Republican lawmakers in the House and Senate have introduced bills calling for the repeal of a just-announced regulation that would make it easier for consumers to bring class-action lawsuits against banks, reports The Los Angeles Times.

The new Consumer Financial Protection Bureau rule would ban banks and other financial institutions from forcing arbitration clauses on customers to prevent them from bringing or joining class-action suits.

Some Republicans have introduced resolutions calling for use of the Congressional Review Act, which allows Congress to new regulations created by federal agencies, writes James Rufus Koren.

Read the LA Times article.

When drafting contracts, briefs, and other documents, the significance of placing a comma is often overlooked, points out Hyatt & Weber P.A. The decision to include or omit a comma, however, could be dispositive in a dispute over the meaning of legislation or a contract.

“Indeed, in O’Connor v. Oakhurst Dairy, 851 F.3d 69 (1st Cir. 2017), the United States Court of Appeals for the First Circuit found the absence of a comma created an ambiguity when interpreting certain legislation, and that ambiguity drove the outcome of the litigation,” according to a post of the firm’s website.

“Guiding principles regarding the use of commas and other writing conventions should be strongly considered when drafting contracts, for example, as including or excluding a comma in a particular contract provision may ultimately determine whether a company owes or is owed millions of dollars in a subsequent dispute,” the post continues.

Read the article.

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Although it is typical for AIA form contracts to contain arbitration clauses, as a contractor you should consider whether you should have an arbitration clause in your construction agreement, advises Paul W. Norris of Stark & Stark.

In an article posted on the New Jersey Law Blog, Norris explains “there are numerous factors to consider in determining whether mandatory arbitration is the preferred dispute resolution mechanism, or whether the state court system is preferred. Although arbitration may have some advantages, there are also disadvantages which must be considered rather than simply adopting the AIA form.”

He discusses the cost of the arbitration proceeding, judge or jury vs. an arbitrator, discovery during an arbitration process vs. the state court process, timeliness of the proceeding, judgments, and appeals from arbitration of a state court.

Read the article.

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A Canadian digital currency exchange (QuadrigaCX) reported recently that a malfunction in a smart contract is responsible for a $14 million dollar loss of the cryptocurrency ether, reports Jared Butcher in the Steptoe Blockchain Blog.

He explains that a software upgrade performed by the company had an error in the code that prevented the smart contract from properly processing incoming amounts of the cryptocurrency Ether. During the time it took to discover the problem, Ether sent to the company’s exchange was “trapped” in the smart contract.

“The potential for new risks and severe consequences arising from smart contracts (compared to traditional contracts) suggests that a re-consideration of indemnification strategies is warranted,” Butcher writes. “Risks arising from coding errors or other human errors are not the product of intentional wrongdoing or a catastrophic event and may not involve any injury to a third party.”

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In a blog post on nondisclosure agreements, Gregory W. McClune of Foley & Lardner addresses the questions: Does an employer have the legal means to prevent disclosure of information acquired during employment? Likewise, can an employer seek legal redress for such disclosures?

“Drafting and enforcing NDAs requires considerable thought, care, continual maintenance and a skilled legal advisor,” writes McClune. “It is an area rife with risks and traps; and employers who believe they can “gag” their employees, by simply requiring them to sign a broadly worded agreement with heavy penalties, may be in for a rude shock.”

His article discusses difficulties as dealing with the lack of uniformity among states in enforcing NDAs, and the lack of sympathy for employers in the courts.

Read the article.

Paper Software will demonstrate its Contract Tools product, a powerful Word add-in for working with contracts, in a complimentary live webinar. The event will be Monday, July 24, at 12 p.m. EDT.

Contract Tools, a TechnoLawyer Top 5 product of 2016, is designed to make creating and reviewing contracts easier.

The live demonstration will provide a tour of Contract Tools’ new features, including real-time updating.

Paper Software also offers a free seven-day trial of Contract Tools.

Register for the live demonstration.

Baker McKenzie’s Global Arbitration News has posted an article discussing the difficult questions raised in both substantive and procedural law by indemnification clauses in share purchase agreements.

The author, Dr. Philipp Schuett, explains that the reason is that an indemnification dispute involves at least four parties: “The target company, the third party who raises claims against the target company, the seller (= the indemnitor) and the buyer (= the indemnitee).”

He then discusses the reasons to include indemnification clauses in SPAs, the scope and wording of indemnification clauses, the potential for disputes, and avoidance of post-M&A disputes.

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An alert from Pillsbury Winthrop Shaw Pittman takes a look at some new laws in the United States that provide a clear indication that smart contracts will be impactful.

Authors of the article are Craig A. de Ridder, Mercedes K. Tunstall and Nathalie Prescott.

