“By this point in the COVID-19 pandemic, almost every person in business, construction, and real estate has heard the term ‘Force Majeure’ more times than they can count. This is an important contract clause for a party required to perform obligations—and whose performance might be delayed or limited by unforeseeable events or events outside of their control such as civil or labor riots, wars, fires, terrorism, explosions, weather disasters, and acts of G-d. The typical force majeure contract clause will excuse such a delay in performance or provide the party with additional time to perform if the delay is the result of a force majeure event,” discusses David Podein, Parnter at Haber Law in Contractor.

“But what about unforeseeable governmental restrictions or even economic disasters—especially on a statewide, national or even global scale? Would the 2008/2009 global financial crisis qualify as a force majeure event under your boilerplate force majeure clause? Would the 2020 COVID-19 pandemic qualify as a force majeure event under your boilerplate force majeure clause?”

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“Businesses have several available causes of action to claim when a competitor attempts to replicate the business’ appearance in advertising or its products. Trademark law, such as the Lanham Act, provides many remedies to a business which believes that a competitor is emulating the business and creates a ‘likelihood of confusion.’ … However, copyright law has a more limited application in comparison to trademark law in cases involving emulation of design amongst competing businesses, as reflected in the recent case, Off Lease Only, Inc. v. Lakeland Motors,” discuss Mavrick Law Firm in their blog.

“When a competitor emulates the appearance of a company’s products or advertising, the first cause of action to consider is usually under trademark law. Trademark law was enacted to prevent a business emulating or copying the appearance of another. Copyright law is generally more concerned with protecting artists from unlawful reproductions of their work, such as in music, film, or in books. However, in limited scenarios, an aggrieved business may also have the opportunity to initiate business litigation under copywrite law when a competitor copies the artistic qualities of a business’ advertising or products.”

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“The Ninth Circuit recently reminded companies that they must provide notice to consumers when they change their terms and conditions, even where original terms state that they are subject to change at-will and at any time (i.e. the original contract contains a ‘change-of-terms’ provision). Without express notice to the consumer, any change is unenforceable,” warn David A. Grant and Hilary A. Williams in Payne & Fears Insights.

“In Stover v. Experian Holdings, Inc. … a consumer expressly agreed to Experian’s terms as they existed in 2014. Those terms required her to arbitrate all claims arising out of the service she purchased and contained a change-of-terms provision stating that she would be consenting to ‘the then current terms’ (i.e. new or different terms added/changed after 2014) each time she accessed Experian’s website. The consumer accessed the website in 2018. At that time, the terms had changed to exclude certain disputes from arbitration. The consumer argued that her dispute should not be subject to arbitration pursuant to the 2018 terms.”

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“Remote work is here to stay. The shift from in-person office work to working from home has been dramatic, and the data and commentators suggest it may be permanent. Employers, therefore, need to develop thoughtful telecommuting options and employment policies to go with them,” write Jeff MacHarg and Beau Howard, Partners at Fox Rothschild in HR Daily Advisor.

“For companies with workers in other states, the work-from-home (WFH) scenario creates a risk of defending lawsuits in unfamiliar and distant courts. To prevent this, employers must understand the legal concept of ‘personal jurisdiction’ and the specific steps they can take to avoid litigating in an employee’s home court.”

Read these strategies to help establish and maintain a home court advantage.

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“The Equal Employment Opportunity Commission (EEOC) recently released updated guidance for both employers and employees addressing common questions related to COVID-19 and the federal employment laws. The update pulled together information from other agency resources, modified two existing questions and answers, and added 18 new ones,” reports Samuel Jackson of Perkins Coie LLP in HR Daily Advisor.

“The COVID-19 pandemic has disrupted employers’ normal operations in virtually every way, but it’s important for you to stay abreast of the EEOC’s guidance on employment laws during this challenging time. The agency’s recent update clarified:

• You may conduct coronavirus screening tests and inquiries to all employees returning to the workplace, but you must have a reasonable belief that an individual has COVID-19 or its symptoms if you wish to conduct a test or make inquiries to the person.
• To the extent possible, you must keep confidential all medical information about employees, including COVID-19 details.
• Finally, if employees request a reasonable accommodation, you must engage in the interactive process by discussing what they need and the reasons why.”

