Contractual provisions for liquidated damages, indemnification, or other limitations on liability are a few of the most commonly used “damage control” tools, points out Theresa Y. Kananen for Arnall Golden Gregory LLP.

“In too many cases, however, drafting errors transform the very provisions intended to provide for clear-cut remedies, or clear-cut limitations on remedies, into sources of prolonged and expensive litigation,” she writes.

She lists and discusses three of the most common pitfalls to avoid when using one of these “damage control” provisions in a contract, including liquidated vs. actual damages, indemnity clauses and conspicuous limitations.

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As the U.S. Supreme Court enters the last month of its term, the impact of having only eight justices already is clear. Some of the most high-profile cases of the year are not being decided, or perhaps even worse, are being resolved on narrow grounds that create more confusion than clarity in the law, writes Erwin Chemerinsky in the ABA Journal.

Chemerinsky is Dean and Distinguished Professor of Law at the University of California, Irvine School of Law.

“A 4-4 tie, which affirms the lower court without opinion by an evenly divided high court, is not a problem when there is no split among the lower courts and there already is a clear prior decision on point. In fact, in a couple of cases, the justices divided 4-4 on whether to overrule a precedent,” writes Chemerinsky.

He discusses Friedrichs v. California Teachers Association, which raised the issue of whether to overrule Abood v. Detroit Board of Education, which held that non-union members of a public employees’ union can be required to pay the share of the union dues that go to support the collective bargaining activities of the union. The article also considers Franchise Tax Board of California v. Hyatt, in which one of the questions presented was whether to overrule Nevada v. Hall, which held that a state may be sued in the courts of another state.

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Blue Cross and Blue Shield of North Carolina sued the federal government, becoming the latest health insurer to claim it is owed money under the Affordable Care Act, according to a report in The Wall Street Journal.

“The suit, filed on Thursday in the U.S. Court of Federal Claims in Washington, D.C., says the U.S. failed to live up to obligation to pay the insurer more than $147 million owed under an ACA program known as “risk corridors,” which aimed to limit the financial risks borne by insurers entering the new health-law markets,” reports Anna Wilde Mathews.

The insurer’s suit claims the federal government violated the language of the health law, as well as a contractual obligation.

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A new article published by Ken Adams, president of Adams Contracts Consulting LLC, explains how to reduce the chances of the confusion that results when a judge or litigator without a grounding in the subject analyzes ostensibly ambiguous contract language.

The article is posted on Thomson Reuters’ Legal Solutions Blog.

“A problem with resolving disputes over ambiguous, or allegedly ambiguous, contract language is that ambiguity is a complex topic—it arises in different ways, many of them far from obvious. So when a judge or litigator without a grounding in the subject analyzes ostensibly ambiguous contract language, confusion often results,” he writes.

His article cites some examples of courts resolving disputes over the meaning of contract language in ways that don’t make sense, including how the Second Circuit Court of Appeals invoked a principle of interpretation that’s markedly at odds with English usage, how the Third Circuit Court of Appeals opted for an unreasonable interpretation of an or, and how the Federal Circuit misanalyzed the phrase at least one of X and Y.

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The outrage following last week’s revelation that Silicon Valley billionaire Peter Thiel had funded Hulk Hogan’s lawsuit against Gawker Media LLC wasn’t just about a rich guy throwing his money around; it was about a rich guy secretly throwing his money around, writes Joshua Brustein for Bloomberg Technology.

The information about Thiel’s financial involvement was kept from the jurors in the case.

“It turns out that the jurors wouldn’t have cared, anyway,” Brustein writes. “At least, that is what two of them said when asked about Thiel’s involvement. In a conflict involving an aggrieved professional wrestler and a snarky gossip website, a plot twist involving a shadowy technology billionaire didn’t seem that shocking.”

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Gearing up for a battle for control of media company Viacom, board members took the unusual step of vowing to fight an expected campaign by Sumner Redstone and his family to shake up the board, the Los Angeles Times reports.

“Sumner Redstone this month added to his legal team a prominent Los Angeles litigator, Michael Tu, who specializes in securities law – raising the possibility of a legal campaign to dump Viacom Chairman and Chief Executive Philippe Dauman and other members of the board,” according to the newspaper.

Viacom’s stock value has dropped more than 45 percent in the last two years. Redstone and his family control 80 percent of the Class A voting shares of Viacom, but their economic stake in the company is about 10 percent.

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Zapproved has published its updated Preservation Case Law Summaries 2008-2016, the definitive guide to preservation case law with summaries tagged by venue, sanction and topic.

The guide can be downloaded from Zapproved’s website.

Zapproved says courts are analyzing preservation cases for spoliation with a high bar to determine if awarding sanctions is appropriate. The standards set forth in proposed changes to Rule 37(e) require that in order to impose an adverse inference, spoliation must have (i) caused substantial prejudice in the litigation and the result of  willfulness or bad faith; or (ii) irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation.

