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Construction contracts are essential in the construction industry, governing the relationships and responsibilities of all parties involved in a project. Whether you’re a contractor, subcontractor, or property owner,...more
The Delaware Court of Chancery has weighed in on a number of recent cases interpreting earnout provisions in transactional agreements. The Court has demonstrated a reluctance to rule against seller-plaintiffs during the...more
A franchisor may pursue claims for declaratory and injunctive relief for potential trademark infringement against a former prospective franchisee even though the prospect never actually used the marks in question. Grainier...more
A case pending in the Ninth Circuit Court of Appeals highlights the importance of negotiating the term of royalty payments in the license of Food and Drug Administration (FDA)-regulated products. This is particularly notable...more
California law has changed. The change now makes it easier for California litigants to sue their opponents for fraudulently breaching a contract. Lawyers who negotiate and draft agreements subject to California law should...more
When a company is in the process of pursuing a transaction involving the acquisition or merger of another company, one of the first negotiable documents encountered will likely be a non-disclosure or confidentiality agreement...more
Representations and warranties play a crucial role in business transactions and are commonly used in merger and acquisition agreements to allocate risk between sellers and buyers. Accurate representations and reliable...more
The transition to online shopping, interest rate increases, labor costs, maturing debt and rising inflation have collectively taken a significant toll on the retail industry, contributing to store closures and a growing...more
Misbehaving children? Blame the parents, right? Not so in the corporate context, at least according to Manhattan Commercial Division Justice Robert R. Reed in a recent decision, Memorial Sloan Kettering Cancer Ctr., v....more
On complex construction projects, there may be multiple contractors, subcontractors, vendors, suppliers, and sub-subcontractors working along side one another. With various entities working parallel there are substantial...more
A recent post-trial decision from Delaware regarding alleged breaches of representations and warranties in an asset purchase agreement is noteworthy. First, the decision highlights how buyers may not be able to rely on...more
Image a home buyer finally finds their dream house. There’s just one problem. During their home inspection, they discover the foundation is cracked. But they buy the house anyway, fully aware of the issues with the...more
A recent case (Last Bus Ltd (trading as Dublin Coach) v Dawsongroup Bus and Coach Ltd [2022]) has provided a useful reminder of the circumstances in which commercial parties may exclude statutory implied terms, as well as...more
Choice of law and forum provisions are standard clauses often buried in the back of a contract, easily overlooked and frequently ignored. Although these provisions do not typically come up unless there is a dispute between...more
This article discusses termination provisions parties should consider when they enter into a contract, the contract termination process, and when parties should consider post-termination obligations....more
Representations and warranties (R&W) insurance covers a breach of the reps and warranties contained in the purchase agreement governing a merger or acquisition. Since reps and warranties insurance policies are...more
If you’ve ever been involved in negotiating a contract, whether for the provision of services or a $200 million energy transaction, you’ve likely seen a merger clause. They are typically universal in their use and, while the...more
That title is not a typo. But, you may ask, how can you check a contract if you do not have one? And, why? Ok, so the title is a little tricky. But consider the situation below. In the negotiation of a complex contract,...more
A sole and exclusive remedy clause allows parties to a contract to choose specific remedies and relief available under the terms of the agreement. Essentially, exclusive remedy provisions restrict a party's available remedies...more
Too often, contract rights bargained and paid for in negotiations are eroded during governance. This podcast describes seven tips for governing service provider relationships in ways that leverage or strengthen contract...more
“Let’s leave that to the lawyers.” It’s a familiar refrain that I hear often as contract negotiations drag on between parties. After the primary deal points in a contract have been agreed upon, many clients believe that the...more
In an opinion of significance to M&A Practitioners, the Delaware Court of Chancery recently made it clear that Delaware law allows a buyer in an acquisition to “sandbag” a seller if the acquisition agreement allows for...more
In a March 9, 2022, opinion, the Delaware Chancery Court examined a seller’s argument that the buyer in an asset purchase agreement was prohibited from asserting claims for contractual breach of representations in the...more
On March 9, 2022, the Delaware Court of Chancery issued a post-trial decision in Arwood v. AW Site Services, LLC, subsequently amended on March 24, 2022. The plaintiff, John Arwood, had spent decades building a waste...more
In contracts, parties typically seek to limit their liability to each other, both in terms of the types of damages or actions for which a party will have liability and the amount of damages that can be recovered, as well as,...more