Oil industry technology has improved over the last five years since the BP drilling platform explosion and oil spill in the Gulf of Mexico, writes Mintek Mobile Data Solutions in a paper published on its website.

“Enhanced blow-out protectors, built by BP, are in place to prevent these measures from hopefully not happening at this magnitude, and, even internationally, new technology is being handled remotely to control the oil and gas networks. Also, oil rigs are being secured by energy sectors, but this still doesn’t protect them from cyber-attacks,” the paper says.

“In fact, ‘32% of attacks on critical national infrastructure were targeted on energy firms in 2014.’ This is due to hackers being able to get into the system and override it, however with Government involvement and better maintenance practices in place, we should be able to get our waters to a cleaner state and keep it that way for years to come.”

The paper lists five improvement made to prevent similar disasters in the future.

Read the article.

Although, typically, a commercial general liability insurance policy doesn’t cover breaches of contract, there are exceptions to that rule, and according to one recent decision those exceptions include breach of warranty claims, according to an article published by Spencer Fane Britt & Browne.

In Continental Cas. Co. v. Greater Omaha Packing Co., Inc., a wholesaler sued its supplier, asserting claims for breach of contract, breach of express warranty (premised on the product guarantee), and breach of the implied warranties of merchantability and fitness for particular purpose.

The court found that the contractual liability exclusion didn’t apply and, even if it did, the exception to the exclusion applied.

Read the article.

A recent settlement by a private defense and government contracting company should put government contractors on notice of the corruption risks and the potentially severe consequences of FCPA violations, writes Fatema Merchant of Sheppard, Mullin, Richter & Hampton.

She describes how IAP Worldwide Services Inc., a private defense and government contracting company, agreed to pay $7.1 million to settle criminal charges of the U.S. Foreign Corrupt Practices Act (FCPA) related to bribing Kuwaiti government officials to secure a Kuwaiti government contract.

And on the same day IAP’s Former Vice President of Special Projects and Programs also pleaded guilty to FCPA charges.

“For U.S. government contractors, the opportunities to provide services and expertise to foreign governments are lucrative, but this enforcement action also highlights the risks associated with obtaining such contracts,” Merchant writes.

Read the article.

DLA Piper has published a paper about the Supreme Court’s ruling upholding a long-standing precedent that restricts the ability of a patent holder to charge a royalty beyond the term of a patent. In a 6-3 decision, the court in Kimble v. Marvel Entertainment declined to overrule Brulotte v. Thys Co., a 1964 decision in which the Court ruled that an obligation to pay royalties for use beyond the expiration of the patent was unenforceable.

“The Court acknowledged that Brulotte restricts a patentee’s and an accused infringer’s right to freely contract to a royalty that runs beyond the patent’s term and noted that extending the term of the patent, in some circumstances, ‘may better allocate the risks and rewards associated with commercializing inventions,’ ” the paper explains.

Kimble turns on the principle of stare decisis.

Read the article.

Chinese companies are increasingly seeking out and paying for intellectual property via licensing agreements with American companies, writes Dan Harris in the Above the Law blog. He lists eight tips to assist American companies looking to secure royalty payments by licensing their IP to Chinese companies.

The list starts with “Protect your IP by registering it,” “Protect your reputation,” and “Be clear about payment.”

It continues with more suggestions, ending with “Choose the right jurisdiction and law for disputes” and “Register the license agreement.”

Each tip comes with a discussion.

Read the article.

An article by Stephen M. Proctor of Masuda Funai illustrates the balance courts strike between the policy that disfavors perpetual contracts versus the policy that allows parties freedom of contract. Courts will strike down perpetual contracts but will allow parties to restrict their ability to terminate an agreement.

The article discusses the case of Burford v. Accounting Practice Sales, Inc. and Gary Holmes, which was decided recently in the 7th U.S. Circuit Court of Appeals.

The ruling shows that a party to a contract can limit its ability to terminate a contract except on specified conditions or specified causes, the article says.

Read the article.

Archer Norris has published a first-of-its-kind California Business Litigation White Paper revealing that many corporate lawyers view California’s litigation environment as hostile, characterizing it as “burdensome,” “complex,” and “cumbersome.” While California was once widely considered by corporations to be the Promised Land because of the unlimited economic opportunity the state offered, its increasingly oppressive legal and regulatory environment means it is now getting panned by many businesses.

Conducted in partnership with ALM Marketing Services, Archer Norris’s survey polled general and corporate counsel with business interests in California on their opinions of the California legal climate, how they evaluate litigation matters, and how they choose outside counsel for handling these matters.

Compared to other states, corporate counsel reported three practice areas in California as particularly fraught with risk and potential liability: employment litigation (67%), environment/regulatory matters (59%), and commercial litigation (43%), with the first two most negatively impacting their decision to conduct business in the state. Other factors giving them pause about doing business in California include its judicial system (43%), state and local taxes (42%), environmental regulations (34%), and health and safety codes (30%).

