Supreme Court of New Jersey Confirms "Fairly Debatable" Standard for First Pa...NationalUnderwriter
Supreme Court of New Jersey Confirms "Fairly Debatable" Standard for First Party Bad Faith; Acknowledges Relevance of Actual Investigation by Frederic J. Giordano and Robert F. Pawlowski
The Supreme Court of New Jersey recently issued an important pair of decisions for policyholders with bad faith claims against their first-party insurance companies in Badiali v. New Jersey Manufacturers Insurance Group[1] and Wadeer v. New Jersey Manufacturers Insurance Company.[2] In Badiali and Wadeer, the court reiterated the narrow “fairly debatable” standard as the threshold for bad faith claims in New Jersey. But, the court also opened the door to modify this standard in the Badiali decision by recognizing the relevance of the actual claims handling in a particular case.
This document is plaintiff Miia D'Agostino's surreply in opposition to defendant Bank of America's motion to dismiss. It argues that:
1) The breach of fiduciary duty claim is adequately pled and the Massachusetts Probate Court does not have jurisdiction over such a claim.
2) The allegations establish that the Bank was engaged in trade or commerce through its wealth management business and insurance venture with Chubb, satisfying subject matter jurisdiction under chapter 93A.
3) The Bank may be considered in the business of insurance for purposes of chapter 176D, regardless of Chubb's contractual obligations, through its participation in the insurance venture.
This document provides an overview of arbitration agreements and their jurisdictional requirements. It discusses key topics such as the definition of an agreement to arbitrate, the 7 jurisdictional requirements under the New York Convention including an agreement arising out of a commercial relationship and concerning existing or future disputes, and what constitutes a "dispute" under various legal instruments relating to international arbitration agreements. Examples from case law are also provided to further illustrate certain elements and how courts and tribunals have interpreted various definitions and concepts related to arbitration agreements.
The document discusses the effects of a fixed term employment contract under Malaysian law. It provides the following key points:
1) Employers sometimes use fixed term contracts to avoid continuing employment or limiting compensation if termination is deemed unlawful.
2) However, Malaysian law recognizes some fixed term contracts are actually continuous employment contracts disguised as fixed term.
3) The court will examine the intention of the parties and circumstances to determine if the contract was genuinely fixed term or continuous employment. Evidence the employer intended renewal or the employee had expectation of renewal points to a continuous contract.
Deal Lawyers - Knowing Participation Article 3-5-15Kevin Miller
1. The document discusses conflicting views on the "knowing participation" element of aiding and abetting claims in the context of "dead hand" change of control provisions in credit agreements.
2. It summarizes a Delaware Court of Chancery case, Healthways, where the court refused to dismiss aiding and abetting claims against an administrative agent for including a dead hand provision.
3. However, two subsequent Delaware Court of Chancery cases, Lee v Pincus and In re Comverge, applied a narrower definition of "knowing participation" that arguably would have led to dismissal in Healthways.
This document discusses best practices for providing unbundled legal services over the internet. It begins by defining unbundled legal services as breaking legal tasks into separate services that clients can purchase individually. It then covers ethical considerations like ensuring clients understand the limited scope. The best practices section recommends analyzing legal matters into separate tasks, using engagement agreements to define the limited scope, educating clients, and sending termination letters. The goal is to make legal services more affordable and accessible.
The Supreme Court of India held that the Reserve Bank of India's Master Circular on wilful defaults applies to derivative transactions in addition to normal lending. [1] There was previously conflicting interpretations between the Calcutta and Bombay High Courts on this issue. [2] The Supreme Court interpreted the term "wilful default" broadly to include defaults on payment obligations to banks under facilities like derivatives. [3] This ruling strengthens banks' ability to restrict funding to companies that default on derivative contracts.
Liability of insurance agents to their clientsmikaelastafrace
Insurance agents owe duties of care to their clients under both common law and legislation. Agents must exercise reasonable skill and care to identify their clients' needs and ensure the insurance procured meets those needs. The Future of Financial Advice reforms established that agents must act in their clients' best interests by complying with factors such as identifying the client's circumstances and subject matter of advice sought. A breach of these duties can result in compensation orders or penalties against agents and their licensees.
Supreme Court of New Jersey Confirms "Fairly Debatable" Standard for First Pa...NationalUnderwriter
Supreme Court of New Jersey Confirms "Fairly Debatable" Standard for First Party Bad Faith; Acknowledges Relevance of Actual Investigation by Frederic J. Giordano and Robert F. Pawlowski
The Supreme Court of New Jersey recently issued an important pair of decisions for policyholders with bad faith claims against their first-party insurance companies in Badiali v. New Jersey Manufacturers Insurance Group[1] and Wadeer v. New Jersey Manufacturers Insurance Company.[2] In Badiali and Wadeer, the court reiterated the narrow “fairly debatable” standard as the threshold for bad faith claims in New Jersey. But, the court also opened the door to modify this standard in the Badiali decision by recognizing the relevance of the actual claims handling in a particular case.