The new version contains these most recent preservation cases:

• Noble Roman’s, Inc. v. Hattenhauer Distrib. Co.
• Living Color Enters. v. New Era Aquaculture, Ltd.
• First Fin. Sec., Inc. v. Lee
• Brown Jordan Int’l, Inc. v. Carmiclet
• In re Takata Airbag Prods. Liab. Litig.
• Best Payphones, Inc. v. The City of New York

Download the guide.

Takata Corp. has confirmed it has hired investment bank Lazard Ltd. to lead a financial restructuring in an effort to resolve costs stemming from its recall of tens of millions of faulty air bags linked to at least 13 deaths and more than 100 injuries worldwide, Reuters is reporting.

“Takata’s board of directors in February named an outside steering committee to develop a comprehensive restructuring plan to address the financial and operational issues related to its recall of the defective inflators,” swrites David Shepardson. “Takata’s outside committee said it retained Lazard as it is ‘expeditiously seeking new investment for Takata,’ the committee said in a statement.”

Takata posted a net loss of $120 million for the year ended in March and could potentially could face billions of dollars in costs related to the recall.

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U.S. District Court Judge Dee Drell  of the Western District of Louisiana recently denied a motion to alter or amend the court’s judgment against CITGO Petroleum Corp. – allowing an $81 million judgment against the oil company to stand, report Jaclyn E. Hickman and Robert B. McNeal on the Energy Law Blog of Liskow & Lewis.

The article reports that the judgment is the latest in a suit the EPA filed against CITGO under the Clean Water Act for a 2006 spill at the oil company’s St. Charles refinery.

“Given that in 2015 all civil enforcement actions by the EPA yielded penalties totaling $205 million (excluding settlements), the CITGO judgment stands out as unusually large,” the authors write. … “The Fifth Circuit’s response to CITGO’s second appeal may provide guidance on whether these types of judgments could be a trend in future Clean Water Act enforcement actions.”

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In an article posted on their firm’s website, Matthew T. Furton  and Julie L. Young, partners in Locke Lord, discuss some recent rulings on arbitration by the U.S. Supreme Court, particularly as they apply to insurance and reinsurance.

The questions and answers discuss why the court has taken on more cases involving arbitration, which arbitration cases are currently under consideration by the court, why it matters that the circuits are split as to whether to stay or dismiss an action after compelling arbitration, and what the current state of the “manifest disregard” standard is.

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Google won a jury verdict that ends Oracle’s claim to a $9 billion slice of the search giant’s Android phone business, reports The Washington Post.

“Oracle contended that Google needed a license to use its Java programming language to develop Android, the operating system in 80 percent of the world’s mobile devices,” writes Joel Rosenblatt. “Jurors in a federal court in San Francisco rejected that argument Thursday and concluded that Google made fair use of the code under copyright law.”

Stakes were high for Google. A loss could have given more weight to software copyrights and to spur litigation to protect those added rights. “Oracle — which started the trial at an advantage with the judge explaining that it had already been established that Google had infringed Oracle’s copyrights — plans to appeal, although legal experts said overturning a jury verdict will be difficult,” according to the report.

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Huawei Technologies sued Samsung Electronics on claims of infringement of smartphone patents, the Chinese firm’s first intellectual property challenge against the world’s top mobile maker, reports Reuters.

“Huawei has filed lawsuits in the United States and China seeking compensation for what it said was unlicensed use of fourth-generation (4G) cellular communications technology, operating systems and user interface software in Samsung phones,” according to the report.”

“The lawsuit marks a reversal of roles in China where firms have often been on the receiving end of patent infringement disputes. In smartphones, makers have grown rapidly in recent years but different intellectual property laws outside of China have slowed overseas expansion,” writes Yimou Lee and Anne Marie Roantree.

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The Associated Press is reporting that Volkswagen and attorneys for vehicle owners affected by the company’s emissions cheating scandal are on target to meet a June deadline for a final settlement proposal, a federal judge said Tuesday.

A federal judge in San Francisco said the parties have made substantial progress in reaching a deal for that could affect more than 480,000 owners of polluting Volkswagens in the U.S.

“Many questions remain unanswered, including how much money owners can expect in a buyback and how much additional compensation beyond repairs and buybacks they’ll receive,” according to the report.

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Ernest Aliseda has joined Dykema in its Commercial Litigation Practice Group as a member in the firm’s McAllen, Texas office.

Prior to joining Dykema, Aliseda served as General Counsel/Chief Legal Officer for the Loya Insurance Group companies, where he handled general legal matters and managed and oversaw diverse litigation throughout the country. Aliseda is also a former State District Judge for both the 398th and 139th State District Courts in Hidalgo County.

In a release, the firm said Aliseda will advise and represent clients in commercial and general litigation matters, along with serving as a mediator and arbitrator in personal injury, commercial, employment, international and personal injury law cases.

“We are very pleased and fortunate to add an attorney of Ernie’s stature to our roster,” said Diann Bartek, Office Managing Member of Dykema’s McAllen office. “His reputation precedes him. There is no doubt that his strong background in commercial litigation and his experience as a judge will be extremely valuable to the firm and its clients.”

