Impact | Business Risk Management Blog

Almost all contracts contain “boilerplate” language. You may be tempted to skip over these provisions, assuming they are nothing more than unnecessary legalese. But a recent Seventh Circuit opinion, Engineered Abrasives, Inc. v. American Machine Products & Service, Inc., No. 17-1429, 2018 WL 828211 (7^th Cir. Feb. 13, 2018), serves as a reminder to all contracting parties not to disregard any provisions of a contract, no matter how boilerplate, irrelevant, or inconsequential they may seem.

Forming contracts by “clicking through” documents on the Internet is a fixture in the transaction of business today. However, as recently recognized in Sgouros v. TransUnion, a late March 2016 Seventh Circuit decision, despite the ubiquity of contracting online, “the law governing the formation of contracts on the Internet is still in the early stages of development.”

Arbitration agreement is unenforceable where a party retains the right to make unilateral modifications effective upon notice to the other party.

“You can’t always get what you want … but if you try sometimes, you just might find you get what you need.” This wisdom, courtesy of The Rolling Stones, is good advice when drafting contracts as part of an enterprise risk management strategy. 

The talent market is increasingly fluid, with many businesses following the talent development mantra “if you can’t beat 'em, hire 'em.” Poaching from a competitor is not without risk. However, there are reasonable steps that should be taken to reap the rewards of the fluidity of today’s talent pool while managing the risks. Two principal risks in “poaching” are trade secret misappropriation and interference with a contract. Some employers seek to build on the lessons learned by their competition, and to do so does not inherently violate the law. However, an employer may misappropriate trade secrets by obtaining trade secrets from its new hires.

Regardless of whether you are a supplier or purchaser, it is imperative to know whether your contract with your purchaser or supplier is a “requirements contract.” Potentially conflicting terms and conditions in purchase orders and invoices exchanged between parties may result in the formation of a “requirements contract” or preclude the formation of such an agreement. And whether you are a supplier or purchaser, a requirements contract will have a material impact on your rights and obligations.