Mitigating Supply Agreement Risks: Structuring Defense, Indemnity, and Insurance Provisions
Allocating Liability Between Manufacturers, Suppliers, and End Sellers; Maximizing Insurance Coverage for Losses
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Commercial Law
- event Date
Tuesday, December 5, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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This CLE course will provide guidance to counsel for manufacturers, suppliers, and end sellers on drafting and negotiating provisions in supply agreements that effectively allocate and mitigate risk, focusing specifically on defense, indemnity, and insurance clauses.
Mr. Fishman, an associate in the Business Litigation group, has broad litigation experience in both state and federal court in areas including commercial claims, product liability, class action defense, medical malpractice and insurance coverage. Prior to joining Thompson Hine, Mr. Fishman was an associate for a national insurance coverage firm and a nationally recognized litigation firm. While attending law school, he served as a judicial extern for Judge Eve Reilly of the Circuit Court of Cook County, Chancery Division.
Mr. Gordon focuses his practice on bankruptcy reorganization and litigation, creditors’ rights, loan restructuring and workouts, foreclosure, and commercial and real estate litigation. He represents lenders, corporations, creditors’ committees, trustees, individual creditors, lessors, lessees, debtors and landlords, both inside and outside of bankruptcy. Mr. Gordon has broad experience in federal, state and bankruptcy courts throughout the United States.
Mr. Ridings' practice encompasses government enforcement, internal investigations, and compliance matters, with a specific emphasis on international antitrust, product distribution, and anti-corruption issues. He has successfully tried numerous criminal and civil trials involving allegations of antitrust violations, corruption, and other competition-related matters.
Ms. Roach focuses her practice on litigating unfair competition, intellectual property, trade secret misappropriation, distribution and antitrust matters, and providing advice and guidance to clients concerning distribution, franchise, antitrust and unfair competition issues and the protection of intellectual property. She has trial experience in both federal and state courts, and has drafted numerous agreements related to product distribution in the United States and internationally.
Risk allocation and mitigation provisions are arguably the most important terms in supply agreements, yet the most challenging clauses to negotiate. Attorneys drafting defense, indemnity, and insurance provisions on behalf of manufacturers, suppliers, or end sellers must identify and evaluate all potential risks of the arrangement for their clients and clearly outline who will be responsible for any losses arising from such risks.
Common risks of supply agreements that should be specifically addressed in the risk allocation provisions include a party's breach of representations, warranties, or covenants; IP infringement; negligence or willful misconduct; liability for design errors vs. manufacturing errors; or failure to comply with federal or state laws and regulations.
When negotiating and structuring defense, indemnity, and insurance clauses in supply agreements, counsel must understand and anticipate potential statutory and insurance claim limitations, as well as the enforcement and procedural hurdles. Failure to do so may result in serious mistakes and unanticipated liabilities.
Listen as our panel of attorneys experienced in negotiating supply agreements discusses best practices for structuring defense, indemnity, and insurance provisions in contracts.
- Evaluating and drafting defense and indemnity provisions
- Reconciling indemnity obligations and insurance policies
- Potential enforcement and procedural hurdles
The panel will review these and other key issues:
- What specific risks should be addressed in the defense, indemnity, and insurance provisions of supply agreements?
- How have the courts' varying interpretations of indemnity provisions impacted parties' ability to shift liability in supply agreements?
- How can parties use insurance provisions to meet defense and indemnity obligations?
- What are the most commonly disputed issues during supply contract negotiations, and what are effective strategies for resolving them?
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