This document is plaintiff Miia D'Agostino's surreply in opposition to defendant Bank of America's motion to dismiss. It argues that:
1) The breach of fiduciary duty claim is adequately pled and the Massachusetts Probate Court does not have jurisdiction over such a claim.
2) The allegations establish that the Bank was engaged in trade or commerce through its wealth management business and insurance venture with Chubb, satisfying subject matter jurisdiction under chapter 93A.
3) The Bank may be considered in the business of insurance for purposes of chapter 176D, regardless of Chubb's contractual obligations, through its participation in the insurance venture.
This document provides an overview of arbitration agreements and their jurisdictional requirements. It discusses key topics such as the definition of an agreement to arbitrate, the 7 jurisdictional requirements under the New York Convention including an agreement arising out of a commercial relationship and concerning existing or future disputes, and what constitutes a "dispute" under various legal instruments relating to international arbitration agreements. Examples from case law are also provided to further illustrate certain elements and how courts and tribunals have interpreted various definitions and concepts related to arbitration agreements.
The document discusses the effects of a fixed term employment contract under Malaysian law. It provides the following key points:
1) Employers sometimes use fixed term contracts to avoid continuing employment or limiting compensation if termination is deemed unlawful.
2) However, Malaysian law recognizes some fixed term contracts are actually continuous employment contracts disguised as fixed term.
3) The court will examine the intention of the parties and circumstances to determine if the contract was genuinely fixed term or continuous employment. Evidence the employer intended renewal or the employee had expectation of renewal points to a continuous contract.
Deal Lawyers - Knowing Participation Article 3-5-15Kevin Miller
1. The document discusses conflicting views on the "knowing participation" element of aiding and abetting claims in the context of "dead hand" change of control provisions in credit agreements.
2. It summarizes a Delaware Court of Chancery case, Healthways, where the court refused to dismiss aiding and abetting claims against an administrative agent for including a dead hand provision.
3. However, two subsequent Delaware Court of Chancery cases, Lee v Pincus and In re Comverge, applied a narrower definition of "knowing participation" that arguably would have led to dismissal in Healthways.
This document discusses best practices for providing unbundled legal services over the internet. It begins by defining unbundled legal services as breaking legal tasks into separate services that clients can purchase individually. It then covers ethical considerations like ensuring clients understand the limited scope. The best practices section recommends analyzing legal matters into separate tasks, using engagement agreements to define the limited scope, educating clients, and sending termination letters. The goal is to make legal services more affordable and accessible.
The Supreme Court of India held that the Reserve Bank of India's Master Circular on wilful defaults applies to derivative transactions in addition to normal lending. [1] There was previously conflicting interpretations between the Calcutta and Bombay High Courts on this issue. [2] The Supreme Court interpreted the term "wilful default" broadly to include defaults on payment obligations to banks under facilities like derivatives. [3] This ruling strengthens banks' ability to restrict funding to companies that default on derivative contracts.
Liability of insurance agents to their clientsmikaelastafrace
Insurance agents owe duties of care to their clients under both common law and legislation. Agents must exercise reasonable skill and care to identify their clients' needs and ensure the insurance procured meets those needs. The Future of Financial Advice reforms established that agents must act in their clients' best interests by complying with factors such as identifying the client's circumstances and subject matter of advice sought. A breach of these duties can result in compensation orders or penalties against agents and their licensees.
Fundamentals of Labor Arbitration - Glossary of Termsknobles11
This file is a glossary of terms pertinent to labor arbitration. The glossary is based on the book, "Fundamentals of Labor Arbitration," by Jay E. Grenig and Rocco M. Scanza
This document outlines a Master Agent Agreement between Erica Consulting Services Pvt Ltd and Open Financial Services to distribute OFS's products and services. Key points:
1. Erica Consulting will partner with OFS to sell its solutions to end users, partners, and system integrators in India.
2. The initial focus products include services from Mandiant, DeCurits, Acuant, and Idemia related to cybersecurity, identity management, and risk mitigation.
3. Commercial terms include Erica receiving pricing models and assisting with marketing and sales in exchange for revenue share percentages.
4. The agreement lasts 5 years and renews annually, with provisions for termination by either party for issues like
Hot Topics In Class Actions (February 2012)Miranda Lam
This document summarizes sessions from a conference on defending class actions in Canada. It discusses trends in British Columbia class action law, including certification standards becoming easier and the scope of cases expanding to national classes. Pre-certification strategies for defendants are outlined, such as challenging jurisdiction, arbitration agreements, or the nature of the claim. The document also covers class action issues like limitation periods in trust claims, aggregate damages, and post-settlement contribution.
The document discusses forfeiture of deposit in contracts. It defines what a deposit is and explains that deposits serve to guarantee performance and can be applied to the purchase price if the contract is completed. Forfeiture of a deposit occurs when a buyer breaches a contract. Generally, if a buyer does not go through with a purchase, their deposit will be forfeited to the seller as compensation for damages from the breach. The document also examines cases related to forfeiture of deposits and whether sellers must prove damages to forfeit deposits. It discusses issues around whether unpaid or unclear deposits can be forfeited and whether courts can provide equitable relief from forfeiture.
