“Many business divorce practitioners are familiar with a phenomenon one might call ‘petitioner’s remorse’ – an often abrupt abandonment of one’s desire to dissolve a closely-held business entity when the opposing party unexpectedly declines to oppose or consents to dissolution. The dissolution petitioner’s rationale in bringing the claim may have been an expectation that the opposing party would fear the prospect of dissolution, oppose it mightily on the merits, and ultimately be forced into some sort of negotiated or compelled buyout. In that case, when the response is lack of opposition or consent to dissolve, the in terrorem effect and leverage is lost,” writes Franklin C. McRoberts in Farrell Fritz’ Dissolution Basics.

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“In Quilter Private Client Advisers v Falconer the High Court found that a nine month non-compete covenant was in restraint of trade and void. The case is a useful reminder of some factors to take into account when drafting or seeking to enforce covenants to minimise the risk that they will be found to be unenforceable,” post Stefan Martin and Ed Bowyer in Hogan Lovells.

“Ms Falconer joined Quilter Private Client Advisers as a financial adviser in January 2019 but resigned during her probationary period because of unhappiness with the level of administrative support she was receiving and restrictions on the products she could recommend to clients. She went to work for one of Quilter’s competitors, which was on the face of it in breach of a nine-month non-compete clause in her contract of employment. Quilter took steps to enforce the covenant, although not for several months after it found out she was working for a competitor, and brought other claims relating to alleged misuse of confidential information and to enforce non-solicitation and non-dealing covenants.”

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“This is the second entry in our series on enterprise telecommunications services agreements, providing a framework for addressing the customer’s interests and risks in enterprise telecommunications services agreements,” writes C. Douglas Jarrett of Keller and Heckman in The National Law Review.

“While each carrier’s standard agreement is different, these agreements have three core components:”

1. The carrier’s standard policies and rules applicable to its services
2. The legal terms and conditions or master agreement
3. The business deal

“Aspects of the business deal are distributed among these components.”

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“With 2020 quickly coming to an end after an unforgettable and unprecedented amount of events, we are ready to look at what changes we expect to take place in 2021. We are also ready to determine how any change can have a potential impact on employees and employers,” writes Villaume & Schiek in their Blog.

“Every year, businesses and organizations struggle to stay on top of the latest employer regulations and the current workplace issues. Unfortunately, 2020 has been no different. Local laws, state laws, and federal laws are not staying the same, and social issues continue to impact the workforce and the entire world.”

“The Equal Employment Opportunity Commission(EEOC)’s Strategic Enforcement Plan extends through the year 2021. This plan outlines all of its priorities for the upcoming year. In this plan, one of the key areas that was focused on is the emerging and trending workplace issues. Workplace issues continue to be a major topic of discussion, and this topic can be difficult to discuss.”

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“In a typical consignment transaction, a seller (you, the consignor) delivers goods to a reseller (your customer, the consignee) who holds the goods until they are sold to a buyer, and then a portion of the proceeds are transferred back to the seller. Article 9 of the UCC governs most typical consignment transactions and treats the consignee as having an ownership interest even though the consignee doesn’t really own the goods. As a result, if a consignee files a bankruptcy case, any consigned goods then in its possession may become property of the bankruptcy estate unless the consignor has properly protected its interests in those consigned goods,” writes Allen J. Guon, Robert M. Fishman and Danielle N. Garno in Cozen O’Connor’s Recent News & Publications.

“There are a number of steps a seller must take to protect its interests in consigned goods under the UCC.”

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“A claim that a contract for construction of a school violated public bidding requirements did not become moot after construction was completed because effective relief — in the form of disgorgement of public funds paid to the contractor — was still available in plaintiff’s taxpayer action. Davis v. Fresno Unified School District (Davis 2), No. F079811 (1st Dist., Nov. 24, 2020),” writes Geoffrey Robinson in Perkins Coie’s California Land Use Development Law Report.

“Public school construction contracts generally must be competitively bid under public bidding laws. The Fresno Unified School District sought to rely on an exception for contracts under which the school district leases out district-owned property in return for the lessee’s agreement to construct a building for the use of the school district. Such a “lease-leaseback” arrangement, if properly structured, is exempt from public bidding laws.”

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“A frequent topic of dispute in litigation involving construction projects is whether a subcontractor is entitled to payment for work it performs outside its contractual scope of work—often referred to as ‘extra work’ or ‘change order work’—without obtaining a signed written change order to perform the work. The same issue often arises in the context of change orders and directives issued from the owner to the general contractor,” writes Bradly P. Polina in Cole Schotz’ Construction Contracts.

