A LITIGATOR’S ADVICE ON LITIGATION AVOIDANCE Alan N. Greenspan Jackson Walker LLP © 2004 by Alan N. Greenspan. All rights reserved

Not me... or my dad

OVERVIEW n Good contracts make good neighbors n Be smart about intellectual property n Inform yourself about information n What to do when your worst nightmare becomes reality

Good Contracts n Define in writing what you are getting and giving n A good contract is worthless if ignored n The one with the best paper trail wins n There’s really no such thing as “boilerplate”

Choice of Law/Venue/Forum n Choose law for all disputes n Choose venue and court n Choice may not be enough - Create connections to the venue n Waive all venue challenges

Choice of Law This contract, the entire relationship of the parties hereto, and any litigation between the parties (whether grounded in contract, tort, statute, law or equity) shall be governed by, construed in accordance with, and interpreted pursuant to the laws of the State of Texas, without giving effect to its choice of laws principles.

Avoiding Fraud n Merger and integration clause n Negate inducement and reliance

Negate Inducement and Reliance Buyer warrants and represents that no promise or inducement has been offered except as set forth herein. This Agreement is executed by Buyer without its reliance upon any oral, written, express or implied representations, statements, promises, warranties or other inducement of any nature or sort made by any person or party hereto other than as is expressly set forth herein.

Dispute Resolution n Choose your method n Create exceptions for emergencies n Create limitations if possible

Dispute Resolution Any controversy or claim arising out of or relating to this contract, or the breach thereof, and any dispute between the parties hereto, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award may be entered in any court having jurisdiction thereof.

Disclaimers n Disclaim UCC warranties n Disclaim or limit liability and damages n Disclaim UCITA warranties n All disclaimers need to be conspicuous

UCC Disclaimers Seller expressly disclaims all warranties of any kind, whether express or implied, including without limitation, any implied warranties of fitness for a particular purpose, of merchantability, or of noninfringement. Buyer disclaims any right to the recovery of special damages, consequential damages (including without limitation, lost profits), statutory damages, punitive damages, or exemplary damages, regardless of the theory or grounds for recovery therefor and notwithstanding Seller’s knowledge thereof. Any damages recoverable by Buyer are limited to the amount paid by Buyer to Seller in the calendar year preceding the date the cause of action accrued.

UCITA Disclaimers Warranties of noninterference with information, noninfringement, accuracy of informational content, and merchantability of computer programs are expressly excluded. Competing claims may exist and Licensor grants only such rights as it actually possesses. Except for the express warranties stated in this contract, if any, the applications are provided with all faults, and the entire risk as to satisfactory quality, performance, accuracy, and effort is with Licensee.

Stopping Class Actions YOU FURTHER AGREE NOT TO JOIN IN ANY LAWSUIT WITH ANOTHER PERSON OR SERVE AS A CLASS REPRESENTATIVE OF ANY CLASS ACTION LAWSUIT AGAINST PARTY A.

Intellectual Property n Trademarks – protect “good will” n Copyrights – protect expression of an idea n Trade secrets – protect secret ways of doing business and related information n Patents – protect novel inventions

Trademarks n Availability n Registrability n Priority of usage and registration n The use of ™ and ®

Copyrights n Employer automatically owns what employees create n Employer does not own what independent contractor creates n Registration is not necessary but recommended n When to use ©

Trade Secrets n Confidentiality agreements and ownership assignments generally are enforceable in Texas n Noncompete agreements generally are not enforceable in Texas (but might be if carefully drafted)

Patents n Hey, I’ve only got 15 minutes n And the guy in the front row fell asleep 5 minutes ago

Information Control n Every website should have terms and conditions of use – with all the disclaimers n Every website should have a privacy policy that is followed n If you collect personal information you need state of the art security technology n Every company should have document retention policy for electronic data

Your worst nightmare n If there is any basis to believe you have insurance coverage, notify your insurance carrier right away n Get a lawyer involved early n It’s too late to implement a document retention/destruction policy