Aliseda is a governor-appointed Regent of the University of Texas System Board of Regents and a State Bar of Texas President-appointed member of the Board of the Texas Bar College. He received his law degree from the University of Houston Law Center and his undergraduate degree from Texas A&M University.

He is board certified by the Texas Board of Legal Specialization in personal injury trial law, along with being trained as a mediator, arbitrator, and litigation management professional. He is also a lieutenant colonel in the U.S. Army Reserves, where he serves as a military judge.

The lawyer who struck a $100 million deal with Uber Technologies Inc. is being accused of greed by some of the drivers covered by the accord who want her bumped, reports Bloomberg News.

“She has single-handedly stuck a knife in the back of every Uber driver in the country,” Hunter Shkolnik, a New York lawyer who’s pursuing his own cases against the ride-share service, said Friday in a phone interview with Bloomberg. “The entire class was thrown under the bus and backed over.”

Shkolnik asked the San Francisco federal judge who presides over the class-action settlement to remove Shannon Liss-Riordan as lead attorney. He says she sold out her clients by accepting a payout for California and Massachusetts drivers that’s less than 10 percent of the value of their claims “while she walks away with $25 million.”

Liss-Jordan labeled the claims as “uninformed,” “untrue and malicious.”

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Contracts containing uniform terms and conditions are a common feature of modern commercial life, write James F. Bogan III and William D. Meyer of Kilpatrick Townsend & Stockton LLP.

“Consumers are oftentimes required to agree to such contracts in order to buy a good or service, and the contracts typically contain provisions that benefit the business/seller and limit the legal remedies available to the consumer/buyer. While the law generally favors freedom of contract and supports the enforceability of uniform terms and conditions, a recent case applying New Jersey law shows that a business could be exposed to liability – including as a class action defendant – for simply including certain types of limiting clauses in consumer contracts,” they explain.

In their article, they discuss the case of Johnson v. Wynn’s Extended Care, Inc., in which the 3rd Circuit Court of Appeals ruled that a consumer has a valid cause of action against a business where its service contract simply contains a provision waiving attorneys’ fees and splitting costs.

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Eric Schmidt took the witness stand Tuesday in Oracle’s copyright infringement lawsuit against Google, and he gave little ground during some tense exchanges with Oracle’s attorney, reports PCWorld.

In the suit, Oracle accuses Google of infringing its Java copyrights in the Android operating system. Schmidt is chairman of Alphabet, Google’s parent company.

Schmidt, the first witness to testify, was initially questioned by Google’s own attorneys, and testified that Google did not believe it needed a license to use 37 Java application programming interfaces for which Oracle owns the copyright. But on cross-examination, Oracle’s attorney asked him if Google’s APIs are treated as proprietary.

“Are you telling me that you don’t treat your APIs as proprietary?” Oracle attorney Peter Bicks asked Schmidt.

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Chief Justice John G. Roberts Jr. shrugged off any difficulty the Supreme Court might be having reaching consensus with an equal number of ideologically divided justices, reports The Washington Post.

“Roberts seemed careful not to say anything that would aid either Democrats demanding that the Senate vote on President Obama’s nominee, Judge Merrick Garland, or Republicans who say the next president should name the replacement for Justice Antonin Scalia,” according to the report by Robert Barnes.

The eight-justice court already has said it was deadlocked on several cases. And while it is true that only a small percentage of the court’s cases are decided 5 to 4, the most important ones often are, Barnes writes.

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A federal judge in San Diego said he wanted a trial by the middle of this year in a lawsuit against Donald Trump over the now defunct Trump University, according to a report by ABC News. That was before the real estate mogul appeared headed for the Republican presidential nomination.

“U.S. District Judge Gonzalo Curiel is expected to address the trial’s timing at a hearing Friday in San Diego. Trump’s lawyers, who have put the candidate on a list of witnesses who may testify, have signaled opposition to a trial while Trump is in the race,” the report says.

“This will be a zoo if it were to go to trial,” Trump lawyer Daniel Petrocelli said at a hearing in March.

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Los Angeles-based Quinn Emanuel law firm and two of its partners sued the estate of high-profile attorney Hillel Chodos, claiming the famous litigator crossed the line in one of the final cases of his career, reports Courthouse News.

Chodos, one of the highest-paid attorneys in Los Angeles, represented celebrities and politicians in a career in which he handled more than 1,000 cases before he died at 81 in 2015.

Quinn Emanuel Urquhart & Sullivan and its attorneys Steven Madison and Michael Lifrak sued Chodos’ estate and its executor, Rafael Chodos, on April 22 in Superior Court.

The complaint filed in Los Angeles Superior Court stems from a case that began in 2009, when Chodos was representing Karen Christiansen in a lawsuit against the Beverly Hills Unified School District, represented by Quinn Emanuel, the report says. Chodos filed a suit against the firm and the school district, alleging malicious prosecution, fraud and corruption. The sole purpose of the suit was to prevent Quinn Emanuel from continuing to represent the school district, giving him an advantage, the complaint says.

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