Indemnities and Damages a Bit of Planning Can Go a Long
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Drafting and Enforcing Complex Indemnification Provisions
Drafting And Enforcing Complex Indemnification Provisions D. Hull D. Hull Youngblood, Jr. and Peter N. Flocos Youngblood, Jr. is a partner in the Forget about copy and paste. The best indem Austin, Texas office nification provisions start with the details of of K&L Gates LLP. Mr. Youngblood the transaction. focuses his practice on government contracting, the security industry and com plex THE PURPOSE of this article is to assist transactional financial transactions, and regularly represents and litigation attorneys in the negotiation and drafting clients in a wide array of local, state, and federal of customized, and therefore more effective, indemnifi- contracting transactions and disputes. He can be cation provisions in a wide range of situations, and also reached at [email protected]. to spot certain litigation issues that may arise out of in- demnification provisions. This article will identify issues Peter N. and strategies and suggested language that can act as a Flocos starting point to protect the client’s interests in the area is a partner in the of indemnification in complex transactions and litigation. New York City Readers should note that this article is for informational office of K&L Gates purposes, does not contain or convey legal advice, and LLP. Mr. Flocos, may or may not reflect the views of the authors’ firm or who began his any particular client or affiliate of that firm. The infor- legal career as mation herein should not be used or relied upon in regard a transactional lawyer and then to any particular facts or circumstances without first con- became a litigator, sulting a lawyer. -
50 State Survey(Longdoc)
AGREEMENTS TO INDEMNIFY & GENERAL LIABILITY INSURANCE: A Fifty State Survey WEINBERG WHEELER H U D G I N S G U N N & D I A L TABLE OF CONTENTS Introduction 1 Alabama 4 Alaska 7 Arizona 12 Arkansas 15 California 19 Damages arising out of bodily injury or death to persons. 22 Damage to property. 22 Any other damage or expense arising under either (a) or (b). 22 Colorado 23 Connecticut 26 Delaware 29 Florida 32 Georgia 36 Hawaii 42 Idaho 45 Illinois 47 Indiana 52 Iowa 59 Kansas 65 Kentucky 68 Louisiana 69 Maine 72 Maryland 77 Massachusetts 81 Michigan 89 Minnesota 91 Mississippi 94 Missouri 97 Montana 100 Nebraska 104 Nevada 107 New Hampshire 109 New Jersey 111 New Mexico 115 New York 118 North Carolina 122 North Dakota 124 Ohio 126 Oklahoma 130 Oregon 132 Pennsylvania 139 Rhode Island 143 South Carolina 146 South Dakota 150 Tennessee 153 Texas 157 Utah 161 Vermont 165 Virginia 168 Washington 171 West Virginia 175 Wisconsin 177 Wyoming 180 INTRODUCTION Indemnity is compensation given to make another whole from a loss already sustained. It generally contemplates reimbursement by one person or entity of the entire amount of the loss or damage sustained by another. Indemnity takes two forms – common law and contractual. While this survey is limited to contractual indemnity, it is important to note that many states have looked to the law relating to common law indemnity in developing that state’s jurisprudence respecting contractual indemnity. Common law indemnity is the shifting of responsibility for damage or injury from one tortfeasor to another -
Back to Basics Professional Indemnity Construction and Engineering
Back to Basics Professional Indemnity Construction and Engineering womblebonddickinson.com Version 2 1 Contents Introduction Part A Understanding construction contracts and claims Construction contracts 5 Completion of construction works 7 Claims in construction projects 8 Part B Key legal principles behind professional indemnity claims in construction projects Contract vs. common law 11 Contractual “standard of care” ... and what it actually means 14 Transferring obligations in construction projects 15 What you need to establish to bring a claim 16 Summary of main dispute resolution forums 17 Insurance 19 Experts 20 Reduce the risk 21 Introduction Welcome to the Back to “‘One of the best firms out Basics booklet on there’... ‘a real pleasure to construction and work with’ according to engineering professional clients, who praise its ‘first-rate services’ and its indemnity issues. ‘perfect combination of The aim of the booklet is to assist intelligence, tactical those who are relatively new to prowess and personality’.” construction and engineering professional indemnity, or for those Legal 500 2018 who would benefit from a quick reminder of some key points. “Incredible. In terms of I hope you will find the material reporting, they’re well Hannah Cane useful. Of course, please do not Partner hesitate to contact me, or the rest of aware of what the market the team, should you have any requires. They’re questions. commercial, straightforward and can see the bigger picture. They know what direction to steer the claimant in.” Chambers and Partners UK Guide 2018 womblebonddickinson.com Version 2 3 Part A Understanding construction contracts and claims womblebonddickinson.com Version 2 4 Construction contracts The most common procurement methods are Traditional Parties and Design & Build. -
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. -
The Right of a Defaulting Vendee to the Restitution of Instalments Paid
