Contract Formation

News & Analysis as of

How is litigation involving spouses handled in Arizona? [Video]

Phoenix business law firm Jaburg Wilk Shareholder Roger Cohen discusses how litigation involving spouses is handled in Arizona. For more information visit www.jaburgwilk.com. ...more

Good faith: A new era for English law?

Hot topics for the Technology and Sourcing team often relate to technology itself (the move to Cloud) or market developments (single versus multi sourcing; trends in contractual risk allocation). One current hot topic,...more

New Ninth Circuit Opinion Requires Companies Seeking to Enforce Arbitration to Pay 'Sirius' Attention to Contract Formation

On November 10, 2014, the U.S. Court of Appeals for the Ninth Circuit continued its recent trend of declining to enforce arbitration clauses after finding that the contracts containing those clauses were never actually formed...more

Look Before You Click “Agree”: The Importance of Negotiating Your Company’s Software License Agreements

People sometimes forget that when you click “I Accept” or “I Agree”, you are entering into a legally-binding contract with the software company or website owner. And usually, the terms of the contract are extremely one-sided...more

Sirius XM Faces Class Action Because Arbitration Agreement Provided Late Is Invalid

A few months ago, the Ninth Circuit found that the arbitration agreement in Barnes & Noble’s website was not enforceable. This week, the Ninth Circuit found that the arbitration agreement Sirius XM Radio relied upon was not...more

The Customer is Sometimes Right

You’re a subcontractor with employees at your customer’s worksite. The customer orders you to remove an employee from the project. In fact, the customer emails you that the employee’s repeated safety complaints are killing...more

What “Magic Language” Should My Contract Have?

There is very little required by law to make a contract enforceable. Some types of contracts are required to be in writing, such as anything to do with land, contracts for goods worth $500 or more, and contracts for services...more

Eleventh Circuit Requests Assistance in Interpreting Consent-to-Settle Provision

Most cases in the United States settle. Insurers are well-aware of this fact. Thus, insurance companies employ consent-to-settle provisions in insurance policies to limit and control their liability in the likely event of a...more

Second Circuit: Oral Agreement to Pay Commissions Not Barred by Statute of Frauds

A recent opinion from the Second Circuit Court of Appeals reaffirms that the Statute of Frauds will not void an oral agreement to pay commissions if the agreement lacks a fixed duration. In Kroshnyi v. U.S. Pack...more

Is that Covered? Insurance and Indemnity Clauses

Many contracts contain clauses requiring parties to carry insurance and to agree to indemnify one party or another in the event of a lawsuit. Such language is typical in lease agreements, distribution contracts, and...more

What are you giving up when you click a click-through contract?

Here are some of the things people consent to when they click on "I agree"... ?That all disputes will be heard and decided in the courts of King County, Washington, ?That they accept the app or service...more

Bankruptcy Courts Fail to Enlighten on Electricity as Goods or Services

Is electricity goods or services? That seemingly simple yet confounding question is illustrated by three recent bankruptcy cases (all of which consider whether an electricity provider is entitled to an administrative expense...more

If Bylaws Are Contracts, Where’s The Boilerplate?

Bylaws hardly constitute literature. For the most part, they simply regurgitate the applicable general corporation law with a few permitted changes here and there. In general, there seems to be two schools of thought when...more

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

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

What, exactly, is a browsewrap?

Browsewrap, clickwrap, clickthrough, terms of use, terms of service, EULA. Just what are we talking about and how did we get here? In Nguyen v. Barnes & Noble, Inc., 2014 WL 4056549 (9th Cir. Aug. 18, 2014) the US...more

Relying on an Affiliate for Past Performance to Win A Contract

When a company lacks past performance experience, it can find itself at a significant competitive disadvantage against its competitors. Companies without track records often try to address the problem by relying on the...more

Implementing and Enforcing Online Terms of Use

Operators of social media platforms and other websites must manage a large number of risks arising from their interactions with users. In an effort to maintain a degree of predictability and mitigate some of those risks,...more

Realizing the Potential of Telemedicine in China, Part 1: Protecting Your IP

This post is the second in Foley’s blogs on China telemedicine and the first in the blog series, “Realizing the Potential of Telemedicine in China,” meant to address top issues facing U.S. companies looking to enter the...more

To Click or Not to Click? Ninth Circuit Rejects Browsewrap Arbitration Clause

In Kevin Khoa Nguyen v. Barnes & Noble Inc., 2014 U.S. App. LEXIS 15868 (9th Cir. 2014), decided on August 18, 2014, the Ninth Circuit rejected an attempt to bind a consumer to an arbitration clause found in an online terms...more

Is Your Arbitration Agreement Still Enforceable in Missouri After Baker v. Bristol Care, Inc.?

This summer, the Missouri Supreme Court issued a decision that will affect arbitration agreements relied on by employers across the state. The decision—one of many in a recent trend of Missouri cases restricting the...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

Best Practices in Drafting U.S. Government Subcontract Terms and Conditions

Federal government subcontracts are a hybrid between commercial contracts governed by state law (such as, for the sale of goods, the Uniform Commercial Code) and government contracts governed by the Federal Acquisition...more

Insurance – Broker v. Agent Status as Affecting Liability Against Insurer

Douglas v. Fidelity National Insurance - California Court Of Appeal, First Appellate District (August 29, 2014) - Persons who solicit, sell or negotiate insurance contracts are known generically as “producers,”...more

Real Estate Tip – How well do ‘one-size-fits-all’ leases really fit?

Many Maine landlords use the Maine Commercial Association of Realtors Commercial Lease as their ‘one-size-fits-all’ lease form. The form covers most topics that most landlords and tenants want to address. Landlords and...more

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