PilieroMazza PLLC has posted an on-demand video discussing how businesses can proactively get out in front of pre-bid issues and avoid missteps.

“We often see what can go wrong in the bidding and procurement process long after a client submits a proposal or is awarded a contract,” the firm says on its website. “From awards challenged because companies did not confirm their set-aside status, to incorrect assumptions made about the cost of labor, mistakes made before you bid can be costly, and even devastating.”

Topic include:

• The general requirements of the BAA and TAA
• The applicability of the requirements and exceptions to their applicability
• Tests for determining a product’s country of origin
• Relevant FAR clauses and certifications
• The potential penalties for non-compliance
• Practical tips and strategies for compliance

Watch the on-demand video.

Charles Sartain offers a reminder that a court will (if it’s doing its job) enforce an agreement according to what it actually says, not by that which one party or the other would have liked it to say or imagines that it said.

Writing in Gray Reed’s Energy & the Law blog, Sartain discusses Claybar v. Samson Exploration. That case involved an agreement over an indemnity clause in a contract for the drilling of petroleum wells and related operation on property owned by Claybar.

Sartain presents the facts of the case, including a break-down of both side’s positions.

“Generally, indemnity agreements do not apply to claims between the parties but apply to claims made by others who are not parties to the agreement,” Sartain writes. “However, the parties can write an agreement to indemnify one another against claims they later assert against each other. To do so, the parties must expressly and specifically state that intention.”

Read the article.

The State Department will be improving transparency in its requirements for contractor cooperation with its Office of Inspector General, according to Federal News Radio.

“While the Foreign Affairs Manual authorizes the OIG to access a contractor’s documents and interview its employees during the scope of an investigation, that provision is not currently explicitly expressed in the contracts signed by vendors,” writes David Thornton. “The OIG and the department are moving to correct this issue, and hopefully head off any further confusion or misunderstandings.”

The change is intended to head off problems such as the one seen earlier this year when a contractor would not comply with requests for an IT audit of security controls.

Read the article.

In a client alert, Pepper Hamilton surveys the effects of incorporating an arbitration provider’s rules or common arbitration provisions on who determines questions of arbitrability.

“While questions of arbitrability are ordinarily decided by a court, contracting parties can agree to delegate questions of arbitrability to an arbitrator instead,” the alert explains. “Because an arbitrator deciding questions of arbitrability is contrary to the ordinary course of events, contracting parties must express their intent to delegate questions of arbitrability to an arbitrator ‘clearly and unmistakably.’ When doubt exists as to the parties’ intent to ‘arbitrate arbitrability,’ the FAA’s presumption in favor of arbitrability is reversed.”

The authors conclude: if you want a court to decide whether, and to what extent, your dispute is subject to arbitration, you must be mindful of the impact that incorporating an arbitration provider’s rules or a broad arbitration provision into your agreement can have on the question of who will decide arbitrability.

Read the article.

In a recent Initial Determination, an administrative law judge ruled that a patent owner did not have standing to sue without joining a third party to which certain rights had been transferred, reports Jones Day.

Daniel Kazhdan and Blaney Harper discuss Certain Audio Processing Hardware, Software, and Products Containing the Same.

Andrea Electronics Corp filed a complaint asserting that a number of companies, including Apple Inc., infringed its patents by importing certain products. It was undisputed that Andrea held formal title of the patents, but Apple argued that Andrea did not hold “all substantial rights in the patents-in-suit,” as required by Diamond Coating Technologies, LLC v. Hyundai Motor America.

Read the article.

A post by Jason M. Knott in the Zuckerman Spaeder Suits By Suits blog warns that, when an employer changes its contract with an employee, the change should be communicated clearly—and preferably, in writing. Otherwise, the employer may be at risk of finding that the old terms still control.

He illustrates his point by discussing the case of Balding v. Sunbelt Steel Texas, Inc., in which a federal court of appeals ruled that an employer had to go to trial over a salesman’s claim for unpaid commissions.

In that case, the salesman’s original contract set out a salary and a percentage commission. Later the employer raised his salary and claimed that the salesman was told that the raise was in lieu of commissions, but the salesman denied hearing that statement.

Read the article.

When indemnity is mentioned, most owners, designers and contractors think of protection from third party claims asserted by parties with whom they have no contractual privity, points out a post by Saul Ewing Arnstein & Lehr.

