Limiting Liability in Business Agreements | CLE Course

BarbriSFCourseDetails

Course Details

Course Information

smart_display Format
On-Demand
signal_cellular_alt Difficulty Level
work Practice Area
Commercial Law

Date & Time

event Date
Tuesday, October 4, 2022
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 advise counsel on how to structure deals to limit liability by focusing on contract clauses and financial restrictions or caps. The panel will discuss ways to include indemnification or liquidated damage provisions and how state contract laws may affect risk management.

Faculty

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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Joseph B. Allen

Member

Willcox & Savage, PC

Mr. Allen is a corporate transactional attorney who concentrates his practice on M&A transactions, private placement transactions (both as issuer’s counsel and as counsel to venture capital firms, family offices, and angel investors), corporate and LLC governance and reorganizations, joint venture transactions, and complex commercial transactions in the areas of software licensing, industrial equipment sales, and significant supply, reseller, and distribution agreements.

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Description

When business counsel begins working on a new agreement and assessing the risk, using a limitation of liability clause can be an effective tool to limit direct, indirect, consequential, special, and incidental damages in the event of a breach of contract claim. Establishing the restrictions on a limitation of liability provision may include terms that limit or exclude consequential damages unless the limitation or exclusion is unconscionable. For example, when contracts fall under the UCC, the limitation of consequential damages for a consumer's personal injury is subject to prima facie unconscionability.

Limitation of liability provisions generally cap damages at an amount agreed by the parties, the contract amount, or the parties' insurance limits. The clauses may exclude certain types of damages; the enforceability of exclusions may depend on the state law that governs that contract.

Courts routinely scrutinize limitation of liability provisions to ensure that they are not ambiguous, unconscionable, unfairly bargained for, or in violation of a state statute or public policy. Many courts disfavor contract provisions that limit a party's liability for gross negligence, fraud, intentional torts, or if the party seeking protection acted in bad faith.

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

Outline

Drafting considerations and best practices for limitation of liability clauses
Use of financial caps and liquidated damages to limit liability
Enforceability challenges with limitation of liability clauses
The intersection of limitation of liability clauses with indemnification provisions

Benefits

The panel will discuss these and other key issues:

What considerations should business counsel take into account when drafting and negotiating limitation of liability provisions in contracts?
How can financial caps and liquidated damages mitigate risks?
How do the UCC and state law affect limitations on liability in business agreements?
What enforceability challenges do parties commonly face when seeking to enforce a limitation of liability clause?
What is the interplay between limitation of liability clauses and indemnification provisions in business agreements?