“When business deals are concluded verbally or with a gentleman’s agreement solely, the results can later on be very detrimental. Oral agreements are inadmissible in the court of law and if you happen to be ripped off by a business associate, the chances are slim to win that case. Therefore, drafting a business agreement and documenting it is very important to secure the deal that you will be conducting.” advises Margaret Francis in the Southeast Missourian’s Career Advice.

“To clearly state each party’s rights and obligations, you need to draft an agreement that will be agreed upon by all stakeholders. However, drafting a business deal contract agreement can be tricky, especially if you don’t have a lawyer on your side.”

Read the top 5 tips for a fair business contract agreement.

“Disruptionware is defined by the Institute for Critical Infrastructure Technology (ICIT) as a new and “emerging category of malware designed to suspend operations within a victim organization through the compromise of the availability, integrity and confidentiality of the systems, networks and data belonging to the target.” New forms of disruptionware can be a more crippling form of cyber-attack than other more “garden-variety” malware and ransomware attacks.” warns an article in JDSupra.

“Generalized forms of ransomware attacks – designed to block access to the victim’s computer systems until money is paid – are continuing to represent a more prevalent threat to government agencies, healthcare providers and educational institutions … another publication has noted the rise of ransomware attacks since the beginning of 2019 finding that there have been at least 621 reported successful ransomware attacks against U.S.-based corporations. Of these attacks, at least 491 were targeted against healthcare providers, while another 68 of the attacks were directed at county and municipal institutions, and 62 of the attacks were focused on school districts.”

“The FBI’s PSA serves as a warning to businesses that they should have a plan in place to respond efficiently and appropriately in the event of high impact ransomware and disruptionware attacks.”

Read the article.

“In a recent case before Justice Andrea Masley, Corporate Electrical Technologies, Inc. v. Structure Tone, Inc. et al., Plaintiff Corporate Electrical Technologies, Inc. (“CET”), a subcontractor, was hired by Structure Tone, Inc. (“STI”), a general contractor, to perform electrical work on a multi-million dollar renovation project at a Macy’s flagship store in Herald Square, in anticipation of the holiday shopping season.” reports Sonia A. Russo in Farrel Fritz Attorney’s New York Commercial Division Practice Blog.

“CET argued that soon after the renovation work commenced, the project was delayed to the point that Macy’s took over the day-to-day running of the renovation project. Once Macy’s took over, it directly negotiated with CET and requested that CET perform extra work beyond CET’s subcontractor agreement with STI. Based on the additional work performed, CET submitted numerous unpaid change orders and brought this action against STI and Macy’s, alleging that it was owed over a million dollars for the project.”

Read the article.

“At some point, every custom integrator will run into a litigious client. Fortunately, your written contract protects you against basic errors and omissions on the job. But it can get dicey when the client claims the work you performed was ‘grossly negligent.’ Even with a specific clause in your contract stating you are not liable for gross negligence, it is not legally enforceable and might result in the entire contract being deemed invalid by a judge. So what should you do and what is gross negligence anyway?” asks Jason Knott in CEPro’s Business Support.

“Legal expert Ken Kirshenbaum, says the definition of gross negligence is somewhat murky. He notes that every client contract should include a clause that excludes the integrator from liability for negligence on the part of the company or its subcontractors.”

“Unfortunately, gross negligence is defined differently by the courts in different states. ”

Read the CEPro article.

“The patient was age 53 when he was transferred to Kindred Hospital. He had been diagnosed with multiple sclerosis and bipolar disorder in his twenties. When he signed the arbitration agreement in issue, he had required 24-hour nursing care for the previous 13 years, although he was not cognitively impaired at the time of the signing.” reports the Law Office of Donald D. Vanarelli in their blog.

“After he filed a negligence suit regarding pressure ulcers he had developed, the hospital filed a motion to dismiss his complaint and compel arbitration, based on the arbitration agreement the patient had signed. The hospital’s motion was denied, and an appeal was filed. On appeal, the Appellate Division affirmed.”

The appeals court noted “The arbitration agreement was not explained to him; he was only told to sign all the documents. He did so, including the “voluntary” arbitration agreement. Every document was signed within the span of one minute. The arbitration agreement stated that his signature was not a precondition to treatment, and that he could cancel it within 5 days; however, he was not provided a copy of the arbitration agreement.”

Read the article.

“Lawyers and clients often need cash. There is also the element of risk. Lawyers and clients may want to lay off some of the risk of a case on someone else, and the litigation finance industry generally offers non-recourse money.” advises Robert W. Wood in the Taxes section of Forbes.

