Exclusion of Consequential Damages
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Mergers & Acquisitions and Corporate Governance Report
Mergers & Acquisitions and Corporate Governance Report OCTOBER 2011 CLEARY GOTTLIEB Preparing for “Proxy Access” Shareholder Proposals IN THE NEWS BY VICTOR LEWKOW, JANET FISHER AND ESTHER FARKAS ...............................................2 CG represented Bank of America in its sale of shares of China While the SEC's proxy access rule has been judicially vacated, the related Rule 14a-8 Construction Bank for an aggregate sale price of approximately amendments permitting shareholders to make their own proxy access proposals are now $8.3 billion. CG previously represented Bank of America in its in effect. Steps that companies should consider if they receive such a proposal and, 2005 acquisition of an interest in CCB, indeed, in preparing for the 2012 proxy season are presented. which was the single largest foreign investment ever in a Chinese company. CG is advising Google in its $12.5 billion acquisition of Motorola A New Wrinkle in the Interpretation of Anti-Assignment Clauses Mobility. BY BENET O'REILLY AND CASEY DAVISON ..........................................................................4 CG is representing Nortel Networks on the sale of its residual patent assets through a bankruptcy auction A closer look at anti-assignment provisions may be warranted in light of The Delaware to a consortium consisting of Apple, Chancery Court's recent decision in Meso Scale Diagnostics, LLC et al. v. Roche EMC, Ericsson, Microsoft, Research In Motion and Sony for Diagnostics GmbH et al. $4.5 billion. CG represented Stanley Black & Decker in its $1.2 billion acquisition of Niscayah. Considering the Consequential Damages Waiver CG is representing Family Dollar in responding to Trian’s unsolicited BY DAVID LEINWAND ...........................................................................................................6 $7.7 billion takeover proposal and adoption of a stockholders rights plan. -
Paying for What You Get—Restitution Recovery for Breach of Contract
Pace Law Review Volume 38 Issue 2 Spring 2018 Article 7 April 2018 Paying for What You Get—Restitution Recovery for Breach of Contract Jean Fleming Powers South Texas College of Law Follow this and additional works at: https://digitalcommons.pace.edu/plr Part of the Contracts Commons Recommended Citation Jean Fleming Powers, Paying for What You Get—Restitution Recovery for Breach of Contract, 38 Pace L. Rev. 501 (2018) Available at: https://digitalcommons.pace.edu/plr/vol38/iss2/7 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. POWERS.DOCX (DO NOT DELETE) 5/8/18 10:33 PM Paying for What You Get—Restitution Recovery for Breach of Contract By Jean Fleming Powers* I. INTRODUCTION Many contracts casebooks, in dealing with contract remedies, include the case Sullivan v. O’Connor,1 a case dealing with an unsuccessful nose job.2 While a case about the results of surgery at first blush seems more fitting for a torts book, Sullivan, like its iconic counterpart Hawkins v. McGee3 uses a vivid fact pattern in an atypical contracts case4 to illustrate important points about contract remedies.5 Sullivan has the added benefit of providing a launching point for a discussion of the three contracts measures of recovery: expectation, reliance, and restitution.6 If the approach of the Restatement (Third) of Restitution and Unjust Enrichment7 [hereinafter referred to as “the Restatement of Restitution,” or just “the Restatement”] * Professor of Law, South Texas College of Law Houston; J.D., University of Houston Law Center, 1978; B.A. -
The Troubles with Law and Economics
Hofstra Law Review Volume 20 | Issue 4 Article 2 1992 The rT oubles with Law and Economics Leonard R. Jaffee Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlr Part of the Law Commons Recommended Citation Jaffee, Leonard R. (1992) "The rT oubles with Law and Economics," Hofstra Law Review: Vol. 20: Iss. 4, Article 2. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol20/iss4/2 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Jaffee: The Troubles with Law and Economics THE TROUBLES WITH LAW AND ECONOMICS Leonard 1? Jaffee* In this Article's first Part, the author sets Law and Economics' own devices against its fundamental proposition: In free contractual pursuit of personal wealth, we find the best means of serving nearly all of our legitimate interpersonaland social interests. Using the classic "efficient breach" case as paradigm, Profes- sor Jaffee argues that all contracts cases defy judgment of whether agreement or breach is efficient-that every such case is intractably ambiguous and threatens inefficient or vagrant costs, profits, or demoralization. He offers instead specific performance as the pre- ferred remedy for breach of contract. He argues that neither ex ante nor ex post contractual adjustments-whether toward an agreed remedy like liquidated damages or modification of obliga- tion-sufficiently resolve such cases or stay their threats, since we cannot ever know what is needed to compensate properly. -
