A case heard by the National Labor Relations Board discusses the law concerning the legal duty to reduce a collective bargaining agreement to writing, and then sign it, according to a post on the Proskauer Labor Relations Update.

Partner Mark Theodore explains:

“Among other things, a signed agreement serves as an absolute bar to employees filing a decertification petition during the term of the agreement (with some timing limitations), while an unsigned agreement does not bar such a petition. A signed agreement also, obviously, is more easily enforced as it signifies to the entire world that this is the deal, and that the parties signed it after evaluation of its terms.”

Read the article.

In what appears to be a first-of-its-kind ruling, the District Court for the Southern District of New York recently concluded that a federal district court has the authority to vacate an arbitrator’s class certification award based on the due process rights of absent class members, according to a post on the website of K&L Gates.

The ruling involves the long-running Jock v. Sterling Jewelers, Inc., in which the district court and the Second Circuit Court of Appeals have rendered multiple decisions addressing the proper role of a court in reviewing an arbitrator’s authority to determine whether parties have agreed to class arbitration.

The K&L Gates authors explain that the Jock court determined that, absent an express class arbitration provision in each putative class member’s arbitration agreement, an arbitrator does not have the authority to bind absent class members to a class judgment—even if they signed the same form of arbitration agreement as the named plaintiffs.

Read the article.

Image by U.S. Coast Guard

A Steptoe & Johnson article takes a look at the way additional insured coverage under an insurance policy is analyzed when there is an underlying drilling contract limiting the additional insured coverage to the scope of the liability assumed in the service contract.

The article in The National Law Review discusses In re Deepwater Horizon, a Texas Supreme Court case that governs allocation of risk, assumed liabilities, and the granting of additional insured status in underlying service contracts, and the precedent the case established.

The article also considers some other cases that were litigated after the Deepwater Horizon case.

Read the article.

Determine Inc. has posted an on-demand webinar describing how real-life company challenges morph into ideas and concepts for contract management innovations and predicting what companies are looking for in 2018.

In the video, Tim Cummins, CEO of IACCM, Sean Delaney, vice president of sales at Determine, and Mike Behne, head of implementation at Determine, explore the issues that are top of mind and discuss exactly the role technology can play to exceed expectations.

Topics include:

• What prospects and customers are talking about in terms of pain points and wish lists
• How to leverage CLM to manage third-parties and mitigate risk
• How shared data and business processes solve business problems
• Industry trends and enterprise expectations in 2018

Watch the webinar.

More than one-third of the U.S. workforce is bound to their employers by a non-disclosure agreement, or NDA, according to a Harvard Business Review report this week, which cites figures from a research paper published last year in the Vanderbilt Law Review.

Amy X. Wang, writing for Quartz at Work, says the contracts have been steadily growing in both number and breadth as companies grow warier about competition and proprietary material.

She adds that the problem has spread to cover personal harassment, to the point that many have questioned whether NDAs can end up enabling abusers.

Read the article.

Orly Lobel, writing in the Harvard Business Review, believes that nondisclosure agreements, or NDAs, chill competition, through expansive definitions of what must remain confidential and proprietary, reducing the ability of a discontent employee or an employee working in a hostile work environment to go elsewhere.

“Importantly, as recent studies show clearly, preventing workers from using their knowledge and skills beyond a single workplace is harmful not simply to the worker but to entrepreneurship, competition, and economic growth,” she writes.

Lobel believes that legislatures and courts should look toward imposing penalties on overreaching contracts and rendering any contract with unenforceable scope void in its entirety.

Read the article.

A Sixth Circuit ruling in a recent case shows that an employer’s notice of its institution of a mandatory arbitration policy or program is, without more, insufficient to compel an employee to arbitrate a subsequent dispute, writes Gilbert Samberg in Mintz Levin’s ADR: Advice From the Trenches blog.

He explains that something more is required in order to be able to infer the employee’s knowing assent to the new term of employment. The new “Employment Dispute Resolution Process” (EDRP) was promulgated after the plaintiffs had commenced employment.

Samberg writes that the appellate court “determined that the employer’s failure to notify the employees expressly that ‘they would accept the terms of the EDRP by continuing their employment’ was a critical omission, and thereupon held that the employees had not manifested knowing assent merely by continuing to work at FCA.”

Read the article.

eSignLive by Vasco has made available a new report: “Forrester Report: The State Of E-Signature Implementation: Twenty-Five E-Signature Use Cases Show Adoption Trends,” which can be downloaded from the eSignLive website at no charge.