He explains that “Lawyers may seek funding, the clients alone may seek it, or each may get some, depending on how the deal is structured. But one of the most consistent questions is how taxes will be handled, and that depends on the documents. Financing documents vary materially, so one can’t answer the tax questions without reviewing them. Fundamentally, is this a loan? Is it a sale of a portion of the claim, or of a portion of the fees?”

“These may sound like simple questions, but they can be difficult to answer.”

Read the Forbes article.

“There is perhaps no more consistently vexing problem for transactional attorneys on opposite sides than figuring out a fair contractual resolution for “sandbagging” issues.” warns Allison J. Sherrier in Goulston & Storrs’ What’s Market.

“One problem for attorneys is the extraordinary difficulty of defining and proving what kind of actual or constructive pre-closing knowledge a buyer had or should have had. As a result, lawyers and their clients frequently choose to avoid wrangling over contractual terms associated with sandbagging for fear of blowing up a deal or spending inordinate time to reach agreement on this one problem.”

“Because transactional contracts often fail to address sandbagging, the post-closing resolution of sandbagging issues frequently hinges on applicable common law, and courts in different states have very different views about the proper resolution of these controversies. This makes the choice-of-law provision in transactional contracts extremely important.”

Read the article.

Jason Reeves and Helen Campbell of Zelle LLP offer some advice on commercial property insurance contracts in the firm’s Articles.

“Over the past decade, as commercial property insurance rates softened, so too have terms and conditions. In some instances, attempts to broaden coverage have also had the effect of diluting the clarity and consistency of manuscript forms. The role that underwriters’ contract wordings managers once played in tidying up such issues was weakened when the new imperative was to sign up to a policy wording as presented or risk not having an offered line taken up.” they write.

“The market is changing. As the property market continues to show signs of hardening,” he offers some fixes underwriters should consider.

Read the article.

“Since the value of entertainment and advertising properties is often highly dependent on the talent that is featured in them, talent contracts frequently include morals clauses that give producers the right to terminate the contract (and seek other remedies) when talent engages in conduct that prevents producers from fully exploiting the property.  For example, when the star of your television commercial is accused of engaging in #MeToo type conduct, you might decide to pull the commercial to avoid, among other things, any negative associations with the brand. ” discusses Jeff Greenbaum in Frankfurt Kurnit Klein & Selz PC’s Advertising Law Updates.

He advises that “if there is particular conduct that you want to ensure is prohibited by a morals clause, you should consider calling that conduct out specifically in the contract — to avoid any argument that the actions don’t rise to the level of a morals violation.”

Read the article.

“When we use the word “material” as an adjective in ordinary writing, such as in “a material event occurred yesterday,” we typically mean that the noun (“event”) being modified by the adjective (“material”) is one of real significance, importance or consequence—i.e., not a normal run-of-the-mill occurrence.  But “material” is one of those English words that has many meanings depending on the context.” warns Glenn D. West in Global Private Equity Watch’s Glenn West Musings.

He goes on to say”when used to modify a covenant or warranty in an acquisition agreement, the meaning of the word “material” is not necessarily derived from dictionary definitions.”

He discusses various cases that demonstrate the term is fraught with uncertainty.

Read the article.

“Indemnification clauses appear in nearly every agreement, but they are often overlooked as mere boilerplate provisions after the parties have painstakingly negotiated all of the other terms. It is not uncommon for parties to simply re-use the indemnity language from a prior agreement without considering whether it is a good fit for their current project.” Aimee Cook Oleson discusses in Sheppard Mullin’s Construction & Infrastructure Law Blog.

“Indemnification clauses are arguably the most important part of an agreement when an accident or dispute arises on a project.”

She lists a few issues to keep in mind when reviewing your next indemnification clause:

Read the article.

“As of January 1, 2020, California became the first state to permit residents whose personal information is exposed in a data breach to seek statutory damages between $100-$750 per incident, even in the absence of any actual harm, with the passage of the California Consumer Privacy Act (“CCPA”). The class actions that follow are not likely to be limited to California residents, but will also include non-California residents pursuing claims under common law theories.” advises Jena M. Valdetero in Bryan Cave Leighton Paisner’s Insights.

“A successful defense will depend on the ability of the breached business to establish that it implemented and maintained reasonable security procedures and practices appropriate to the nature of the personal information held.  The more prepared a business is to respond to a breach, the better prepared it will be to defend a breach lawsuit.”

