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This article shares a chapter of a compendium being compiled of common terms in various types of contracts. The chapter so shared focuses on confidentiality provisions in contracts and details common specifications for marking confidential...
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Representations and warranties is the common name of a section found in most business contracts wherein the parties make various assertions. To contract neophytes, the meanings of the individual assertions in one of these sections (a...
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When selling your business, why would you, as the seller, want to expressly promise not to compete with the business you just sold for some time after the sale? As this article points out, courts operating under New York law have, absent an...
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This article concerns the enforceability of specific terms contained in Facebook's Terms of Service--in particular, the requirement that Facebook users agree not to use trademarks held by the social media giant, such as the term "book." ...
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This article reviews a recent trend among some employers which represents an extremely bad idea--monitoring prospective employees' social media accounts. The article paints a vivid picture of a hiring manager looking over a would-be employee's...
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Some courts, some of the time, will refuse to enforce a contract. This happens for a number of reasons. This article reviews a recent decision by New York's highest court which examines how to absolve a service provider from its own gross...
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When people who share a business or profession start to throw around terms or acronyms common to what they do, it can sound like gibberish to a third party listening to that conversation. This article addresses one misunderstanding some...
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This article reviews the denouement of an oil development venture gone bad. After the oil find was not as extensive as several parties thought, the purchaser of the oil and gas rights central to the agreements filed a number of lawsuits. ...
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This article notes a trap for the unwary when drafting contracts. Two common contractual provisions are unilateral amendment clauses, which allow one party to unilaterally amend the contract by giving the other party written notice, and...
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An important purpose of a contract is to memorialize the terms of the parties' agreement so that, should a dispute arise, a court can then enforce the original bargain contemplated by the parties. Of course, it's much more difficult to...
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The modern trend in contract drafting is to try to write contracts in plain, readable English, as opposed to legalese. This (satirical) article attempts to argue against the plain English style of drafting, and lists (tongue firmly in cheek)...
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Patent trolling is one risk innovative companies face; even seemingly meritless claims can lead to the costs and headaches of protracted litigation. However, there are risks, even for patent trolls. This article details one such risk,...
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Expert testimony is a part of most trials, and is strictly governed by procedural rules, and judges administering those procedural rules. This article calls attention to a recent case, heard on appeal, which demonstrates that judges do not...
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Software developers and other consultants have a contractual relationship with their customers; this means that the parties' duties to each other are (mostly) specified by the contract(s) between the applicable parties. This article provides a...
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Judge Richard Posner is one of the most well-known judges in the nation; he has been a fixture on the Seventh Circuit Court of Appeals for almost three decades, and is one of the most prominent legal scholars of his (or most any) generation. ...
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This article reviews a recent patent infringement suit filed by a supplier against Home Depot. As the article recounts, the supplier developed a unique saw guard for Home Depot to protect its employees. Home Depot didn't like the prices...
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The US Constitution has rules about where residents of a state can and cannot be sued. This is important, as having to defend oneself in a different state is more expensive, and can influence the result of the litigation. Courts look at...
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No business likes losing a dispute, whether that dispute is a result of private litigation, governmental action, or even (maybe especially) a business dispute over a key market. This article explains one of the downsides to settling disputes,...
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The attorney-client privilege protects certain documents from discovery in the event of litigation. However, the attorney-client privilege is waived (usually) forever if a document is made public. This article points out an instance where...
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One of the most basic rules of antitrust law is that price fixing is per se illegal. Because the statutes at the root of antitrust law make such violations criminal, price fixing can land you in jail. This article provides a handful of...
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You are about to agree to sell your business and discover a new piece of information which significantly impacts your business's prospects going forward. The acquirer doesn't know about this information; should you tell them? Are you...
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This article explains how a negotiation in a non-disclosure agreement over terms relating to forced disclosure to the government might go. It shows how each side, in looking to protect itself from possible future events, alters the terms of the...
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D. C. Toedt posted his current Attorney-Client Engagement Agreement to his blog. Some provisions will, of course, be updated, but this gives you a great insight into how Mr. Toedt handles both billing and his end of the attorney-client...
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Many lawyers (including those on FizzLaw) will tell you that one of the best ways for you to reduce your legal expenses is to make your lawyer's job easier. D. C. Toedt provides nine ways you can do just that in this blog post, including three...
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Limited personal liability is a major appeal of the corporate form to entrepreneurs. However, entrepreneurs must be careful to maintain the corporate shield. In this blog post, D. C. Toedt notes that something as simple as the way they...
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D. C. Toedt recognizes that superior knowledge and negotiating ability is an advantage in a negotiation, but in this article, he provides three reasons why giving up these advantages could be a superior long-term move for your company. It's...
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In this blog post, D. C. Toedt notes how easily business discussions can give way to claims of misuse of confidential information, and explains how a short paragraph inserted into relevant e-mails can protect your business from claims of misuse of...
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The Toyota "5 Whys" technique is used in business circles to get to the heart of an issue. Basically, when confronted with a statement/problem/issue, the technique advises you to ask "why does this matter?" five times. In this blog post,...
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As D. C. Toedt notes in this blog post, disclaimers in negotiation e-mails can be very important. In a recent case in the United Kingdom, one party walked away from negotiations after agreeing on the final term--price. The UK Court...
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D. C. Toedt notes that one of the most difficult tasks when filing a patent application is getting the lawyer to understand the invention which will be the subject of the patent application. In this blog post, Mr. Toedt details an approach...
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This article describes a structured-interview technique in which an inventor and I can write a complete draft patent application in a single, intensely-focused day. We start by sketching one or more resource-flow diagrams that...