“In a typical scenario, the general contractor orally directs a subcontractor to perform work outside of the subcontractor’s scope and promises that a written change order will shortly follow. The subcontractor, conscientious to keep the project moving, complies with the oral directive and completes the extra work without obtaining a signed written change order. Its subsequent payment requisition is then denied for failure to obtain the signed change order. Is the subcontractor legally entitled to be paid for the work that the general contractor directed it to perform, even without a signed change order?”

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“Netflix is facing another executive poaching lawsuit, this time from gaming giant Activision Blizzard over the departure of CFO Spencer Neumann,” report Ashley Cullins and Natalie Jarvey in The Hollywood Reporter’s Labor.

“Activision claims Netflix induced Neumann to breach his employment contract while the CFO was actively involved in negotiations with the streamer on the gamer’s behalf. This marks the third major entertainment company, following Fox and Viacom, to allege Netflix is illegally poaching employees.”

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“Now in its 29th week, the Barnes & Thornburg Wage & Hour Practice Group’s COVID-19 related workplace litigation tracker has now analyzed 605 complaints filed across the United States, in 12 different categories. This week’s spotlight is on a category of COVID-19 related workplace complaints that have arisen in the context of businesses seeing increased revenue as a result of the pandemic,” post Caroline Dickey, Anthony K. Glenn, Mark Wallin and Peter J. Wozniak in Barnes & Thornburg’s Employment Law Blog Currents.

“Two such cases were brought by commission-based employees working in sectors of the economy that have experienced a boost in demand due to the pandemic: healthcare and sales of cleaning products. In both cases, the employees allege they earned large commissions in the first half of 2020 due to pandemic-related revenue, but that their employers have refused to give them their proper share of the windfall.”

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“It depends,” advises David A. Zetoony in The National Law Review.

“To the extent that a service provider agreement, or a data processing addendum, already prohibits a service provider from ‘disclosing’ personal information for ‘any purpose’ other than what is specified in the agreement, and the agreement does not specify that the service provider can sell or share information for targeted advertising, it’s not clear that the agreement would need to be amended to specifically state that in addition to not disclosing personal information the service provider may not sell or share it (as selling or sharing would be a form of disclosure). To the extent, however, that an agreement that was drafted under the CCPA prohibited the general disclosure of personal information, but specified that, notwithstanding the general prohibition, a service provider could share it for cross-context advertising, the agreement might need to be amended to prohibit such disclosures in order to make clear that any transfer of information is being done on behalf of the business.

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“In cases where the COVID-19 virus or government measures have interfered with commercial contracts, it is necessary to carefully analyze the state of affairs to determine the appropriate remedy. This article briefly summarizes the legal situation for commercial contracts affected by the COVID-19 pandemic in the United States and in other common law countries (UK, Hong Kong and Singapore),” writes Kanz from DLA Piper Global Law Firm in Lexology.

“Force majeure clauses are contractual provisions that may excuse a party’s non-performance when circumstances beyond the control of a party prevent performance. New York courts have held that force majeure clauses are to be interpreted in a narrow sense and that performance under a contract is ordinarily excused only if the event preventing performance is explicitly mentioned in the force majeure clause. The wording of the force majeure clause thus determines whether the COVID-19 pandemic is covered by the clause.”

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“Dayston v, LLC v. Brooke, voided a real estate contract because it failed to satisfy the Texas statute of frauds,” discusses Charles Sartain in Gray Reed’s Energy & The Law.

“Brooke sued Dayston asserting that the contract was void due to an insufficient legal description and asked for return of earnest money.”

This post details what is required for a sufficient legal description.

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“Many people opt for binding arbitration because it is supposedly faster and cheaper, and binding – thus final,” writes Eric S. Solotoff in Fox Rothschild’s NJ Family Legal Blog.

“Some people have to arbitrate their matters that they cannot settle amongst themselves, because there are issues that they cannot try before a court given the court’s mandatory obligation to report certain matters to the proper authorities (e.g. taxing authorities). While many people seek the finality of a binding result, many others are concerned that because an arbitrator is human, she/he could make a mistake. Accordingly, they want the ability to appeal the matter to a reviewing body of some sort. However, the two main arbitration statutes have a very limited right of review.”

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“The statutes of limitations set forth in the CPLR are default rules, and parties generally are free to modify default rules by agreement,” writes Peter J. Sluka in Farrell Fritz.

“But statutes of limitations also further the important public interests, such as avoiding stale claims and giving repose to our affairs. In light of the public interests involved, there are substantial limits on how much parties can agree to lengthen, shorten, or waive the limitations periods applicable to claims arising under New York law.”

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“Consumers have come to expect — indeed, to welcome — automatically renewing contracts. That is true now more than ever, as the regular replenishment of certain household goods has gone from being a matter of convenience to a matter of survival,” write Michael P. Daly, Matthew J. Adler and Antoinette Snodgrass in Faegre Drinker’s Insights.