The article covers the Current legal state of smart contracts and blockchain technology, provides a refresher on smart contracts, discusses upcoming smart contract and blockchain technology projects, and looks at the future of smart contracts.

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Bryan K. Wheelock of Harness Dickey has posted an item on the firm’s website contemplating what perfection might look like in regard to an employee agreement.

“Lawyers strive for perfection in their work, but time constraints, budgets, and other factors work against us. Also, perfection is not always the same thing in every circumstance,” he writes.

He discusses such topics as confidentiality, non-compete clauses, non-solicitation, assignment of inventions, access to computers, the return of employer property and confidential information, and publicity and social media restrictions.

Read the article.

The first part of the Department of Labor’s Conflict of Interest Rule went into effect in June, and a large group of newly-defined “fiduciaries” are now subject to certain requirements of the Best Interest Contract (BIC) exemption, a portion of the Fiduciary Rule that according to some commentators creates a private right of action for investors, reports Kilpatrick Townsend.

“The creation of a private right of action is one of the investment industry’s chief concerns with the Fiduciary Rule,” write Paul Foley and John I. Sanders. “Industry leaders claim that the BIC exemption creates a private right of action because it enables investors to bring breach of contract claims and class actions against the fiduciaries with whom they contract.  However, a federal judge from the Northern District of Texas flatly rejected this claim in Chamber of Commerce of the United States of America v. Hugler.”

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Commonsense Construction Law reports on a case in which an unsigned contract meant that the contractual liability exclusion in the subcontractor’s insurance policy would control, since there was no obligation “assumed in a contract or agreement . . . [where the claim] occurs subsequent to the execution of the contract or agreement.”

Stan Martin wrote the article.

“And this was not just a matter of having an agreed contract form which the parties never got around to signing,” he explains. “The subcontract at issue stated that it ‘is not valid without the Subcontractor General Conditions Version 2012-003 signed and agreed to by all parties.’ There was no dispute that the parties had not signed the general conditions.”

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Locke Lord partner Martin Gibson (Austin) and associate Kerstie Moran (Houston) co-authored an article examining a decision by the San Antonio Fourth Court of Appeals in Webb et al. v. Martinez in a property dispute including reservations of a mineral estate.

The article was originally published by the National Association Of Division Order Analysts.

“This decision further emphasizes the importance of properly phrasing a reservation clause, as to avoid inadvertently granting an interest in a mineral estate. The Webb Court demonstrates the way in which courts consistently interpret grantor’s intent based on the plain language of the deed,” according to the authors.

The appellate court affirmed the trial court’s take-nothing summary judgment regarding a property dispute in favor of Martinez. Webb had owned the entire surface and 75% of the mineral estate. The remaining 25% of the mineral estate was owned by a third party. Webb agreed to sell the entire property to Martinez through a contract of sale. The 1998 deed included a reservation clause that was at the heart of the litigation.

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Practical Law will present a free 75-minute webinar with Rita Berardino, Senior Legal Editor, Practical Law Intellectual Property & Technology, and presenters from Wilson Sonsini Goodrich & Rosati, who will discuss IP and information technology (IT) considerations in drafting and negotiating M&A agreements.

The event will be Wednesday, June 28, 1-2:15 p.m. EDT.

Intellectual property and technology assets have become increasingly significant components of a company’s business strategy and the focus of many M&A transactions, the company says on its website.

Topics will include:

• Common structures for M&A transactions.
• Key IP and IT provisions of M&A transaction documents, including:
  • Drafting and negotiation of IP and IT provisions.
  • How courts have interpreted these provisions.
• Key ancillary IP and IT agreements, including licenses and assignments.

A short Q&A session will follow.

Presenters:

• Manja Sachet, Partner, Wilson Sonsini Goodrich & Rosati
• Jason Greenberg, Associate, Wilson Sonsini Goodrich & Rosati
• Jennifer McGrew, Associate, Wilson Sonsini Goodrich & Rosati
• Rita Berardino, Senior Legal Editor, Practical Law Practical Law IP&T (Moderator)

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The NBA Draft was June 22, and while fans focused on their favorite team’s selections, the newest professional players and their lawyers had more weighty concerns to address: employment contracts.

Dallas-based attorney Rogge Dunn, partner at Clouse Dunn, works with professional athletes and coaches including Basketball Hall of Fame Coach Larry Brown.

In a blog post on the website of Androvett Legal Media & Marketing, Dunn said:

Athlete employment contracts are singularly unique in many ways. For example, compensation may be tied to a player’s performance metrics, such as shooting averages, games played or post-season awards, and are likely to be quite invasive on issues including the player’s weight, health issues and off-season activities. Also, unlike most employment contracts, they will likely contain morals clauses.