The document discusses several recent Delaware court cases that have implications for financial advisors, including In re Dole Food Co. shareholder litigation. It summarizes the key claims, findings, and conclusions of the Dole Food case, including that the court found the company's controller and president breached their fiduciary duties but did not find the financial advisor liable. It also summarizes allegations and issues discussed in In re PLX Technology and In re Zale Corp. shareholder litigation regarding potential conflicts of interest of financial advisors.
This document contains homework assignments for an insurance law course. It includes multiple choice and short answer questions about various contract and insurance law topics, such as the requirements for a valid contract, types of contracts, breach of contract, representations and warranties in insurance contracts, and nonwaiver agreements. The assignments are meant to help students learn and test their understanding of these legal concepts through self-quizzing and written explanations.
This document summarizes the views of GE on the need for early resolution in international arbitration based on their experiences. The key points are:
1. Businesses prioritize efficiency, speed, and certainty in dispute resolution but often find international arbitration takes too long, costing unnecessary time and money.
2. While international arbitration has advantages over litigation, its focus on due process delays resolution, frustrating businesses who just want to assess exposure and move on.
3. GE provides examples where arbitration took years with no early decisions on key issues, forcing frustrated parties to expensive settlements just to achieve closure, rather than fair resolution.
4. An early resolution procedure could help address this gap if arbitrators ensured its dilig
This document summarizes changes between the 2000 and 2014 editions of the Joint Building Contracts Committee (JBCC) standard form construction contracts used in South Africa. Some key changes include streamlining and restructuring the contract from 40 to 30 clauses, expanding and clarifying contractor and employer duties, consolidating insurance provisions, reformulating security provisions, and increasing contractor liability for works risk while defining force majeure events. Specific changes are outlined for indemnities, setting out, subcontractors, and completion phases. The document provides an overview of the evolution of the JBCC standard forms and significant differences between editions.
Aaron Gitler and Neena Vlamis started A and N Mortgage Services in 2002 after working in the mortgage industry for 21 years combined. Based in Chicago, Illinois, A and N Mortgage Services is a top-rated mortgage broker that provides financing options to home buyers. Gitler still brings his dog Ralph to the office daily. Vlamis enjoys getting to know clients personally to understand their unique financial needs and goals. The company aims to grow relationships with local credit unions and realtors.
Presentation slides from Brightline Lawyers accompanying a discussion with Brisbane web design and technology professionals concerning client engagement terms
Protecting Confidential Information When an Employee LeavesANTHONY PALAZZO
The document discusses protecting confidential information when an employee leaves a company. It outlines how non-disclosure agreements (NDAs) and non-compete clauses are intended to restrict sharing confidential information and working for competitors after leaving. However, the law regarding these is complex and varies by state. Courts may enforce some portions of non-competes by modifying language but not others based on reasonableness standards of geographic area, duration, and balancing employer and employee interests. Protecting trade secrets ultimately depends more on building stable employment, paying competitive compensation, and showing respect to employees than relying on legal agreements alone.
Non-competition and Non-solicitation ProvisionsKevin Learned
In this seminar we analyzed non-competition and non-solicitation provisions in the contexts of M&A transactions, employee/consultant relationships and subcontracting agreements. We addressed issues that arise in the drafting and negotiation of these provisions, as well as issues related to enforcement and litigation, with a particular emphasis on issues impacting federal service contractors who operate in the DC/MD/VA region.
Protecting Confidential Information When an Employee Leaves-apANTHONY PALAZZO
The document discusses protecting confidential information when an employee leaves a company. It outlines that non-disclosure agreements (NDAs) aim to restrict sharing confidential information after employment, while non-compete clauses prevent working for competitors. However, the law around these is complex and varies by state. Courts may modify non-compete agreements to make them enforceable if they are deemed reasonable in terms of restrictions. The best way for companies to protect trade secrets may be through open communication with departing employees regarding stability, compensation, and respect.
2017 AICM Credit Symposium - Australian Institute of Credit ManagementMark Harley
Unfair Contract Terms – generally and amendments for B2B protection (with some exceptions)
Insolvency Law Reform Amendments – amendment to the definition of “relation-back day” for purpose of the Corporations Act
Dealing with Trust Assets of Corporate Trustees in Liquidation
Protecting Your Critical Customer Relationships and Trade SecretsAlexNemiroff
Are non-compete agreements really enforceable in our State? What are some special considerations in the financial and medical industries? Is injunctive relief available to protect our customer relationships and trade secrets? Can we terminate an employee and still enforce a non-compete agreement? Should we include a liquidated damages provision in our restrictive covenant agreements? What damages are available to our company should we prevail?
11262014 The Legal Environment of Business, Ch. 6 - Learning.docxhyacinthshackley2629
11/26/2014 The Legal Environment of Business, Ch. 6 - Learning Activity - Week3 - LAW/421 - eCampus
https://newclassroom3.phoenix.edu/Classroom/ToolContainer.jsp?context=co&contextId=OSIRIS:44425562&activityId=96f01290-3b42-490d-be28-e6f95540138d… 1/24
Overview and Formation of Contracts
Learning Outcomes Checklist
After studying this chapter, students who have mastered the material will be able to:
Distinguish between contracts based on categories and apply the correct source of law to specific contracts.