YALE LAW JOURNAL VOL XL. l\'l.A.Y, 1931 No.7 THE RIGHT OF A D~~FAITLTING VENDEE TO THE RESTITUTION OF INSTALl\fENTS PAID THE question whether a vendee of land, ,vho defaults after hav ing ,paid one or more instalments of the price, can maintain an action for the recovery of any part of such instalments, is but a subordinate part of a larger problem. When can any contractor who is himself in default get judgment for compensation for a part performance rendered by 11im? It is a question of vital import to building contractors, sellers and buyers of goods, em ployees who have quit service or have been discharged for cause, as well as to vendees of land. In all these cases alike, there are conflict and inconsistency and differences of opinion as to what public policy and the general welfare require. The position of the defaulting vendee, however, has generally not been consci ously related to the other types of cases. In order to reconcile decisions, to eliminate actual conflict in the future, and to construct a consistent system of law, it is necessary to give more definite consideration to the equitable rules against the enforcement of penalties and forfeitures. If a contractor has committed a total breach of his contract, hav ing rendered no performance whatever thereunder, no penalty or forfeiture will be enforced against him; he will be required to do no more than to make the injured party whole by paying full compensatory damages. In like manner, a contractor who com mits a breach after he has rendered part performance must also make the injured party whole by payment of full compensatory damages. -
Punitive Damages: Recovery of Compensatory Damages As a Prerequisite: Tucker V
Marquette Law Review Volume 72 Article 5 Issue 4 Summer 1989 Punitive Damages: Recovery of Compensatory Damages as a Prerequisite: Tucker v. Marcus, 142 Wis. 2d 425, 418 N.W.2d 818 (1988) Joel H. Spitz Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Joel H. Spitz, Punitive Damages: Recovery of Compensatory Damages as a Prerequisite: Tucker v. Marcus, 142 Wis. 2d 425, 418 N.W.2d 818 (1988), 72 Marq. L. Rev. 609 (1989). Available at: http://scholarship.law.marquette.edu/mulr/vol72/iss4/5 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. NOTE PUNITIVE DAMAGES - Recovery of Compensatory Damages as a Pre- requisite - Tucker v. Marcus, 142 Wis. 2d 425, 418 N.W.2d 818 (1988) I. INTRODUCTION Should punitive damages be recoverable if a comparative negligence statute bars recovery of compensatory damages? In Tucker v. Marcus,I the Supreme Court of Wisconsin held that an award of $50,000 in punitive damages could not be awarded because Section 895.045 of the Wisconsin Statutes2 barred the recovery of compensatory damages. In so ruling, the court acknowledged that the recovery of compensatory damages is a prerequisite for punitive damages. 4 Pivotal to the court's deci- sion was its reliance on Hanson v. Valdivia 5 and Widemshek v. -
A Punitive Damages Overview: Functions, Problems and Reform
Volume 39 Issue 2 Article 3 1994 A Punitive Damages Overview: Functions, Problems and Reform David G. Owen Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the Legal Remedies Commons Recommended Citation David G. Owen, A Punitive Damages Overview: Functions, Problems and Reform, 39 Vill. L. Rev. 363 (1994). Available at: https://digitalcommons.law.villanova.edu/vlr/vol39/iss2/3 This Symposia is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Owen: A Punitive Damages Overview: Functions, Problems and Reform 1994] A PUNITIVE DAMAGES OVERVIEW: FUNCTIONS, PROBLEMS AND REFORM DAvD G. OWEN* TABLE OF CONTENTS I. NATURE AND SOURCES OF PUNITrVE DAMAGES .......... 364 A. General Principles .................................. 364 B. H istory ............................................ 368 C. Controversial Nature of Punitive Damages ............ 370 1. In General ..................................... 370 2. Tort Reform-Rhetoric and Reality ............... 371 II. FUNCrIONS OF PUNITVE DAMAGES ..................... 373 A. General Principles .................................. 373 B. Specific Functions................................... 374 1. Education ...................................... 374 2. Retribution ..................................... 375 3. Deterrence ..................................... -
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. -
Equity—Clean Hands Doctrine—Not Automatically Invoked Against Fraudulent Transferor
University of Arkansas at Little Rock Law Review Volume 6 Issue 4 Article 5 1983 Equity—Clean Hands Doctrine—Not Automatically Invoked against Fraudulent Transferor Rufus E. Wolff Follow this and additional works at: https://lawrepository.ualr.edu/lawreview Part of the Banking and Finance Law Commons Recommended Citation Rufus E. Wolff, Equity—Clean Hands Doctrine—Not Automatically Invoked against Fraudulent Transferor, 6 U. ARK. LITTLE ROCK L. REV. 559 (1983). Available at: https://lawrepository.ualr.edu/lawreview/vol6/iss4/5 This Note is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in University of Arkansas at Little Rock Law Review by an authorized editor of Bowen Law Repository: Scholarship & Archives. For more information, please contact [email protected]. EQUITY-CLEAN HANDS DOCTRINE-NOT AUTOMATICALLY IN- VOKED AGAINST FRAUDULENT TRANSFEROR-MACCUne v. Brown, 8 Ark. Ct. App. 51, 648 S.W.2d 811 (1983). On December 12, 1978, six hundred fifty gold Krugerrands, thirteen Mexican pesos and one double eagle gold piece were placed in a Little Rock bank in a safety deposit box leased to Billie Jean McCune, the defendant. W.G. Brown, the defendant's father, re- tained the keys to the box. On August 28, 1981, Mr. Brown filed a complaint in equity against his daughter seeking a temporary re- straining order to keep her from removing any of the contents of the safety deposit box. At trial Mr. Brown, who was involved in a di- vorce proceeding at the time of the transfer, admitted he had trans- ferred the gold to his daughter in an attempt to defeat his ex-wife's rights to the property. -
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.