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Two large companies settled a bitter contract-related dispute, but one of them later sued the other, seeking to set aside the settlement agreement on grounds of fraud (among others). The Supreme Court of Texas agreed with the defendants that the fraud claim was barred by an express disclaimer of reliance in the parties’ previous settlement agreement — and the supreme court also held that it was not inappropriate for the trial court to award attorney fees and costs to the defendants:

By asserting claims it had agreed never to assert, Petrobras broke the promise it made in the settlement agreement and caused Astra to incur substantial fees and costs to enforce that promise. We conclude the trial court did not abuse its discretion by awarding Astra its fees and costs.

Transcor Astra Group S.A. v. Petrobras America Inc., No. 20-0932, slip op. at 34 (Tex. Apr. 29, 2022) (reversing court of appeals and reinstating trial court’s summary judgment).

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A manufacturer terminated a sales-representative company, as permitted by their contract, for failing to meet quota. The rep received commissions ranging between 15% and 22% of sales.

The manufacturer thought that the contract provided for the terminated sales-rep company to get a total send-off payment of 7.5% of sales for the previous 12 months, paid out monthly over six months, as compensation for a one-year, post-termination noncompetition covenant.

But here’s what the contract language actually said:

In the event this Agreement is terminated or not renewed by Exactech, then during each calendar month of the first six (6) months after such termination, Exactech will pay [Midwest] an amount equal to seven and one half percent (7.5%) of the total sales in the Territory during the trailing twelve (12) months ending on such termination date (the “Restricted Period Compensation”).

Midwest Medical Solutions, LLC v. Exactech U.S., Inc., No. 21-1621 (8th Cir. Dec. 29, 2021) (reversing summary judgment; emphasis added, alterations by the court).

The district court granted summary judgment for the manufacturer that the sales-rep company was entitled to a total payment of about $300,000, paid out over six months.

But the appeals court reversed, holding that the sales-rep company was entitled to a $300,000 payment each month for the entire six-month period:

And though the plain language may result in a large sum paid to Midwest by Exactech as [compensation for the noncompetition covenant], there is no evidence—other than the parties’ self-serving arguments—as to why this amount is or is not an absurd result.

As such, we are bound to give [the contract language] its plain and ordinary meaning. To conclude otherwise would be to substitute our views of the contract or our inferences … for the parties’ intent as indicated by the clear and unambiguous language …, terms that the parties negotiated and to which they ultimately agreed.

Id., slip op. at 6-7 (citations omitted, extra paragraphing added).

Whichever lawyer drafted (or reviewed and approved) the above language for the manufacturer has probably had at least one unpleasant conversation with the manufacturer’s business people — and possibly with the lawyer’s malpractice carrier ….

But who knows: The manufacturer might have knowingly agreed to just such a large payment, only to change its mind (or experience a convenient lapse of memory) when it actually had to write the check — it certainly wouldn’t be the first time that ever happened ….

Incidentally, that’s why it pays for lawyers to specifically bring up potential issues like this — in writing — with clients before contracts get signed, for example in an email or with a note in a Word comment bubble. That way, if a client does have a change of heart (or of memory) after the fact, the lawyer can remind the client, Hey, this was something I pointed out before you signed the deal ….

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A two-sentence NDA?

Here’s a two-sentence confidentiality provision that I recently added to the fine print of a purchase-order form proposed by a customer of one of my clients (a provider of highly specialized big-data analysis services):

Each party will maintain the other party’s nonpublic confidential information in confidence unless independently possessed in accordance with the (U.S.) Defend Trade Secrets Act. This applies both: (i) to information timely marked as confidential and (ii) to unmarked information that a reasonable person in the relevant business would recognize as likely to be confidential, in either case unless the recipient shows otherwise. 