Explain the concept of mutual assent by defining the legal requirement of agreement.
Identify and explain the other requirements for the formation of a valid contract.
List the events that terminate the power of acceptance and distinguish between termination through action of the parties versus
operation of law.
Apply the mailbox rule to resolve a question of when acceptance is effective.
Articulate the legal requirement of consideration and identify which contracts do not require consideration.
Give examples of circumstances where the legal requirements of capacity or legality are at issue.
Explain the concept of enforceability and geniune assent.
Categorize what contracts must be in writing to be enforceable and explain the minimum required terms that satisfy the law.
The law of contracts is one of the most common and important areas of the law that business owners and managers deal with on a dayto
day basis. Everyone working in a business environment will, in one form or another, deal with contracts throughout their career.
Employment contracts, leases, and agreements of sale for assets or land or merchandise are just a few examples of contracts commonly
used in business transactions. The simple act of purchasing office supplies from a local merchant is a form of agreement governed by
contract law.
Formation and legal enforcement of agreements have been recognized since ancient times. As early as 1780 BC, contracts were being
enforced by the Babylonians by virtue of the authority of the Code of Hammurabi. During much of the rule of the Roman Empire, the
Justinian Code included the rule pacta sunt servanda (agreements shall be kept). Many legal scholars, notably Dean Roscoe Pound, have
written extensively on the importance of society recognizing legally enforceable promises and providing remedies for those who suffered
losses. Consider the consequences of failing to provide for legal enforceability of a promise and its impact on the very fabric of civilized
societies.
Since business owners and managers are often involved in daytoday oversight of various agreements and transactions, understanding
contract law reduces risk by limiting liability through the recognition of potential legal issues, crafting an appropriate response, and
implementing a system to ensure compliance. Contract law is also essential to structuring business transactions in strategic ways to
achieve business objectives without excessive risk.
In this.
Show Me My Money (Reisenfeld & Company v. The Network Group Inc..docxedmondpburgess27164
Show Me My Money (Reisenfeld & Company v. The Network Group Inc., p. 313)
Why does the court see this case as involving a quasi-contract as opposed to an actual contract? What other case law does the court rely on in finding precedent/support for compensating Reisenfeld? Does this decision appear to follow the golden rule guideline set forth in Chapter 2 (pp. 27 and 28)? Describe another example of an implied-in-fact or quasi-contract that you have experienced or is mentioned in the text.
Note: please read all the information correctly before you begin the assignment I have also copy and paste pages 27 and 28 that you would need to complete the assignment.
CASE
13-3
REISENFELD & CO. v. THE NETWORK GROUP, INC.;
BUILDERS SQUARE, INC.; KMART CORP. U.S. COURT OF APPEALS FOR THE SIXTH CIRCUIT 277 F.3d 856 U.S. App. (2002)
Network Group (“Network”) was contracted by BSI to assist in selling or subleasing closed Kmart stores in Ohio. A few years later, Network entered into a commission agreement with Reisenfeld, a real estate broker for Dick's Clothing and Sporting Goods (“Dicks”). Dicks then subleased two stores from BSI. According to executed assignment and assumption agreements signed in November of 1994, BSI was to pay a commission to Network. Network was then responsible, pursuant to the commission agreement with Reisenfeld, to pay a commission of $1 per square foot to Reisenfeld. There was no direct agreement made between BSI and Reisenfeld.
During this time, Network's sole shareholder was defrauding BSI. This shareholder was convicted of several criminal charges stemming from his fraudulent acts. Network was ordered by the district court to disgorge any commissions received from BSI, and BSI was relieved of any duty to pay additional commissions to Network. As such, Reisenfeld never received his commission related to the Dicks sublease.
Reisenfeld sued in state court for the $160,320 in commissions he had not been paid. In addition to suing Network, Reisenfeld also named BSI as a defendant. The suit alleged, among other things, that based on a theory of quasi-contracts, BSI was jointly and severally liable for the commission.
JUDGE BOOGS: . . .
A contract implied-in-law, or “quasi-contract,” is not a true contract, but instead a liability imposed by courts in order to prevent unjust enrichment. … Under Ohio law, there are three elements for a quasi-contract claim. There must be: (1) a benefit conferred by the plaintiff upon the defendant; (2) knowledge by the defendant of the benefit; and (3) retention of the benefit by the defendant under circumstances where it would be unjust to do so without payment. …
There is no disagreement as to the first two requirements. It is clear that Reisenfeld's work as broker benefited BSI and that BSI was aware of the work Reisenfeld was doing. The disagreement rests on the third requirement—whether it would be unjust for BSI to retain the benefit it received without paying Reisenfeld for it. … U.
