Litigating Indemnification and Representations and Warranty Provisions in Commercial Litigation

Indemnification and representation and warranty provisions are included in most commercial contracts, including sales agreements, leases, lending agreements, software licenses, construction contracts, and M&A agreements. Imprecise terms and definitions in contracts create enforcement challenges, particularly in the area of indemnities and representations and warranties.

With respect to indemnification provisions, many courts apply narrow construction regarding aspects of these provisions. Other enforcement challenges are ambiguity in the contract terms and indemnification for an indemnitee’s negligence.

Representations, warranties, and covenants allow the parties to disclose and explain specific transactional risks and future performance expectations and may give them an opportunity to exit the contract under certain circumstances. While these concepts and terms are sometimes (mistakenly) used interchangeably, there are significant differences in how they are treated under controlling law that can greatly impact whether and when a party has the ability to successfully state a claim for breach and what remedies may be available.

Listen as our authoritative panel of attorneys explains best practices for litigating indemnification and representations and warranty provisions in commercial contracts. The panel will discuss general principles underlying these contractual agreements and the challenges facing litigators.

1. Principles of indemnification and the duty to defend
2. Principles of representation and warranties
3. Litigation issues and challenges
   1. Statutes of limitations
   2. Choice of law provisions
   3. Contractual ambiguities
   4. Indemnification for an indemnitee’s negligence
   5. Exculpatory/limitation of liability provisions
   6. Implied/equitable indemnification
   7. Attorneys’ fees

The panel will review these and other key issues:

• How have the courts’ varying interpretations of indemnification provisions impacted parties’ ability to shift liability in commercial contracts?
• What enforceability challenges do parties commonly face when seeking to make an indemnification claim?
• What are the most commonly disputed issues in alleged breach of reps and warranties claims?
• What are best practices for litigating indemnification and reps and warranties provisions?