The 2019 Texas legislature enacted a new Property Code Section 5.152 to protect mineral and royalty owners from a certain species of fraudulent transactions perpetrated on trusting and/or naïve and/or out of state mineral owners, reports Charles Sartain in Gray Reed’s Energy & the Law blog.

The change is meant to address a scam in which someone “fronting for a company with a name similar to a reputable operator, would approach the owner with an oil and gas ‘lease’ of minerals or royalty that were already subject to an existing lease. Except that the lease was actually the sale of the mineral or royalty interest at a bargain price.”

The article lists the changes addressed by the new section.

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The U.S. Court of Appeals for the Federal Circuit reversed a district court decision that retained jurisdiction over a breach of contract action, finding that the action did not sufficiently implicate issues of patent law and instead was simply a state law contract case for past royalties, reports McDermott Will & Emery via Lexology.

One of the parties to a case involving patents and royalties filed suit, alleging breach of contract and other equitable state law claims.

The defendant asserted counterclaims of breach of contract, fraud, negligent misrepresentation, restitution and breach of fiduciary duty. Both parties relied on diversity to establish subject matter jurisdiction.

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D.C. Toedt III, writing in the On Contracts blog, offers some lessons for drafting representations and warranties in contracts.

He discusses a hypothetical case that involved the sale of a car, showing how the case could turn out differently, depending on whether the seller represented — or warranted — that the car was in good condition.

“If your client is being asked to represent and warrant some fact, then consider whether the client should only represent the fact, or whether the client should only warrant the fact,” Toedt writes in one of his drafting lessons.

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Restrictive covenants in employment agreements and employee benefit arrangements will be enforced in appropriate circumstances, but parties should be aware of varying standards from state to state, warns Jonathan Orleans for Pullman & Comley.

Orleans, writing in a post for JDSupra, says that enforcement of noncompetes can be complicated. Sometimes statutes create exceptions, and sometimes exceptions are developed through caselaw.

While courts frequently comment that restrictive covenants are “disfavored in the law,” they can be enforced if they meet certain standards.

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A post on Gray Reed’s Energy & the Law blog discusses the question: Under Louisiana law, does the operator’s bad faith preclude recovery for the non-operator’s breach of a joint operating agreement if the operator caused the non-operator to breach the JOA but did not itself breach?

Charles Sartain summarizes the background of Apache Deepwater, LLC v. W&T Offshore, Inc., a conflict between parties to a joint operating agreement for operations on offshore deepwater wells.

The case was complicated by conflicting provisions in the JOA.

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D.C. Toedt III, writing in the On Contracts blog, describes how  parties to a contract often circulate just signature pages to be signed, and the problems that can arise with that practice.

He also explains the importance of making sure that the signed version is identified (e.g., with a running header).

He analyzes a lawsuit that involved a former vice president of a company who sued to compel the company to give her the equity that she claimed was due to her under the “signed” agreement. But the parties, after sending revised drafts back and forth, had apparently signed signature pages for different versions of the agreement.

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The China Law Blog has published part one of an expected series of posts setting out exactly what foreign companies should do (and not do) to protect their intellectual property in China.

The author, Dan Harris of Harris Bricken, tells the story of a prospective client who sought help because a Chinese manufacturer he was working with on a product started selling a new product that happened to have the same features and functions as the product the American developer had submitted to the manufacturer.

Harris’ firm told the prospective client not much could be done because the nondisclosure agreement with the manufacturer was worthless in China. And U.S. patents won’t provide much practical protection, either.

The firm’s lawyers explained that the developer would have been better off if he had an NNN agreement —non-use, non-disclosure, and non-circumvention — that would be enforceable in a Chinese court with jurisdiction over the Chinese defendant. .

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A California Court granted a defendant’s motion to compel arbitration based on a duly formed and consented arbitration clause via a “clickwrap” agreement, despite the plaintiff’s argument that no contract was ever formed because the purpose of the contract was to facilitate the selling and distribution of marijuana, which is illegal under federal law.

A post by Womble Bond Dickinson describes a case in which the defendant was hit with a putative class action in California federal court claiming it violated the Telephone Consumer Protection Act.

The defendant’s terms of service, which were hyperlinked in the sign-up box, contained a clause providing for arbitration of disputes with a class-action waiver.

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A new post on Global Private Equity Watch discusses the continued need for vigilance in the wording of forum of selection provisions in agreements.

Author Glenn D. West takes a look at a recent Delaware ruling on an anti-suit injunction attempting to prevent a suit being prosecuted in Texas.

The court granted the injunction against the Texas suit because the fraud claims would require construction and interpretation of the agreement.

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Over the course of the past several years, several states have banned or severely restricted the ability of businesses to bind low-wage workers to post-employment restrictive covenants, points out a Seyfarth Shaw client alert.

“While such legislation trickled out over the last several years, 2019 has seen five additional states enact prohibitions on utilizing non-compete agreements for certain low-wage employees, with at least seven other states and the District of Columbia considering similar non-compete legislation,” write the authors, Justin K. Beyer and Daniel P. Hart.

Because these new laws and other developments in restrictive covenant law over the past year may require changes to a company’s template restrictive covenant agreements, companies should consider reviewing and revising their template agreements more broadly by the end of the year, the authors advise.

Read the article.