Learning Objective:
Students will learn
a) the legal definition of contract
b) how contract is generally defined
b) the specific qualifications to which the general definition of contract is subjected to
This document discusses standard form contracts (SFCs), which are contracts where one party dictates the terms and the other party must accept them or not enter into the contract. SFCs are common in consumer transactions like insurance, online purchases, car purchases, and phone services. While SFCs are not illegal in India, courts can intervene if terms are seen as unjust. The document outlines criticisms of SFCs like unequal bargaining power, potential for unfair terms, terms not being read by consumers, and lack of alternatives in monopolies. It discusses some Indian court cases that have intervened on unfair SFC terms and concludes that while SFCs are important for business, principles of equity and natural justice still apply.
Fundamentals of Labor Arbitration - Glossary of Termsknobles11
This file is a glossary of terms pertinent to labor arbitration. The glossary is based on the book, "Fundamentals of Labor Arbitration," by Jay E. Grenig and Rocco M. Scanza
This document outlines a Master Agent Agreement between Erica Consulting Services Pvt Ltd and Open Financial Services to distribute OFS's products and services. Key points:
1. Erica Consulting will partner with OFS to sell its solutions to end users, partners, and system integrators in India.
2. The initial focus products include services from Mandiant, DeCurits, Acuant, and Idemia related to cybersecurity, identity management, and risk mitigation.
3. Commercial terms include Erica receiving pricing models and assisting with marketing and sales in exchange for revenue share percentages.
4. The agreement lasts 5 years and renews annually, with provisions for termination by either party for issues like
Hot Topics In Class Actions (February 2012)Miranda Lam
This document summarizes sessions from a conference on defending class actions in Canada. It discusses trends in British Columbia class action law, including certification standards becoming easier and the scope of cases expanding to national classes. Pre-certification strategies for defendants are outlined, such as challenging jurisdiction, arbitration agreements, or the nature of the claim. The document also covers class action issues like limitation periods in trust claims, aggregate damages, and post-settlement contribution.
The document discusses forfeiture of deposit in contracts. It defines what a deposit is and explains that deposits serve to guarantee performance and can be applied to the purchase price if the contract is completed. Forfeiture of a deposit occurs when a buyer breaches a contract. Generally, if a buyer does not go through with a purchase, their deposit will be forfeited to the seller as compensation for damages from the breach. The document also examines cases related to forfeiture of deposits and whether sellers must prove damages to forfeit deposits. It discusses issues around whether unpaid or unclear deposits can be forfeited and whether courts can provide equitable relief from forfeiture.
The document discusses several recent Delaware court cases that have implications for financial advisors, including In re Dole Food Co. shareholder litigation. It summarizes the key claims, findings, and conclusions of the Dole Food case, including that the court found the company's controller and president breached their fiduciary duties but did not find the financial advisor liable. It also summarizes allegations and issues discussed in In re PLX Technology and In re Zale Corp. shareholder litigation regarding potential conflicts of interest of financial advisors.
This document contains homework assignments for an insurance law course. It includes multiple choice and short answer questions about various contract and insurance law topics, such as the requirements for a valid contract, types of contracts, breach of contract, representations and warranties in insurance contracts, and nonwaiver agreements. The assignments are meant to help students learn and test their understanding of these legal concepts through self-quizzing and written explanations.
This document summarizes the views of GE on the need for early resolution in international arbitration based on their experiences. The key points are:
1. Businesses prioritize efficiency, speed, and certainty in dispute resolution but often find international arbitration takes too long, costing unnecessary time and money.
2. While international arbitration has advantages over litigation, its focus on due process delays resolution, frustrating businesses who just want to assess exposure and move on.
3. GE provides examples where arbitration took years with no early decisions on key issues, forcing frustrated parties to expensive settlements just to achieve closure, rather than fair resolution.
4. An early resolution procedure could help address this gap if arbitrators ensured its dilig
This document summarizes changes between the 2000 and 2014 editions of the Joint Building Contracts Committee (JBCC) standard form construction contracts used in South Africa. Some key changes include streamlining and restructuring the contract from 40 to 30 clauses, expanding and clarifying contractor and employer duties, consolidating insurance provisions, reformulating security provisions, and increasing contractor liability for works risk while defining force majeure events. Specific changes are outlined for indemnities, setting out, subcontractors, and completion phases. The document provides an overview of the evolution of the JBCC standard forms and significant differences between editions.
Aaron Gitler and Neena Vlamis started A and N Mortgage Services in 2002 after working in the mortgage industry for 21 years combined. Based in Chicago, Illinois, A and N Mortgage Services is a top-rated mortgage broker that provides financing options to home buyers. Gitler still brings his dog Ralph to the office daily. Vlamis enjoys getting to know clients personally to understand their unique financial needs and goals. The company aims to grow relationships with local credit unions and realtors.
Presentation slides from Brightline Lawyers accompanying a discussion with Brisbane web design and technology professionals concerning client engagement terms
Protecting Confidential Information When an Employee LeavesANTHONY PALAZZO
The document discusses protecting confidential information when an employee leaves a company. It outlines how non-disclosure agreements (NDAs) and non-compete clauses are intended to restrict sharing confidential information and working for competitors after leaving. However, the law regarding these is complex and varies by state. Courts may enforce some portions of non-competes by modifying language but not others based on reasonableness standards of geographic area, duration, and balancing employer and employee interests. Protecting trade secrets ultimately depends more on building stable employment, paying competitive compensation, and showing respect to employees than relying on legal agreements alone.
