Contract Drafting

News & Analysis as of

Black Horse Capital, LP v. Xstelos Holdings, Inc., C.A. No. 8642-VCP (Del. Ch. Sept. 30, 2014) (Parsons, V.C.)

In this decision, the Court of Chancery granted defendants’ motion to dismiss, finding that it could not enforce the plaintiffs’ alleged oral agreement where the related written agreements make no reference to any prior...more

Required Consideration Lacking For Replacement Employment Contract

A September 23rd Connecticut Appellate Court decision tells a cautionary tale for employers drafting employment contracts intended to replace earlier contracts. Thoma v. Oxford Performance Materials, Inc., 2014 WL 4548490...more

Enforcing Notice Provisions in Construction Contracts in the United States

Notice provisions are a key part of construction contracts. These provisions typically require a contractor to notify the owner of the project (or an owner-designated representative) when the contractor believes that it is...more

Another Bankruptcy Proofing Strategy Bites the Dust, or Does It?

In an effort to minimize the risk of loss in connection with a loan default, lenders often employ creative means to make it difficult, if not impossible, for a borrower to file bankruptcy....more

New Jersey Supreme Court Calls for More Specific Language in Arbitration Agreements

Although New Jersey public policy generally favors arbitration as a method of resolving disputes, following the New Jersey Supreme Court’s unanimous holding in Atalese v. U.S. Legal Services Group L.P., companies doing...more

CARB’s Invalidation of Offset Credits Highlights Importance of Risk Allocation

On October 8, 2014, the California Air Resources Board (CARB) issued a preliminary determination invalidating more than 230,000 offset credits on grounds that an Arkansas-based chlorofluorocarbons (CFCs) incinerator was not...more

When Xs and Os Go Awry: Recent College Coach Lawsuits Emphasize the Importance of Good Contract Language Even for "Intramural"...

The recent flurry of scandals in professional sports, particularly those from the NFL that dominated headlines in recent weeks, are not without their counterparts in the college ranks. Indeed, in the past year there have been...more

License Definition Trumps Need for Actual Infringement Finding

Cellport Systems, Inc. v. Peiker Acustic GMBH & Co. KG - In a case addressing whether royalties are due under a patent licensing agreement even if the products are not covered by the patents, the U.S. Court of Appeals...more

A Court’s Review of a Disability Benefit Claim May Hinge on the Meaning “Satisfactory to Us”

Twenty-five years ago, the U.S. Supreme Court ruled that courts should review an ERISA participant’s claim for benefits under a de novo standard of review unless the plan gives the plan fiduciary discretionary authority to...more

Excess Insurer Contract Language Amounts to Free Pass

Excess insurance is essential to businesses of medium or larger size because it provides catastrophe coverage at much lesser rates per dollar of coverage than primary insurance. There are two main reasons for this: The excess...more

Required Contract Provisions for Construction Contracts in California

One question I get fairly often when drafting or reviewing construction contracts is what provisions, if any, are required in construction contracts in California. This is, of course, different than what should be included in...more

Joint Ownership of Intellectual Property: Complexity That Only a Lawyer Could Love

Companies are increasingly working cooperatively to develop technology, particularly software programs. One critical issue is the ownership of the resulting intellectual property in the software programs. This decision is...more

Mergers & Acquisitions Insurance - The growing use of rep and warranty protection in M&A transactions

The good news is that you can insure almost anything! In M&A transactions, buyers and sellers spend a great deal of time allocating risk relating to known and unknown pre-closing liabilities. The buyer’s view of the...more

“Access Denied” – Understand How Your Electronic Health Records Are Controlled

Earlier this week, my colleague Dianne Bourque commented on a small medical practice’s inability to access its patients’ medical records one July day after its EHR vendor blocked the practice from pulling the data stored in...more

Start-ups: Don’t Get Beat(s) Down, Learn from MONSTER’s $3 Billion Mistake

When there’s a huge pile of money staring you in the face, it’s easy to overlook some of the potential pitfalls. But a recent $3 billion monster deal provides a cautionary tale for businesses negotiating make/break the...more

Construction Contract Payment Terms: Timing is Everything

In 2011 you will probably recall receiving a plethora of information about the amendments to the Construction Act (the “Act”) particularly the resulting “new” payment regime. There was a flurry of activity leading up to the...more

English Contract Law: Choice of Law and Forum Trumped?

In Fern Computer Consultancy Ltd v Intergraph Cadworx & Analysis Solutions Inc [2014] EWHC 2908 (Ch) (29 August 2014), the English High Court analyzed the arguments for and against non-English forum selection and choice of...more

Legal Alert: It’s Time to Review Benefit Denial Letters

On August 7, the U.S. Court of Appeals for the Sixth Circuit decided in Moyer that the contractual time limits governing the period during which a participant must initiate judicial review of a benefits denial must be...more

Too Late to Compel Arbitration? Think Again!

In recent years, more and more employers are considering requiring employees to bring any claims arising out of the employment relationship in a private forum such as an arbitration. The American Arbitration Association...more

A Reminder About Careful Drafting of Confidentiality Clauses

The recent decision by the High Court of England and Wales (Chancery Division) in Richmond Pharmacology Limited (Company) v. Chester Overseas Limited, et al. underscores the need to carefully draft confidentiality clauses and...more

Oregon Limited Liability Companies: Do I Need An Operating Agreement?

Limited liability companies (“LLCs”) have become a common choice of entity in Oregon in the 20-plus years since adoption of the Oregon Limited Liability Company Act (“Act”). LLCs are formed by filing Articles of...more

Drafting Contracts to Minimize or Avoid Claims

Many claims that arise in design and construction may be mitigated or avoided as a result of prudent contract drafting at the outset of the project. This article provides practical tips for drafting contracts to minimize or...more

Termination for convenience clauses revisited. Can they limit potential claims?

The nature of termination for convenience clauses - As mentioned in our alert of last year, click here to read, it is increasingly the case that contracts provide one and, sometimes, both of the parties, with the...more

Drafting and Interpreting Indemnity Agreements: Living Forward, Understanding Backwards

Black’s Law Dictionary defines indemnity as one’s obligation to make good any loss, damage or liability incurred by another to a third party. Typically, this obligation arises within a larger contract, within which the...more

4 Elements to Improve Enforceability of a Multi-tiered Dispute Resolution Clause

The English High Court decision in Emirates Trading Agency LLC v Prime Mineral Exports Private Limited offers guidance. Why this case is important - Multi-tiered or dispute escalation clauses are an important...more

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