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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

  • work Practice Area

    Commercial Law

Date & Time
  • event Date

    Tuesday, March 14, 2023

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE course will focus on drafting force majeure clauses to address the issues and factors required by U.S. courts for enforcement and address the international reach and interpretation of what "superior force" may mean on a global level. The panel will guide counsel on the precise nature of the language needed, what constitutes unforeseeable, the causation between an event and nonperformance, and evidence that effects are so severe that an obligation cannot be performed.

Faculty

Joshua Wurtzel
Partner
Schlam Stone & Dolan LLP

Mr. Wurtzel’s practice focuses on high-stakes, complex commercial litigation and corporate governance disputes. He has successfully represented public and private companies and prominent individuals in both federal and state court. Through his focus on aggressive litigation and his ability to develop creative and novel solutions to complex disputes, Mr. Wurtzel brings a unique and out-of-the-box perspective to his clients’ most pressing legal needs.

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Nicholas J. Ellis
Partner
Foley & Lardner LLP

Mr. Ellis’ practice focuses on manufacturing and supply chain disputes, UCC, warranty claims, contract law, and business tort law. He also routinely counsels clients on a variety of commercial contract issues. He is a member of the firm’s Business Litigation & Dispute Resolution Practice and the Automotive Industry Team. Mr. Ellis has experience litigating disputes in state and federal courts on a wide range of matters, including warranty claims, breach of contract, tortious interference, misappropriation of trade secrets, breach of non-compete agreements, and other complex commercial disputes.

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Neil C. Schur
Shareholder, Co-Chair Antitrust and Unfair Competition Group
Anderson Kill

Mr. Schur represents clients in litigation involving contracts, fraud, antitrust and unfair competition, the Sherman Act, the Robinson-Patman Act, the Lanham Act, and the False Claims Act.  He has substantial experience in antitrust and unfair competition matters, franchise litigation and environmental litigation. Mr. Schur also has considerable experience counseling clients regarding a variety of antitrust compliance issues, such as appropriate pricing policies. He has substantial experience representing the financial services industry, having represented several banks and a lender in various matters, including lender liability, derivative actions and class actions. Mr. Schur has recently spoken or written on non-compete clauses, force majeure clauses, non-disclosure agreements, confidentiality, trade secrets, mechanic’s liens, and the FTC chair’s efforts to rein in Big Tech via federal antitrust law.

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Description

As the global economy faces unforeseeable times with future catastrophes, many businesses risk potentially defaulting on contractual obligations. Companies are looking more closely at the force majeure clause, a boilerplate feature of most agreements, to mitigate some liability. Although not often negotiated or considered by counsel, force majeure provisions provide an affirmative defense to default. However, especially post-COVID, businesses must no longer ignore the potential applicability of force majeure to commercial agreements.

Amid the current economic uncertainty, businesses must determine whether circumstances presented by a potential catastrophe meet the legal requirements of force majeure and that such provisions are sufficiently specific to be enforceable. For a party to invoke the clause, the event must be unforeseeable. Boilerplate agreement language often includes a laundry list of events defining an "act of God," but a court may or may not agree that a specific catastrophe is a covered event. Further, enforcement of a force majeure clause requires that the company prove that the force majeure event defined in the contract caused a party's inability to perform a contract obligation.

Force majeure enforcement is also highly contingent on the country of implementation and often the impact of the catastrophe on a region's supply chain and workforce. China and the European Union use varying definitions for enforcement, and anticipating issues that may arise in a default informs counsel on how to draft the optimal provision to protect a business from future catastrophic losses.

Listen as our expert panel provides practical advice on drafting a precise and enforceable force majeure provision so counsel may save their clients from unforeseen circumstances upon the next global emergency.

Outline

  1. Elements of force majeure
    1. Unforeseeable
    2. Causation
    3. Definitions of acts of God
    4. Severity of event
  2. Prior global force majeure events and court decisions
  3. Global enforcement
    1. China
    2. European Union

Benefits

The panel will review these and other key issues:

  • What are the necessary elements of force majeure provisions?
  • How might the definition of unforeseeable impact enforcement?
  • How is the nexus between the inability to perform and the force majeure event determined?
  • How does global enforcement of force majeure provisions vary in China and the European Union?
  • How do courts interpret the wording of force majeure clauses and what arguments have been most successful for those seeking to enforce force majeure clauses, especially in a post-COVID world?