Non-competition and Non-solicitation ProvisionsKevin Learned
In this seminar we analyzed non-competition and non-solicitation provisions in the contexts of M&A transactions, employee/consultant relationships and subcontracting agreements. We addressed issues that arise in the drafting and negotiation of these provisions, as well as issues related to enforcement and litigation, with a particular emphasis on issues impacting federal service contractors who operate in the DC/MD/VA region.
Protecting Confidential Information When an Employee Leaves-apANTHONY PALAZZO
The document discusses protecting confidential information when an employee leaves a company. It outlines that non-disclosure agreements (NDAs) aim to restrict sharing confidential information after employment, while non-compete clauses prevent working for competitors. However, the law around these is complex and varies by state. Courts may modify non-compete agreements to make them enforceable if they are deemed reasonable in terms of restrictions. The best way for companies to protect trade secrets may be through open communication with departing employees regarding stability, compensation, and respect.
2017 AICM Credit Symposium - Australian Institute of Credit ManagementMark Harley
Unfair Contract Terms – generally and amendments for B2B protection (with some exceptions)
Insolvency Law Reform Amendments – amendment to the definition of “relation-back day” for purpose of the Corporations Act
Dealing with Trust Assets of Corporate Trustees in Liquidation
Protecting Your Critical Customer Relationships and Trade SecretsAlexNemiroff
Are non-compete agreements really enforceable in our State? What are some special considerations in the financial and medical industries? Is injunctive relief available to protect our customer relationships and trade secrets? Can we terminate an employee and still enforce a non-compete agreement? Should we include a liquidated damages provision in our restrictive covenant agreements? What damages are available to our company should we prevail?
11262014 The Legal Environment of Business, Ch. 6 - Learning.docxhyacinthshackley2629
11/26/2014 The Legal Environment of Business, Ch. 6 - Learning Activity - Week3 - LAW/421 - eCampus
https://newclassroom3.phoenix.edu/Classroom/ToolContainer.jsp?context=co&contextId=OSIRIS:44425562&activityId=96f01290-3b42-490d-be28-e6f95540138d… 1/24
Overview and Formation of Contracts
Learning Outcomes Checklist
After studying this chapter, students who have mastered the material will be able to:
Distinguish between contracts based on categories and apply the correct source of law to specific contracts.
Explain the concept of mutual assent by defining the legal requirement of agreement.
Identify and explain the other requirements for the formation of a valid contract.
List the events that terminate the power of acceptance and distinguish between termination through action of the parties versus
operation of law.
Apply the mailbox rule to resolve a question of when acceptance is effective.
Articulate the legal requirement of consideration and identify which contracts do not require consideration.
Give examples of circumstances where the legal requirements of capacity or legality are at issue.
Explain the concept of enforceability and geniune assent.
Categorize what contracts must be in writing to be enforceable and explain the minimum required terms that satisfy the law.
The law of contracts is one of the most common and important areas of the law that business owners and managers deal with on a dayto
day basis. Everyone working in a business environment will, in one form or another, deal with contracts throughout their career.
Employment contracts, leases, and agreements of sale for assets or land or merchandise are just a few examples of contracts commonly
used in business transactions. The simple act of purchasing office supplies from a local merchant is a form of agreement governed by
contract law.
Formation and legal enforcement of agreements have been recognized since ancient times. As early as 1780 BC, contracts were being
enforced by the Babylonians by virtue of the authority of the Code of Hammurabi. During much of the rule of the Roman Empire, the
Justinian Code included the rule pacta sunt servanda (agreements shall be kept). Many legal scholars, notably Dean Roscoe Pound, have
written extensively on the importance of society recognizing legally enforceable promises and providing remedies for those who suffered
losses. Consider the consequences of failing to provide for legal enforceability of a promise and its impact on the very fabric of civilized
societies.
Since business owners and managers are often involved in daytoday oversight of various agreements and transactions, understanding
contract law reduces risk by limiting liability through the recognition of potential legal issues, crafting an appropriate response, and
implementing a system to ensure compliance. Contract law is also essential to structuring business transactions in strategic ways to
achieve business objectives without excessive risk.
In this.
Show Me My Money (Reisenfeld & Company v. The Network Group Inc..docxedmondpburgess27164
Show Me My Money (Reisenfeld & Company v. The Network Group Inc., p. 313)
Why does the court see this case as involving a quasi-contract as opposed to an actual contract? What other case law does the court rely on in finding precedent/support for compensating Reisenfeld? Does this decision appear to follow the golden rule guideline set forth in Chapter 2 (pp. 27 and 28)? Describe another example of an implied-in-fact or quasi-contract that you have experienced or is mentioned in the text.
Note: please read all the information correctly before you begin the assignment I have also copy and paste pages 27 and 28 that you would need to complete the assignment.