Learn the key takeaways for employers and HR pros.

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“Business disruptions caused by Covid-19 are providing fertile ground for contractual disputes and negotiations over how losses should be allocated. Kasowitz Benson Torres attorneys say courts may be increasingly willing to adjust contract obligations to avoid inequitable results and they offer tips for contract language,” write Paul “Tad” M. O’Connor III and Jennifer McDougall in Bloomberg Law’s Corporate Governance.

“Covid-19 has given new relevance to the common law breach of contract defenses of impracticability and impossibility of performance, as well as force majeure contract clauses, under which contract performance may be excused because of external events (like the Covid-19 pandemic) not the fault of the parties.”

“Where such a defense is successfully invoked, however, the consequences can potentially be inequitable—a party, for example, could face a loss of expenses it laid out before the occurrence of the event in anticipation of performance by the party whose performance is excused.”

“Courts have taken different approaches to avoid inequitable results.”

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“Most LLC operating agreements contain a ‘buyout’ provision allowing the LLC or its remaining members to buy the membership interest of a departing member. Buyout provisions can be structured however the LLC members see fit. Freedom of contract is one of the most attractive traits of an LLC,” write Kevin Brodehl in The LLC Jungle.

“But operating agreement buyout provisions are sometimes unclear, leading to uncertainty, disputes, and litigation.”

Brodehl provides some examples of LLC buyout-related problems.

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What happens when “you decide to just include standard boilerplate language where both parties agree to indemnify each other for any negligence committed by the indemnifying party? After all, the intent is for the other party to indemnify you if they breach any applicable duty stemming from this agreement,” discusses Andy Nikolopoulos in Fox Rothschild’s Lone Star Bench & Bar.

“Although the inclusion of such mutual indemnity provisions is the norm rather than the exception, the protection you think you bargained for will likely be unavailable to you if you find yourself sued as a result of the actions of the other party. For example, if you are a contractor who is sued due to the negligence of a subcontractor, your first inclination will be to demand that the subcontractor indemnify and defend you in the lawsuit based on the indemnity provision in your contract. However, if your indemnity provision consists only of rinse and repeat ‘standard’ language, you may be out of luck in seeking recourse from the subcontractor.”

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“As the world changes in unexpected ways, cybersecurity threats evolve and become more sophisticated. Cyberattackers have used the global pandemic to take advantage of individual and system vulnerabilities, giving rise to a dramatic increase in socially engineered phishing scams and ransomware. The FBI recently reported that the number of complaints about cyberattacks to their Cyber Division is up to as many as 4,000 per day, representing a 400 percent increase from pre-coronavirus. Interpol also reported seeing an alarming rate of cyberattacks aimed at major corporations, governments, and other critical infrastructure,” discusses a post on Michael Best’s Newsroom.

“In striving to mitigate our risks and in recognition of Cybersecurity Awareness Month, below are some A-Z cybersecurity terms with which to become familiar so that we can continue our dialogue and improve our collective response to these risks.”

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“LVMH Moët Hennessy-Louis Vuitton SE was scheduled to acquire Tiffany & Co. no later than August 24th, 2020, but the merger came to a halt when LVMH failed to even apply for antitrust clearance,” write Peter S. Lubin and Patrick Austermuehle in Lubin Austermuehle’s blog.

“Antitrust laws exist to avoid monopolies. If two major companies merge to form one company, there’s a fear that the existence of a huge corporation, which now owns the market shares of both companies involved, might dominate the industry, thereby making it difficult, or even impossible for any other company to compete with them. Since healthy competition promotes innovation and helps drive down prices, it’s necessary for a healthy economy.”

“As a result, when two major corporations merge to form one company, they have to file for antitrust clearance with the authorities in the markets in which they operate, meaning the authorities look at the market share of the two companies and agree that the merger would not create a monopoly. But according to a recent lawsuit filed by Tiffany, LVMH has not only failed to acquire the antitrust clearance by the agreed-upon date but has failed to even file for antitrust clearance.”

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“BMG announced they will be rolling back at least some aspects of what’s called ‘controlled compositions’ clauses in (presumably) their record deals. This is good, and is another example of how BMG is setting the gold standard for courageously defending their writers,” writes Chris Castle in Music Technology Policy.

