Commercial Contracts

Expert Analysis

Spotlight On Keepwells And Excluded Obligations

There has been considerable discussion in syndicated lending circles recently regarding how to account for a new swap “clearing requirement” that significantly impacts loan documentation and became enforceable on March 31, 2013. Two particularly important means for lenders to address the clearing requirement are “keepwells” and excluding guarantee obligations of entities that are not “eligible contract participants,” say Andrew Colao and Amara Gossin of Weil Gotshal & Manges LLP.
A Look At Claim And Interest Treatment Under Ch. 11

Excerpt from Lexis Practice Advisor

"Treatment" generally refers to whether a particular class of claims or interests will be unimpaired or impaired under the Chapter 11 plan and, if the class is impaired, what, if anything, the class will receive on account of its claims or interests. The treatment of a claim or interest will depend on a number of factors, says Gary Kaplan of Fried Frank Harris Shriver & Jacobson LLP.
Can Employers Force Arbitration Of FCA Retaliation Claims?

As seen in Winston v. Academi Training Center Inc., a court may decide that one or two bad terms renders an entire arbitration clause unenforceable, thus eliminating the company’s ability to compel arbitration of False Claims Act retaliation claims. Companies should proceed with caution when drafting aggressive or boilerplate arbitration clauses, say attorneys with Nixon Peabody LLP.
Are All MOEs Created Equal?

Even though the term “merger of equals” may not hold specific legal meaning or carry specific legal consequences, dealmakers should be aware that use of the label may create certain expectations for parties, shareholders and the market generally — including a certain degree of parity in the contract, economic terms and “social” issues, say attorneys with Kirkland & Ellis LLP.
How Lawyers Benefit From Early Neutral Evaluation

Early neutral evaluation usually asks a retired judge to consider one party’s case, as if preparing to rule on summary judgment or presiding over a bench trial. Effective evaluation can supply a reality check on a case — it gives the lawyer the gift of seeing the case as others see it, says James Rosenbaum, a panelist with JAMS and former U.S. district judge for the District of Minnesota.
The FLSA's New 'Clothes'

While the U.S. Supreme Court decision — expected in 2014 — on the definition of "clothes" under the Fair Labor Standards Act might have some impact on the general question of whether time spent donning and doffing work clothes is compensable, the ruling will be most significant to employers who rely on FLSA section 203(o) and collective bargaining agreements to exclude donning and doffing activities from compensable time, says Elizabeth Arce of Liebert Cassidy Whitmore.
China's Remedy For Labor Inequity Could Spark Unrest

New amendments to China's Employment Contract Law will take effect on July 1, 2013. If strictly enforced, they will severely limit the ability of foreign and domestic employers in China to use dispatched workers from labor dispatch agencies — as well as create the potential for social unrest, says Kevin Jones of Faegre Baker Daniels LLP.
'Confidential' Settlement Agreements In NY? Think Again

Settlement agreements almost always provide that the terms are confidential and may include draconian provisions if a signatory to the agreement publicizes its terms. Clients and counsel assume such confidentiality. However, a New York statute turns this assumption on its head, say Joan Secofsky and Richard Janvey of Diamond McCarthy LLP.
Litigation Support At A Crossroads

Despite recession-driven cost pressures that have resulted in the downsizing of nonlawyer personnel at law firms, many litigation support departments are growing. In a recent survey, half of respondents indicated that their function has grown in size in the past three years, and more than half of respondents indicated that current staffing levels are inadequate for the projected needs of the coming year, say experts at Epiq Systems and Georgetown University Law Center.
A Cautionary Tale For Transactional Lawyers

The Eleventh Circuit ruling in St. Joseph Hospital v. Health Management Associates Inc. offers a warning for transactional lawyers to be careful how they describe a transaction in preclosing filings with government agencies, says Elizabeth Hodge of Akerman Senterfitt LLP.