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.

Employers requiring lower-wage employees to sign and abide by non-competition and non-solicitation of clients provisions may want to find another mechanism to protect business goodwill and confidential information, advises Rachel Powitzky Steely in Foley & Lardner’s Labor & Employment Law Perspectives.

Courts across the country are refusing to enforce non-competes against lower-wage employees and now states are taking action to preclude these agreements, she explains.

Steely offers some advice on how companies can achieve their non-compete goals through alternative methods.

Read the article.

CobbleStone Software, a developer of contract management and eProcurement software, announced its 2019 Seminar Series coming soon to major U.S. cities.

The 2019 event series, The Road to Contract Management & Procurement Success, is designed to help attendees discover new technological advances for contract management and procurement processes while developing a plan built for success, the company said in a release.

The free educational seminar is being held in the following locations:

• San Diego, CA – March 28th, 2019
• Houston, TX – April 25th, 2019
• Boston, MA – June 27th, 2019
• Philadelphia, PA – July 26th, 2019
• New York, NY – August 23rd, 2019
• Orlando, FL – September 26th, 2019
• Chicago, IL – October 25th, 2019

Register for the seminar.

The Sixth Circuit recently followed a line of precedent (and other more recent decisions from the Sixth Circuit) and reversed a 2017 Northern District of Ohio decision finding certain collective bargaining agreements vested plaintiffs with lifetime healthcare benefits, reports Seyfarth Shaw in its ERISA & Employee Benefits Litigation Blog.

The court found that the CBAs covering the retirees lacked clear, affirmative language that Whirlpool had an obligation to fund their health benefits after the expiration of the agreements’ general durational clause.

The court ruled that “either a CBA says clearly and affirmatively — that is unambiguously — that its general durational clause doesn’t control the termination of healthcare benefits, or the clause controls.”

Read the article.

In a post for Above the Law, Tom Kulik of Dallas-based Scheef & Stone discusses what happens when a bankruptcy debtor exercises its statutory right to reject a contract.

The U.S. Supreme Court recently heard oral arguments in Mission Product Holdings Inc. v. Tempnology, LLC to address this question that has plagued the intersection of intellectual property and bankruptcy law for decades.

He writes that the supreme Court’s ruling on the issue “may draw a clear line for trademark licensors and licensees in the event of bankruptcy (a good thing), or leave a blot on the issue by finding that the issue is moot (a bad thing).”

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The U.S. Court of Appeals for the Seventh Circuit held that merely requiring extrinsic evidence to interpret a provision of a form contract does not render class certification improper, and that absent a more thorough explanation of its reasoning from the trial court, it could not uphold the trial court’s ruling decertifying the class.

As a result, explains Jeffrey Karek in the Maurice Wutscher’s Consumer Financial Services Blog, the Seventh Circuit vacated the decision of the trial court and remanded for further proceedings.

His article gives the facts in Red Barn Motors, Inc. v. NextGear Capital, Inc. and traces the litigation through the courts.

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The Supreme Court of Texas is considering whether to grant a petition for review to establish whether an indemnity provision covers only third-party claims, not first-party claims, unless the provision unequiv­oc­al­ly states otherwise, writes D.C. Toedt III in the On Contracts blog.

He describes the case of Claybar v. Samson Exploration LLC, in which a property owner sued Samson for alleged damage to the property during oil and gas drilling. Claybar settled with Samson’s contractor but still claimed Samson was con­tract­ually required to indemnify Claybar for the attorney’s fees and costs that Claybar had incurred in pursuing his negligence claim.

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A recent ruling in an Alabama federal court illustrates how having a valid independent contractor agreement is not necessarily an impenetrable magic shield automatically rendering misclassification claims null and void, according to Fisher Phillips’ Gig Employer Blog.

Partner Richard Meneghello describes the case in which a company’s former worker claimed that he faced discrimination on account of his race, gender, and age during his three months on the job. The company, however, countered that the plaintiff had been an independent contractor and did not have legal standing to bring employment discrimination claims under Title VII or the ADEA.

The company also citied an independent contractor agreement, confirming that the worker was a contractor and had no employment rights. The plaintiff cited work requirements that would have been appropriate for an employee.

“When the two were compared—the world contained in the contractor agreement against the reality as alleged by Nemo’s complaint and evidence—the court found inconsistencies that led it to rule in [the plaintiff’s] favor,” Meneghello writes.

Read the article.

An indemnity is a powerful risk allocation tool that deserves careful attention and a critical eye, both in terms of subject matter and administration, writes Kathleen Wergzyn for Foley & Lardner’s Manufacturing Industry Advisor.

She explains that a warranty and an indemnity are two different tools serving two different purposes.

The article discusses the breadth, duty to defend, and remedies related to indemnification and warranty.

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The Energy & the Law blog of Gray Reed & McGraw discusses a case that sums up what is required for an instrument to be a conveyance and what is required for a stipulation to be effective.

Ellison v. Three Rivers Acquisition involves land title issues that arose when a mineral development company discovered an apparent discrepancy in a land swap from almost 100 years ago. The developer asked the owner of a mineral lease on the land in question to sign a letter confirming acceptance of a boundary stipulation designed to resolve the discrepancy.

