The U.S. Supreme court issued its opinion in AT&T Mobility v. Concepcion yesterday. The Court held that California’s Discover Bank rule is preempted by the Federal Arbitration Act. The Discover Bank rule states that a class action waiver in an arbitration agreement is unconscionable and should not be enforced
Let’s face it, no one reads online terms and conditions. Admit it, you don’t read them either. I know you don’t, because I don’t. And I read user’s manuals (and file them). I never quit a book until I’m finished, no matter how bad the book is. I read the dust jacket, copyright page, table of contents, preface, introduction, footnotes and endnotes, bibliography, and often well into the index. And God help me if the first volume of a trilogy is a dud.
But I’m not likely to spend half an hour slogging through terms and conditions when I’m downloading software, paying my credit card bill, buying something on Amazon, or signing up for a social media service. But maybe I should…. [continue reading…]
What do the AP Stylebook, Chicago Manual of Style, and MLA Style Manual have in common? They all recommend using a single space after a period. I’m with them, although I wouldn’t get worked up about it.
Farhad Manjoo’s with them too, but he does get worked up about it. He doesn’t mince words in this Slate article in which he writes, “Typing two spaces after a period is totally, completely, utterly, and inarguably wrong.” He’s clearly not a fan of the “two spacers.” [continue reading…]
Be careful about informal communications with counterparties to your contracts. That’s the key lesson from a case decided by a federal court in Florida last month. In CX Digital Media, Inc. v. Smoking Everywhere, Inc., the court held that a short, informal instant message exchange between two parties to a contract modified the contract—to the tune of about $1.5 million. And the contract contained a provision that required changes to be made in writing.
Smoking Solutions and CX Digital had entered into a written contract. [continue reading…]
To compare Koncision’s launch of its first product to humanity’s first steps on the moon would be a bit of hyperbole to be sure, but Koncision does represent a major step toward rationalizing the provision of legal services.
Koncision is a web-based application that combines the power of document assembly with high-quality contract templates. [continue reading…]
To be afforded protection as a trade secret, confidential information must satisfy three criteria:
Don’t be tripped up by the last item by neglecting to use reasonable precautions to protect your valuable information.
There’s such a good discussion bouncing around a few law blogs that I couldn’t resist a quick post on a non-contracts topic. Toby Brown, one of the “geeks” at 3 Geeks and a Law Blog, and Ron Friedmann, the writer of the Strategic Legal Technology blog, started the discussion Tuesday with this post, which appears on both blogs. Mary Abraham chimed in with this post at the Above and Beyond KM blog, and Stephen B. Levy contributed to the discussion with this post at the Lexician blog. More good discussion is sure to come.
In this post on his Commitment Matters blog, Tim Cummins of the International Association for Contract & Commercial Management (IACCM) writes that “we must stop allowing the contract to be used primarily as a vehicle for protecting against the consequences of failure and start to use it equally as a tool for reducing the probability of failure.” Cummins advocates (in this post and others) using the contracting process to ensure a good fit with customers and suppliers, as well as using contract terms to promote collaboration between the parties in the course of their business relationship. I think such an approach would also require more collaboration between legal and their business clients. What do you think? Should contracts be viewed as a tool for collaboration?
The AP Style Guide changed its preferred spelling of the abbreviated form of electronic mail to email (without the hyphen) over the weekend. This is an example of the tendency of language to become more simple over time. Languages are living after all, and rules of style and usage change along with the cultures they are a part of.
The change to email made me wonder whether one of the most common grammatical mistakes I see in well-written contracts is not an error, but rather an evolutionary change of the language. So, I wonder, is it still proper to use a possessive with a gerund? [continue reading…]
I’ve been asked on occasion whether a company can post its standard terms and conditions online and incorporate them into their contracts by inserting a reference in each contract to the online terms. The answer in many cases is yes, but there are some issues to navigate. This excellent article, which appeared in the April 2010 newsletter of the Business Law Section of the North Carolina Bar Association contains an overview of the issues involved, as well as some helpful recommendations.
