Every Contract is a Litigation Waiting to Happen

Monday, May 13, 2019 | 6:00 p.m. – 8:15 p.m.


Program Co-Chairs:
Bart Breinin
Paul Ellis Law Group LLC
Jack Lerner
Vice President, Corporate Counsel
Prudential Financial Inc.

  • Agreements form the basis of nearly everything Transactional lawyers do. From vendor arrangements to asset purchases to non-compete agreements, contracts are essential to almost every practice area. Commercial lawyers who draft contracts tend to be primarily aware only of the business interests contemplated by the contract. But another essential part of contract drafting, sometimes overlooked, is the need to minimize the likelihood of future disputes, or at least be positioned if a dispute is unavoidable. Commercial lawyers, in drafting agreements, need to fully understand all facets of the deal, conceptualize those areas where problems/disputes could arise down the road, and preemptively address these potential situations through their drafting skills. In this CLE, the faculty will discuss key contract “anti-litigation” drafting principles. The first half of the program will focus on various considerations to take into account when drafting mergers and acquisitions transactions. During the second half, the panel will provide tips on drafting standard contract clauses to mitigate future litigation.

    Live Program & Webcast: $199 for Members | $299 for Nonmembers
    In-House Counsel: Free for Members | $219 for Nonmembers

    Members who are Recent Law Graduates, Newly Admitted Lawyers (admitted for the first time in any state or country 2017-2019), In-House/Corporate Counsel, Judges (and their staff who are also members), or attorneys that practice within the Government, Academic or Not-for-Profit sectors attend this program for free.


  • David Caplan
    Partner & General Counsel
    Adrienne K. Eason-Wheatley
    Managing Counsel
    The Bank of New York Mellon
    Paul Ellis
    Managing Partner
    Paul Ellis Law Group LLC
    Maria D. Melendez
    Sidley Austin LLP
    David W. Pollak
    Managing Partner
    Morgan, Lewis & Bockius LLP
    Hon. Edgardo Ramos
    US District Court (SDNY)
    Helen Reeves


  • 6:00 p.m. – 6:05 p.m. Introduction & Program Overview
    Bart Breinin & Jack Lerner
    Litigating Contract Disputes– Recent Case Law & Pointers for Transactional Attorneys
    Panel Chair: Jack Lerner
    Panelists: Adrienne K. Eason-Wheatley, Maria D. Melendez & Hon. Edgardo Ramos
    6:05 p.m. – 6:20 p.m. Ambiguity and Vagueness
    • Risks and advantages of ambiguity
    • Special issues with on-line contracts
    • Proving meaning
    • A few practical tips
    6:20 p.m. – 6:45 p.m. Clauses Anticipating Dispute Resolution
    • Choice of Law
    • Fee-shifting Provisions
    • Forum and Venue
    • Waiver of Jury Trial
    • Alternative Dispute Resolution provisions
    6:45 p.m. – 7:00 p.m. In-House Lawyer as Negotiator – Protecting the Attorney-Client Privilege: Recent Case Law and Pointers for Transactional Attorneys
    7:00 p.m. – 7:05 p.m. Question & Answer Session
    7:05 p.m. – 7:10 p.m. Break
    Avoiding Potential Disputes – Considerations for M&A Transactions
    Panel Chair: Bart Breinin
    Panelists: David Caplan, Paul Ellis, David W. Pollak & Helen Reeves
    7:10 p.m. – 7:20 p.m. Asset Sales
    • Defining the Assets (assigned and excluded)
    • Defining the Liabilities (assumed and excluded)
    7:20 p.m. – 7:35 p.m. Defining the Key Terms for Non-Competition Covenants
    • Restricted Parties
    • Business
    • Restricted Period and Geography
    • Specify Competitors?
    7:35 p.m. – 8:05 p.m. Some Key Indemnification Provisions
    • Indemnifying and Indemnified Parties
    • Joint versus Several?
    • Losses (Consequential? Diminution in value?)
    • Materiality Read-out?
    • Limitations (Fundamental vs Other Reps and Warranties? Survival period?)
    • Escrow or Holdback?
    • Exclusive Remedies?
    • Obligation to Mitigate?
    • Payments net of Collections (e.g. Insurance, Tax)?
    • Anti-Sandbagging?
    • Fraud exception
    • Private equity alternative to indemnification: reps and warranties insurance
    8:05 p.m. – 8:10 p.m. Letters of Intent – Binding or Not?
    8:10 p.m. – 8:15 p.m. Question & Answer Session


  • CLE Credit
    New York:
    2.5 Skills
    New Jersey:
     2.6 General
     2.5 Skills
     2.0 General


  • Sponsoring Association Committees:
    In-House Counsel | Jack Lerner & Daniel K. Wiig, Co-Chairs

    Sponsorship Opportunities are Available! Please Contact:
    Angie Avila, Manager, Membership Outreach and Sponsorships | (212) 382-6608 | aavila@nycbar.org