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The In-House Advisor

Published by Shepard Davidson & Renee Inomata

How to Ensure that an Agreement to Negotiate in Good Faith Is Enforceable

Posted in Contracts, Letters of Intent

As I discussed in a prior blog post, agreements to negotiate in good faith can be enforceable. Nevertheless, I recently was reminded when re-reading Schwanbeck v. Federal-Mogul Corp., that if you really want an agreement to negotiate in good faith to be enforceable, you have to be precise in how you describe what the parties will and will not do going forward. Continue Reading

Choose Words Carefully in Dispute-Related Contract Clauses

Posted in Contracts, Jurisdiction, Venue and Choice of Law

A couple of words here or there in a contract can make a huge difference, particularly when those words relate to what happens if there is a breach or some other dispute between the parties. This is something that the parties in Family Endowment Partners, L.P. v. Sutow recently learned – to the tune of millions of dollars. Continue Reading

Be Careful When You Decide to Breach a Contract

Posted in Contracts, Pre-Litigation Considerations

M.G.L. c. 93A (i) prohibits deceptive or unfair acts or practices in trade or business, (ii) mandates that a defendant reimburse a prevailing plaintiff for its reasonable attorneys’ fees, and (iii) allows for the recovery of at least double and up to triple damages if the defendant acted knowingly or willfully. Thus, it is one of the most potent weapons in a business litigation arsenal. As I have written previously, leveraging another to settle a dispute can violate Chapter 93A, as can exercising valid contract rights, if the motivation in doing so is ulterior. While a mere breach of contract, without more, is not a violation of the statute, a recent case from the Massachusetts Superior Court presents a stark reminder that whether conduct is viewed as a “mere breach” or part of a deceptive or unfair course of conduct can be in the eye of the beholder. Continue Reading

Give Employees a Chance to Explain Before Terminating Them

Posted in Contracts, Discipline & Performance Management, Hiring, Pre-Litigation Considerations

As regular readers of this blog know, a day that is scheduled to be filled with relatively routine and non-controversial matters can get turned upside and require immediate action without any advance notice. One such situation occurs when information comes to light that an employee is unfit to continue in his or her current position and should be terminated. Even if in-house counsel and the business decision-makers have complete confidence that the information justifies termination, however, there is a risk associated with not giving the employee a chance to at least explain his or her actions.

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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….”

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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.

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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!

-Shep

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.

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