Given their feelings about litigating in California – four in ten indicated they are simply “resigned” to the cost of doing business in the state – many corporate counsel indicated they struggle in deciding whether to settle cases or proceed to court. Forty percent of respondents were required to make such a call on ten or more matters within the last year. Counsel most often assessed the short-term odds of success in court versus reaching a favorable settlement (73%), followed by considerations of their legal exposure or the dollar value of a potential settlement (72%).

“As a law firm that has maintained a singular focus on helping businesses meet the unique challenges and opportunities in California for 35 years, we can’t say we’re surprised by these findings,” said Gene Blackard, Managing Partner. “In fact, we owe our continued growth and success to our ability to efficiently guide clients through California’s increasingly complex legal terrain. We have strategically developed our practices to meet the diverse litigation and transactional needs of companies doing business in the state, maintain offices in key geographic regions, and offer creative alternative fee arrangements to every one of our clients.”

The survey also yielded insights about how in-house counsel evaluate which outside counsel offer the right mix of skills and experience to handle the challenging California litigation environment. At the onset of a legal engagement, the most important factors include law firm responsiveness, knowledge of the business and industry, and overall litigation costs.

To download the Business Litigation Playbook white paper, please visit: http://www.archernorris.com/Templates/media/files/AN-Business-Litigation-Playbook-0615.pdf

About Archer Norris

A leading California law firm, Archer Norris PLC has more than 100 attorneys admitted to practice in 15 states. The firm focuses on business law from five strategically located California offices in San Francisco, Sacramento, Walnut Creek, Newport Beach and Los Angeles. Archer Norris counsels clients in commercial and complex litigation, insurance coverage, bad faith litigation, business, health care, public entity, environmental, and real estate transactions throughout California and wherever our clients need us.

Some of the most boilerplate-looking provisions in contracts are often the most onerous, writes Josh M. Leavitt of Much Shelist, P.C.

He gives an example of how indemnity clauses qualify: an indemnifying party (such as a contractor) could find itself owing the indemnified party (such as an owner and its architect) substantial reimbursements and defense costs (including even provision of an attorney) for the defense of third-party claims (such as the claim of a supplier). “This could happen where the indemnifying party (the contractor) was only alleged to have been partially at fault — and even where the contractor may not have been at fault at all.”

He writes that it is important for indemnitors (those giving indemnity rights) and indemnitees (those receiving indemnity rights) to understand the risks involved with these clauses.

Read the white paper.

Mintz Levin has published an article on the proper approach to hiring and negotiation of an employment contract.

The article, written by Jennifer Rubin, points out the similarities between divorce law and employment practice. “Two parties meet (the interview), they realize how many things they have in common (the job requirements and qualifications), and then they fall in love and get married (the job offer and acceptance).”

“There is no doubt that the best time to negotiate the employment terms that are key to a termination is before you ‘walk down the aisle’,” she writes. “While it might seem both counterintuitive, counterproductive and even unromantic to focus on the end of the relationship at the beginning, it is just good business to be practical about a relationship’s end.”

Read the article.

The standards for walkway safety have changed – and the way slip and fall lawsuits are going to change with them, reports The Expert Institute.

The Institute has produced a white paper that outlines crucial updates made by the (ANSI) B101 committee on safety requirements for slip, trip, and fall requirements, and how they will impact defendant liability in more than half of all slip and fall claims.

The information in this whitepaper will help readers:

• Use new testing standards to prove defendant liability
• Select better slip and fall cases
• Understand how these new standards will affect your practice

Download the white paper.

Bridgeway Software is making available copies of its first ever, in-house, matter management and e-billing buyers’ guide.

The ebook, vetted by seasoned, in-house professionals, is designed to offer a framework for legal departments to:

• Understand matter management and e-billing systems and their uses/benefits
• Conduct an internal analysis and define requirements
• Develop goals for a software solution, and prepare for adoption
• Evaluate vendors, the functionality of their systems, and the requirements for implementation
• Select a vendor based on the fitness of the solution, the likelihood of a viable, long-term relationship, and key points of differentiation

Download the free guide.

A paper published recently by Finnegan, Henderson, Farabow, Garrett & Dunner discusses a court decision that may have implications for enforcing settlement agreements in litigations when the other party tries to renounce.

“A plaintiff executed a settlement agreement received from the defendants, but later asserted that its acceptance of the agreement was contingent upon the defendants’ execution of the settlement by a specified deadline,” authors of the Finnegan paper explain. “Even though the defendants failed to sign by the deadline, the court enforced the agreement, finding that the signing deadline was not a material term of the settlement.”

