“Clear contract language is important.  While clear contract language is important in all cases, it is especially important when it comes to determining how you are to get PAID for your work.  An ambiguity with respect to the manner in which you get paid is counter-productive.  Likewise, not appreciating clear language in your contract regarding the manner in which you get paid is counter-productive.  If you are doing unit cost work where you are getting paid based on a defined measurement, you want to understand how that measurement is calculated,” reports David Adelsten in Florida Construction Legal Updates.

“In a dredging dispute before the United States Court of Federal Claims … a contractor was hired by the government to dredge a creek.  The contractor was to be paid a unit cost for dredging based on a comparison of before and after survey data.  In particular, the contract stated the contractor would be paid ‘measured by the cubic yard in place by computing the volume between the bottom surface shown by soundings of the last surveys made before dredging, and the bottom surface shown by the soundings of surveys made as soon as practicable after the work has been completed.'”

“A dispute arose when the government paid the contractor for 46,065 cubic yards of material removed from the creek. The contractor claimed it was underpaid.”

Read the article.

“As a general matter, the federal government cannot be sued for damages without its consent. Congress has waived its immunity through several statutes. For example, the Federal Torts Claims Act provides a limited waiver of sovereign immunity for certain types of torts. And the Supreme Court has also implied certain waivers of sovereign immunity. Through so-called Bivens claims, plaintiffs can seek monetary damages for violations of the Fourth and Fifth Amendment. But the Supreme Court has held that there is no waiver of sovereign immunity for suits based on other provisions of the Bill of Rights, such as the Eighth Amendment. And in recent years, the Supreme Court has put the brakes on future Bivens claims. This much is straightforward doctrine,”discusses Josh Blackman in Reason.

“But what about the Takings Clause? It is the only provision of the Bill of Rights that clearly states landowners are entitled to monetary damages: ‘nor shall private property be taken for public use, without just compensation.’ Is the Takings Clause a self-executing waiver of sovereign immunity?”

“In traditional eminent domain questions, the issue of sovereign immunity is irrelevant. Why? The government initiates a condemnation proceeding against a landowner. In other words, a private landowner does not need to sue the federal government. But there is another common type of takings case, known as an inverse condemnation suit. Here, the government regulates a person’s property, but insists there is no taking. Then, the landowner sues the federal government, alleges a violation of the Takings Clause, and seeks ‘just compensation.'”

Read the article.

“This is a frustrating time for small businesses. Many employers are trying to figure out how to cut costs and keep their businesses afloat during the on-going Covid-19 crisis. Employers are wondering how to manage their payroll when facing decreased revenue – some employers are in the undesirable position of having to reduce employees’ hours or, in some cases, end employment contracts. Given the unprecedented and unforeseeable long term effects of Covid-19 on business revenue, some employers may be wondering about ‘frustration’ of employment contracts,” writes Zoë Roberts in Minken’s Covid-19 Center.

“‘Frustration’ of a contract occurs when, through no fault of either party, the contract becomes impossible to fulfill. This might be, for example, because of a natural disaster – if a fire completely destroys a concert hall, the venue cannot fulfill a contract to have a band perform there. In other words, if an unforeseen event renders it impossible for the contract to be performed as initially agreed, the contract is ‘frustrated’ and both parties are released from their contractual obligations.”

“This concept is important in employment law because, generally, employees are not entitled to notice of termination or termination pay under the Employment Standards Act, 2000 if the employee’s ‘contract of employment has become impossible to perform or has been frustrated by a fortuitous or unforeseeable event or circumstance’.”

Read the article.

“The current market volatility arising from the restrictions imposed to reduce the risk of spread of COVID-19 has led many market participants to consider their position under existing contractual relationships, including, assessing their own obligations and whether any potential or actual event of default has occurred in respect of their counterparty. This memo illustrates practical issues to be taken into account by a counterparty to a financial contract in making these considerations using, as an example, a derivative transaction,” discussed in Cadwalader’s Resources.