But Garry R. Boehlert and Trevor Ashbarry explain that, depending on the language used, indemnity provisions also can cover first party claims asserted by parties in privity of contract. To the surprise of many, such clauses may cover actions for breach of contract in addition to claims for negligence.

They add, “regardless of how carefully you may have considered the pros and cons of including a prevailing party clause in your contract, the indemnity clause you have negotiated may unwittingly permit recovery of attorneys’ fees for first and third party claims — even if the clause makes no mention whatsoever of attorneys’ fees.”

Read the article.

Technology is revolutionizing nearly every aspect of contracts, from how they are generated to how they are terminated. In some cases, contract tech is beneficial – but in other cases, as with the Internet of Things (IoT), tech is making contracts more and more difficult to analyze,  according to IoT Business News.

“Many experts believe that contract law isn’t prepared for the IoT revolution, which is dangerous considering the abundance of IoT devices already in operation,” the article says. “Businesses and consumers alike should be aware of concerns regarding contracts and the IoT, so everyone can stay protected in the years to come.”

The article defines a contract in the age of IoT and discusses how the IoT has changed contracts.

Read the article.

Poorly drafted waivers include lawyerly language that may appear concrete on the surface but crumbles during a lawsuit, warns Hellmuth & Johnson in a blog post.

Authors Micheal D. Howard and Jason S. Raether describe a recent case involving a fitness studio  that demonstrates how a poorly drafted waiver can be as effective as having no waiver at all.

In the case, involving an injury to the customer of a fitness studio, a trial court found in favor of the studio, based on the language of an indemnity agreement. But the appellate court reversed, finding the language to be inadequate.

Read the article.

A well-designed arbitration clause can give the parties substantial control over procedures and costs, as well as over who decides which issues and when, writes Daniel Pascucci in the blog ADR: Advice from the Trenches.

But, the Mintz, Levin, Cohn, Ferris, Glovsky and Popeo lawyer warns, all too often parties make agreements that leave the decisions on most of their options to others or to chance.

In his article, he dissects the generic arbitration clause, and describes what an arbitration clause should do and what it can do.

“Arbitration’s promise of being faster, more efficient, and more predictable than judicial litigation should be viewed as conditional – if the parties are willing to put in the effort to design a suitable process, arbitration can deliver on its promise,” Pascucci concludes.

Read the article.

As the number of vendors that businesses engage with rises, so does the need for a greater contractual understanding of vendor agreements among businesses, CIOs, IT departments, and general counsels alike, according to a post on the Biztech Law Blog of Foster Swift Collins & Smith.

Katila Howard warns that, while many of the underlying contractual principals remain the same, overlooking the differences can be costly.

In her article, she discusses the considerations of security and privacy, limitation of liability, access to data, privacy, service levels, and subcontractors.

Read the article.

The U.S. Supreme Court has granted certiorari in New Prime Inc. v. Oliveira, which should provide guidance as to the circumstances in which the Federal Arbitration Act (FAA) applies to interstate transportation workers who are purported independent contractors, according to the Transportation Blog of Holland & Knight.

“The case will be important for in-house and private transactional attorneys who draft contracts with transportation sector independent contractors, as well as litigators handling employee misclassification cases,” the article’s authors write.

They explain: “Over the past several years, a spate of class action litigation has targeted the long-standing use of owner-operator truck drivers as independent contractors, with drivers claiming that they should be classified as employees. The contract between the motor carrier and the driver often contains an arbitration clause, but drivers typically file these cases in court, leading to a fight over the proper forum.”

Read the article.

A blog post by J. Marc Ward for Fredrikson & Byron addresses some of the risks associated with the failure to negotiate a data processing agreement, as well as tips on how to avoid common pitfalls.

The article is aimed at the banking business.

Ward addresses regulatory risks, mergers and acquisitions, and negotiating the contract.

“As products and services are added to the master agreement, do not lose sight of the big picture,” he advises. “Watch out for services with terms longer than the other services in the agreement and ensure that any added services terminate at the same time as the master agreement.”

Read the article.

Image by NY Photographic

An employee misclassification lawsuit can be difficult to dismiss early because plaintiffs are afforded great latitude in crafting factual disputes that can only be resolved at trial, points out a post in the Labor Days blog for Kelley Drye.

Special counsel Michael D. Yim offers a suggestion: one simple sentence in employment contracts, handbooks and policies for salaried employees that would likely reduce exposure by approximately two-thirds in FLSA cases.

He presents the wording of the sentence and then illustrates the  financial impact and disparity of the two calculation methods — first without the “magic words” in the agreement and then with the “magic words.”

