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Avoiding Contract Mistakes
Even sophisticated companies expose themselves needlessly to contract disputes. I know this to be the case from representing them in litigation that might have been avoided or shortened if only they had inserted one of my top 10 measures for avoiding contract mistakes.
1) Default Interest Rate. You know that if you don't pay your credit card bill on time, you are charged significant interest and late fees. But it is amazing how often sophisticated businesses make no provision in their contracts for interest due on past due sums. As a practical business matter, it is difficult for a party negotiating a contract to object to an interest rate provision that at least covers the real cost to the other party of delayed payment. If the contract is silent, most states provide for an interest rate on past due sums substantially below what most business people regard as sufficient to cover the real cost (and risk) of delayed payment. Depending on the state and whether the debtor is a corporation or individual, you may be able to charge 18% or more on past due sums, if the contract so provides. (A choice of law clause is important, too, for this and other reasons.) If your company borrows money at the prime rate, the contract ought to at least provide for an interest rate that reasonably approximates the prime rate just to keep you whole.
2) Attorneys' Fees and Litigation Expenses. State laws differ on whether the plaintiff who sues successfully for breach of the contract automatically recovers its reasonable attorneys' fees, absent a contract clause that so provides. In most states, including New York and California, the answer is 'no.' In Texas, it's 'yes.' However, almost no state's law awards attorneys' fees to the successful defendant in such a case, unless the contract says so. In other words, if the other contract party brings a meritless breach-of-contract case against your company, you don't recover your attorneys' fees. As an economic matter, awarding fees to the successful plaintiff but not the successful defendant makes no sense, but it's the law in some places. A more level playing field is created in many contractual situations if the contract provides that the prevailing party in any lawsuit will recover attorneys' fees. There are also many other expenses of litigation that are not recoverable unless the contract says they are. Expert witness fees are but one example. It may be appropriate for your contract to state that a prevailing party recovers all its reasonable expenses of litigation.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.