January 2012

Here’s some interesting content from around the web….

Another Contract Typo. A couple of weeks ago I linked to a story about an apparent mistake in the contracts of several assistant NFL coaches that had the parties arguing over about $3 million. This week the ContractsProf Blog reports about an apparent typo in a condo’s offering plan and purchasing agreement, which allowed people to get out of their obligation to purchase condos after the value of the condos plummeted: A $16 Million Typo [File This in: Whoops!].

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[The Reading List — a regular feature of theContractsGuy — highlights blogs that are interesting enough that I check in regularly. Here’s a link to other Reading List posts.]

There’s a new business law blog that looks promising. The Seattle Small Business Lawyer’s Blog, which is only three weeks old, is “designed to facilitate discussion of news, strategy, and legal issues for small business and entrepreneurs,” according to the blog’s editor, Seattle business lawyer Gavin Johnson.

The blog’s so new there’s not much to it yet, but here’s a taste:

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I sometimes give a presentation on simple contracting practices that businesses can adopt to reduce their risk. I’ve posted a cliff notes version in Contract Hygiene: Five Healthy Contracting Habits (Part 1) and (Part 2). Without spending a dime on lawyers, a lot of businesses can significantly reduce the number and size of the time bombs that are sitting in their file cabinets cleverly disguised as contracts.

Habit #2 is Give important contracts special attention.

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Wells Fargo Bank, N.A. v. WMR e-PIN, LLC

The scope of an arbitration agreement can be expanded by positions taken by the parties in arbitration proceedings.

Wells Fargo brought claims against WMR e-PIN and other respondents, alleging breach of contract and misappropriation of trade secrets. The claims arose out of a software licensing agreement and other contracts which contained binding arbitration provisions.

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Just Click No. I’ve written a decent amount about the adhesive nature of website terms of service and how it’s unseemly for contract law to pretend that people read and agree to them. Well, not everyone has to grin and bear it. If you have as much clout as the government, you might be able to wring out a few concessions as Bill Carleton reports in Amending Terms of Service: Pages from the Government’s Playbook.

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[The Reading List — a regular feature of theContractsGuy — highlights blogs that are interesting enough that I check in regularly. Here’s a link to other Reading List posts.]

Business Law Post is a no-nonsense, accessible blog about business law issues. It’s published by Arina Shulga, a former Cleary Gottlieb associate and current solo practitioner in the Big Apple. Arina is also involved in a start-up that produces apps for children, a fact that I discovered from her excellent guest post Legal Considerations for Mobile App Developers on the Moms with Apps Blog, which of course I read regularly.

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Anderson v. Hess Corp.

The word “or” can cause confusion in a contract that can be expensive to resolve when the assistance of lawyers and federal judges is required. Diligent drafters should be on the lookout for potential ambiguity in order to avoid unnecessary expense and litigation. Anderson v. Hess Corp. is a case in point.

The Andersons, along with the owners of several parcels of land that adjoin the Andersons’ land, were parties to an oil lease with Hess Corporation. The lease automatically renewed at the end of its term if Hess Corporation was then conducting “drilling or reworking operations.”

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Here are a few recent articles from the Interwebs I found interesting. You might want to take a peek, also.

Ecuador Oil Contamination. Venkat Balasubramani tweeted a link to Reversal of Fortune, a detailed story in the New Yorker about a lawsuit against Texaco for environmental damage in Ecuador. The case dragged on for a couple of decades and resulted in an $18 billion verdict against Chevron (the successor in interest to Texaco). It’s clear that environmental damage was done, but a Chevron lawyer once said, “This is not about dirt in Ecuador. It is about a contract and how to interpret it.”

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[The Reading List — a regular feature of theContractsGuy — highlights blogs that are interesting enough that I check in regularly. Here’s a link to other Reading List posts.]

A law school student asked me via Twitter recently whether it’s hard to maintain a blog and have a corporate law practice. The answer of course is that it’s very difficult, because there’s not time for nearly everything I want — and need — to do.

Finding time to blog regularly is tough for everyone. For a lawyer who has clients whose needs pretty much always trump a side project like a blog, the difficult often becomes impossible.

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The United States Supreme Court reaffirmed its favor of arbitration yesterday in one of its first decisions of the year. InCompuCredit v. Greenwood, the high court once again reversed the Ninth Circuit in an arbitration case.

You might recall that the Supreme Court reversed the Ninth Circuit last April in its much discussed AT&T Mobility v. Concepcion decision. In that case the Supreme Court overturned California’s Discover Bank rule, which had rendered class arbitration waivers in consumer adhesion contracts all but unenforceable in California. AT&T Mobility effectively gives companies a way to opt out of class arbitrations altogether, albeit — unless the ruling is broadened in future cases — at the cost of providing individual consumers a more effective remedy in arbitration than they would likely have via class action. See my discussion of the opinion in AT&T Mobility v. Concepcion: Is Class Arbitration Dead?

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