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Legal Waypoints

Seller Beware – measure twice cut once

Are you thinking of selling your business?  Has another company asked you if you want to sell?  Before getting deep into the sale process it is worth taking some time to plan ahead.  Understanding the due diligence process is one key to a successful transaction.

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RELEASE THE DRONES – Commercial UAVs Take-Off

The Federal Aviation Administration (FAA) moved quickly to appeal an unexpected decision that opens a legal window you can fly a commercial drone through.  It seems the FAAs historical accommodation for hobby model aircraft has aligned with the lack of regulations for the commercial use of Unmanned Aerial Vehicles (UAVs) to free the drones – at least for a while.

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Employee Non-Compete – Teeth hold in Massachusetts

An employee who signed four non-compete and non-solicitation agreements as part of his employment and promotion over a six-year period could not escape the strong hold of a one-year non-compete requirement.  This result held in favor of the employer in both the initial Superior Court action by the company to enforce the non-compete with a preliminary injunction as well as on appeal by the employee to the Commonwealth of Massachusetts Appeals Court.  For the employee, the result prevents him from being able to take the new job – this despite having already resigned from the employer with whom he is bound by the non-compete.  For the employer, the result preserves the one-year non-compete period – thus limiting the potential loss of confidential information and/or improper use of “goodwill” belonging to the company.

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Unmanned Aerial Vehicles – tech outpaces law

Nearly a day goes by without a news story about aerial drones performing extraordinary feats of skill as they buzz overhead from place to place.  Whether it’s delivery of medicine to remote locations, inspecting hard to access bridges or assisting first responders in emergencies, the manufacturers of unmanned aerial vehicles (UAVs) are turning concepts into reality.  Commercialization of UAV technology is not a pie in the sky promise for some future decade.  The technology is here today and poised for take-off.  That is as soon as the UAV industry and the FAA get a grip on the wide array of concerns that are keeping commercial UAVs from taking flight.

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New Year – click refresh on contract forms

How long has it been since you have had a hard look at your standard contract forms?  Have you really considered your commercial terms in light of their use in practice?  When was the last time you assessed the implications of recent case law or changes in state and federal regulations? Are your current insurance coverages and limits reflected in your documents?

With the new calendar year, review and refresh your contract forms and templates; particularly if it has been several years since a fresh, independent read of your working forms. Read more

Contracts – Elements and Formation

A contract is simply an agreement between two or more persons to do or not to do a particular thing. However, as with most legal concepts the devil is in the details.

In most jurisdictions a contract is enforceable if it contains four basic elements:

(1)   competent parties;

(2)  proper subject matter;

(3)  offer and acceptance; and

(4)  consideration.

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Maintenance Responsibility – Case Study

Aircraft operators are generally familiar with the requirements for “scheduled” or “depot” maintenance on their airframe and engine(s).  Technical requirements are in production approval holder and original equipment manufacturer maintenance manuals; operator compliance helps ensure continued airworthiness under Federal Aviation Administration (FAA) regulations.

“Day-to-day” or “routine” maintenance is another side to the airworthiness coin.  It is widely accepted that these activities will be performed by FAA-certificated mechanics pursuant to the latest maintenance manuals and accepted industry practices.  The mechanics may be employed directly by the operator or by another maintenance provider.  In either event, certificated entities are very familiar with their responsibilities to the FAA for performing and recording maintenance properly no matter the title used for the particular activity.

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Limitation of Liability – Delaware Case Study

Limitation of liability provisions are a common tool for managing risk in contracts for services.  The basis for the concept is simple economics.  In many industries outsourcing work creates a risk management dilemma for both the client and the service provider.  Often the economic risks associated with a service provider’s error, or a bad result, far exceed the fee paid by the client for the work.  To manage the liability associated with this exposure many service providers seek to limit their liability to the amounts paid to them for their service (or even a fraction of that amount more closely associated with their potential profit margin).

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Deposition – 10 Tips for being a Good Witness

Being deposed in a legal proceeding is a modern day rite of passage.  Sooner or later you will likely be called to testify under oath on behalf of your business or as a third-party witness.  Experienced litigators often say: “You can’t win a case at a deposition, but you can lose one.”  To avoid a bad result under oath you must prepare. 

Here are some simple tips for being a good witness:

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Authority to Bind – “You did what?”

“IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their officers or duly authorized representatives.”

Usually, just above the signature block of most contracts, this short representation doesn’t get much attention.  So, just who are these officers and duly authorized representatives?  Do they actually have the ability to legally bind their company?  Are they acting within their authority?

We exercise our understanding of authority on a daily basis.  In our personal lives, for example, we sign a check for a purchase or authorize a medical provider to access our private health information.  Likewise, most married folks check in with their spouse before committing to a “big” purchase or bringing home a new puppy.  The failure to do so can result in the “you did what?” conversation –  it’s generally better to avoid this result.

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