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….”… Keep reading


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.… Keep reading

TAGS: , , , ,


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.… Keep reading

TAGS:


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.… Keep reading

TAGS: ,


It makes perfect sense that when entering into a new business relationship the parties (and their counsel) are keenly focused on getting things started. While there is nothing wrong with this, sometimes parties forget to memorialize, or even discuss, when, how and under what circumstances their contractual obligations will end. A recent case from the Massachusetts Appeals Court, Robert and Ardis James Foundation v. Meyers, reminds us that failing to spell out when a contract ends can result in seemingly unfair consequences.… Keep reading

TAGS: , ,


No doubt, ensuring that any agreement is consistent with judicial precedent is critical if you want to enforce that agreement at some point in the future. Nevertheless, merely incorporating precedential concepts or language into an agreement may not be enough to get your client to where it wants to be, and may even result in your client being put in a more difficult position than if the precedent had been ignored. Nowhere is this more apparent than when a company seeks to draft and implement a standard and seemingly straightforward noncompete covenant.… Keep reading

TAGS: , , ,


In order to obtain a an injunction under federal law, the moving party has to show each of the following:

(i) It has a likelihood of success on the merits of its claim.

(ii) Without injunctive relief, it would risk suffering irreparable harm.

(iii) Such harm outweighs the irreparable harm that the non-moving party would suffer if an injunction were to enter.

(iv) Entering an injunction is in the public interest.

In addition, however, Rule 65(c)  of the Federal Rules of Civil Procedure states that:

The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.

Indeed, as a recent case from the District of Massachusetts confirms, this is no small technicality, and something to which any company should give due consideration before having its outside litigation counsel seek injunctive relief.… Keep reading

TAGS: , , , , ,


When seeking preliminary injunctive relief to enforce a non-compete, the moving party is often focused on how obvious it is that the defendant breached the parties’ agreement. As 7-Eleven recently learned, however, even when there is a valid and enforceable noncompetition provision and a clear breach of it, unless you can show that you will suffer irreparable harm without an injunction, and that such harm outweighs the irreparable harm to the defendant that an injunction would inflict, a court will not issue injunctive relief. … Keep reading


Letters of intent (LOI) are routinely used after business people have reached some degree of common ground on a potential deal. Sometimes an LOI comes very early on, before the parties know whether an ultimate agreement is likely or not. In other situations, however, LOI’s are entered into only after there is agreement on all the key business terms. Even in those cases, however, deals often crater during the process of negotiating a full-blown contract. This can be the result of one side simply getting cold feet and/or otherwise changing its mind about moving forward. Further, all too often the party left at the altar can do nothing but lament the fact that it expended a lot of time and money with nothing to show for it. Here are two strategies in-house counsel might consider employing in the LOI process to limit the risk that they have to go back to their internal client and explain that even though there was a letter of intent, the other side walked away from the deal and there is nothing that can be done about it.… Keep reading

TAGS: , , , , ,