CASE
13-3
REISENFELD & CO. v. THE NETWORK GROUP, INC.;
BUILDERS SQUARE, INC.; KMART CORP. U.S. COURT OF APPEALS FOR THE SIXTH CIRCUIT 277 F.3d 856 U.S. App. (2002)
Network Group (“Network”) was contracted by BSI to assist in selling or subleasing closed Kmart stores in Ohio. A few years later, Network entered into a commission agreement with Reisenfeld, a real estate broker for Dick's Clothing and Sporting Goods (“Dicks”). Dicks then subleased two stores from BSI. According to executed assignment and assumption agreements signed in November of 1994, BSI was to pay a commission to Network. Network was then responsible, pursuant to the commission agreement with Reisenfeld, to pay a commission of $1 per square foot to Reisenfeld. There was no direct agreement made between BSI and Reisenfeld.
During this time, Network's sole shareholder was defrauding BSI. This shareholder was convicted of several criminal charges stemming from his fraudulent acts. Network was ordered by the district court to disgorge any commissions received from BSI, and BSI was relieved of any duty to pay additional commissions to Network. As such, Reisenfeld never received his commission related to the Dicks sublease.
Reisenfeld sued in state court for the $160,320 in commissions he had not been paid. In addition to suing Network, Reisenfeld also named BSI as a defendant. The suit alleged, among other things, that based on a theory of quasi-contracts, BSI was jointly and severally liable for the commission.
JUDGE BOOGS: . . .
A contract implied-in-law, or “quasi-contract,” is not a true contract, but instead a liability imposed by courts in order to prevent unjust enrichment. … Under Ohio law, there are three elements for a quasi-contract claim. There must be: (1) a benefit conferred by the plaintiff upon the defendant; (2) knowledge by the defendant of the benefit; and (3) retention of the benefit by the defendant under circumstances where it would be unjust to do so without payment. …
There is no disagreement as to the first two requirements. It is clear that Reisenfeld's work as broker benefited BSI and that BSI was aware of the work Reisenfeld was doing. The disagreement rests on the third requirement—whether it would be unjust for BSI to retain the benefit it received without paying Reisenfeld for it. … U.
Learning Objective:
Students will learn
a) the legal definition of contract
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2. Introduction
Overview of Non-Competes
Litigating Non-Competes
Drafting Do’s and Don’ts
Considerations for
Enforcement/Defense
07/22/12 2
3. Non-Competes Generally
Typically designed to address
Solicitation and servicing of clients
Solicitation and hiring of employees
Competition in designated areas
Confidential Information
Trade Secrets
07/22/12 3
4. The Cold Hard Facts
Non-Competes cannot
stop competition.
Non-Competes are
generally enforceable
where they are
reasonable in most
states.
07/22/12 4
5. Typical Protections?
Customer Contacts
Trade Secrets
Under both Kansas and Missouri
law, restrictive covenants which
have as their primary protection,
these issues can be enforceable.
07/22/12 5
6. Caution: State Law Issues
State law defines the limits
of employee covenants.
Just because an
agreement works in
Kansas, doesn’t
necessarily mean it will
work in Nebraska or
Missouri.
07/22/12 6
7. Caution: State Law Issues
Controlled Rain, Inc. v. Sanders, 2006 WL 1222772 (Neb. App.
2006) In this case, the employer had a non-compete agreement
with two key paragraphs: a) a non-solicit agreement; and b) a 100
mile radius non-compete agreement.
The court found that the non-solicit paragraph was enforceable,
but concluded that the 100 mile radius non-compete was not
enforceable under Nebraska law. The court held that the
employment agreement was not a collection of severable
provisions, but rather was an integrated agreement for which it
was seeking reformation. The Court refused to enforce the
agreement citing a prior Nebraska Supreme Court opinion which
held that covenant not to compete could only be valid if it
restricts a former employee from working for or soliciting the
former employer’s clients or accounts.
This agreement could have been enforced – at least in part – in
Kansas and Missouri.
07/22/12 7
8. Covenant Not to Compete
This is the most restrictive type of covenant an employee and
employer can sign. Covenants not to compete typically bar a
former employee from engaging in competition with his former
employer for a period of time and in a particular geographic
region.
Typical language is: “Employee will not directly or indirectly
perform services for any business which performs services
materially similar or competitive with those provided by the
company for a period of xx months in the following geographic
area…”
07/22/12 8
9. Non-Solicit as to Customers
The analysis for a court is different because the former
employee is more free to compete in the open market with a no-
solicit/no-raid agreement. Because the employee is free to work
for anyone (including themselves) there is much less chance
that enforcement of a no-solicit/no-raid agreement would prevent
a person from working altogether. Also referred to as a no-
raiding clause.
Typical language: “I agree that for two (2) years following my
employment I will not solicit divert or take away any of the
Company’s customers, clients or accounts...”
07/22/12 9
10. Employee Non-Solicitation
These covenants seek to prevent a former employee from soliciting or
hiring the former employer’s employees. Employers seek these provisions
to prevent employee raiding by competitors. Many employees who leave
their employers may want to take an employee with them to their new
employer. These provisions are generally enforceable in Kansas.