“The impact of COVID-19 has led to unprecedented measures being put in place in many jurisdictions around the world which have, or may in the future have, the effect of closing markets in a variety of locations. These closures, and the location of the markets which are subject to closure, will need to be carefully considered to determine their impact on a party’s position under a financial contract.”

Read the article.

“Often included in long-term outsourcing/managed services agreements but sometimes overlooked as a contractual right, in this post we look at benchmarking provisions, including what benchmarking is, common rights and restrictions, and other considerations for customers and suppliers,” writes Vito Petretti and Oliver Bell in Morgan Lewis’ Blog.

“What Is Benchmarking?”

“Benchmarking provisions grant the customer a right to appoint a third-party organization (the benchmarker) to undertake a review of the price and/or the level of service that is being offered by the supplier under a contract as compared to the price and/or level of service offered by comparable suppliers for comparable services.”

“Benchmarking provisions aim to give the customer the right to ensure that the services it receives are a ‘good value’ (as defined by the parties in the agreement).”

“How Does It Work?…”

Read the article.

“The current outbreak of the coronavirus (also known as COVID-19), recognized by the WHO as a global pandemic, has already had a significant effect on certain businesses and appears likely to have an even greater impact, raising concerns about parties’ ability to meet contractual obligations and parties’ willingness to perform obligations where it is no-longer commercially beneficial to do so,” discusses Paul Rosen, Edward A. Tran and David Wood in The National Law Review.

“Unique and critical considerations are raised for parties to M&A transactions operating in these unchartered waters, both those who exchanged on a deal before the crisis unfolded which is yet to complete and those looking to enter into a transaction in the near future. With a focus on M&A agreements governed by English law, this advisory summarizes the concept of force majeure and discusses whether force majeure clauses in contracts could be triggered by the ongoing coronavirus outbreak and the global containment measures imposed. Frustration, an alternative legal avenue for relief from contractual performance is also discussed and practical steps parties may wish to consider are set out.”

Read the article.

“With precedent being the bedrock of the legal industry, lawyers sometimes fall into the trap of mirroring conventions that they have observed other lawyers follow. Many times, this mirroring occurs without much thought by the writer about the value of the convention. Instead, the writer simply takes for granted that the convention is the ‘right’ way to do things because someone else has done them that way,” warns Andrew B. Schrack in Butler Snow’s BizLitNews.

“Such conventions are not necessarily incorrect, but they last long beyond their usefulness. One (1) such outdated convention is the doubling words and numerals, as illustrated in this sentence. It is completely unnecessary in typed documents.”

“The convention originated with handwritten documents, in which it was easy for numbers to be confused. (I’ve personally had my scribbled ‘9’ mistaken for a ‘7’). Numbers also could be altered easily by inserting extra numerals or attempting to transform a 3 into an 8. In fact, the easy alteration of numerals is the reason that we spell out the numbers on our checks (for those of us who still use checks). Still, numerals are easier to read at a glance, and so early legal writers included both.”

Read the article.

“As local and national regulations seek to ‘lower the curve’ of infections of the COVID-19 illness, they have forestalled a host of consumer transactions, most notably those regarding travel, hospitality, and community events,” writes Spencer M. Rubin in Bryan Cave Leighton Paisner’s Insights.

“Even if such regulations do not absolutely prohibit the fulfillment of those transactions, companies must confront the fact that consumers will still want to cancel them for the health and safety reasons.  When this happens, companies’ standard cancellation policies or then-effective termination or force majeure clauses in their consumer contracts are likely insufficient to deal with the high consumer demand for contract cancellations.  Therefore, companies should consider being prepared to enact ‘extenuating circumstances’ cancellation policies (‘ECCPs’) to excuse performance under existing consumer contracts.”

Read the five steps for drafting effective ECCPs.

Read the article.

“The coronavirus pandemic has prevented countless people from fulfilling their contracts, from basketball players to babysitters,” writes Andrew Schwartz in The Daily Reporter’s Commentary.

