Litigation is time-consuming, is costly and, even in a business context, can be emotionally draining. Thus, it makes perfect sense that in-house counsel and business people, alike, often try to implement mechanisms to avoid having to file or defend suits. One such method, about which I posted earlier this year, is the use of a liquidated damages provision. Another that has become increasingly popular is to include a requirement that the parties meet and confer before they can file suit. A typical version of such a clause that I periodically see in contracts is one like the following:
Before a party may file suit, it first must give the other party written notice of the dispute. After notice is received, representatives of each party shall meet within 5 days in a good faith effort to resolve the dispute. If the dispute cannot be resolved within 5 days after such meeting, suit may be filed.
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In addition to having a choice of law provision in a contract (a topic on which I posted last week), many contracts also include what is commonly known as a forum selection clause. Such clauses can be extremely important and can have an impact that goes well beyond simply setting up one party as the “home team” and the other an outsider.
For instance, even if a contract has a choice of law provision calling for the law of New York to apply to all contract disputes, if a forum selection clause requires suit to be brought in Massachusetts, the procedural law of Massachusetts applies. Consequently, while New York law does not have a trustee process attachment rule like we have in Massachusetts, a plaintiff should be able to obtain a freeze on the defendant’s bank account as long as a showing is made that the plaintiff is likely to succeed on the merits of its claim. The logic behind this is that, freezing a bank account (known as a “trustee process attachment”) is governed by procedural law (Rule 4.2 of the Massachusetts Rules of Civil Procedure), not by substantive law. Alternatively, if a suit was … Keep reading
Often, one of the last provisions in a contract will say:
This contract shall be governed and construed in accordance with the laws of the State of ______.”
Most courts will abide by the parties’ choice and apply the law designated by them – even if the law selected is not from the state where the case is being tried. It is only in limited situations, such as (i) where application of the selected law would undermine a significant public policy of the jurisdiction where suit is filed, or (ii) if the locale of the law selected has no relation to the parties or the dispute, that a court is unlikely to abide by the parties’ choice of governing law.
Why should in-house counsel care about choice of law? Well, while most states may have similar common law with respect to garden variety contract or tort claims, all states have statutory claims that only can be pursued if their own law is applicable.… Keep reading
As suggested in “The Effective Use of Liquidated Damages Provisions,” there can be a fine line between an enforceable liquidated damages provision and an unenforceable penalty clause. Thus, when drafting an agreement, it is important to keep in mind that a payment-for-breach provision will only be enforceable if, at the time of drafting:
- It would be difficult to determine the damages that would be caused if the contemplated breach were to occur; and
- The amount of the of the liquidated damages is a reasonable estimate of the actual damages that your company would suffer if there were a breach.
In light of these overarching principles, be sure that the contract expressly states that:
- All parties agree that if a breach were to occur, it would be difficult to determine actual damages;
- Based on what the parties presently know (include specifics if you can), they agree that $X is a reasonable estimate of the damages that would accrue if a breach occurred in the future; and
- All parties agree that the amount of liquidated damages is fair and reasonable and would not act as a penalty to the breaching party.
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Like many lawyers, I learned way back in law school that an “agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto,” (Rosenfield v. United States Trust Co. ). What I didn’t learn until many years later, however, was that although a Letter of Intent (LOI) expressly says that the parties’ rights and obligations are subject to the execution of a full-blown contract, that LOI can be binding – even if the contemplated full-blown contract never is executed.
I learned this through my representation of Robert and Juliann DiMinico in the case of McCarthy v. Tobin. In that case, Ann Tobin and John McCarthy executed a one-page “Offer to Purchase Real Estate” in connection with Tobin’s condominium at Burrough’s Wharf. The Offer to Purchase expressly made the parties’ rights and obligations “Subject to a Purchase and Sale Agreement satisfactory to Buyer and Seller,” which was required to be executed by August 16, 1995, and time was of the essence. After McCarthy failed to return a signed Purchase and Sale Agreement by the August 16 deadline, Tobin sold her property to the DiMinicos.
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