Drafting Business Contracts: Elements of prosecuting or defending a claim when drafting, frequently used business contracts and typical provisions

Andrew B. Fromm
Andrew B. Fromm
Brooks Wilkins Sharkey & Turco PLLC

Andrew Fromm is a litigation partner and commercial counselor who specializes in business contracts, litigation, supply chain agreements, negotiations, disputes, warranty and recall litigation, and state and federal compliance issues including NHTSA.

Thomas P. Owen, Jr.
Thomas P. Owen, Jr.
Stanley, Reuter, Ross, Thornton & Alford, LLC

Thomas P. Owen, Jr., joined Stanley, Reuter, Ross, Thornton & Alford, LLC in 2004 following a two-year clerkship with the Honorable James L. Dennis of the United States Fifth Circuit Court of Appeals and became a member of the firm in 2011.

Live Video-Broadcast: October 14, 2022
Drafting Business Contracts: Elements of prosecuting or defending a claim when drafting, frequently used business contracts and typical provisions

$245.00 2.5 hour CLE

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Program Summary

Session I – Elements of Prosecuting or Defending a Claim when Drafting – Andrew Fromm

This session, presented by Andrew Fromm a recognized attorney who specializes in business contracts, will provide a comprehensive overview of how to master the fundamentals, most critical “Red Flag” provisions and common pitfalls in business contracts.

Key topics to be discussed:

  • Mastering the Fundamentals
  • Most Critical “Red Flag” Provisions
  • Common Pitfalls

Session II – Frequently Used Business Contracts – Thomas P. Owen, Jr.

In drafting and negotiating business contracts for clients with closely held businesses, an attorney encounters many of the same types of contracts. The purpose of this CLE is to discuss a few such contracts, including non-disclosure and non-circumvention agreements, operating agreements, transfer restriction agreements, and purchase agreements.

The CLE will discuss typical provisions contained within these contracts, why these provisions can be important, and provide samples of each. At the end of this CLE, the attendee will have a better understanding of how these business contracts are used, the specific provisions that should be considered for each, and draft samples of the most commonly used provisions.

Key topics to be discussed:

  • Common Business Contracts: Identifying Often-Used Business Contracts for Closely Held Businesses
  • Non-Disclosure and Non-Circumvention Agreements: Promoting Discussions with Those Outside of a Company
  • Operating Agreements: Navigating the Relationships of an LLC’s Members and Managers
  • Transfer Restriction Agreements: Protecting Members from Unwanted Business Associates
  • Purchase Agreements: Selling the Equity in or Assets of a Company

Date / Time: October 14, 2022

  • 12:00 pm – 2:50 pm Eastern
  • 11:00 am – 1:50 pm Central
  • 10:00 am – 12:50 pm Mountain
  • 9:00 am – 11:50 am Pacific

 

Closed-captioning available

Speakers

Andrew-B.-Fromm_Brooks-Wilkins-Sharkey-&-Turco-PLLC_myLawCLEAndrew B. Fromm | Brooks Wilkins Sharkey & Turco PLLC

Andrew Fromm is a litigation partner and commercial counselor who specializes in business contracts, litigation, supply chain agreements, negotiations, disputes, warranty and recall litigation, and state and federal compliance issues including NHTSA. Andrew has successfully represented and counseled clients in a significant number of state and federal lawsuits, arbitrations, and multiple consumer class actions.

Andrew also has extensive experience representing international Fortune 500 corporations, automotive companies, manufacturing companies, and private clients throughout all phases of complex litigation involving product liability, wrongful death, negligence, contract, warranty, indemnity disputes, insurance-coverage disputes, and compliance and regulatory issues involving various state and federal agencies. Andrew routinely counsels C-suite executives and senior management on contract and commercial strategies to achieve business goals, minimize risk, and resolve disputes.

Andrew has been selected for inclusion in the 2016, 2017, 2018, 2019, 2020 and 2021 Michigan Super Lawyers – Rising Stars lists for his work in business litigation, Crain’s Detroit Top Young Rising Attorneys in Michigan 2019, and Hour Detroit Top Lawyers of Michigan – Rising Stars 2021. Andrew is admitted to practice in Illinois and Michigan. Prior to joining BWST, Andrew was a litigation associate at Kirkland & Ellis LLP in Chicago, Illinois and a Senior Counsel at Foley & Lardner LLP in Detroit, Michigan. Andrew also gained five years of formal trial training by the Kirkland Institute of Trial Advocacy.