“Could all of these people be sued for breach of contract, or are they excused due to this extraordinary event? What about payments made in advance, such as tickets bought for a concert that has now been canceled or a dorm room leased at a college that is now closed?”

“Wars, floods and other pandemics have undermined innumerable contracts over the years. In response, U.S. courts have established a fairly clear set of legal rules to answer these questions.”

“As a contracts-law professor, I help future lawyers think through how these rules apply in a wide range of situations. Some of these concern what the law says about contracts that are impossible to meet during pandemics.”

Read the article.

“You are asked to prepare a prenuptial agreement between spouses of different nationalities, who have different prior countries of residency, assets in various international locations and future plans to relocate to one or more countries. Where do you start? And how do you protect yourself?” asks Jeremy D. Morley in International Family Law’s blog.

“It is difficult enough preparing a prenuptial agreement for wealthy or potentially wealthy people when you only have to take into account the law of one jurisdiction. It is far harder and riskier when multiple jurisdictions come into play.”

“The following are some basic principles that the author has developed from handling a large variety of international prenuptial agreements over many years.

Read the article.

“Express contracts are easy enough to understand. An express contract is a legally enforceable agreement formed by an exchange of promises, the terms of which are declared, either orally or in writing, at the time the agreement is formed,” writes Lee E. Berlik in Berlik Law’s The Virginia Business Litigation Blog.

“A mutual meeting of the minds is required, and the agreement must be supported by consideration. If I promise to pay you $10 to wash my car, and you accept my offer and proceed to wash my car, we’ve formed a contract and I am legally obligated to fork over that $10. But what if you just decided on your own to wash my car without discussing it with me first? Or maybe I ask you to wash my car and you accept, but we never discuss price? In situations like these, I may still be required to pay you a fair price for the service you provided, even though we never actually formed a contract. The legal concepts involved are known as unjust enrichment and quantum meruit.”

“Let’s review what these related-but-distinct terms mean.”

Read the article.

In response to COVID-19, most employees in non-essential industries are being asked or required to work remotely. In fact, roughly 96% of Americans are under some form of lockdown. This rapid shift to a remote workforce has implications for organizations of all sizes and industries, including with contract management.

That’s because contract management is not unlike many other business processes and activities. It requires an appropriate level of coordination, communication, information, and collaboration in order to be effective, efficient, and successful. Unfortunately, many traditional approaches to contract management can present some challenges with managing contracts remotely.

As you evaluate your organization, your business continuity plans, and your ability to manage contracts in a highly remote setting, it’s important to understand the challenges you may face and discuss with your team how you will address them.

The following are six common challenges with managing contracts remotely that organizations face when using traditional contract management methods when employees are working from home.

1. Lack of Access to Contracts & Contract-Related Information

Depending on where and how your contracts are stored and secured, how will your employees get appropriate access to them in a remote setting? Take inventory of how and where your contracts are stored and secured. Are they on hard drives? Shared folders? Spreadsheets? Maybe a combination of places?

Also, can multiple people view contracts at the same time? Can they securely access contracts via the Internet and without having to install software on computers? You’ll need to give people an appropriate level of access to them based on their roles.

2. Difficulty Collaborating on Contracts & Supporting Documents

Obviously, it’s going to be more difficult collaborating on anything, never mind contracts, when everyone is remote. Regardless, it’s an important consideration because we all know that contracts require collaboration between different departments and companies. Working through how you’ll foster collaboration to prevent organizational and negotiation silos as well as things like version control issues is important.

3. Slower Contract Review and Approval Cycles

This challenge is about making sure you have visibility into all your agreements. The last thing you want to happen are slower review and approval cycles. Give what’s going with the economy, chances are your organization still needs to purchase and sell things in a timely, albeit modified, manner. You’ll also want to ensure visibility into the volume and balance of your sales and supply chain agreements.

