Contract Drafting

News & Analysis as of

Long-term supply (and off-take) agreements: some recent themes

This Client Alert seeks to highlight certain recurring issues and themes arising in the context of long-term commodity supply and off-take agreements. It draws upon the recent collective experience of our lawyers as well as...more

Non-Compete Agreements Cannot be "Reasonable-ized" by Court--Even with the Parties' Consent

Yesterday, the Supreme Court stiffened its stern treatment of non-compete agreements. At issue in Beverage Systems was a non-compete clause that allowed the trial court to modify its geographic scope if the court determined...more

Express Yourself! Ongoing Split Over Class Arbitration Points to Importance of Clear Provisions

Despite the numerous Supreme Court decisions limiting class arbitrations, one central issue remains undecided: who decides whether an arbitration agreement permits class arbitration, the courts or the arbitrators? Entities...more

A Troubling Decision for Employment Arbitration Agreements with Potentially Ambiguous Language and What it Means for Employers...

On April 5, 2016, in a rare rebuke of an employment arbitration agreement by a federal court, the United States District Court for the District of New Jersey (Hon. Madeline Cox Arleo, U.S.D.J.) held that it would not compel...more

North Carolina’s Strict Blue Pencil Doctrine is Written in Ink: The Supreme Court Rules That Courts Cannot Revise Noncompete...

The North Carolina Supreme Court (the “Supreme Court”) recently reiterated that North Carolina courts may not revise overly broad restrictions in noncompetition agreements, overturning a Court of Appeals decision that had...more

Beware the “Non-Exclusive” Arbitration Clause

“Non-exclusive” arbitration clauses provide that disputes “may” be referred to arbitration (rather than “shall” or “should” be so referred). The Privy Council clarified the nature of these clauses in a recent case but...more

Getting Full Value out of Noncompete Agreements

Increasingly, companies are having employees sign noncompete and nonsolicitation agreements in order to protect the company, and its customer base, should the employee leave the company. These agreements are clearly...more

Utah Enacts Post-Employment Restrictions Act

A growing number of states are tightening conditions on restrictive covenants.  The start of 2016 saw Oregon and Alabama enact higher barriers to the enforcement of non-compete agreements in those states. As of March 22,...more

Managing Litigation Risks in Third Party Technology Service Arrangements

One of the biggest risk trends for banks to watch in coming years will be risks arising from the outsourcing of information technology. Banking supervisors as well as the Consumer Financial Protection Bureau (CFPB) and the...more

Alleviate the Fear of a License Counterparty Filing for Bankruptcy

A legitimate fear among companies negotiating license agreements exists, and that is the fear of the license counterparty filing for bankruptcy. Given the business interruption that ultimately could occur as a result of a...more

Do's and Dont's for Teaming Agreements & Subcontracts for 8(a) Contracts

Overview - - Teaming Agreements & Subcontracts - What are they? - What provisions should you include? - What are the key considerations for primes? - What are the key considerations for...more

Jay Z’s Breach of Contract Throws Off the Beat

Jay Z, real name Shawn Carter, is being sued by Parlux Fragrances for allegedly failing to promote a fragrance line that Carter launched in 2013 in a partnership with Parlux. The signature fragrance, called Gold Jay Z, was...more

Beware the midnight clause: Hold the champagne?

Is it time to celebrate? - It’s midnight. The champagne is on ice. It was a tough negotiation but your attorney got all the key terms you wanted. With a few finishing touches on the contract, the deal will be done...more

WIN Wise: Back to basics - Termination of commercial contracts

Can I terminate my contract? Does the other party have a right to terminate? These appear to be simple questions, but termination of contracts is a complex area of law. This 'Back to Basics' note highlights the key...more

Midstream Gathering Agreements Rejected in Sabine Oil & Gas Bankruptcy

In a much anticipated ruling from the Bankruptcy Court for the Southern District of New York, Judge Shelley C. Chapman determined that midstream gathering agreements are subject to rejection as executory contracts, based on...more

Be Careful What You Ask For When Agreeing to Arbitration

In 2014, I posted Carefully Craft Your Arbitration Clause if You Want Some, But not All, Disputes Arbitrated. A decision a few months ago, Trustivo, LLC v. Anthem, Inc. is a reminder that if a contract has a broad...more

Take Care in Drafting: Meschino v. Frazier Industrial Co. is a Cautionary Tale for Employers

In Meschino v. Frazier Industrial Co., Civil No. 15-10327-RGS, 2015 WL 7295463 (D. Mass. Nov. 18, 2015), Judge Stearns held that an employment agreement superseded an earlier employment agreement and a separate earlier...more

How to Amend a Trust

When drafting a revocable trust, your clients may be very keen to include a particular niece or cousin, but then have a change of heart years later and want to write them out. As long as the trust allows it, you can simply...more

Drafting Matters: Non-Reliance Provisions Barring Extra-Contractual Fraud Claims Effective in Delaware Only if Drafted as a Clear...

It is not unexpected for there to be requirements in consumer contracts that clear formulations of waivers are necessary before a consumer can be deprived of rights. However, under Delaware law similar formality and clarity...more

Integration Clauses As A Backstop Against Claims Based On Fraud: Insist On The Specifics.

For any business owner, a specially-crafted integration clause can significantly limit exposure to suits brought by a dissatisfied party on the other side of the negotiating table. An integration clause (sometimes referred to...more

Is that Letter of Intent Enforceable?

Letters of intent, or term sheets (“LOIs”), are commonly used in M&A and other corporate transactions. However, when discussions between parties breakdown the question often arises, are any of the terms in the LOI...more

Under Construction - March 2016

Welcome to the first edition of our Under Construction newsletter for 2016. Indemnity laws and clauses are a big part of construction contracts. They can make or break a project. Defend and indemnify obligations have the...more

Draft Agreements with Contract Construction Principles in Mind

Generally it’s the parties’ mutual intent that controls a contract’s interpretation. But that intent isn’t always easy to figure out. When the parties dispute a contract’s interpretation and it goes to court, the court...more

Construction Corner: Design Contract Basics

In prior Construction Corner posts, we discussed statutory requirements and guidelines for the procurement of architectural services. Here we will address the basic elements of design contracts between public and private...more

Jurisdiction clause – lack of express statement of application to “all claims” not fatal

Jurisdiction clauses in contracts set out which countries’ courts have the right to hear disputes arising out of the contract. It is important that they are clearly drafted as ambiguity can lead to expensive disagreements...more

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