Commercial Contracts

Expert Analysis

• Caution To Landlords: Calif. Nonwaiver Clauses Revisited

  

  Historically, California landlords have taken refuge in the protections afforded by including a nonwaiver clause in their leases. And under most circumstances, courts will enforce such nonwaiver provisions. But there are exceptions that can leave landlords without the protection they expect, says Sylvia Arostegui of Nossaman LLP.

• Calif. Land Grant Case May Change Railroad Rights Of Way

  

  A California appellate court's recent ruling in Union Pacific Railroad Co. v. Santa Fe Pacific Pipelines Inc. is likely to significantly affect the relationships between railroads and their subsurface tenants on rights of way that were originally granted by the government, particularly in the western part of the country, say Neil Soltman and Michael Kerr of Mayer Brown LLP.

• A Data Security Checklist For Companies Hiring Law Firms

  

  We trust our law firms with huge amounts of data, whether in or out of discovery, investigations or litigation. All too often, we have relied on privilege, confidentiality and attorney ethics as a proxy for data protection and information security. But in fact, law firms ought to be held to a much more stringent standard — and in-house counsel would be wise to begin with a number of specific inquiries, says legal industry consultan... (continued)

• Can Consumers Waive Right To Revoke Consent Under TCPA?

  

  Most authorities and courts agree that, under the Telephone Consumer Protection Act, consumers have the right to revoke previously given consent to be called using an autodialer or prerecorded message. More recently, however, courts have been asked to decide whether a consumer is permitted to revoke this consent where it was previously given as part of an independent contractual arrangement, say attorneys with Pillsbury Winthrop Shaw Pittman LLP.

• NLRB Joint Employer Redefinition Threatens Franchises

  

  The impact of the National Labor Relations Board's redefinition of joint-employer status will be substantial and have profound implications across industries and on the franchise business model in particular because the threat of a “joint employer” finding may eliminate the economic benefit of franchising and shift the costs of the new model toward consumers, say attorneys at DLA Piper LLP (US) and Littler Mendelson PC.

• Unique Challenges In The Panama Canal Expansion

  

  Construction halt and war between the owner and contractor are two of the most undesirable situations that can occur on any project, let alone one of the largest and most complex projects in the world. Regarding what went wrong in Panama, we do not have all the answers yet, but we do have some educated ideas, says Jerry Brodsky of Peckar & Abramson PC.

• Moving The Needle For Prepetition Waiver Permissibility

  

  Prior to the commencement of a bankruptcy case, the waiver by a potential debtor of the protections afforded by the Bankruptcy Code is usually found to be unenforceable. As a recent bankruptcy court decision in the case of Triple A & R Capital Investment Inc. demonstrates, however, this general proposition has become more nuanced over the past few years, says Kyle Ortiz of Weil Gotshal & Manges LLP.

• Kimble V. Marvel — A Tangled Web Of Patent Licensing

  

  The U.S. Supreme Court recently granted certiorari in Kimble v. Marvel Enterprises Inc., thus opening the door to review of its holdings in Brulotte that royalty agreements projecting payments beyond the expiration date of a patent are unlawful per se patent misuse. Overturning Brulotte or revising its unyielding per se standard could affect rates of post-expiration patent royalties, says Adam Daniels of Novak Druce Connolly Bove Quigg LLP.

• Software Vendors, 3rd-Party End Users And The CFAA

  

  Can a software vendor assert a Computer Fraud and Abuse Act claim against a third-party end user for unauthorized access to the vendor’s licensed software operating on the vendor’s client’s computers? According to the courts, such a claim might stand provided that the client did not authorize the access, says Pierre Grosdidier of Haynes and Boone LLP.

• OFAC Sanctions Compliance: Sample Contract Provisions

  

  Due to costly settlements secured by U.S. regulatory agencies, increasingly banks, insurers and corporations are inserting rigorous Office of Foreign Assets Control sanctions compliance language into their credit agreements, insurance policies, and corporate acquisition agreements, say Margaret Gatti and Louis Rothberg of Morgan Lewis & Bockius LLP.