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Privileged Cybersecurity Investigations – A Checklist for Contracting with Consultants

October 2, 2020

Your company may suffer a cybersecurity incident that warrants bringing in third-party forensics or other consultants to investigate and report on the cause or consequences of the cyber event or compromise. To seek to protect the third parties’ reports with the work product privilege (and, thus, to avoid having to disclose the reports in litigation) – and to try to side-step the unexpected failure to establish such protection that Capital One recently experienced (In re: Capital One Consumer Data Security Breach Litigation) – do (and don’t do) the following with respect to your contracts with these third parties: Do have outside

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Eight Ways to Close Your Year-End Deals on Time

December 6, 2019

With less than four weeks until the end of the calendar year, many buyers and sellers of software, SaaS, cloud, cybersecurity, and other IT products and services have too many deals – and not enough time – to get everything done. Having been on both sides of year-end technology transactions, I’ve not yet seen a magic wand that provides the sales and procurement teams a stress-free year-end contracting experience. That said, there are several different tactics to try to help technology buyers and sellers conclude year-end transactions that meet their needs and goals – despite the timing stress. The key

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2019 Case Law Mash-Up: Can you assign exaggerated representations and warranties to a locked-in vendor?

November 14, 2019

Mash-up (noun): (slang) a creative combination of content or elements from different sources. Several court cases in 2019 dealt with (or are still dealing with) key issues faced by parties to commercial contracts, including contracts for technology products and services. This post briefly discusses four of those cases and their corresponding issues of contract assignment, representations and warranties, and data security. Can You Assign? According to the court in Barrow-Shaver Resources v. Carrizo Oil & Gas (Tex. 2019), the answer to the question, “Can you assign?” is “No.” Bottom line: Make sure your contract clauses are clear and unambiguous, and

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Why Blockchain Matters to In-House Lawyers

April 24, 2018

Today, news reports, academic articles, and corporate reports are flush with mentions of “blockchain,” “Bitcoin,” and “distributed ledger technology.” At first glance, many readers see the discussion as hype, generating a great deal of actionless attention, curiosity, and investment opportunities. However, on another level, some of the conversation regards developments in technology that may specifically shape or impact a company’s contract or legal risk profile – even for those companies that don’t have or deal in Bitcoin. Blockchain technology is expected to have a broad and sweeping impact across industries worldwide, with one commentator identifying a financial impact of over

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