She provides a list that the organization’s WISP should include at a minimum.

Read the article.

“Clauses in employment contracts may appear benign when a contract is signed, but then later balloon into serious problems.” warns Devin R. Bates and Lauren Grinder in Mitchell Williams’ Between the Lines.

This article addresses several commonly litigated issues. They caution that “There is no one-size-fits-all solution for employment contracting, but it would be wise to heed the old adage that an ounce of prevention is worth a pound of cure.”

Read the article.

“Limitation of liability provisions place limits on the amounts that the parties would otherwise be able to recover in court.” Rob Scott of Scott Technology Attorneys in the blog discusses how “Broad limitations of liability in IT contracts have given way to more balanced approaches where certain types of claims are carved out from the limitation altogether.”

“Limitations of liability clauses in AI contracts are particularly important given the unsettled nature of the law in this area.”

Read the article.

James M. Wicks of Farrell Fritz writes about a recent breach of contract case in which a court found that an unsigned termination agreement between a real estate broker an another party was enforceable even though it never was signed.

He explains that the court focused its analysis on two questions: Is there evidence supporting a finding of an intent to be bound?, and if so, is there evidence that the parties “positive[ly] agree[d] that it should not be binding until so reduced to writing and formally executed”?

The ruling is a reminder that written agreements without the “not bound until signed or executed” clause is risky business, Wicks writes.

Read the article.

Two Gray Reed lawyers give their take on a recent Texas appellate court’s ruling in Mesa v. Deep Energy, an opinion that will have profound impacts on mineral liens and contractual provisions purporting to waive mineral liens.

Writing on the firm’s website, Ethan Wood and Joe Virene describe the case in which Mesa sued Deep Operating for failing to pay fully for work Mesa performed on three wells. Deep Operating’s parent company claimed that Mesa contractually waived its right to assert liens against Deep Operating’s wells and waived its right to seek payment on the contract from any entity other than Deep Operating, which at that point was in bankruptcy.

“Relying on a 2012 case out of the Dallas Court of Appeals and a 2015 decision from the Texas Supreme Court, the Houston Court concluded that when a party to a contract agrees to seek payment or damages only from one source to the exclusion of all others, that party has effectively waived its rights to such payment or damages from other parties,” the authors write.

Read the article.

“Sneaky data can be the most lethal to any corporate entity – the data that hides in the dark corners of most companies and goes largely unnoticed – until is it found by a bad actor.” warn Gina Ginn Greenwood and Brad Moody of Baker Donelson’s Publications.

Many copiers today are equipped with smart technology, allowing confidential data to be stored when scanning, printing, faxing, etc. In light of this, organizations must treat copiers as other smart technology. The authors provide a list of best practices for managing smart copiers/equipment.

Read the article.

Careful drafting of employment arbitration agreements due to the U.S. Supreme Court’s decision affecting an employer’s ability to enforce such agreements is critical, warn Art Silbergel and Kacey Riccomini in a post on Thompson Coburn’s website.

The publication states “In the interim, employers and their counsel need to carefully consider options in drafting arbitration agreements that address the new law that may help in compelling a court complainant to arbitrate the claims. Anyone creating, revising or reviewing agreements to arbitrate employment disputes should consider” their 23 tips.

Read the article.

When it comes to physician employment agreements, non-compete provisions can be controversial and tricky, warns A. Kevin Troutman in Fisher Phillips’ Non-Compete and Trade Secrets Blog.

Such provisions can “restrict a doctor from practicing in a specified geographic area for a stipulated period of time after termination of their employment,” he writes. “The key question is when do such provisions become unreasonable? The analysis becomes even more complicated when factoring in the unique bond between patients and their doctors. After all, most patients’ sense of loyalty lies with their physician, not with a particular hospital, clinic or medical group.”

Read the article.

A post by Pepper Hamilton explores whether an enforceable no-damage-for-delay clause in a construction contract is also a bar to recovery of “acceleration” damages, i.e., the costs incurred by the contractor in its attempt to overcome delays to the project’s completion date.

Authors Ted R. Gropman and Christine Z. Fan point out that courts are split as to whether damages for a contractor’s “acceleration” efforts are distinguishable from “delay” damages such that they may be recovered under an enforceable no-damage-for-delay clause.

They discuss  a few ways for a contractor to circumvent an enforceable no-damage-for-delay clause to recover acceleration damages.

Read the article.