A recent case decided in the Court of Federal Claims serves as a stark reminder that any time a contract with the Federal government is amended or modified, the parties must pay particular attention to any release language contained in the amendment, or they run the risk of releasing potential claims that are unrelated to the modification, according to the Murtha Cullina Family Business Perspectives blog.

Mark J. Tarallo discusses the case of Meridian Engineering Co. v. US, a dispute a contested release and waiver of payments for the work at issue.

“Any release document (including releases with parties other than the government) should be narrowly drawn and clearly articulate those claims that are being released,” Tarallo advises

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To reduce the risk of a class action disrupting business operations and impacting revenue, businesses may want to consider including arbitration clauses in their employment and consumer agreements, advises Patrick K. Burns in a blog post for PilieroMazza PLLC.

Many businesses include arbitration clauses in employment and consumer agreements in an attempt to shield themselves from class action lawsuits, he explains. “The success of these types of clauses in accomplishing the same largely depends upon its wording, the respective jurisdiction, and the nature of the underlying agreement.”

In his post, he demonstrates how, if class arbitration is not explicitly addressed in an arbitration agreement, it cannot be compelled.

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Two recent court of appeals cases address the enforceability of liquidated damages clauses, writes John McFarland in the Graves, Dougherty, Hearon & Moody Oil and Gas Lawyer Blog.

“A liquidated damages clause is a provision in a contract specifying a dollar amount (‘liquidated damages’) to be paid by a party if the party breaches the contract. Such clauses are common in all types of contracts, particularly in the oil and gas industry,” McFarland explains.

In his post, he discusses some recent cases that address the issue.

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In order to preserve the right to seek punitive damages and attorney fees from an employee or former employee who has misappropriated trade secrets, the employer must have provided notice of the whistleblower-protection provisions of the Defend Trade Secrets Act.

“Notice of the whistle-blower protection provisions must be included ‘in any contract or agreement with an employee that governs the use of a trade secret or other confidential information,’” explains author Anthony George in the article on the website of Bryan Cave Leighton Paisner.

He advises employers to include the DTSA whistleblower-protection provision, or to amend existing contracts if necessary.

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While often thought of as not controversial and relatively non-substantive, boilerplate provisions play an integral role in clarifying the relationship between the contracting parties. Neglecting those provisions can lead to unintended legal consequences, warns Thompson Coburn LLP.

Authors Brent Trame and Taylor Melching discuss examples of common boilerplate provisions that warrant closer review: Assignment, governing law and jurisdiction/venue, and the entire agreement clause.

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The U.S. District Court for the District of the Virgin Islands recently compelled arbitration after concluding that a personal guaranty incorporated an arbitration agreement from an underlying contract and rejecting various arguments to the contrary, reports Carlton Fields’ Reinsurance Focus.

The case involved a leasing agreement that contained an arbitration provision, but the personal guaranty did not. The personal guaranty did, however, provide that the “performance of any and all financial obligations of the Lessee to the Lessor … subject to the terms and conditions contained in the … Leasing Agreement.”

The court found that the plain language of the personal guaranty incorporated the arbitration provision from the leasing agreement.

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The prohibition in New York state on requiring nondisclosure sexual harassment claims in nondisclosure agreements has been strengthened, reports Hogan Lovells.

The law has been strengthened to include all claims of discrimination, harassment and/or retaliation in “any settlement, agreement or other resolution of any claim, the factual foundation for which involves discrimination … that would prevent the disclosure of the underlying facts and circumstances … unless the condition of confidentiality is the complainant’s preference.”

Authors Michael E. DeLarco and Zachary Siegel explain that if the employee requests confidentiality, then the agreement may contain this provision.

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Litigation is a cost of business, but many savvy in-house counsel effectively manage that cost by including pre-dispute jury waivers in counterparty contracts, points out Bloomberg Law.

Jury waivers memorialize an agreement between contracting parties that fact-finding in disputes arising between them will be decided by judges, and not by juries, according to authors David L. Goldberg and Sean M. Akchin of Katten.

They discuss their five suggestions, under the headings Be Careful What You Wish For, Be Conspicuous, Be Specific, Don’t Be Greedy, and Don’t Be Tardy.

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To avoid surprises and unanticipated liability on construction projects, the parties should modify contracts consistent with Texas law—or at least be aware of the limitations that are in place due to certain Texas statutes, according to a post on the Porter Hedges Texas Construction Law blog.

Author Amy Wolfshohl discusses the top five  modifications to consider on private commercial construction projects.

Those topics include retainage, indemnity, AI coverage, Texas law, and lien releases.

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Bloomberg Law reports that law students from elite universities protested outside DLA Piper offices in three cities Oct. 10, calling on the firm to drop arbitration agreements from employee contracts.

“Demonstrators from Harvard, Columbia, NYU and Georgetown law schools handed out leaflets in New York, Washington, and Boston,” writes Bloomberg’s Stephanie Russell-Kraft. “They’re part of a student-led initiative leveraging their status as top Big Law recruits to fight what they says is ‘harassment and discrimination in the legal profession.’”

DLA Piper partner Vanina Guerrero, who claims she was sexually assaulted and retaliated against by a fellow partner, said she is unable to bring those claims in court because of a mandatory arbitration agreement.

Read the Bloomberg Law article.