“Yet the regulation of such contracts has become Balkanized by byzantine state automatic renewal laws (ARLs). Dozens of ARLs across the country impose overlapping and sometimes conflicting conditions on, for example, how terms must be disclosed, how consent must be obtained and how termination must be permitted. While some statutes apply only to certain kinds of contracts, the recent trend has been to sweep more and more contracts within their scope. And not surprisingly, the plaintiffs’ bar has responded by invoking — and sometimes distorting — the broadest and most comprehensive ARLs in a growing number of consumer class actions.”

“On November 11, 2020, New York joined the growing list of states with a sweeping ARL that could give rise to such suits. Bill S1475A — which was just signed into law by Governor Cuomo — is a dramatic departure from New York’s original ARL. Indeed, it adopts many of the features of California’s ARL, which is one of the most onerous ARLs in the country, and which has been the subject of considerable class action litigation. The new ARL will take effect in February 2021. Below, we briefly discuss New York’s original ARL and the new law.”

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“To stop the spread of the COVID-19 (Coronavirus) pandemic governments closed ports and ‘non-essential businesses’, restricted travel and imposed ‘lockdowns’ or ‘stay-at-home’ orders. In cases where the COVID-19 pandemic or government measures disrupt commercial contracts, it is necessary to carefully analyze the state of affairs to determine the appropriate remedy. A considerable number of articles have already been written on contracts affected by the COVID-19 pandemic, and now it is time to summarize the legal situation for commercial contracts in the most important jurisdictions in a nutshell. This article therefore addresses legal remedies for commercial contracts affected by COVID-19, under the laws of common law countries (UK, Hong Kong and Singapore), Germany, France, Switzerland, United States and the CISG, which are commonly applicable to commercial contracts,” details Franz Kaps from DLA Piper.

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“Many businesses include an arbitration clause in their contracts,” discusses Mark Cohen in Lawyers.com.

“An arbitration clause prohibits the disgruntled party (often your customer or business partner) from filing suit against your company. Instead, the unhappy party must commence an arbitration action with the arbitrator specified in the contract, if it specifies one at all. Many contracts require arbitration through the American Arbitration Association (AAA).”

“One reason some businesses include an arbitration clause in their contracts is their belief that by removing a party’s right to sue and forcing that party to initiate costly arbitration, you will deter that party from pursuing claims against you. An arbitration clause may deter some small claims, but it likely won’t deter a party asserting a claim for significant damages.”

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“A last will and testament must be the consequence of a person’s free will (which is why they are aptly referred to as ‘wills’). Nevertheless, a person may execute a contract during life to include certain terms and/or beneficiaries in their will in exchange for goods or services,” writes Chepenik Trushin in the Florida Probate Litigation Lawyer Blog.

“Enforcing a contract to create a will is more complex than enforcing a normal contract. With these types of agreements, it may be impossible to tell whether the testator lived up to his or her side of the bargain until their estate plan is revealed after their death. Additionally, the terms of a will do not come into effect until death, so there may not technically be a breach of the contract until the decedent’s death. Further, if you were supposed to be a part of the decedent’s estate plan, but were not included, it’s possible you may never even receive notice regarding the administration of the decedent’s estate.”

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“Many races and initiatives that California voters considered on November 3 are still undecided, but Proposition 24, the California Privacy Rights Act of 2020 (the ‘CPRA’) isn’t one of them. The California electorate approved Proposition 24 by a comfortable margin – 56% of Californians voted in favor,” discusses Robert E. Braun in Cybersecurity Lawyer Forum.

“Like its predecessor the California Consumer Privacy Act of 2018 (the ‘CCPA’), the impact of the CPRA won’t be felt immediately. It goes into effect on January 1, 2023, and many of its provisions are unclear and will require study. But all businesses that have a presence in California will need to consider its requirements, and given the scope of the law, addressing its requirements early will be essential.”

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“Eventbrite wanted to send a lawsuit to arbitration, so it invoked the arbitration clause in its TOS. But did the plaintiffs assent to Eventbrite’s TOS? The court says no. What went wrong?” questions Eric Goldman in Technology & Marketing Law Blog’s Evidence/Discovery.

“Eventbrite has three online venues: its desktop website, a separate mobile website, and its mobile app. Each venue has two relevant pages, the signup page and the purchase page. This means Eventbrite needs to lay the evidentiary foundation for 6 different TOS formation processes. Because each of the 6 screens are different, the court says it can’t categorically bless or reject the TOS’s formation.”

“The court wanted a clean chain of evidence showing the exact user interface and TOS terms for each of the 6 screens since January 2018 (the earliest that a plaintiff signed up). Eventbrite didn’t deliver that evidence.”

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