- videocam On-Demand
- signal_cellular_alt Intermediate
- card_travel Commercial Law
- schedule 90 minutes
Supply Chain Disruptions: Drafting Contract Clauses to Mitigate Risks, Navigate a Breach, Avoid Litigation
Drafting Tips for Force Majeure, Reps and Warranties, and Foreseeability Provisions; Seeking Injunctive Relief
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Description
Supply chains continue to be disrupted worldwide, requiring many companies to adjust operations and their business. Although companies are seeking commercial solutions to supply chain issues, litigation has been relatively subdued because companies recognize that there is little to gain from litigation when they are still dependent on the same suppliers for restocking and to stay in business. However, companies are reevaluating their contractual rights and defenses in anticipation of future litigation.
When a supply contract specifies delivery dates and quantities and includes fixed prices or notes that "time is of the essence," strict compliance with the terms is typically required and failure to comply constitutes a breach. However, if the parties have routinely permitted partial shipments or delayed shipments, or if the agreement allows for these variances, the course of performance or terms may not require strict compliance. Thus, a breach of contract action may not be viable. For these reasons, contracting parties should consider the specific terms of their contract and the historical performance when evaluating a breach of contract action.
Force majeure is typically found in supply contracts, but the details of this provision vary widely. Courts generally construe force majeure provisions narrowly. General phrases in a force majeure provision, including "other similar events or causes," will be confined to things of the same kind or nature as the particular matters mentioned. Typically, performance must be impossible and economic hardship is generally insufficient. Thus, counsel should take care and be as precise as possible when drafting force majeure clauses to ensure an enforceable defense in the event litigation ensues.
If a contract does not contain a force majeure provision or does not include events that may result in a breach, the UCC's doctrine of commercial impracticability (UCC 2-615) and/or the common law can excuse performance under the defenses of impossibility or frustration of purpose. However, in some jurisdictions, the existence of a force majeure provision could render the invocation of impracticability, impossibility, or frustration of purpose more difficult.
Listen as our expert panel discusses when a company suffering from a supply chain breakdown should bring a lawsuit. The panel will also discuss when it is in the best interests of the parties to work together to find reasonable solutions to address supply chain disruptions and how the parties can navigate resulting contractual breaches while also protecting their interests.
Presented By

Ms. Chandler has experience representing companies in complex litigation, including commercial and breach of contract disputes, municipal finance, and supply chain matters. She served as an intern in the U.S. Department of State in the Legislative Affairs Bureau, where she analyzed legislation from Congress regarding impact on state operations and compliance with the administration’s foreign policy.

Ms. Miller is a litigation partner with Foley & Lardner LLP and Chair of the firm’s national Automotive Team, as well as on the advisory committee of the firm’s Manufacturing Sector. She served as a former chair of the Detroit office’s Litigation Department. Ms. Miller's practice focuses on a wide array of supply chain disputes, including breach of contract and warranty claims, automotive supply chain issues and maintaining continuity of supply, defending manufacturers against class actions, trade secret misappropriation claims and business torts. Recognized as a nationally ranked top lawyer by Chambers for Transportation: Road (Automotive) for the past two years, showcasing her deep expertise and leadership in the field.
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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Live Online
On Demand
Date + Time
- event
Tuesday, April 2, 2024
- schedule
1:00 p.m. ET./10:00 a.m. PT
Outline
- Supply chain disruptions
- Claims
- Timing failures
- Defenses
- Force majeure
- Claims
- Trends in litigation
- Commercial considerations for alternatives to litigation
Benefits
The panel will discuss these and other relevant topics:
- What are the recent trends in supply chain litigation?
- What should supply chain contracts include regarding the timing of deliverables in light of global or other disruptions?
- How can a force majeure provision be drafted to provide an enforceable defense?
- When should companies abandon commercial negotiations and pursue litigation when suppliers default?
- What are the latest trends in relation to ESG and supply chain risk management?
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Force Majeure, Indemnity, and Warranty Clauses: Drafting Against New Risks
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