The case is Adaptix, Inc. v. ASUStek Computer Inc., in which the plaintiff, Adaptix, executed a settlement agreement received from defendants ASUStek Computer Inc. and Asus Computer International, but later asserted that its acceptance of the agreement was contingent on ASUS’s execution of the settlement agreement by a specified date.

Read the paper.

Many people believe that having a contract with Chinese companies is a waste of time and money because “everyone knows” that China never enforces contracts, writes Dan Harris in a posting on Above the Law.

But there are three reasons why it makes sense to have a contract with your Chinese counterparty, and only one of those reasons is enforceability, he explains.

One reason is to assure that the Chinese company with which you are doing business truly understands what you want of it, he writes. Another reason for having a well-written Chinese language contract with your Chinese counterparty is to convince it that it will be better off complying with your contract than violating it. And the third reason is enforceability.

Read the article.

When allocating risk inherent in a construction project, it is necessary to pay close attention to the interplay between indemnity and insurance to ensure the objectives of the parties are achieved, writes Jeffrey A. Kiburtz of Pillsbury Winthrop Shaw Pittman in a paper published in Lexology.

He writes that each has its advantages and limitations, but can effectively be combined to secure the performance of the myriad participants in construction projects of all complexities.

The paper covers the varying scopes of protection, the timing of performance, and the likelihood of performance.

Read the article.

Thousands of slip, trip, missteps and fall accidents and train collisions occur each year at railroad stations, terminals, and
grade crossings resulting in serious injuries causing a significant drain of financial resources.

A paper recently presented at the 2015 Joint Rail Conference provides guidance in identifying common safety hazards and easy ways to reduce or eliminate these dangers. Authors of the paper are Carl Berkowitz, Ph.D., PE and Louis D. Rubenstein, a retired traffic engineer.

The paper covers a variety of safety issues, which are commonly present in a railroad environment. It also provides estimates regarding the cost of railroad related pedestrian accidents. More than 95 percent of injuries on rail system injuries are minor. The top one percent of injury claims can account for 20 percent of the total claims’ cost.

Download the white paper.

The National Association of Corporate Directors (NACD) has prepared a complimentary report that offers insight into the five key principles that will help directors enhance their oversight of cybersecurity.

Developed in collaboration with AIG and the Internet Security Alliance, “Cyber-Risk Oversight” clearly explains a wide range of board-level considerations, including:

• Disclosure issues
• Access to expertise
• Risk appetite calibration

The National Association of Corporate Directors (NACD) delivers insights and resources that more than 16,000 corporate director members rely on to make sound strategic decisions and confront complex business challenges with confidence.

Download the report.

Merrill DataSite offers a complimentary white paper on building an information governance policy and choosing a contract management system that will comply with your company’s policy needs.

The amount of information businesses require to operate has grown substantially in recent years, Merrill says. This information has created considerable improvements in many critical business functions. But each improvement also comes with new risks, and managing these risks involves a high level of coordination between numerous departments.

Building a good information governance policy helps set the stage for managing the challenges listed above. However, an effective contract management system is critical for a successful implementation of your information governance policy.

The paper, “Three steps to excellence in information governance,” is designed to help you along your path of building an information governance policy and choosing a contract management system that will comply with your company’s policy needs.

Download the white paper.

Parties to maritime contracts frequently include requirements that one or the other party or both of them will use their “best efforts” to perform duties described in the contract, but sometimes it’s unclear what the phrase “best efforts” actually means to them and what a court will say it means should a dispute arise.

Robert Stefani of King, Krebs & Jurgens, PLLC has written a paper describing the practice and discussing two approaches that are evident in the relevant case law. JD Supra Business Advisor posted the article.

He writes that including “best efforts” provisions in a maritime contract can be a good practice, but only if the contract includes guidelines as to what constitutes the party’s “best efforts.”

Read the article.

Venio Systems offers a complimentary white paper on defensibility problems due to spoliation of data between collection and review.

“Anyone who has spent time working with a service provider or law firm eDiscovery processing department knows that eDiscovery processing isn’t simple,” Venio says in a release. “However, defensibility problems due to spoliation of data between collection and review don’t get the same press or case law “bench slaps” that typically result from failures in preservation.”

In the paper, Venio’s Vice President of Training and Education, Babs Deacon, discusses the five “dirty little secrets” of eDiscovery:

1. Processing Extraction Levels
2. Multiple Processing Applications
3. Technology Selection
4. Human Participation
5. Keyword Searching

Download the white paper.

Just because your company does not contract directly with the government does not necessarily mean you are not subject to the many requirements associated with government contractors, warns Foley & Lardner in a new article.

“Those who provide goods and services to OEMs, or other customers who sell to the government, may also be subject to those requirements,” the article says.

“Many government contractors incorporate by reference Federal Acquisition Regulation (“FAR”) clauses, FAR agency supplemental clauses, or other federal government contracting laws and regulations into agreements with subcontractors and materials supplier.”

Read the article.