The Eleventh Circuit Reaffirms Validity of Waiver of Consequential Damages Provisions in Contracts
The Eleventh Circuit Reaffirms Validity of Waiver of Consequential Damages Provisions in Contracts By E. Tyron Brown Hawkins Parnell Thackston & Young LLP Atlanta, Georgia 30308 [email protected] The Eleventh Circuit Court of Appeals, in Silverpop Systems, Inc. v. Leading Market Technologies, Inc., 2016 U.S. App. LEXIS 196 (11th Cir. January 5, 2016) enforced a contractual waiver of consequential damages provision, thereby reaffirming the validity of such provisions in Georgia. In that case, the Plaintiff Silverpop Systems, Inc. (“Silverpop”) provided digital marketing services to businesses such as the Defendant Leading Market Technologies, Inc. (“LMT”). The parties entered into a service agreement whereby LMT was authorized to access Silverpop’s web-based e-mail marketing program and upload digital advertising content and recipient e-mail addresses. The advertising content was then sent to the e-mail addresses. The list of e-mail addresses from LMT was stored on Silverpop’s marketing program. Silverpop’s program eventually had a list of nearly 1/2 million email addresses from LMT. Then, a data breach occurred to Silverpop’s program and the hackers gained access to the information stored on the program by 110 of Silverpop’s customers -- including LMT. Silverpop said it could not confirm that the hackers exported the data files out of the system. Subsequently, Silverpop filed a declaratory judgment action against LMT seeking a judgment declaring, inter alia, that LMT was not damaged by the data breach or that LMT incurred only consequential damages which were barred by a waiver of consequential damages provision in the contract. LMT counterclaimed against Silverpop asserting several claims. -
The Efficacy of the Negative Injunction in Breach of Entertainment Contracts, 46 J
UIC Law Review Volume 46 Issue 2 Article 1 2013 The Efficacy of the Negative Injunction in Breach of Entertainment Contracts, 46 J. Marshall L. Rev. 409 (2013) Eliot Axelrod Follow this and additional works at: https://repository.law.uic.edu/lawreview Part of the Contracts Commons, Courts Commons, Entertainment, Arts, and Sports Law Commons, and the Legal Remedies Commons Recommended Citation Eliot Axelrod, The Efficacy of the Negative Injunction in Breach of Entertainment Contracts, 46 J. Marshall L. Rev. 409 (2013) https://repository.law.uic.edu/lawreview/vol46/iss2/1 This Article is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. Do Not Delete 3/12/2013 5:35 PM THE EFFICACY OF THE NEGATIVE INJUNCTION IN BREACH OF ENTERTAINMENT CONTRACTS ELLIOT AXELROD* I. INTRODUCTION Many aspects of the entertainment business are highly speculative and entertainment firms are known to invest heavily in developing and marketing the various products they create. While revenues from successful entertainment projects can be enormous, these successes are frequently offset by other expensive flops. As performers become more individually successful, they become generally more concerned with maximizing their own personal profits than with helping to subsidize development of entertainment projects to benefit their successors.1 When it comes to remedies for breach of entertainment contracts, it is a constant battle to find a fair balance between the interests of entertainment entities seeking to make a profit—or at a minimum, recoup their investments—and performers seeking artistic autonomy and financial leverage. -
Damages in a Commercial Context Richard G
DAMAGES IN A COMMERCIAL CONTEXT RICHARD G. MUNZINGER El Paso, Texas Scott, Hulse, Marshall, Feuille, Finger & Thurmond, P.C. State Bar of Texas 27TH ANNUAL ADVANCED CIVIL TRIAL COURSE August 25-27, 2004 - Dallas September 22-24, 2004 – Corpus Christi November 10-12, 2004 - Houston CHAPTER 30 The author wishes to acknowledge the contributions of Chantel Crews and M. Gus Pick, Thomas R. Erickson, Morgan L.W. Hazelton, Henry J. Paoli, R. Duane Frizell, Oscar Javier Ornelas, Jose Luis Carbonell, Casey S. Stevenson, and Katari Buck. These attorneys provided significant assistance towards the completion of this paper. Richard G. Munzinger is a shareholder with the law firm of Scott, Hulse, Marshall, Feuille, Finger & Thurmond, P.C., El Paso, Texas. He was born in El Paso, Texas, September 22, 1938; is a graduate of the University of Texas (B.A., 1950; LL.B., 1966); College of the State Bar of Texas and admitted to the bar, 1966, Texas; U.S. District Court, Western District of Texas and U.S. Court of Appeals, Fifth Circuit; U.S. Supreme Court. He currently is a member of the Supreme Court Advisory Committee and has been a lecturer for the State Bar of Texas for many years. 641912 v2 Damages In A Commercial Context Chapter 30 TABLE OF CONTENTS I. INTRODUCTION....................................................................................................................................... 1 II. BREACH OF CONTRACT ........................................................................................................................... 1 A. -
Reexamining the Expectation and Reliance Interests in Contract Damages Mark Pettit Jr