“Let’s understand what ‘controlled compositions’ clauses actually mean and don’t mean. The basic concept is that an artist signing to a label grants a mechanical license to the label for the songs they record that the label exploits.”

“… this only covers records exploited by the label. It does not cover any streaming service, like Spotify or Apple, both of which have to obtain mechanical licenses under an NOI or soon under the blanket in the Music Modernization Act giveaway.”

“Mechanical licenses and mechanical royalty payments by record companies are actually much less prone to error than those made by streaming services. Mechanical royalty payments are much more likely to get paid timely for a very simple reason–the label needs the artist/songwriter to cooperate…The same cannot be said of Spotify …”

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“Under new guidance from the Small Business Administration (SBA) issued through a Procedural Notice (Notice) on Oct. 2, 2020, certain PPP borrowers may be required to seek prior consent from the SBA for a change in ownership of equity or sale of assets. Notably, the Notice addresses a change in ownership interest of the PPP borrower itself, but does not specifically address changes in ownership at the level of the borrower’s affiliates. Absent additional guidance, presumably no SBA or lender approval would be required for a change in ownership at a borrower’s affiliate if the transaction did not have a bearing on the PPP borrower, its direct assets, or equity interests. The Notice establishes different categories of transactions, some of which may require prior approval of the SBA, and is effective for all transactions that close on or after Oct. 2, 2020,” writes Bryan X. Grimaldi, Barbara A. Jones, Carl A. Fornaris and Lee Ann Anderson in The National Law Review.

“Prior to the closing of any change of ownership transaction, a PPP borrower must notify its PPP lender in writing of the contemplated transaction and provide the PPP lender a copy of the proposed agreements or other documents that would effect the proposed transaction. The original loan documentation itself may contain covenants triggering lender consent to the transaction as well and should be reviewed accordingly, although compliance with the Notice requirements will still be required. The Notice states that, where SBA approval is required, the SBA will review and provide its decision within 60 days of receipt of a completed request. This up-to-60-day waiting period could result in a significant delay of the closing of the transaction. Accordingly, a determination of whether prior approval is required should be made early in the transaction process.”

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Facebook brought suit against two marketing analytics firms alleging the defendants developed and distributed malicious Chrome browser extensions that were essentially designed to scrape users’ data from various social media platforms … “(including Facebook and Instagram), all in contravention of Facebook and Instagram’s terms of service and commercial terms,” reports Jeffrey Neuburger in Proskauer.

“According to the Complaint, the defendants coaxed users to install their UpVoice and Ads Feed extensions by, among other things, offering gift cards in exchange for downloading and suggesting that users would become ‘panelists’ impacting marketing strategies of large companies.”

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“Copyright law is found in more than in the copyright code. Courts interpret the code, along with rulings by other courts, and apply it to the circumstances. But courts can disagree with each other, making it difficult to predict the outcome of a copyright infringement case. Fortunately, the 2nd Circuit Court of Appeals recently issued an order clarifying some frequent copyright infringement issues,” writes Carolyn Wright in Photo Attorney.

“Joseph Sohm had entered into agreements with several agencies, including Continuum Productions Corp. (now Corbis Corp.), to issue licenses to third parties on his behalf. In 2004, Corbis entered into a preferred vendor agreement (“PVA”) with Scholastic Inc. that established fees for certain print-run ranges of Sohm’s photos.”

“The issues presented there are important to photographers.”

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“… there are times when a lender will want to start enforcing one or more rights or remedies. In all or almost all jurisdictions in the United States, a lender is required to provide a written notice of default to the borrower and guarantors, and to make a written demand for payment, before exercising any rights or remedies. In many jurisdictions, however, a borrower or a guarantor can waive these requirements in the loan documents, and many loan documents contain such waivers,” writes Cara M. Houck and Steven A. Roach in Miller Canfield’s Resources.

“This begs the question of whether to send a default and demand letter.”

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“The Second Circuit recently addressed this issue in declining to enforce browsewrap terms and conditions containing an arbitration agreement. The decisions in this area show that a hyperlink must be reasonably conspicuous to put a consumer on the requisite inquiry notice to render terms and conditions enforceable,” warns James F. Bogan III in Kilpatrick Townsend’s Insights.

