“Your product development team spent years designing a product, working out every design detail until it is just right. Your company spent significant time and money marketing the product, shoring up a great reputation for the product and the company that stands behind it. Then, a copycat comes along with a knockoff and starts selling a product that looks eerily similar—or even identical—to yours. When your customers search online for your long-developed and lauded product, the knockoff appears, and at a fraction of the price. You are certainly surprised, and likely dismayed,” write Gary A. Abelev and Gregory Miller in Hunton Andrews Kurth’s blog.

“What can be done to remedy this very unfortunate situation? One possibility is to contact the online search engine or third party retailer, which may have protocols to address such issues. However, without intellectual property (IP) protection for your product, very few remedies are available.”

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“The early stages of a legal dispute are often marked by the exchange of demand letters. While they typically receive less attention than formal legal filings, demand letters warrant careful strategic consideration to accomplish desired objectives and to avoid any potential pitfalls.” Jacquelyn S. Celender and Jeffrey P. Richter briefly discuss five points to consider when drafting a pre-litigation demand letter in K&L Gates’ Hub:

1. Clearly state the nature of your demand
2. Stick to the facts and avoid inflammatory language
3. Consider the applicable ethical constraints
4. Follow the requirements of any applicable contracts or statutes
5. Understand the applicable scope of privilege

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“Seyfarth Synopsis: The courts have stated that their review of fiduciary decisions is both exacting and deferential. A recent decision from the Court of Appeals for the Seventh Circuit offers help to ERISA benefit professionals who prefer to maximize judicial deference in favor of the fiduciaries,” write Mark Casciari and Ronald Kramer in Seyfarth’s Fiduciary Governance.

“One of the enduring paradoxes of ERISA litigation is the judicial standard of review of fiduciary decisions. The standard of review is important because an easier standard will uphold more fiduciary decisions in court and encourage more individuals to serve as fiduciaries. No one who acts in good faith – as the vast majority of ERISA fiduciaries do – likes to make tough decisions and be sued or reversed.”

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“… a recent Delaware decision suggests that we cannot be reminded too often of the importance of carefully modifying the standard no-third-party-beneficiary clause so that it … does not do more harm than good,” warns Glenn D. West in Global Private Equity Watch’s Features.

“Most acquisition agreements contain provisions intended to benefit affiliates (and officers, directors and employees, whether or not technically affiliates) of the contracting parties, who may be impacted by the sale in some manner (indemnification and the non-recourse clause are just two examples). An unexamined, boilerplate “no-third-party-beneficiary clause” can wreak havoc on those provisions if not carefully modified to make clear that the benefits of certain provisions of the agreement are indeed intended to benefit non-party affiliates (and perhaps others).”

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“Even if the title is click-bait, this is not a trick question. There is one type of online privacy policy that is objectively worse than all of the others. It does not relate to when it was created, whether it was crafted internally or by an outside expert, or even how much (if anything) you paid to prepare the privacy statement used on your startup’s website or mobile app,” warns Christopher Avery in Davis Wright Tremaine’s Privacy & Security Law Blog.

“The number one worst type of online privacy policy is one that a startup copies and pastes from another online service. Does this really happen? Yes – all the time. Imitation may be the sincerest form of flattery, but some copiers are so egregious that they do not carefully check and remove the references to the other company before posting it to their website.”

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“Kansas promoter Brett Mosiman was ready to chase former KAABOO owner Bryan Gordon to the end of the earth to collect a $7 million judgement delivered by a Kansas jury in February, but that will no longer be necessary after the men settled their claims last week over the canceled 2015 Thunder on the Mountain festival in Ozarks, Ark.,” reports Dave Brooks in Billboard’s Touring.

“Mosiman had filed a second lawsuit against Gordon in San Diego in December accusing the Madison Companies chairman of trying to hide his assets after selling KAABOO late last year. Mosiman was also working with his attorney to prepare their enforcement option for the Kansas judgment, but neither remedy will be needed after Mosiman filed a notice with the Kansas court Wednesday saying that Gordon and the companies he controls have satisfied the terms of the judgement ‘in an amount of which has been fully agreed to by the parties.'”

“Mosiman is the founder of the Wakarusa festival and had been hoping to revive the Thunder on the Mountain series when he was approached by Gordon and his business partners Seth Wolkov and Robert Walker from the Denver-based Madison Companies in 2014.”

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“When owners file bankruptcy or projects otherwise go south, lien priority often comes to the forefront. The idea is relatively simple. Priority is how courts determine which creditors get paid first. This often pits lenders against M&M lien claimants. For lenders, their liens typically arise when they record their deeds of trust. However, for M&M lien claimants, the Texas Property Code has very specific rules that must be followed,” warns Joe Virene in Texas Construction Law Blog’s Liens.

“The Code provides that a ‘mechanic’s lien does not affect any lien, encumbrance, or mortgage on the land or improvement at the time of the inception of the mechanic’s lien ….’ Inception is the key word. The code goes on to state ‘the time of inception of a mechanic’s lien is the commencement of construction of improvements or delivery of materials.'”