The article discusses the question of whether the boundary stipulation was a legal conveyance.

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A website post by Jesse P. Elison of Fox Rothschild attempts to place in context negotiation processes by highlighting the significance of parties’ intentions to contracts.

“[H]ow often do parties, even sophisticated parties represented by counsel, intend all the terms of a contract? The answer partially depends upon whether intention and agreement are equivalents. If they are, the answer is most of the time, but if they are not, the task becomes one chiefly of interpretation—a topic for another day.”

His article explains that developing skills that get the best representation of your intentions into an agreement can yield long-term benefits.

Read the article.

In a post on the Mintz, Levin, Cohn, Ferris, Glovsky and Popeo website, Gilbert A. Samberg discusses the question: What if a contracting party fails to appear to seek enforcement of an enforcement clause?

“At least two New York State trial courts tell us that your unexcused default in responding to a summons and complaint can be deemed a waiver of a contractual right to arbitrate,” he writes.

Courts in those cases granted default judgments on contract claims in such circumstances notwithstanding that the contracts in question contained arbitration clauses.

Read the article.

A client alert from Neal, Gerber & Eisenberg offers some advice on negotiating a demolition contract. Such contracts can arise when a big box retailer or a shopping center needs to be demolished to make room for a building more suited to a new use.

The article’s advice covers 12 topics, including the selection of the demolition contractor, dates of commencement and completion of the work, contract documents, the contract sum, payments, dispute resolution, insurance and bonds, indemnification, termination rights, the contractor’s warranty, safety compliance, and disposal of debris.

Read the article.

When drafting executive agreements, it is easy to focus almost exclusively on benefits and wages, the popular areas, without properly addressing some of the legal concerns that have grown over the last several years, warns Jo Ellen Whitney in a post on the Davis Brown Employment and Labor Blog.

In the article, she cautions against using outdated templates for contracts. She points out that “a template for C Suite positions is not the same as the template or agreements that you might use for front line employees.”

She also discusses determining benefits, termination, disability, bonuses, renewal, and restrictive covenants.

Read the article.

ContractWorks has published “The Contract Management Software Selection Guide” and made it available for downloading at no charge.

“As corporate counsel, it’s important that you understand the capabilities – and limitations – of contract management software,” the company says on its website. “This guide will help you determine if you need a solution and, if so, which option makes the most sense.”

The new guide discusses:

• If it’s time to upgrade your contract management system
• Which features you actually need to manage your contracts
• What to take into consideration before making a decision
• How to select contract management software
• How to choose the best solution for your company

Download the guide.

While the rule denying the award of “punitive” or “exemplary” damages for breach of contract is subject to certain limited exceptions, it appears to enjoy wide-spread acceptance in most states and in virtually all common-law countries, according to Glenn West, writing in Weil, Gotshal & Manges’ Global Private Equity Watch.

But one of the well-recognized exceptions that can sometimes threaten to swallow the rule is that which permits punitive or exemplary damages anytime ‘the conduct constituting the breach is also a tort for which punitive damages are recoverable.’ And a ‘dog’s breakfast of tort-based fraud claims can frequently accompany a breach of contract claim.” West writes.

He discusses the case of Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC, in which the Texas Supreme Court upheld the liability-limiting provisions waiving punitive damages, even for fraud.

Read the article.

International lawyers are often pushed by clients from common law countries (even more often by their in-house lawyers) to include common broilerplate contract provisions even in countries where they make no sense, writes Dan Harris for Harris Bricken’s China Law Blog.

He explains: “These people/lawyers are simply uncomfortable with contracts that do not include such terms. When we tell them that such provisions are not needed, their response is often, ‘well, it can’t hurt.’ But it can hurt.”

He discusses such Western-style contract staples as representations and warranties, effective date, counterparts, complete agreement, no oral modifications, good faith, headings and titles, third-party beneficiaries, and severability.

The article explains the potential drawbacks of using these clauses in contracts outside common law countries.

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Addressing a bench trial decision concerning a former employee’s retention of confidential information and violation of a non-compete provision, the U.S. Court of Appeals for the Fourth Circuit found no abandonment of the employer’s breach claims, and concluded that while certain flowcharts contained protectable trade secrets, there was no breach of the non-compete.

In an article for McDermott Will & Emery, posted at JDSupra.com, Mary Hallerman describes the case of an employee who was subject to an employment agreement requiring him to return to his employer all work documents upon leaving the company. The former employee breached his agreement by retaining these documents after he left the company and misappropriated trade secrets, the plaintiff company alleged.

The Fourth Circuit found that the ex-employee had not breached the non-compete clause because his role at his new employer was not sufficiently similar to constitute a breach.

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Hogan Lovells has published a guide to joint development and collaboration agreements and posted in on the firm’s website.

Protecting intellectual property is a challenge, especially when entering into a joint development agreement, cautions the guide.

When two or more organizations want to work together to develop or enhance their products, combine or integrate their technologies, or jointly commercialize a new product, they have many choices for documenting their relationship.

Read the article.