties duke out what they will agree to or not agree to, who will pay for what, and who has insurance, and they end up pointing the finger indiscriminately. It is much easier to address a data security issue when there is contractual language in place between the parties.

Read the article.