However, so-called ‘guaranteed contracts’ protect most athletes in a way that most of us with employment contracts do not have, by guaranteeing their compensation even if an injury prevents them from playing. We should all be so lucky to have guarantees such as these. Most executive contracts terminate payments or force a leave of absence if you are disabled or can no longer do the job.

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A Baker Tilly on-demand webinar provides an overview of strategies to identify potential claims scenarios and potential resolutions available to mitigate claims.

“Conflict and disagreements are normal on construction projects; however, when everyday disagreements escalate into unresolvable issues, claims and disputes may result,” the firm says on its site. “These can lead to costly and time consuming distractions for your organization and your project.”

Learning objectives:

• Understand red flags associated with high-risk projects
• Learn characteristics of a culture of claims avoidance
• Learn contractual methods/provisions that can help to proactively avoid disputes
• Understand remedies not requiring legal action

Watch the on-demand video.

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Perkins Coie has published a white paper that offers an initial analysis of the legal aspects of five prominent smart contract use cases: digital asset sales and capital markets, supply chain management, smart government records and smart cities, real estate land registries, and self-sovereign identity.

In the paper, available on JD Supra, the authors conclude that legal risk is inherent in each of these subject areas, but that with careful risk mitigation planning, companies can overcome those hurdles to offer effective products and services.

The paper consists of four parts: definition of terms, a review of current literature, five uses of smart contracts, and insight into practical steps a business may take when launching a product or service that uses smart contracts to mitigate legal risk.

Read the white paper.

In the second part of a series on change management in commercial contracts, Morgan, Lewis & Bockius LLP discusses the procedural mechanisms for managing change.

“In addition to classifying changes and allocating costs, outsourcing agreements and other long-term service agreements should include a defined set of procedures for documenting and implementing changes,” write partner Peter M. Watt-Morse and associate Glen W. Rectenwald.

The explain that agreements should, at a minimum, contain key procedural issues, such as mandatory changes, emergency changes, permissive changes and disputes. The article also covers the mechanism for making the change.

Read the article.

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Centre Law & Consulting will present a two-day “A Practical Guide to Government Contract Law” crash course that teaches attendees about the nuts and bolts of federal contracting and gives a breakdown of the complex laws surrounding this industry.

The event will be in Tysons, VA, August 9-10, 2017.

On its website, Centre Law & Consulting writes:

Did you know that subcontracts are not ‘Federal’ contracts and are not subject to Government contract law? And that the Government can terminate your contract with no liability for damages? Did you know every FAR clause has a “prescription” explaining when and if it should be used? Or that you can use simplified acquisition procedures (SAP) for non-commercial items up to $7 million?

The answers to all these questions and more can be learned in our two-day “A Practical Guide to Government Contract Law” crash course that teaches attendees about the nuts and bolts of federal contracting and gives a breakdown of the complex laws surrounding this industry. Whether you’re a lawyer just starting out in the area of federal contracting or you’re a non-lawyer looking to get an understanding of the industry, this course is for you.

Our expert instructor will walk you through the rules, regulations, and laws governing federal acquisition and will delve behind the “what” with the “why” to strengthen participants’ understanding of the framework in which they function.

Case studies, workshops, and a detailed textbook bring the law to life for course attendees.

Register or get more information.

Optimus BT will present a free webinar featuring a comprehensive demonstration of eContracts, an Enterprise Legal Contract Management product for SharePoint, featured in Gartner Market Guide 2017 for legal teams.

Automating Contract Management with SharePoint will be Wednesday, June 21, 2017, at 2 p.m. EDT.

The presentation also will cover why it is important to go beyond your legal contract repositories and invest in a Legal Contract Lifecycle Management solution.

Key topics covered will include:

• Building blocks for automating contract management and legal function within your organization.
• Possibilities presented by Microsoft Azure and SharePoint for Contracts management in the Cloud for processing large volume of documents, Advanced Search & Workflow.
• Demonstrate how Optimus BT’s eContracts can help kick start this journey and address the major pain points due to lack of automation of contract lifecycle.
• Capabilities to look for while automating contract management processes.
• An example of how an IT and legal teams have benefited from automating their contract lifecycle.

Register for the webinar.

While both relatively simple concepts, allowances and contingencies are often confused with one another. Conflating the two can lead to pitfalls, warn Randolph E. Ruff and Jonathan M. Mraunac of Ogletree Deakins.

“An easy way to remind oneself of the difference is: allowances are for known unknowns, and contingencies are for unknown unknowns,” they write.

In their article, they explain the differences between allowances and contingencies, how they are used, and how they can be drafted.

Read the article.

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