Contract DraftingClass 7 University of Houston Law Center Feb. 8, 2011 D. C. Toedt III
Today’s class Coming soon …. In the news Passive voice exercise Letters of intent / prenegotiationagreements Confidentiality agreements (“NDAs”) (if time permits)
In the news: “Material” contract? Might have to be filed w/ SEC, available on EDGAR News commentator is asked “will it work?” How should he respond if he thinks “no!”?
In the news: Link: SCOTUSBlog U.S. cancels contract, demands $1.3B refund Contractors sue to rescind cancelation, saying it’s the Government’s fault U.S. invokes state-secrets doctrine to withhold evidence of (alleged) Govt. mismanagement Q: Should contractors have negotiated specific contract provisions for state secrets?
In the news: Link: OpinionBlog Jose Cuervo settles “crow” trademark lawsuit by Jim Beam JC breaches settle-ment agreement; JB sues JC says, it’s not a material breach Court: Tough - damages anyway
Passive voice exercise • Instructions: • Download the Word document • Do #1, 2 (others will come later) • After the exercise, I will provide a link to the article from which these examples were taken.
Passive voice exercise 1. There is a considerable range of expertise demonstrated by the spam senders.
Passive voice exercise 2. It was determined by the committee that the report was inconclusive.
Letter of intent overview Purpose – use them? Or not? Is there a more-accurate name? Binding or nonbinding? What parts? EXERCISE: Brainstorm points to consider covering, then draft key language REVIEW actual sample (DCT to show)
Defined term: Business discretion “IF: This Agreement commits a decision, determination, or action to a person's business discretion; THEN: That decision, determination, or action may be taken in the person's sole and unfettered discretion, with a mind solely to the person's own wishes and not those of any other person, and without reference to any putative standard of reasonableness, good faith, or fair dealing.”
Confidentiality agreements Ubiquitous Dangerous – Celeritas v. Rockwell
Celeritas v. Rockwell NDA had a marking requirement, but jury didn’t seem to care Video deposition excerpts were deadly Trial counsel got fired afterwards Appeals court reversed and rendered the patent verdict, but upheld the trade secret verdict - $57 million
Celeritas v. Rockwell “Significantly, Rockwell did not independently develop its own de-emphasis technology, but instead assigned the same engineers who had learned of Celeritas's technology under the NDA to work on the de-emphasis development project.”