Hastings Law Journal Volume 38 | Issue 3 Article 2 1-1987 Private Advantage and Public Power: Reexamining the Expectation and Reliance Interests in Contract Damages Mark Pettit Jr. Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Mark Pettit Jr., Private Advantage and Public Power: Reexamining the Expectation and Reliance Interests in Contract Damages, 38 Hastings L.J. 417 (1987). Available at: https://repository.uchastings.edu/hastings_law_journal/vol38/iss3/2 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. Article Private Advantage and Public Power: Reexamining the Expectation and Reliance Interests in Contract Damages by MARK PETTIT, JR.* Introduction Fifty years ago Fuller and Perdue asked why it is that in cases of breach of contract courts usually award "expectation" damages rather than "reliance" damages.I The authors defined these damages measures by their purposes.2 The object of the expectation measure "is to put the plaintiff in as good a position as he would have occupied had the defend- ant performed his promise."'3 The object of the reliance measure, on the other hand, is to "undo the harm" caused by reliance on a promise that was later broken, that is, "to put [the plaintif] in as good a position as he was in before the promise was made."'4 Fuller and Perdue concluded * Professor of Law, Boston University. A.B. -
Rescission, Restitution, and the Principle of Fair Redress: a Response to Professors Brooks and Stremitzer
Valparaiso University Law Review Volume 47 Number 2 Winter 2013 pp.1-78 Winter 2013 Rescission, Restitution, and the Principle of Fair Redress: A Response to Professors Brooks and Stremitzer Steven W. Feldman Follow this and additional works at: https://scholar.valpo.edu/vulr Part of the Law Commons Recommended Citation Steven W. Feldman, Rescission, Restitution, and the Principle of Fair Redress: A Response to Professors Brooks and Stremitzer, 47 Val. U. L. Rev. 1 (2013). Available at: https://scholar.valpo.edu/vulr/vol47/iss2/22 This Article is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at [email protected]. Feldman: Rescission, Restitution, and the Principle of Fair Redress: A Re Article RESCISSION, RESTITUTION, AND THE PRINCIPLE OF FAIR REDRESS: A RESPONSE TO PROFESSORS BROOKS AND STREMITZER Steven W. Feldman* I. INTRODUCTION Analyzing a remedy that the reporter for the Restatement (Third) of Restitution and Unjust Enrichment describes as having “[e]normous practical importance and theoretical interest,”1 scholars in recent years have produced a flood of articles covering contract rescission and restitution.2 In their 2011 Article in the Yale Law Journal, Remedies on and off Contract, Professors Richard Brooks and Alexander Stremitzer weigh in on the discussion.3 Relying on microeconomic theory, which reflects the perspective of rational buyers and sellers, the authors’ thesis is that current legal doctrine is too restrictive in allowing buyers’ rescission and too liberal in granting them restitution.4 Although other commentators * Attorney-Advisor, U.S. -
Contract Basics for Litigators: Illinois by Diane Cafferata and Allison Huebert, Quinn Emanuel Urquhart & Sullivan, LLP, with Practical Law Commercial Litigation
STATE Q&A Contract Basics for Litigators: Illinois by Diane Cafferata and Allison Huebert, Quinn Emanuel Urquhart & Sullivan, LLP, with Practical Law Commercial Litigation Status: Law stated as of 01 Jun 2020 | Jurisdiction: Illinois, United States This document is published by Practical Law and can be found at: us.practicallaw.tr.com/w-022-7463 Request a free trial and demonstration at: us.practicallaw.tr.com/about/freetrial A Q&A guide to state law on contract principles and breach of contract issues under Illinois common law. This guide addresses contract formation, types of contracts, general contract construction rules, how to alter and terminate contracts, and how courts interpret and enforce dispute resolution clauses. This guide also addresses the basics of a breach of contract action, including the elements of the claim, the statute of limitations, common defenses, and the types of remedies available to the non-breaching party. Contract Formation to enter into a bargain, made in a manner that justifies another party’s understanding that its assent to that 1. What are the elements of a valid contract bargain is invited and will conclude it” (First 38, LLC v. NM Project Co., 2015 IL App (1st) 142680-U, ¶ 51 (unpublished in your jurisdiction? order under Ill. S. Ct. R. 23) (citing Black’s Law Dictionary 1113 (8th ed.2004) and Restatement (Second) of In Illinois, the elements necessary for a valid contract are: Contracts § 24 (1981))). • An offer. • An acceptance. Acceptance • Consideration. Under Illinois law, an acceptance occurs if the party assented to the essential terms contained in the • Ascertainable Material terms. -
Due Process Limitations on Rule 23(B)(2) Monetary Remedies: Examining the Source of the Limitation in Wal-Mart Stores, Inc
