To reduce the risk of a class action disrupting business operations and impacting revenue, businesses may want to consider including arbitration clauses in their employment and consumer agreements, advises Patrick K. Burns in a blog post for PilieroMazza PLLC.

Many businesses include arbitration clauses in employment and consumer agreements in an attempt to shield themselves from class action lawsuits, he explains. “The success of these types of clauses in accomplishing the same largely depends upon its wording, the respective jurisdiction, and the nature of the underlying agreement.”

In his post, he demonstrates how, if class arbitration is not explicitly addressed in an arbitration agreement, it cannot be compelled.

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Two recent court of appeals cases address the enforceability of liquidated damages clauses, writes John McFarland in the Graves, Dougherty, Hearon & Moody Oil and Gas Lawyer Blog.

“A liquidated damages clause is a provision in a contract specifying a dollar amount (‘liquidated damages’) to be paid by a party if the party breaches the contract. Such clauses are common in all types of contracts, particularly in the oil and gas industry,” McFarland explains.

In his post, he discusses some recent cases that address the issue.

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In order to preserve the right to seek punitive damages and attorney fees from an employee or former employee who has misappropriated trade secrets, the employer must have provided notice of the whistleblower-protection provisions of the Defend Trade Secrets Act.

“Notice of the whistle-blower protection provisions must be included ‘in any contract or agreement with an employee that governs the use of a trade secret or other confidential information,’” explains author Anthony George in the article on the website of Bryan Cave Leighton Paisner.

He advises employers to include the DTSA whistleblower-protection provision, or to amend existing contracts if necessary.

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While often thought of as not controversial and relatively non-substantive, boilerplate provisions play an integral role in clarifying the relationship between the contracting parties. Neglecting those provisions can lead to unintended legal consequences, warns Thompson Coburn LLP.

Authors Brent Trame and Taylor Melching discuss examples of common boilerplate provisions that warrant closer review: Assignment, governing law and jurisdiction/venue, and the entire agreement clause.

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The U.S. District Court for the District of the Virgin Islands recently compelled arbitration after concluding that a personal guaranty incorporated an arbitration agreement from an underlying contract and rejecting various arguments to the contrary, reports Carlton Fields’ Reinsurance Focus.

The case involved a leasing agreement that contained an arbitration provision, but the personal guaranty did not. The personal guaranty did, however, provide that the “performance of any and all financial obligations of the Lessee to the Lessor … subject to the terms and conditions contained in the … Leasing Agreement.”

The court found that the plain language of the personal guaranty incorporated the arbitration provision from the leasing agreement.

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The prohibition in New York state on requiring nondisclosure sexual harassment claims in nondisclosure agreements has been strengthened, reports Hogan Lovells.

The law has been strengthened to include all claims of discrimination, harassment and/or retaliation in “any settlement, agreement or other resolution of any claim, the factual foundation for which involves discrimination … that would prevent the disclosure of the underlying facts and circumstances … unless the condition of confidentiality is the complainant’s preference.”

Authors Michael E. DeLarco and Zachary Siegel explain that if the employee requests confidentiality, then the agreement may contain this provision.

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Litigation is a cost of business, but many savvy in-house counsel effectively manage that cost by including pre-dispute jury waivers in counterparty contracts, points out Bloomberg Law.

Jury waivers memorialize an agreement between contracting parties that fact-finding in disputes arising between them will be decided by judges, and not by juries, according to authors David L. Goldberg and Sean M. Akchin of Katten.

They discuss their five suggestions, under the headings Be Careful What You Wish For, Be Conspicuous, Be Specific, Don’t Be Greedy, and Don’t Be Tardy.

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To avoid surprises and unanticipated liability on construction projects, the parties should modify contracts consistent with Texas law—or at least be aware of the limitations that are in place due to certain Texas statutes, according to a post on the Porter Hedges Texas Construction Law blog.

Author Amy Wolfshohl discusses the top five  modifications to consider on private commercial construction projects.

Those topics include retainage, indemnity, AI coverage, Texas law, and lien releases.

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Bloomberg Law reports that law students from elite universities protested outside DLA Piper offices in three cities Oct. 10, calling on the firm to drop arbitration agreements from employee contracts.

“Demonstrators from Harvard, Columbia, NYU and Georgetown law schools handed out leaflets in New York, Washington, and Boston,” writes Bloomberg’s Stephanie Russell-Kraft. “They’re part of a student-led initiative leveraging their status as top Big Law recruits to fight what they says is ‘harassment and discrimination in the legal profession.’”

DLA Piper partner Vanina Guerrero, who claims she was sexually assaulted and retaliated against by a fellow partner, said she is unable to bring those claims in court because of a mandatory arbitration agreement.

Read the Bloomberg Law article.

The California Supreme Court invalidated a mandatory arbitration agreement involving a former employee’s wage claims, finding the agreement was both procedurally and substantively unconscionable, according to a Ford Harrison post by partner Frederick L. Warren.

“The Court found that the arbitration agreement’s execution involved a high degree of procedural unconscionability,” explained Warren. “The Court stated that ‘the agreement appears to have been drafted with an aim to thwart, rather than promote, understanding.'”