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“In CHS/Community Health Systems, Inc. et al v. Steward Health Care System LLC, the Delaware Court of Chancery examined who was an intended third-party beneficiary of an indemnification provision in an Asset Purchase Agreement,” writes Steve Quinlivan in Stinson’s Blog.

“The dispute arose in a transaction where Steward agreed to purchase substantially all the assets of certain hospitals owned by CHS.”

“Specifically, the APA listed a series of ‘Seller Entities’ that would ‘sell to [Steward] . . . substantially all of [their] assets . . . which are . . . used in connection with . . . [a] Healthcare Business.'”

“Steward agreed to ‘assume . . . the future payment and performance of . . . all obligations accruing . . . after the Effective Time with respect to the Assumed Contracts.'”

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“Business owners in the U.S. are often faced with various legal problems that can be crippling to their business. One of the best ways for them to circumvent these legal problems is to identify potential problem areas early and prepare for them by having a trusted business lawyer,” discusses Jacob Maslow in LegalScoops Practice.

He lists seven most common legal issues that businesses can avoid.

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“New Jersey’s Supreme Court approved as legally binding an arbitration agreement provided to employees electronically, concluding the arbitration agreement was effectively, clearly, and unambiguously communicated to the company’s employees. The decision in Skuse v. Pfizer, Inc. … ratified a five-page Mutual Arbitration and Class Waiver Agreement rejected by the lower court. In doing so, the Supreme Court resolved years of conflict and provided employers with much needed practical steps for drafting similar agreements and communicating them to employees,” discuss Mark A. Saloman and Jeffrey A. Shooman in FordHarrison’s Employment Law.

This article provides helpful do’s and don’ts

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“Indemnification provisions are an important part of the fine print of many contracts. These clauses generally operate to protect one party against the other party’s actions or failures to act that lead to a loss claimed by a third party (not a party to the contract). A common example is the indemnification provisions (or entire agreements) used in the rental car setting. Before you drive off the lot, the rental car company will require you indemnify (or protect) it against a third party (not you) bringing a claim due to you being in an accident,” write Sean Byrne and Scott Ziance in Vorys’ Insights.

“Similarly, most incentive agreements contain one-way indemnification provisions, requiring the incentive recipient to indemnify and hold harmless the public entity against any possible risk and for any liability that could befall the public entity because of your project. The incentive provider will usually inform you that the indemnification provision cannot be mutual, is non-negotiable, and often includes provisions that go beyond traditional indemnification. Sorting through the legalese in these terms and conditions is a challenge in non-incentive contracts, and adding a public or quasi-public entity can make them more complicated. ”

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77 Charters, Inc. brought a suit against defendants Jonathan Gould, Stonemar MM Cookeville, LLC, Cookeville Corridor, LLC and Eightfold Cookeville Investor, LLC “for a series of alleged ‘wrongful acts’ in connection with the management and sale of a shopping mall”, which also implicated Stonemar Cookeville Partners, LLC
and Cookeville Retail Holdings, LLC., discuss Scott Waxman and Rich Minice in K&L Gates’ Delaware Docket.

“In delivering its opinion, which centered on the nature of Delaware limited liability companies as creatures of contract, and thus, the controlling nature of the applicable operating agreements and contracts into which the parties had entered, the Delaware Court of Chancery ruled that only Plaintiff’s claims which could be connected to an alleged wrongful amendment of the operating agreement of Cookeville Retail could survive Defendants’ Motion to Dismiss.”

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“As a long-standing antitrust attorney in Europe, making the decision to move from Madrid to San Diego a few years ago to practice law in the U.S. has been a life-changing experience. Both personally and professionally. Learning from other cultures, colleagues, and languages is something I strongly recommend to everyone. It opens your mind and provides you with a different perspective about the world and yourself. And of course, that also applies to the practice of law,” writes Luis Blanquez in The Anti-Trust Attorney Blog.

“Indeed, when you move to a new jurisdiction you basically become a ‘newborn’ attorney, but with all your past experience in the backpack. That puts you in the best position to approach everything with a “fresh pair of eyes”, which in turn allows you to add value to your team and cases in a unique way.”

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“The National Labor Relations Board … has recently issued a half-dozen decisions addressing the lawfulness of employee arbitration agreements. Employers should not ignore this body of law, which applies to union and non-union employers alike,” warn Jeffrey K. Brown and Tyler B. Runge in Payne & Fears’ Insights.

“Under longstanding Board law, an employer may not maintain or enforce an agreement with its employees that interferes with their right to file unfair labor practice charges with the NLRB. Broadly worded arbitration provisions, however, often cover the types of claims employees may bring before the NLRB. For this reason, well-drafted arbitration agreements usually contain a “savings clause,” i.e., a clause providing that employees retain the right to file charges with the Board, even if the agreement otherwise includes claims arising under the National Labor Relations Act … within its scope.”

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“The COVID virus has ushered in unprecedented and challenging times for our country and the global community. From the deeply personal pain and suffering caused by the virus as a health pandemic to behavioral adjustments in the consumer population at large, to every day, but very real, burdens created by business closures and shelter in place orders, the full force and impact of the virus on our society won’t be known for a long time. Apart from these personal and social consequences, of course, the economic downturn is very real and upon us,” discuss Daniel R. Avery and Martin D. Edel in Goulston & Storrs’ What’s Market Blog.