COMMENTS DUE PROCESS LIMITATIONS ON RULE 23(B)(2) MONETARY REMEDIES: EXAMINING THE SOURCE OF THE LIMITATION IN WAL-MART STORES, INC. V. DUKES Megan E. Barriger∗ INTRODUCTION The Wal-Mart v. Dukes decision prompted a storm of media atten- tion, with some predicting the end of large-scale class actions.1 On the one-year anniversary of the Dukes decision, legislation was pro- posed to reverse the “damage” done by the Dukes decision.2 The deci- sion is still very much in the public’s mind, and it is viewed as having damaged workers’ ability to hold employers accountable for discrim- inatory employment policies. ∗ J.D. Candidate, 2013, University of Pennsylvania Law School; B.A. 2006, Middlebury Col- lege. I would like to thank my advisor, Professor Catherine Struve, for her guidance and insightful feedback on drafts of this Comment, as well as the editors and Board of the University of Pennsylvania Law School Journal of Constitutional Law for their assistance throughout the editing process. 1 See Kimberly Atkins, The new class of 2011: U.S. Supreme Court defeats didn’t end class actions, but they did change them, LAWYERS USA ONLINE (July 26, 2011), http://lawyersusaonline.com/blog/2011/07/26/the-new-class-of-2011/ (articulating Professor Malveaux’s belief that “[t]he class action ‘is not dead, but it certainly was in- jured by the Court this year’”); see also Katherine Kimpel, Wal-Mart ruling disarms employees in David vs. Goliath cases, DAILY BUSINESS REV., July 18, 2011 (observing that with the Wal- Mart v. Dukes decision, “the Supreme Court . -
Direct Vs. Consequential Damages
The University of Texas School of Law Presented: 2011 Construction Law Conference Thursday, September 22 – Friday, September 23, 2011 Belo Mansion – Dallas, Texas Direct vs. Consequential Damages Jo Ann Merica Sedgwick LLP Author contact information: Jo Ann Merica Sedgwick LLP Austin, Texas [email protected] 512-481-8400 Table of Contents Table of Authorities ........................................................................................................................ ii I. General Breach of Contract Damages ................................................................................ 1 II. Distinction Between Direct and Consequential Damages .................................................. 1 A. The Theory .............................................................................................................. 1 B. In Practice ............................................................................................................... 2 III. Agreed Upon Remedies and Damage Measures ................................................................. 4 A. Enforceability .......................................................................................................... 5 B. Consequential Damage Provisions ......................................................................... 6 C. Caveats for the Drafter ............................................................................................ 7 1. Are consequential damages adequately defined? ....................................... 7 2. Are the -
Consequential Damages • No Punitive Damages for Breach
Speakers: Georgee Thevervelil, Esq. | Flaster Greenberg PC Julia Wu, Esq. | Maiello Brungo & Maiello, LLP Philadelphia: December 4, 2017 Pittsburgh: December 14, 2017 www.flastergreenberg.com Pennsylvania | New Jersey | Delaware | New York 1 • Common contexts in which acquisition agreements can be breached • Indemnification as exclusive remedy • Damages outside of contractual indemnification • Damage under contractual indemnification and related provisions •What should we do differently? www.flastergreenberg.com www.mbm‐law.net 2 • Model APA ‐ 2001 American Bar Association Model Asset Purchase Agreement. See Appendix I to Outline. • Model SPA ‐ 2010 American Bar Association Model Stock Purchase Agreement. See Appendix II to Outline. • Private Deal Points Study ‐ 2015 American Bar Association Private Target Mergers & Acquisitions Deal Point Study (For Transactions Completed in 2014). • Sample Provisions ‐ Sample provisions from typical stock purchase and asset purchase agreements (not from any particular form). www.flastergreenberg.com www.mbm‐law.net 3 • Commentary to Model APA and SPA. • West and Duran, Reassessing the “Consequences” of Consequential Damage Waivers in Acquisition Agreements, 63 The Business Lawyer 777 (2008). • Bryans Outline (updated by Jacobs) ‐ Major Indemnification Issues in Acquisition Agreements Outline (Pennsylvania Bar Institute 2010). • Dillport ‐ Breaches and Remedies (Practicing Law Institute 1981). www.flastergreenberg.com www.mbm‐law.net 4 • Fraud in Inception ‐ restore the buyer and seller to their respective positions prior to entering into the contract • rescission and restitution. • Breach of Contract ‐ give non‐breaching party the benefit of the bargain • reliance or restitution remedies may also be available. • Fraud/Intentional Misrepresentation ‐ punitive damages available. www.flastergreenberg.com www.mbm‐law.net 5 • Threshold Issue ‐ Are remedies or damages limited to indemnification provisions in acquisition agreement? • If indemnification is not exclusive remedy, all other common law and statutory remedies are available.