Header graphic for print

The In-House Advisor

Published by Shepard Davidson & Renee Inomata

Contracts Where Neither or Only One Party Signs Can be Binding

Posted in Contracts

In today’s world where circumstances can change at lightening speed, companies sometime feel compelled to act before their counsel can formalize or finalize a written contract. Similarly, there are instances where only one party to a deal has executed the written instrument. So what happens when someone seeks to enforce the terms of a written document that is not fully executed? As with many questions in the law, the answer is: “It depends….”

Continue Reading

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

Posted in Contracts, Jurisdiction, Venue and Choice of Law, Letters of Intent, Pre-Litigation Considerations

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 its president, Ky Hornbaker, now find themselves.

Continue Reading

Keeping Communications With Other Parties Confidential Through the “Community of Interest Privilege”

Posted in Attorney-Client Privilege, Pre-Litigation Considerations

One of my law school classmates asked me several month ago about the merits of entering into a joint defense agreement with another party to protect communications he had with that party’s counsel in connection with a potential dispute with a third company. He was concerned that entering into such a joint defense agreement might make his client and its ally look guilty. I told him that no formal agreement was necessary; the key was whether the communications concerned a matter of common interest to the parties communicating. Last week, I happened to come across The Hilsinger Co. v. Eyeego, LLC, which put a new spin on what the judge in that case referred to as the “Community of Interest Privilege.” Continue Reading

The Devil Is in the Details of Forum Selection Clauses

Posted in Contracts, Jurisdiction, Venue and Choice of Law

While no in-house attorney drafting a business contract wants to focus on being in litigation with her business partner, as I discussed in a 2013 blog post, thinking like a litigator at the drafting stage is critical in order to avoid potential surprises. A good example of this comes in the context of crafting a forum selection clause that truly achieves your objectives. Continue Reading

In-House Advisor’s Renee Inomata Included in The Best Lawyers in America for the Second Consecutive Year!

Posted in Uncategorized

For the second year in a row, my In-House Advisor co-publisher, Renee Inomata, has been selected for inclusion in The Best Lawyers in America® for the Employment Law – Management category. Best Lawyers® is based on an exhaustive peer-review survey in which tens of thousands of leading attorneys throughout the country voted on the legal abilities of other lawyers in their practice areas. Congratulations, Renee, on this well-deserved honor!


Obtaining or Avoiding a Freeze on a Bank or Other Financial Account Can Require Swift Action or Reaction

Posted in Injunctions and Attachments, Pre-Litigation Considerations

During the dog days of summer, anything with the word “freeze” may sound appealing. But if the freeze is a “trustee process attachment” (tying up a bank or other institutional account), a whole different set of emotions can be evoked. As I discussed in Gain Leverage by Freezing Bank Accounts – Part I and Part II, knowing the law surrounding trustee process attachments can create or defuse significant and sometimes dispositive leverage. Further, and as the Federal District Court reminded us recently in DeBenedictis v. Dougherty, the speed with which a party acts or reacts when a trustee process is sought can be critical.

Continue Reading

4 Things You Need to Know About the Earned Sick Time Law

Posted in Compliance, Policies & Notices, Employee Benefits

Earlier this year, in Mandatory Paid Sick Leave — What In-House Counsel and Employers Need to Know, I previewed some of the requirements of the Massachusetts Earned Sick Time Law. Final regulations were issued by the Attorney General’s office on June 22, 2015. Almost one month after the deadline for compliance, how are you doing in complying with the new law? If you’re like many employers, you may still be figuring it all out. Here are four key points all employers should be aware of.

Continue Reading

If You Have Confidential Information, Keep It Confidential!

Posted in Confidentiality, Noncompetition & Other Restrictive Covenants

I’ve been involved in many cases where it is alleged that someone violated his or her non-compete agreement or misappropriated the company’s confidential information or trade secrets. Often, the key issue has been not what the former employee did, but what the company did not do to protect the information it contends is proprietary. The issue of failing to protect one’s confidential information and trade secrets was highlighted recently in the Appeals Court decision of Head Over Heels Gymnastics, Inc. v. Ware.

Continue Reading

Know What You Are and Are Not Giving Up in a Release

Posted in Contracts, Settlements and Releases

Because over 95 percent of civil disputes are resolved without a final judgment, parties routinely enter into settlement agreements that include releases. Further, for those disputes that do not spawn formal litigation, it is not uncommon for in-house counsel or senior business executives to take the lead in a settlement. As such, it is important for anyone dealing with a settlement to understand how even a few words in a settlement agreement can make a big difference in the scope of a release.

Continue Reading

Choice of Law and Liquidated Damages

Posted in Jurisdiction, Venue and Choice of Law, Liquidated Damages

Two weeks ago, I participated on a panel for a webinar on liquidated damages with three other panelists from New Jersey, Florida and Texas. In preparing with the other panelists, I was surprised to learn that while there are many common threads running through the law of liquidated damages across the country, there also are some startling differences depending upon which jurisdiction’s law controls.

Continue Reading