The Forrester Report examines 25 e-signature implementations across the United States and Europe with use cases for receivables, payables, various contracts, onboarding agreements, and travel bookings – uncovering trends in adoption, authentication, and business results.

The report covers:

• The average implementation time for e signature projects
• Reported ROI metrics from each project
• Top challenges, from browser compatibility to user training
• How solution flexibility mitigates complexity
• Biometric authentication trends
• Innovation in mobile signing

Download the report.

ContractWorks will present a complimentary webinar, “Surviving the NDA Nightmare: Managing Legal & Logistical Problems,” on Thursday, February 22, 2018, at 11 AM PST.

The non-disclosure agreement is among the most crucial and the riskiest of all agreements handled by general counsel and their teams, ContractWorks says on its website. Webinar presenters will discuss how to overcome common challenges when working with NDAs, minimize legal and logistical problems associated with them and save on overall time spent managing the NDA process.

The webinar will cover:

• How to identify common and unforeseen risks in your NDAs
• How to mitigate the risks your NDAs carry
• How to utilize software to improve your process, save time, and enhance security

Anyone who is unable to participate in the live webinar may register anyway, and receive a recording after the webinar.

Register for the webinar.

Charles Sartain, in a discussion involving a Texas case concerning a disagreement over the negotiation of the payment for a pipeline easement, addresses the issue of whether emails can create a contract.

Writing in the Gray Reed & McGraw Energy & the Law blog, Sartain outlines the facts in Bujnoch v. Copano. In an early email exchange, the pipeline company set the price at $70 per foot, with both sides apparently agreeing. But when the property owner receives the paperwork, the price is listed at $25.

Sartain addresses the questions of: Could the emails be read together to make a written contract? Did the emails omit essential terms? Was the description of the easement sufficient? Did “futuristic” language contemplate an agreement to be executed in the future? And, Did the parties agree to transact business electronically?

Read the article.

The Fifth Circuit en banc has handed down an historic re-working of the test for determining whether oilfield contracts are maritime or non-maritime in nature, according to a Baker Donelson post.

Christopher Hannan writes that the en banc decision in In Re Larry Doiron, Inc. simplifies decades’ worth of confusing and often inconsistent jurisprudence to give a more streamlined and hopefully predictable rule for determining whether oilfield contracts are maritime or not.

He quotes the en banc ruling:

First, is the contract one to provide services to facilitate the drilling or production of oil and gas on navigable waters? . . . Second, if the answer to the above question is “yes,” does the contract provide or do the parties expect that a vessel will play a substantial role in the completion of the contract? If so, the contract is maritime in nature.

Read the article.

Carlton Fields shareholder Eleanor M. Yost asks and answers the question: What is the difference between an employment agreement that says “I hereby assign inventions I create during my employment to my employer,” and one that says “I will assign inventions I create during my employment to my employer”?

The difference, she writes, is one word … and possibly millions of dollars.

The article on the firm’s website discusses a case from the U.S. Court of Appeals for the Federal Circuit that affirmed a decision that an employment agreement providing an employee “will assign” title to her inventions to her employer did not automatically transfer title or any related patent rights.

Read the article.

Melinda Burton, writing for Faruki Ireland Cox Rhinehart & Dusing, explains how a ruling from the Supreme Court of Ohio reaffirms and clarifies law in Ohio on breach of contract, implied duty of good faith, punitive damages, releases of liability and fraud.

In the article, she writes that Lucarell v. Nationwide Mutual Insurance Company covers many issues that arise often in actions involving contracts, and it should be kept as handy reference to aid in briefing of issues before trial courts or explaining the current state of the law to clients.

She discusses punitive damages and the implied duty of good faith, releases of liability, and fraud.

Read the article.

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Aetna has agreed to pay $17.2 million and to implement a “best practices” policy regarding sensitive policyholder data, in order to settle class action litigation brought against it arising from a mass mailing sent by one of its mailing vendors, according to a post on the website of King & Fisher.

Eric Begun explains that the newly announced settlement provides some important lessons in contract law, as well as some useful information on data breaches.

The federal class action litigation was brought against Aetna and its mailing vendor in 2017 based on the vendor’s use of glassine envelopes to communicate HIV medication information to Aetna insureds. The envelopes revealed that the named addressee was contacted about options for filling HIV medication prescriptions. The litigation alleged violations by Aetna and its vendor of several laws and legal duties related to security and privacy.

