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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, January 31, 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 webinar will guide business counsel to draft and negotiate appropriate limitation of liability (LOL) clauses in business contracts. The panel will discuss critical considerations when crafting the provisions, enforceability challenges, the interplay of LOL clauses with indemnification provisions, and the use of conditions that must be met for the limitation to be enforceable.

Faculty

David Fowler Johnson
Managing Shareholder/Fort Worth Office
Winstead PC

Mr. Johnson is widely recognized as one of the go-to fiduciary litigators in Texas. His practice focuses on trust, estate, and closely-held business disputes. A frequent writer and speaker, David is known around the state as a thought leader in the fiduciary area. Mr. Johnson’s experience in trust and estate disputes includes will contests, elder abuse, mental competency, undue influence, trust modification/reformation/clarification, breach of fiduciary duty and related claims. Additionally, he has a transactional practice for trust departments in providing legal opinions on the construction of trust documents, documenting release and consent agreements, resignations, successor appointments, modification of trusts, trust mergers, trust severances, etc.

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Zachary S. Davis
Attorney
Stoel Rives LLP

Mr. Davis is an experienced construction and design attorney who advises clients in a broad spectrum of legal matters, with specific emphasis on resolving complex commercial disputes. He employs a proactive approach in assisting clients in developing pre-litigation and litigation avoidance strategies. Mr. Davis’ clients have included corporations, business owners and entrepreneurs in the construction, real estate, technology, hospitality, telecommunications, financial services and insurance industries. As a member of firm’s Construction and Design practice group, he has significant experience drafting and negotiating project agreements. Mr. Davis also advises clients as issues arise during the course of a project and has successfully resolved disputes in multiple forums, including mediation, arbitration and litigation.

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Description

The LOL clause can operate to limit a company's direct, indirect, consequential, special, and incidental damages in the event of a claim arising out of the company's contractual relationship. LOL provisions may cap damages at either an amount agreed upon by the parties, the contract amount, or the parties' insurance coverage limits. The clauses may also expressly exclude certain types of damages.

Courts routinely scrutinize LOL provisions to ensure that they are not ambiguous, unconscionable, unfairly negotiated for, or in violation of a state statute or public policy. LOL clauses that were not explicitly drafted or fairly negotiated may be held unenforceable. Likewise, enforcing LOL clauses when the performing party does not maintain its insurance or meet other conditions can result in unintended (and harsh) results.

Listen as our authoritative panel explains best practices for drafting and negotiating LOL provisions in business agreements. The panel will provide strategies for avoiding common negotiation pitfalls, anticipating and overcoming enforcement hurdles, and reconciling LOL provisions with indemnification clauses.

Outline

  1. Drafting considerations and best practices for LOL clauses
  2. Enforceability challenges with LOL clauses
  3. The interplay of LOL clauses with indemnification provisions
  4. Tying enforcement of LOLs to key performance conditions

Benefits

The panel will review these and other high priority issues:

  • What should business counsel consider when drafting and negotiating LOL provisions in contracts?
  • What are the enforceability challenges for parties seeking to invoke a LOL clause?
  • What is the interplay between LOL clauses and indemnification provisions in business agreements?