From the category archives:

Marketing Dept

Six tips for negotiating best-efforts obligations

March 29, 2010

A former colleague asked whether it was common for companies to agree to a requirement that they use their “best efforts” to do X. I’ve never been wild about that kind of obligation, because they’re inherently risky. The obligated party might well think it has made its best efforts. But in litigation, it usually wouldn’t [...]

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Clients seem to like Webcam video conferences, with on-line document sharing, better than traditional on-site meetings

March 20, 2010

A while back I started doing video conferencing with tech-savvy clients, and I’ve noticed that they like it a lot better than on-site meetings. We’ll do Webcam video conferencing — on short notice, for two minutes or two hours, with no travel time — using free video services from Skype or MSN Messenger or Google or Yahoo. [...]

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An acquirer of technology assets in an earn-out transaction may have a duty to make reasonable efforts to promote the technology – 1st Circuit

November 3, 2009

A federal appeals court has ruled that, at least under Massachusetts law, a company that acquired another company’s technology assets, for cash plus an earn-out, was obligated to use reasonable efforts to promote the tech­nology, so that the seller would have a shot at the earn-out payments. See this Law.com article about the First Circuit’s [...]

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Having the contractual right to exercise tight control over the other party’s business can make you vicariously liable for its misdeeds – article

November 3, 2009

“[A] recent California case delivered a blow to a tax preparation franchisor, finding the franchisor liable for its franchisees’ deceptive advertising and related activities.” Vicarious Liability Risks Continue, by Kimberly L. Sikora Panza and Robert A. Smith (Oct. 29, 2009, accessed Nov. 3, 2009).

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RFP responses: Five legal points to include (though Procurement’s nose may get out of joint)

September 22, 2009

Smart vendors are judicious about investing time and resources in a response to a request for proposal (“RFP”) before they know whether they’re a serious candidate for the business. With that in mind, here’s a “canned” preliminary legal response that I’ve found useful for vendor clients to attach to RFP responses. Feel free to edit [...]

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RFP provisions that hurt, not help, the customer

September 22, 2009

I stumbled upon a request for proposal (“RFP”) containing provisions that pretty much always increase the time, cost, and difficulty of getting a contract to signature, for both buyer and seller. Here are a few examples (all emphasis is mine). RFP language: The basic Contract is attached to this RFP as Exhibit A. The boilerplate [...]

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Expedia ordered to pay $184 million in class-action damages: its terms of service said that its (profitable) service fee “goes to covering costs”

July 13, 2009

See this Loeb & Loeb memo. (Hat tip: Lexology)

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Inadequate consumer opt-in language could cost Simon & Schuster $100 million in class-action damages for text-message advertising campaign

July 10, 2009

Here’s an object lesson about the importance of double-checking the consumer opt-in language before committing to a big spam-type marketing campaign.

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Letters of intent: their highest and best use is disavowing a binding contract

June 30, 2009

A letter of intent — aka an LOI, sometimes known as a memorandum of understanding or MOU — is the equivalent of comfort food; it’s something you can show your boss to reassure her that the transaction you’re supposed to make happen is moving forward. The most useful function of a letter of intent, though – arguably [...]

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Amazon.com drops marketing affiliates in NC, RI to avoid having to collect sales tax – good thing they had a termination-at-will clause in their contract

June 30, 2009

Amazon.com is dropping its online marketing affiliates in North Carolina and Rhode Island.  It did so to avoid having to deal with recent sales-tax legislation in Rhode Island and North Carolina. These bills would require Amazon and other companies to collect sales tax for in-state sales if they had any online marketing affiliates in the [...]

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Netflix Prize contest rules – a crowdsourcing drafting resource

June 27, 2009

A multinational team claims to have qualified for Netflix’s $1 million prize for coming up with an improved algorithm for recommending specific movie rentals to subscribers. The contest is a real bargain for Netflix:  it gets thousands of contestants doing free R&D work for them (not to mention the free publicity associated with the contest), [...]

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