The contract lessons for customers and vendors that arise from the events in question, which were identified in the earlier post, remain the same. Do your contracts for non-IT and non-healthcare services fully consider the risk of privacy and security litigation? Do your contract’s indemnification and limitation of liability clauses contemplate the possibility of class action litigation? Before entering into a contract, have you considered whether the specific vendor services being provided to the particular customer in question implicate laws you hadn’t considered? And, have you considered which specific aspects of vendor services may directly impact potential legal liability, and have you adequately identified and addressed them in the contract?

Read the article.

In an upcoming webinar, LawGeex will demonstrate how modern legal teams are revolutionizing their daily contract review processes.

The 45-minute event will be Wednesday, Feb. 21, beginning at 2 p.m. Eastern time.

On its website, LawGeex says the webinar will show how modern legal teams are revolutionizing their daily contract review processes. This will be a practical look at using on-the-ground solutions for contract review automation.

The webinar will cover:

• What is contract review automation?
• How are leading legal teams using this technology today?
• How to dramatically reduce the time and cost of contract review and approval.
• A live demonstration of contract review automation in action.

Register for the webinar.

Tim Cummins, President & CEO of  the International Association for Contract & Commercial Management, discusses the ongoing evolution of commercial contract management in a podcast posted by Determine Inc.

He says the future of contracts will be far more versatile and adaptive, with technology and dynamic processes driving the way organizations structure.

He has seen a dramatic increase in senior executive interest and awareness of the potential that contracting holds. More and more organizations are recognizing that misalignment is stunting their ability to be flexible, agile and creative, Determine says on its website.

Listen to the podcast.

The recent Parity wallet “freeze” provides yet another example of a coding vulnerability in a smart contract (rather than a flaw in the underlying blockchain or cryptography) resulting in an exploit that compromises cryptocurrency worth millions, according to Proskauer Rose LLP’s Blockchain and the Law.

Wai Choy and Pengtao Teng write: “It again highlights some of the pitfalls of insecure code in the context of digital assets and raises questions regarding the extent to which software developers can be held liable to its users for losses suffered due to those oversights. As blockchain-related software that serve as storage vaults for digital assets continue to proliferate, it will be interesting to see how industry standards and the existing software liability regime in the U.S. and other jurisdictions evolve to reflect the critical role of secure software in the ‘Internet of Value.'”

Read the article.

The U.S. Court of Appeals for the Eighth Circuit issued an order dealing with indemnification for prior settlements, and it could have a hugely beneficial impact on potential indemnitors, including sellers of mortgage loans as well as insurers, reports Bilzin Sumberg in its Mortgage Crisis & Financial Services Watch.

The appellate court affirmed a lower court’s ruling that, when an insured seeks indemnification for settlements that encompassed both covered and non-covered claims, the insured must present sufficient evidence to establish with reasonable certainty the value that the settling parties attributed to the covered claims, explain Philip R. Stein and Shalia M. Sakona.

They discuss the background of the case, the limitations on using expert testimony to establish allocation, and the application of the holding to the mortgage industry.

Read the article.

Gabriela Smith, writing for Nearshore Americas, discusses several key standard clauses that should be included to make a contract strong and reliable.

“As lawyers, we constantly encounter less than ideal scenarios day in and day out when parties – for whatever their reasons – fail to sign a good contract, or even sign a contract at all,” she writes. “However, having a good service contract that is tailored to the particular situation can be one of the best decisions that a company can make.”

She discusses recitals, payment terms and timing, commissions, law and venue, work product, confidential information, termination, assignment, and modification and amendment.

Read the article.

Houston civil trial lawyer John H. Kim, founder of The Kim Law Firm, and attorney Tim Rothberg persuaded a Texas appeals court to drop a $2.9 million judgment against energy clients High Cotton Holdings LLC and Ranger O&G Operating LLC last week, according to a post on the website of Androvett Legal Media and Marketing.

The Texas 4th Court of Appeals in San Antonio found that the lawyer retained by the two energy companies prior to The Kim Law Firm filed an agreement in a breach of contract lawsuit without signing it, and failed to keep the companies apprised of court events. Due to those actions, both High Cotton and Ranger were not served with the complaint or made aware of the $2.9 million default judgment.

The 4th Court of Appeals reversed and rendered the judgments and remanded the case to state court for trial on the merits.

Read the article.