4. Miscommunication or Reduced Communication About Contract Stage and Status

Losing track of where agreements sit in your process can be a challenge even without everyone working remotely. How will you and your team ensure you know where all your agreements are in your process and who is working on what task? You’ll want to track down, document, and monitor the stage and status of all your current agreements.

5. Inaccurate Information in Contract Requests

This is another common problem regardless of where employees are physically located in your company. How will you accurately gather all the information required to create, process, execute, and manage contracts? In addition, how will you do it from start to finish in an efficient manner?

6. Increased Potential for Contract Risk and Non-Compliance

This challenge is essentially one of the big consequences of not addressing the others previously listed. If you don’t overcome these other challenges, how will continue to identify, assess, and mitigate risks associated with your contracts? How will you enforce compliance with internal processes and external regulations? How will you ensure you don’t miss key dates and obligations?

Takeaway

There a lot of business challenges associated with the rapid shift to employees working remotely. It’s important to understand the challenges with managing contracts remotely and discuss them with your team so that you can put plans in place to overcome them. Contract management software can help you address these issues.

If you’re interested in learning how, please contact us to discuss your needs

Charles Sartain, in Gray Reed’s Energy & the Law, continues the discussion “of the Texas Supreme Court’s opinion in Piranha Partners et al. v. Joe B. Neuhoff et al. determining that an assignment of an overriding royalty in minerals unambiguously conveyed the override in production under an entire lease.  The Court concluded that circumstances surrounding the transaction didn’t matter.”

“Piranha purchased Neuhoff’s interest through an oil and gas clearinghouse auction involving 1,200 properties located in 14 states. There was no negotiation between parties and the winning bidders typically acquired interests as-is, where-is, and without warranty of title. To enter its interests at the auction Neuhoff agreed to various provisions.”

Read the article.

“Every contractor has heard the term and many have had to figure out exactly what it means.  Substantial completion is a legal term found in construction contracts to define that stage of a contractor’s work which is sufficiently complete in accordance with the applicable construction agreement. And when used in relation to a project as a whole, substantial completion is that point where what was constructed is fit for occupancy and ready to be used for its intended purpose,” explains Patrick Barthet in The Lien Zone’s Contracts.

“It is a critical term in the life of any construction project as any construction lawyer would advise. It signifies the time the owner versus the contractor becomes responsible, when the contractor’s work is done so that the owner can begin to use the contracted work for its planned function,  or in the case of a building, occupy it. That said, it is not necessarily tied to the issuance of a certificate of occupancy.”

Read the article.

“Companies that utilize third-party staffing vendors should take stock of the Fifth Circuit’s decision in Hiser v. NZone Guidance, L.L.C. The March 24, 2020 opinion, applying Texas law, reinforces that both contract language, and keeping such language up-to-date, is critical for navigating the legal landscape of company relationships with vendors, including enforcing arbitration provisions,” write A. John Harper III and Paige A. Cantrellnin Littler’s News & Analysis.

“In this case, the defendant NZone contracted with the plaintiff and other workers as independent contractors via RigUp, Inc., a workforce bidding platform. The plaintiff brought class claims against the defendant for violations of the Fair Labor Standards Act (FLSA) on behalf of himself and other workers similarly situated.  RigUp was not named as a defendant, but was alleged to be a joint employer with NZone.”

“The workers entered into an agreement with RigUp allowing them to use RigUp’s on-line platform, which contained an arbitration provision (the ‘RigUp Agreement’). NZone moved to compel arbitration of the FLSA claims pursuant to that agreement.  The RigUp Agreement stated that arbitration was to be used to ‘resolv[e] disputes between you and RigUp,’ and that ‘[a]ny arbitration between you and RigUp will be settled under the Federal Arbitration Act.’  The RigUp Agreement further stated that either ‘you or RigUp may commence an arbitration proceeding.'”

Read the article.

