Contract Formation

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Using Electronic Signatures

Over the last decade, electronic signatures have become ubiquitous. As a society, we have become accustomed to the ease and convenience of clicking the “I Accept” button when a cell phone company updates its terms and...more

Mercury signing – guidance on the execution of documents

Following the decision in the Mercury Case, a practice of ‘virtual signings and closings’ has developed to avoid the logistical problems in getting a document signed. This guidance provides a non-exhaustive range of options...more

Ledcor: Taming Sattva’s Wild Horse of Contractual Interpretation for Standard Form Contracts

The Supreme Court of Canada’s unanimous decision of Sattva v. Capital Corp. v. Creston Moly Corp., 2014 SCC 53 opened the barn door and let loose a wild horse in terms of the scope and the availability of the use of the...more

Contract Corner: Term (Part 1)

What is the term of your contract? It is one of the most basic questions with regard to any agreement, but drafting provisions regarding the “Term” raises multiple issues, both legal and practical....more

No Good Deed Goes Unpunished

Discovering the origin of the aphorism that “No Good Deed Goes Unpunished” is difficult, but understanding its meaning is instantaneous. When doing a good act, do not expect a reward. In fact, the “reward” may be a...more

Implications of the UK’s Brexit Referendum

As autumn approaches and preparation for the next round of Brexit discussions begins, this note summarises the current position and analysis following the UK’s vote to leave the EU on the 23rd June (the “Referendum”). Whilst...more

Court Upholds Enforceability of “Clickwrap” Employee Agreement

As we have previously discussed, if you want your electronic contracts to be enforceable, it is a best practice to require the counterparty to affirmatively accept the contract by checking a box or clicking a button. A recent...more

Personal Guaranties: What? Me Worry?

Franklin, a Senior at Fraternal State, is finally moving off campus to his own apartment with four of his buddies. Before Owen Ohner, the landlord, will approve their lease, he requires a personal guaranty from all the...more

Federal Court Decision Provides Useful Guidance to Companies Offering Products and Services Pursuant to Online Terms of Use

On July 29, 2016, Judge Jed Rakoff of the U.S. District Court for the Southern District of New York issued an opinion and order in Meyer v. Kalanick, denying Uber Technologies' motion to compel arbitration of a consumer's...more

Text on the Dotted Line: A Text Message Can Create a Binding Contract

Here’s another story in the “It never gets easier” file. The Massachusetts Land Court recently decided a case that perhaps we should have all guessed was coming. This is the above the fold headline: Text...more

Beware: Sending A Text Message Can Be Just as Binding as Signing a Document By Hand!

We have all heard stories about the dangers of social media, whether it be an inappropriate tweet, a regrettable Facebook posting or a misdirected “sexting.” The decision issued by the Massachusetts Land Court in St. John’s...more

LOL! OMG. HUH? Court Finds That Text Message Can Form Binding Contract

In the world of Twitter, Facebook and LinkedIn, it is no secret that individuals are communicating regularly on their smartphones about their business affairs. Recently, a court addressed the question about whether a text...more

Another Road Bump for Consumer Arbitration Clauses in New Jersey

On June 14, 2016, the New Jersey Supreme Court issued yet another consumer friendly decision that further impedes the ability to enforce an arbitration agreement under New Jersey law. In a 5-1 decision, the Court in Dever v....more

Terms and Conditions Buried in Easily Ignored Scroll Box Don’t Cut It, the Seventh Circuit Holds

As we have noted before, if you want to increase the likelihood that your website terms of use are enforceable against users, you need to do two things. First, you need to display the terms to users in a conspicuous way, and...more

English High Court considers co-existence provisions under German and English law

In two recent IP decisions in the English High Court, the interpretation of a settlement agreement and a co-existence agreement have been carefully considered. In DKH Retail and Others v SRG Apparel Plc and Others, English...more

Always Sign on the Dotted Line…Or Act Like You Did

Bryan Cave recently represented the successful claimant in a case which highlights to parties that, even where they have set out formal requirements for signature before becoming bound by a contract, the way they act can be...more

Atlantique Productions S.A. v. ION Media Networks Inc. - USCA, Ninth Circuit, March 18, 2016

Ninth Circuit affirms ruling in favor of defendant ION Media Networks on French television producer’s claims for breach of contract, promissory estoppel and fraud, finding no contract existed because parties agreed to be...more

Purchasing Flowers Ends in Reforming Browsewrap Agreements

A California Court of Appeal has taken its first stance on the website design requirements necessary for an enforceable browsewrap agreement. On March 17, 2016 the Court of Appeal affirmed the California Superior Court of Los...more

Don’t Take Needless Chances When it Comes to Personal Jurisdiction, Forum Selection and Choice of Law

Not spelling out in your agreements, even in informal agreements, where disputes can be resolved and what law will govern them can lead to some unhappy results. That is exactly the position that United Excel Corporation and...more

Counterpart Execution in Scotland

In this article, published in The Scotsman ("Sign of the times for Scots law documents"), Jonathan Gaskell looks at the introduction, into Scots law, of the Legal Writings (Counterparts and Delivery) (Scotland) Act 2015 -...more

How to “Score” a Contract from the Red Zone

Football pundits like to discuss Red Zone effectiveness. Driving to the goal line doesn’t much matter if you don‘t score. So, why would a negotiating party fail to score an enforceable contract while negotiating from the Red...more

Blog: The Importance of Online Agreements on UK Websites

The Terms of Use Agreement (“TOU”) and the Privacy Policy found on most websites govern the relationship between the website operator and all of its customers. Although it may be tempting to copy and use online agreements...more

Atlanta Rapper Rich Homie Quan Seeks Cancellation or Transfer of Trademarks and Over $2,000,000 in Damages

Think It's A Game Entertainment, LLC ("TIG"), an Atlanta-based production company, Fly Merchandise Enterprises, LLC ("Fly"), and Girvan Henry ("Henry"), have left Atlanta rapper Rich Homie Quan feeling "some type of way."...more

Farewell From Drafting Points

Alas, my time at Reed Smith has come to an end and with it comes the end of Drafting Points. Writing posts for the blog has been an enjoyable and cathartic process for me. Some key take-aways from the posts...more

ABA California Lending Law- Section X

A. Loan Commitments - Under California law, a loan commitment, which is commonly set forth in a commitment letter, is binding on a lender only if the commitment letter contains all of the material terms of the loan and...more

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