“In Arnaud v. Doctor’s Associates Inc., Luis Arnaud entered his phone number on a promotional page of Subway’s website and clicked a box labeled ‘I’M IN’ to receive a free Subway sandwich the next time he purchased a 32-ounce drink. The promotional page included a hyperlink to terms and conditions that included an arbitration agreement.”

“After Subway allegedly sent Mr. Arnaud an unsolicited text message, he filed a putative class action against Subway alleging violations of the Telephone Consumer Protection Act. Subway moved to compel arbitration, but the district court denied the motion. Subway appealed, but the Second Circuit affirmed.”

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“Much has been written in the past few weeks about a recent federal court decision that invalidated the U.S. Department of Labor’s joint employment rule. While the immediate reaction of some may be to view this as a terrible decision for businesses that expands the potential for an entity that does not employ an individual to nonetheless be deemed that individual’s joint employer, this reaction may overstate the decision’s importance for putative joint employers,” writes Louisa J. Johnson and Noah A. Finkel in Seyfarth Shaw’s Wage & Hour Litigation Blog.

“The rule at issue is 29 C.F.R. § 791.2, which the DOL amended in January of this year, and which 18 states sought to enjoin through a lawsuit brought in the U.S. District Court for the Southern District of New York. The court invalidated the new rule with respect to ‘vertical joint employment,’ which refers to situations in which the employee has an employment relationship with one employer but a separate company also benefits simultaneously from the work of the employee, often through a contract with the direct-employing entity. The court reasoned that the DOL’s new rule for vertical joint employment was essentially the same as the common law control test for joint employment. This purported similarity, the court said, was proof that the DOL’s new test was impermissibly narrow because Congress intended the scope of employment under the FLSA to be very broad.”

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“The NH Supreme Court has enforced contract clauses waiving consequential damages and limiting liability. It has also noted that tort claims asserted when the underlying transaction was based on a contract will be barred by the economic loss doctrine,” posts Stanley A. Martin in Commonsense Construction Law’s Blog.

“The plaintiff was an engineering service firm that works with advanced composite materials for Department of Defense clients. The defendant was an IT service provider. The engineering firm had a problem with a drive in one of its servers, and the IT company was brought in to resolve the issue. Unfortunately, the engineering firm lost data because the IT company had ‘failed to properly back it up.'”

“The engineering firm sued for the cost of  ‘massively expensive’ testing in order to recover the lost data. It brought claims against the IT company for breach of contract and negligence. The IT company moved to dismiss the costs of testing and any other damages that were not direct damages, and also sought to dismiss the negligence claims. The trial court dismissed the consequential damages, and held that the negligence claim was barred by the economic loss doctrine.”

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“COVID-19, an enduring public health challenge that stretches across the world, raises interesting legal ethics issues for lawyers. Ethical considerations while practicing law during the COVID-19 epidemic have been written about at length during the past few months, but one question has received relatively little attention: What ethical issues arise when attorneys or their clients contract COVID-19?” asks Esquire Deposition Solutions.

“With more than 6.9 million reported COVID-19 cases in the United States (as of Sept. 22, 2020), the question is not trivial. The likelihood that attorneys and their clients will contract the disease is high. This post looks at the ethical issues that arise in both scenarios.”

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“In American Association of Motorcycle Injury Lawyers Inc. v. HP3 Law LLC et al., an Arizona-based legal trade association, which held trademark rights in the name ‘Law Tigers’, sued an Illinois law firm that was using the nickname ‘TigerLaw,'” reposted from Law360.com by Tyler Maulsby and Kimberly Maynard in Frankfurt Kurnit Klein + Selz’ blog.

“The Law Tigers argued that the Illinois firm’s name was confusingly similar and therefore infringed their trademark rights. This is by no means the first law firm trademark dispute.”

“Earlier this year, a law firm called Thrive IP sued another firm operating under the name Thrive Law, in Stipkala & Klosowski LLC v. Thrive Law PA. In Florida, a federal judge denied a law firm’s request for a preliminary injunction in a trademark lawsuit, Simon et al. v. Nicholson Injury Law PA et al., against a competitor firm over the use of the phrase ‘Simon Says.’ And in Florida, Texas and Colorado, law firms are arguing over the rights to use certain words or phrases in their branding and advertising.”

Read the article.