“While it’s sometimes said that one person’s failure to plan ahead doesn’t constitute an emergency for everyone else, but one couldn’t plan ahead for this current Coronavirus pandemic that now has indeed created an unprecedented, unforeseeable emergency with many scrambling to evaluate the consequences of a failure or inability to perform,” writes Joseph I. (“Joe”) Rosenbaum in Rimon’s Insights & Analysis.

“In many ways, in addition to memorializing the intent and expectation of parties to a transaction, a contract is a method of allocating the risk inherent in the transaction. The parties entering into the contract try to assign rights and obligations, crafting a variety of clauses intended to reflect the expectations of each of the parties under most circumstances and dealing with the consequences and potential remedies should those intentions and expectations go awry. But no matter how lengthy and detailed your efforts at documentation may have gone, no contract could possibly deal with every possible contingency – and by definition, all the potential unforeseeable events.”

“The coronavirus outbreak is a tragic, but poignant example of just such an unforeseeable occurrence. In most cases, by government order or restriction, the pandemic has forced the closure of businesses, the cancellation of concerts, sporting events, and conferences, has delayed, suspended or completely ended many commercial transactions and has interfered with travel, transportation and the supply of goods and services – in some ways with dire health-related consequences. In short, while some may merely be delayed or suspended for a time, the COVID-19 pandemic has made many contracts either impossible or extremely impractical to perform.”

Read the article.

“Despite the speed and efficiency that comes with signing documents electronically, many business people (and even some lawyers) remain reluctant to accept electronic signatures.  Luckily for those of us who are sheltering in place or practicing social distancing, most electronic signatures are just as valid and enforceable as a traditional manual signature,” writes Ryan P. Siney in Tucker Arensberg’s News + Insights.

“A federal law, the Electronic Signatures in Global and National Commerce (ESIGN) Act, and the law of nearly every state (through the adoption of the Uniform Electronic Transactions Act or similar legislation), provide that electronic signatures are legally enforceable as long as a few basic requirements are satisfied.  These laws require electronically signed contracts to be enforced and treated the same as any document signed by traditional means.  In other words, no contract can be voided or rendered unenforceable merely because it was signed electronically.”

“To qualify as an enforceable electronic signature, there must be evidence of the signer’s intent to execute or accept the agreement.  This is typically accomplished by requiring the signer to take affirmative action, like typing their name or drawing their signature using a mouse or touchscreen.  As long as the signer’s intent to agree to the contract can be discerned from the record, an electronic signature is likely to be enforceable. Courts in some states have enforced contracts where a party’s intent to accept the terms of the agreement were evidenced by email exchange or text message, even though there was no drawn or typed signature.”

Read the article.

“Business continuity and disaster recovery (BC/DR) plans are an essential element of your and your suppliers’ business—an increasingly apparent fact as we now face the uncertainty caused by COVID-19. Your agreements with suppliers and service providers likely account for exigent circumstances via force majeure and BC/DR provisions, and reviewing and updating those contingencies now is imperative. The following steps will help you critically review how the BC/DR plans supporting your organization plan for COVID-19,” advises Aaron M. Oser, John L. Barton and Mia Render in Pillsbury’s Alert.

Read the four steps you should be taking.

Read the article.

“Much has already been written regarding the potential of COVID-19 to impact construction or development projects.  For example, businesses may experience personnel or material shortages, or stoppages that result from Government-directed actions. These delays jeopardize project timelines and place businesses in vulnerable positions regarding liquidated damages or other contract penalties. These businesses are reviewing their contracts to see whether they may seek relief pursuant to their contract’s force majeure clause,” reports Joseph Romero, Esq. in Vandeventer Black LLP’s Articles.

“Businesses performing mandatory remedial actions or other corrective action pursuant to regulatory enforcement documents, including settlement agreements and consent orders with Federal or State regulators, will face similar challenges. These businesses and individuals should review their settlement agreements or consent orders to understand the procedural requirements they must follow to invoke their force majeure clause.”

Read the article.

Read the article.