Typical language: “I agree that for two (2) years following my employment,
I will not solicit or encourage any employee to leave the Company’s
employ…”
07/22/12 10
11. Non-Disclosure Agreement
The least restrictive covenant is the non-disclosure agreement.
Rather than preventing competition or solicitation of clients, this
covenant seeks to ensure that the employee does not disclose the
employer’s confidential information or trade secrets after the employee
leaves the employer. Actually enforceable in California.
Typical language: “I agree that I shall not disclose, misuse,
misappropriate any confidential information or trade secrets except as
required in the scope of my employment…”
07/22/12 11
12. Common Confidentiality Provisions
Acknowledgement of Employee’s Receipt of
Confidential Information or Trade Secrets.
Agreement to Return all Such Information.
Agreement not to Disclose any Such
Information.
Reasonable Liquidated Damage Clauses
Related to Breach of Confidentiality
Provision.
07/22/12 12
13. Client Compensation Agreement
In Varney Business Services, Inc. v. Pottroff, 275
Kan. 20, 59 P.3rd 1003 (Kan. 2002), the Kansas
Supreme Court was asked to review an agreement
between an accounting business corporation and a
former accountant. The agreement provided that
any signatory to the agreement that left the firm
would agree to compensate the firm for any of its
clients that it serviced over the next five (5) years.
The Supreme Court held the contract
enforceable.
07/22/12 13
14. Deferred Compensation Forfeiture Agreement
Some employees are offered deferred
compensation (either bonuses, or retirement funds)
that are part of their typical benefits plan.
As part of those plans, some employers have
language which provide that benefits would be
forfeited and terminated in the event the employee
began competing against the employer.
The type of agreement – profit sharing, bonus plan,
retirement plan, etc. – may ultimately play a role in
how courts evaluate the agreement.
Kansas has not yet ruled upon this issue but
Missouri (approve) and Iowa (disapprove) have.
07/22/12 14
16. Uniform Trade Secrets Act
Both Kansas and Missouri have trade
secrets laws.
Both provide independent protection to
employers from disclosure of
information which qualifies as a trade
secret.
Just because you don’t have a non-
compete doesn’t mean you can protect
trade secrets.
07/22/12 16
17. An example of this.
The Kansas Uniform Trade Secrets Act creates an
independent legal duty regarding trade secrets
which is different from any legal duty owed
pursuant to a restrictive covenant. All West Pet
Supply Co. v. Hill's Pet Products Div., Colgate-
Palmolive Co.,847 F.Supp. 858 (D.Kan.,1994)
“[T]he contractual duty of confidentiality on the part
of Hill's is independent of its statutory duty under
the Uniform Trade Secrets Act not to use or
disclose information that falls within the definition of
a trade secret.” Id. at 861
07/22/12 17
19. Before You Start Drafting
Ask
What are you fearful of?
What information do you want to protect?
Other than the agreement, what else are
you doing? (What does the handbook
say?)
What protocols do you have in place for
signing, and exit interviews?
Think about how the agreement fits
with their overall protection plan.
07/22/12 19
20. Keys to an Enforceable Contract
Protects Legitimate Interests
Trade Secrets
Customer Contacts
Reasonable Time
(i.e. Not Forever)
Reasonable geography
(i.e. Not The World)
Consideration
What did you give to get?
07/22/12 20
21. Extras to Consider
Liquidated Damages (Reasonable)
Attorney’s Fees for Prevailing
Waiver of Bond for Injunction***
Severability Clause
Extension of covenant during breach
Extension of covenant during litigation
Assignment clause for successors
At will employment reaffirmation
07/22/12 21
22. Considerations for Enforcement / Defense
Do the terms of the agreement prohibit the
specific acts in question?
Is the former employee truly competing – same
type of business, same customers?
Does the agreement prevent general
competition or is it centered on protectable
interests such as customer contacts,
confidential information or trade secrets?
07/22/12 22
23. Considerations for Enforcement / Defense
Is the information which is at issue truly
confidential and if so, what can be said about
efforts to safeguard it?
Has the enforcing party breached – in a
significant way – the agreement?
If there are geographic restrictions, how
reasonable are they in comparison to the area
of service or the employee’s area of service?
07/22/12 23
24. Considerations for Enforcement Defense
If there are time limitations, how reasonable are
they given the type of relationship the employer
has with its customers?
Has there been any modification or alteration of
the agreement which could impact its
enforcement?
What has been the history – if any – of the
employer’s enforcement of the agreement or
similar agreements?
07/22/12 24
25. Considerations for Enforcement / Defense
Does the agreement have a choice of law
provision? If so, would the law of another state
be more favorable?
Will the state in which the suit is brought (or the
state upon which the contract is governed)
“blue pencil” or cut out portions of the
agreement if the agreement is deemed overly
broad?
In what context did the agreement arise: sale of
business, employer-employee, independent
contractor, etc?
07/22/12 25
26. So, in conclusion…
The agreements can be enforceable if
they are reasonable.
The agreement should be tailored to
the client and the position if possible.
The agreement should be part of an
overall plan of protection.
07/22/12 26