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Regina Campbell offers an overview of the three types of contracts and agreements that companies should consider using.

Writing on Lawyers. com, Campbell, of The Campbell Law Group, discusses employee agreements, advising that companies should use an at-will agreement that clearly states that a new hire’s employment can be terminated at any time for any reason.

She also discusses vendor agreements and independent contractor agreements.

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Even if an errors and omissions policy contains a breach of contract exclusion, coverage may be available in a breach claim, depending on the circumstances and applicable law, writes Charles P. Edwards for Barnes & Thornburg.

Writing in the firm’s Policyholder Protection blog, Edwards discusses a recent court ruling involving coverage for a breach of contract claim brought against a corporate policyholder by one of its customers.

The article also covers two other similar cases.

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A distribution agreement is a legally binding contract between a seller of goods and a distributor that outlines the details involved in the sale and transfer of goods, explains Regina Campbell of The Campbell Law Group.

“By having a distribution agreement, businesses save time and money by avoiding misunderstandings that affects the profitability of each party and preventing future litigation over disputes,” she writes in a post on Lawyers.com.

In the post, she discusses the mistakes, which involve not using a distribution agreement, attempting to distribute too much, too fast, failing to specify whether the agreement is exclusive, lack of termination clauses, and lack of renewal language.

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A post on the website of Bryan Cave Leighton Paisner discusses a key component of contract obligation management – increasing obligation tracking and traceability.

“Conducting that evaluation of your existing contracts will allow you to identify risks and opportunities for negotiation of new contracts and allow you to better marry any potential technical obligation management tools to your contract environment, potentially turning in-house teams from SG&A on the income statement into their own profit center,” according to the post.

The article discusses reporting and recordkeeping, along with information, auditing, in detail.

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A recent FTC enforcement action clarifies the requirements for non-compete clauses in M&A agreements to fulfill certain requirements to comply with antitrust and competition laws, and serves as a reminder that U.S. antitrust authorities are actively reviewing these provisions, according to Orrick’s Antitrust Watch blog.

In the case, the Federal Trade Commission took issue with the non-compete clause in a purchase and sale agreement, which would have prohibited one seller from competing with the natural gas pipeline for three years.

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The U.S. Court of Appeals for the 4th Circuit held that a subrogation waiver provision in a construction contract barred an association’s insurance company from seeking to recover from an allegedly negligent contractor, reports Daniel Miske in the Husch Blackwell Association Alert.

He describes the case of United National Insurance Company v. Peninsula Roofing Company, Inc., which involved $3 million in damages to a condominium complex caused  by a contractor’s generator. The association’s insurer sued the contractor for negligence, gross negligence, and breach of contract.

After detailing the appellate court’s ruling, Miske presents four lessons a practitioner can learn from the case.

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While US-based businesses are accustomed to working with at-will offer letters for prospective employees, these are mostly unheard of elsewhere, points out a post for McDermott Will & Emergy.

In most jurisdictions, detailed employment contracts are not only customary, but are required by law.

The post explains that companies must ensure the legal compliance of their contractual documentation for each country in which they do business. This includes engagement letters, employment offers, employment contracts, bonus schemes, stock option plans, etc.

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Contract Logix, a provider of intelligent contract management software, announced its Premium platform has been selected by Rx Savings Solutions, a provider of  cost-saving solutions for prescription drug purchasing, to streamline and scale contract management while improving visibility and control over its processes.

The company said the solution from Contract Logix will allow for increased automation and efficiency in the contract management, while also enforcing governance and compliance.

The Contract Logix Premium platform was selected by Rx Savings Solutions to manage both the pre- and post-execution phases of its contract management. The manual contract processes that Rx Savings Solutions previously used became too difficult to maintain due to the company’s tremendous growth. The solution from Contract Logix will enable them to securely centralize their contracts and related data in single contract repository and more efficiently request, create, negotiate, execute, and manage agreements.

Charles Sartain of Gray Reed, writing in the firm’s Energy & the Law blog, discusses an energy lease that featured some dueling provisions that resulted in a lawsuit in a Texas court.

The case of HJSA No. 3 LP v. Sundown Energy LP concerned a mineral estate under 30,450 acres in Ward County, Texas. “HJSA claimed that the lease had terminated as to certain portions of the property because Sundown had on five separate occasions over 14 years allowed more than 120 days to elapse between completion or abandonment of operations on one well and commencement of drilling operations on the next well, thereby failing to maintain the lease as to areas not HBP.”

The article covers the arguments and shows how the court decided in the end that Sundown was required to spud a well to comply with a paragraph of the agreement.

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Drinker Biddle & Reath’s The Restricting Covenant series takes a look at two states’ competing views on the enforceability of restrictive covenants and the critical importance of conducting a “choice of law” analysis to settle this feud.

Author Lawrence Del Rossi explains the backstory: “With respect to restrictive covenants, the conflict between Delaware, which is generally considered a ‘pro-enforcement’ jurisdiction, and California, which is generally considered an ‘anti-enforcement’ jurisdiction, definitely stands out in the crowd.”

The article compares freedom to contract versus freedom from restraints on trade and finds some common ground coast-to-coast.

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