Breach of Contract – the in-house advisor

Careful Drafting of Non-Competes and Other Restrictive Covenants Can Save the Day

January 4, 2017
By: Shep Davidson

It generally is a defense to a breach of contract claim if the defendant proves that the plaintiff was the first one to materially breach the parties’ agreement. As a recent case from the Business Litigation Session of the Massachusetts Superior Court confirms, however, a plaintiff seeking to enforce a post-employment restrictive covenant can avoid falling victim to such a defense – if, that is, the company has a carefully crafted agreement is in place.… Keep reading

Be Careful When You Decide to Breach a Contract

December 22, 2015
By: Shep Davidson

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.… Keep reading

Take Care When Drafting Limitations of Liability to Exclude Lost Profits Damages

October 8, 2014
By: Shep Davidson

Two weeks ago, I posted Carefully Craft Your Arbitration Clause if You Want Some, But not All, Disputes Arbitrated. The recent case of Biotronik A.G. v. Conor Medsystems Ireland, Ltd., is a reminder to in-house counsel that specificity also can be critical if you want to limit the company’s liability in the event of a breach.… Keep reading

Be Clear if You Want to Have a “Third-Party Beneficiary” in Your Contract

June 27, 2013
By: Shep Davidson

In a prior post, I noted that if you want all disputes between contracting parties to be resolved in one and only one specific forum, it is imperative to expressly state this with great clarity in your agreement. In light of the Massachusetts Appeals Court’s recent decision in Try Switch, Ltd. v. Endurance International Group, a similar approach should be taken if a contracting party wants a non-party to be a bona fide “third-party beneficiary” who is legally permitted to enforce some right or obligation under that contract.

In Try Switch, the plaintiff sued Endurance International Group in the Massachusetts Superior Court for breach of contract, and Endurance moved to dismiss for improper venue. More specifically, Endurance argued that it was the third-party beneficiary of a contract between Try Switch and ValueClick International, and that contract included the following provision:

The exclusive forum for any actions related to this [a]greement shall be in the [c]ourts in Dublin, Ireland.

While the Superior Court agreed with Endurance and dismissed the case, the Appeals Court reversed. In doing so, the Appeals Court first acknowledged that even though no Massachusetts case addresses the issue as to whether a non-party to … Keep reading