This certainly doesn’t have all the bells and whistles of a conventional confidentiality agreement, a.k.a. nondisclosure agreement a.k.a. “NDA.” But paraphrasing what my late senior partner Tom Arnold said many years ago in similar circumstances: For everyday purposes it’s almost certainly good enough — and it’ll be agreed to quickly (as in fact it has been here).

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Should I try to help The Other Side’s lawyer? A discussion

The following is adapted from comments I made at Sean Hogle’s splendid lawyers-only discussion forum redline.net, in a thread entitled Run your own redline dammit. Responding to Sean’s post saying that BigLaw lawyers seem not to send redlines, an anonymous commenter said (possibly satirically), “‘Big’ firm lawyer here: yea, run your own damn redlines! We’re not here to make your job easier. We’re here to be zealous advocates for our client. There is no upside to doing your job for you.”

Oh?

We’re not here to make your job easier.

1. When you make my job easier, it helps both of our respective clients to get a workable deal to signature in the shortest possible time. That’s usually what both our clients want.

2. When you proactively help me in that endeavor, it sends a message that you’re a capable, confident, cooperative lawyer. That’s the kind to whom the rest of us like to refer future business.

3. When you seem interested mainly in proving that you’re smarter than I am, it sends the opposite message.

There’s one lawyer of my acquaintance who is expert in a particular field. The lawyer also is something of a schmuck who gets in the way of making deals happen. There have been several occasions over the years when I’ve intentionally not referred a potential client to this lawyer.

We’re here to be zealous advocates for our client.

That’s fine up to a point: We lawyers get paid in part to think negative thoughts and to pay due attention to risks.

But the operative word is “due.” Most clients accept that doing business together comes with risks. They generally want, above all, to get the damned contract signed so that everyone can get on with it.

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An employee’s employment agreement included both a non-solicitation clause and a non-competition clause; the latter clause read in part as follows: “Employee further covenants that for a period of one year following the termination of Employee’s employment for whatever reason ….” (Emphasis added.) The agreement also allowed either party to terminate the employment agreement at will.

Years later (following acquisition of the employer), the employee quit her job and, three days later, terminated her employment agreement. Reversing a preliminary injunction enforcing the non-competition clause, the Eighth Circuit held that the clause did not survive the employee’s at-will termination of her employment agreement:

By its terms, the non-compete provision survived the termination of Miller’s “employment.” But there is nothing in the non-compete provision to suggest the parties intended it to survive the termination of the Employment Agreement. And the contract treats the term of employment and the term of the Employment Agreement as two distinct concepts.

***

We understand this may not be the result [the employer] envisioned when it drafted the Employment Agreement. Indeed, the Employment Agreement is no exemplar of precision; it is possible that [the employer] actually intended for the term of employment and the term of the Employment Agreement to be coextensive. But that is not what the contract actually says. We will not rewrite an unambiguous provision.

Miller v. Honkamp Krueger Financial Services, Inc., No. 20-3061, slip op. at 6, 8 (8th Cir. Aug. 24, 2021).

As a similar example: A contract between a union and a company gave the union the right to audit certain books and records of the company to confirm that the company had complied with a requirement in the contract to make certain contributions to employee-benefit funds. The contract didn’t specify that the audit right would survive termination of the contract — so, because (according to the court) the company terminated the contract, the union lost its right to conduct a final compliance audit. See  New England Carpenters Central Collection Agency v. Labonte Drywall Co., 795 F.3d 271 (1st Cir. 2015) (affirming judgment after bench trial).

Drafting lesson: In each of the above cases, the contract in suit could have been drafted to specify that the relevant clause would survive any termination or expiration of the contract.

Footnote: Years ago my senior partner and friend, Tom Arnold, opined that contracts are historical facts, much like the Constitution and the Declaration of Independence — so (in Tom’s view) there should be no such thing as the “term” of a contract itself, but only of specific rights, obligations, and relationships under the contract. The reality, of course, is that most drafters refer to “termination of this Agreement” or “expiration of this Agreement” as a shorthand; as we see above, that can cause problems.

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