Enforcing Exculpatory Provisions Against Meritless Claims

Law360, New York (March 17, 2014, 5:54 PM EDT) -- When faced with exculpatory provisions that limit or preclude their damages, plaintiffs use several tactics to avoid their contractual promises.[1] Common examples include sensationalizing ordinary breach-of-contract claims so they resemble claims for gross negligence, fraud and consumer fraud. The opinions discussed below illustrate how arguments should be made during the pleadings stage to defeat plaintiffs’ attempts to turn a mere breach of contract into something much more.

Common Pleading Tactics to Void Exculpatory Provisions

Gross Negligence

Many states refuse to enforce exculpatory provisions if the party...
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