Commercial Contracts

Expert Analysis

• Comcast Bias Suit A Bad Way To Make Law, Arguments Show

  

  Oral arguments before the U.S. Supreme Court in Comcast v. National Association of African American-Owned Media highlighted the case's flaws, including that it concerns the dismissal of a complaint that omitted a key fact and was tainted by dubious insinuations, says R. Scott Oswald of The Employment Law Group.

• Resolving Warranty And Guaranty Confusion In Construction

  

  It is essential that property owners, contractors and their lawyers understand the key distinctions between warranties and guaranties, and are mindful of these distinctions when drafting and enforcing prime construction contracts or subcontracts, says Michael Scheffler of Blank Rome.

• Opinion

  Cannabis Social Equity Programs Are Fundamentally Flawed

  

  While programs granting a licensing advantage to communities disproportionately impacted by the criminalization of cannabis have gained support in progressive legislative circles, they are failing due to poor legislative design, says Avis Bulbulyan of SIVA Enterprises.

• Texas Could Take Page From Mass.'s Judicial Selection Book

  

  As Texas and other states review their judicial election processes, they would be well served by taking guidance from Massachusetts' Governor’s Council system, which protects the judiciary from the hazards of campaigning, says Richard Baker of New England Intellectual Property.

• Series

  Judging A Book: McKeown Reviews 'Conversations With RBG'

  

  Reading Jeffrey Rosen’s "Conversations With RBG: Ruth Bader Ginsburg on Life, Love, Liberty, and Law" is like eavesdropping on the author and his subject while they discuss how the restrained judicial minimalist became the fiery leader of the opposition, says Ninth Circuit Judge M. Margaret McKeown.

• What NCAA Publicity Rights Guidance Means For Athletes

  

  Following the recent release of NCAA student-athlete compensation guidelines, it remains unclear how disparate governing bodies will choose to set rules, leaving student-athletes seeking to commercialize their names, images or likenesses through contracts or trademark rights with a confusing mix of incentives and prohibitions, says Radhika Raman of Knobbe Martens.

• Can Business Conduct Establish A Partnership In Texas?

  

  After hearing arguments last month, the Texas Supreme Court is poised to decide whether Energy Transfer Partners and Enterprise Products Partners entered into a partnership based on their conduct and statements. The case emphasizes the need to draft preliminary agreements carefully, says Ladd Hirsch of Winstead.

• Retaining Federal Jurisdiction After Fed. Circ. License Ruling

  

  Following the Federal Circuit's recent holding in Inspired Development v. Inspired Products that unjust enrichment claims pertaining to a license agreement did not arise under federal patent law, parties can keep jurisdiction on their side by drafting licensing agreements with an eye toward litigation and carefully selecting claims to assert, say Jeffrey Whittle and Christopher Limbacher of Womble Bond.

• Where A Litigator's Advice Can Improve Agreement Drafting

  

  Transactional attorneys should consider consulting with litigation counsel when drafting certain contractual provisions — choice of law, choice of forum, attorney fees and others — that could come into play in a broad range of substantive disputes, says Adrienne Koch at Katsky Korins.

• What Will Calif. Privacy Law’s 'Do Not Sell' Button Look Like?

  

  Although the California Consumer Privacy Act takes effect in less than two months, one of its key provisions ― the right of California residents to opt out of the sale of their personal information ― remains to be defined or subject to public review or comment, creating uncertainty for businesses, say attorneys at Akin Gump.

• As Cannabis IP Grows, So Do State Licensing Headaches

  

  Washington and Colorado have come up with disparate regulations for cannabis-related intellectual property transactions, providing an indication of the licensing challenges ahead for attorneys drafting cannabis agreements across state lines, say attorneys at Eversheds Sutherland.

• Undressing The Risks Of Naked TM Licensing

  

  Earlier this year, in Mission Product v. Tempnology, the U.S. Supreme Court addressed the issue of naked licenses resulting in trademark abandonment, an outcome that can be avoided if attorneys counseling suppliers address the requisite quality controls in supplier/distributor agreements, says Joseph Sullivan of Taylor English.

• 9th Circ. Ruling Stresses Need For Arbitrator Bias Disclosures

  

  Following the Ninth Circuit's recent ruling in Monster Energy v. City Beverages, arbitrators should consider whether to amend disclosures concerning potential conflicts of interest to meet the court's hypertechnical, but not wholly illogical, partiality standard, says Dustin Hecker at Arent Fox.

• Opinion

  Flat-Fee Legal Billing Can Liberate Attorneys

  

  Replacing hourly billing with flat-fee arrangements, especially for appellate work, will leave attorneys feeling free to spend as much time as necessary to produce their highest quality work, says Lawrence Ebner of Capital Appellate Advocacy.

• Spoliation Rule Remains Ambiguous Despite Amendments

  

  Although the Federal Rules of Civil Procedure were amended to provide a uniform standard of culpability for spoliation, cases with similar facts are still reaching differing results because the rule does not specify how a court should evaluate a party's intent, say attorneys at Pepper Hamilton.