Read the article.

In a blog post, DLA Piper partner Jeff Lehrer discusses some common commercial contract issues to watch out for as your company begins contracting with third parties and looks forward to the next venture round or potential acquisition.

He points out that it is important to address the critical intellectual property rights issues that will allow the protection of an idea in the commercial market.

Among the points he discusses: consider the impact that the agreement may have on the company’s ability to pursue subsequent contracting opportunities; commercial agreements must clearly allocate ownership of IP; ensure compliance with open source licenses; and avoid being on the hook for uncapped liability.

Read the article.

As with any contract, non-disclosure agreements are least effective when treated as boilerplate afterthoughts, points out Sean W. Fernandes in an article for the American Bar Association’s Mentoring New Lawyers blog.

“To ensure that clients obtain the maximum benefit of non-disclosure agreements, lawyers should tailor the agreement to the information being shared and the risks attendant to the disclosure,” he advises.

In his article, Fernandes discusses:

• a statement of purpose
• terms governing permissible uses
• a definition of confidential information
• procedures for labeling confidential information
• what steps should be taken to secure confidential information
• procedures governing unauthorized disclosures
• expiration of the agreement and return or deletion of confidential information
• a discussion of remedies

Read the article.

The Association of Corporate Counsel has set the agenda for the 2018 ACC Mid-Year Meeting, which will be in Denver April 22-24.

The ACC is promoting two special sessions: “Advanced Ethical Issues in Negotiating and Drafting Contracts” with Clara Ohr, general counsel for East Coast Power & Gas, LLC, and a presentation by Gary Kennedy, former CLO of American Airlines and author of “Twelve Years of Turbulence: The Inside Story of American Airlines’ Battle for Survival.”

Three major components of the meeting will focus on:

• Contracts: Learn advanced drafting and negotiation techniques and tools that drive contract performance, mitigate risk, and meet rapidly changing needs of your organization.
• Mergers and acquisitions: Knowing business—and your company’s business, specifically—will make you an immensely more valuable business partner as your company navigates complex corporate transactions.
• Business training: Business management is the #1 non-legal skill desired by CLOs for their lawyers. Boost your business acumen through academic-taught live and on-demand sessions on key finance, accounting, and emotional intelligence concepts.

Get more information.

As more and more “smart” products incorporate computer and software elements, manufacturers must evaluate whether they have the appropriate supply chain practices and procedures in place to handle the addition of these elements, advises Nicholas J. Ellis of Foley & Lardner in the firm’s Manufacturing Industry Advisor blog.

This could involve revising contracting practices and documents, he writes.

“Many of the contract forms used to source raw materials or physical components may not be appropriate to use when sourcing software. The terms of any contract must be dictated by the specific circumstances,” Ellis explains.

He discusses some examples that highlight some of the potential issues that may arise when trying to use traditional supply form documents to purchase software or other computer components to be included in a product.

Read the article.

The U.S. Supreme Court recently reaffirmed that collective bargaining agreements (CBAs) must be interpreted according to “ordinary principles of contract law,” according to a post in the  Proskauer Rose Employee Benefits & Executive Compensation Blog.

The ruling again rejected the Sixth Circuit’s inference from silence that CBAs vested retiree benefits for life.

Three years ago, the Supreme Court held in M&G Polymers USA, LLC v. Tackett that CBAs must be interpreted according to ordinary principles of contract law, and the court rejected the Sixth Circuit’s so-called “Yard-Man” inference that if a CBA did not specify that retiree medical and other welfare benefits had a limited duration, the benefits were presumed to be vested.

The article’s authors explain: “The Supreme Court unanimously reversed the Sixth Circuit, holding that the Sixth Circuit’s inference of vesting could not be squared with Tackett because it did not comply with Tackett’s direction to apply ordinary contract principles.”

Read the article.

Charles Sartain and Chance Decker, writing in Gray Reed & McGraw’s Energy & the Law blog, describe a contract case in which an oil and gas landman found out that the contract he signed with a purported agent for a client was unenforceable.

The independent landman signed a contract with the purported agent of the plaintiffs, in which the producers were to pay Moore “$600 per mineral acre for for leases signed. The plaintiff said he helped secure numerous leases, but defendants refused to pay.

The authors explain that the court found that the contract didn’t specify the properties it applied to, this violating the Statute of Frauds. Sartain and Decker then offer some ways the contract could have been written so it would have been enforceable.

Read the article.