“And yet businesses move forward, even in a very different and challenging environment. Certainly, the COVID virus is impacting the way M&A transactions are being looked at, papered, and implemented.”

Read the article.

Nancy Kim writes in ContractsProf Blog about university liability waivers and how they seem to be very different from regular liability waivers.

“First, they are presented in a conspicuous way and require a much more deliberate act of consent (it’s not simply a click to a link that nobody reads). The wording is clear and the student has to do something conscious that takes time, such as inputting their student ID number. The language does not mess around about the legal effect of the “manifestation,” unlike the typical wrap contract where users click without even knowing what they are doing. The students also have a choice – I think all universities that are planning to open are allowing their students to opt-out and study from home. (If not, then the waivers are coercive, IMHO). In other words, students don’t have to sign them if they want to stay enrolled and continue their studies.”

Read the article.

“… the enforceability of restrictive covenants often depends on which state’s law applies to the dispute. For example, California is well known for refusing to enforce employee non-competition agreements and, recently, refusing to honor forum selection clauses in agreements with California employees without the employee first receiving legal advice. In contrast, with limited exceptions, most other states will generally enforce restrictive covenants. Consequently, for employers, controlling and choosing the correct law to apply to its restrictive covenant agreements can be critical to protection of its business interests,” writes Marcus Mintz, Jeremy Cohen and Erik Weibust in Seyfarth’s News & Insights.

“In a recent dispute between an Ohio employer and a California-based employee, the 6th Circuit Court of Appeals affirmed the enforcement of a non-competition covenant over the employee’s objection … The employee appealed the district court’s application of Ohio law because of ‘California’s hostility towards covenants not to compete.’ … In reaching its decision to affirm the lower court’s application of Ohio law, the 6th Circuit conducted a choice-of-law analysis and held that because the agreement contained an express choice-of-law provision, the court needed only to examine whether California, the employee’s home state, has a ‘materially-greater-interest’ in the dispute than Ohio … Applying its own precedent, the 6th Circuit held that while ‘California has a meaningful interest in protecting its resident from Down-Lite’s desire to restrict competitive conduct,’ such interest was not ‘materially greater than Ohio’s interest in protecting one of its closely held businesses operating in the global economy.”

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“A court may not refuse to enforce contractual terms on the basis that the enforcement would, in its subjective view, be unfair, unreasonable or unduly harsh. It is only where a contractual term or its enforcement is so unfair, unreasonable or unjust that it is contrary to public policy that a court may refuse to enforce it. The public policy considerations are informed by the wide range of constitutional values,” writes Donald Dinnie in Norton Rose Fulbright’s Insurance.

“Courts do not make decisions about the enforcement of contractual provisions on the basis of abstract considerations of good faith, reasonableness or fairness. They do so on the basis of established legal rules. Good faith, reasonableness and fairness form the basis of our law but are not themselves, legal rules.”

“The Constitutional Court in Barkhuizen said that, while public policy imports notions of fairness, justice and reasonableness into our law, parties are generally required to honour contractual obligations that they have freely and voluntarily undertaken.”

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“Simon Property Group, Inc. (“Simon”) wants out of a deal to acquire its competitor, Taubman Centers, Inc. (“Taubman”), due to the COVID-19 pandemic,” reports Amy E. Lott and Lynsey J. Hyde in Gray Reed’s M&A Insights.

“Simon, the buyer, is an Indiana-based company that owns malls, outlets, and shopping centers. Its last 10-K filed with the Securities and Exchange Commission states that it had an interest in more than 200 properties in the United States. For example, in Texas, Simon owns The Galleria in Houston, Katy Mills, Grapevine Mills, Houston Premium Outlets in Cypress, and The Domain in Austin, among others.”

“Taubman, the seller, is a Michigan-based company that also owns malls, outlets, and shopping centers. Its portfolio includes shopping centers in the United States and Asia, including the Beverly Center in Los Angeles, the International Place Market in Waikiki, the Starfield Hanam in South Korea, and The Mall of San Juan in Puerto Rico.”

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“In corporate democracy, the default system is voting, but shareholders are free to contract over their votes. In private companies, shareholders routinely do so, using shareholder agreements — contracts amongst the owners of a firm — to bargain directly over directorships and other rights of control. Why? Why use a contract to shape control rather than corporate law’s more familiar instruments — the charter and bylaws? This article shows that shareholder agreements’ distinctive role in corporate governance arises both because of contracts’ distinctive procedural attributes, and because corporate law empowers shareholders to personally waive rights by contract that the charter and bylaws cannot remove. Statutory rules that are mandatory for the charter and bylaws do not bind shareholder agreements,” writes Gabriel V. Rauterberg of the University of Michigan Law School in SSRN.

“This article offers a theoretical, legal, and empirical study of shareholder agreements. Its implications range across a number of foundational debates in corporate law and governance.”

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