Commercial Contracts

Expert Analysis

• Code Trumps Contract In The 5th Circ.

  

  The Fifth Circuit opinion in Goldsby v. 804 Congress suggests that even where parties agree upon foreclosure-related fees, costs and charges before a bankruptcy, Section 506(b) of the Bankruptcy Code may still trump the provisions of their contract, says Debra McElligott of Weil Gotshal & Manges LLP.

• The Ins And Outs Of Competitor Restrictions In Leases

  

  When representing a large tenant at a shopping mall or an office building, remember to consider whether there are competitor leasing and signage restrictions that are required or desired by your client. When representing a landlord, remember to “just say no,” say attorneys with Haynes and Boone LLP.

• When You Are Responsible For Your Book Of Business

  

  Finding prospective clients and retaining them has little to do with your legal training and expertise, and yet you have no practice without successful client acquisition and retention. There is no reason you cannot apply your basic legal training to successful sales efforts hinging upon your practice strength and experience, says independent law firm consultant Jennifer Topper.

• An Inventive Way To Remove Pure State Court Claims

  

  Nondiverse state court defendants facing purely state law claims that seek to secure federal jurisdiction should determine whether a good faith basis exists to pursue a third-party action against a federal actor in order to trigger the representative U.S. Attorney’s certification and remove such claims under the Westfall Act, say Michael Blumenfeld and Jonathan Singer of Miles & Stockbridge PC.

• BDO Seidman Continues To Rule NY Restrictive Covenants

  

  When drafting restrictive covenants in New York, employers and their counsel need to keep in mind the seminal appellate case BDO Seidman v. Hirshberg, which lays out what constitutes a reasonable covenant while setting the terms for what will be judicially enforced in the state, say Richard Janvey and Joan Secofsky of Diamond McCarthy LLP.

• Powerful Tools For Discovery And Litigation Strategy

  

  Analytics offer opportunities for refining both discovery strategy and overall litigation strategy by providing information to support better informed decisions. As an added bonus, they can result in significant cost savings, say Nathalie Hofman and Carolyn Southerland of Huron Consulting Group Inc.

• Mass. Court Clarifies 'No Damage For Delay' Waiver Issues

  

  A recent Massachusetts Superior Court decision makes clear that courts are unlikely to find that a "no damage for delay" clause in a construction contract has been waived unless a contractor provides evidence showing a clear and unequivocal intent, says Scott McQuilkin of Hinckley Allen & Snyder LLP.

• Texas High Court Provides Certainty Over O&G Operations

  

  The Texas Supreme Court's recent ruling in Marcia Fuller French v. Occidental Permian Ltd. upheld the settled expectations of parties to oil and gas leases and confirmed they apply even with respect to enhanced recovery operations — welcome news to lessors with such operations, say Stephanie Kinzel-Tapper and Carter Williams of Sutherland Asbill & Brennan LLP.

• PRISM Scatters Attorney-Client Privilege

  

  Any attorney sending or storing confidential client information or privileged communications via the cloud may be knowingly exposing those communications to scrutiny by the U.S. government via programs such as the National Security Agency’s PRISM — and arguably, even waiving any claim of privilege as a result, say attorney Thomas Mullaney and Vaultive CEO Elad Yoran.

• Challenges Facing Fuel Switching In Latin America Remain

  

  Abundant U.S. shale formations have sparked a boom in fuel switching in Latin America, particularly toward low-cost, liquefied petroleum gas, however capital conversion as well as the development of delivery infrastructure and purchase of long-term supply remain challenges for industry in the region, say Ram Sunkara and Adam Roth of Sutherland Asbill & Brennan LLP.