RECENT EXPERIENCE INCLUDES:

  • Obtained summary judgment for tier 1 automotive supplier in lawsuit filed by OEM seeking contractual indemnification for claimed damages in excess of $30 million and millions more in claimed attorneys’ fees and costs
  • Obtained favorable resolution of alleged breach of warranty claims for tier 1 automotive supplier asserted by OEM for claimed damages in excess of $40 million
  • Obtained summary judgment for tier 1 automotive supplier on all counts, including breach of contract and business tort claims, relating to alleged breach of a long-term supply agreement
  • Counseled and negotiated design, development and supply agreements, including limited liability and warranty provisions for the supply of machine learning systems and tech products by tier 1 supplier, and agreements with electric vehicle OEMs
  • Defeated motion for preliminary injunction and motion to intervene seeking the continued supply of engine components on behalf of publicly-traded tier 1 automotive supplier
  • Obtained judgment for nearly $1 million in damages for breach of settlement agreement
  • Obtained partial summary judgment for international tier 1 supplier against OEM in contractual indemnity dispute
  • Defeated motion to dismiss and stay of U.S. litigation in favor of pending Canadian litigation involving automotive supplier dispute
  • Managed e-discovery and litigated e-discovery disputes on behalf of automotive supplier defendants and third parties in consumer class action cases in multiple jurisdictions seeking damages in the hundreds of millions of dollars
  • Counseling automotive supplier clients with buy-side and sell-side supply agreements, commercial agreements, equipment-purchase agreements, long-term agreements, side letters, and purchase orders, including terms and conditions
  • Successfully negotiating the early resolution of multiple and significant warranty and cost recovery claims prior to litigation
  • Successfully litigating the resolution of multiple and significant warranty, breach of contract, and cost recovery claims in numerous state and federal jurisdictions
  • Reviewing client contracts and business practices to assess compliance and litigation risk
  • Defending against consumer class action lawsuits involving component-part manufacturers
  • Litigating claims for misappropriation of trade secrets and breach of non-disclosure agreements
  • Coordinating the defense of multiple products liability cases and managing litigation in multiple jurisdictions
  • Defending against motions for temporary restraining orders on behalf of multiple automotive suppliers
  • Defending multiple wrongful death and significant injury claims in multiple jurisdictions
  • Successfully obtaining early dismissals of product liability cases
  • Obtaining summary judgment in numerous multi-million dollar disputes involving negligence, significant injury, wrongful death, regulatory, and defense and indemnity disputes for railroad and petroleum pipeline companies

EDUCATION, PROFESSIONAL ASSOCIATIONS AND AWARDS

  • Indiana University Maurer School of Law (J.D. cum laude, 2008) Highest Grades Awarded (Trial Advocacy, U.C.C., International Securities Regulation)
  • Boston College (A.B., Economics 2004)
  • Michigan Super Lawyers – Rising Stars (2016, 2017, 2018, 2019, 2020, 2021)
  • President, Bloomfield Village Association Board of Trustees, 2015-2018 (President: 2017-2018)
  • Pro Bono Service Awards for “Outstanding Service” (2009, 2010, 2012, 2013)
  • NCAA Division I Boston College Varsity Swim Team (2000-2004), Four Year Varsity Letterman, Big East Conference All Academic Award, Eastern College Athletic Conference Championship Qualifier
  • University of Glasgow, Scotland – Honors Economics Program (Fall 2003)
  • Golden Key International Honors Society
  • National Society of Collegiate Scholars
  • Omicron Delta Epsilon Honors Economics Association
  • University of Detroit Jesuit High School and Academy (2000)
  • Eagle Scout, Boy Scouts of America (1997) BAR ADMISSIONS
  • Illinois, 2008
  • Michigan, 2014
  • U.S. District Court Northern District of Illinois, 2009
  • U.S. District Court Eastern District of Michigan, 2010
  • U.S. District Court Western District of Michigan, 2016
  • Sixth Circuit Court of Appeals, 2022

AREAS OF PRACTICE

  • Commercial and Business Litigation
  • Automotive supply chain counseling and negotiation and drafting terms and conditions of sale and purchase
  • Negotiation and drafting terms and conditions of sales representative agreements

SELECTED AUTHORED WORKS AND SPEAKING ENGAGEMENTS

  • “Drafting Business Contracts: Advice from Litigators to Prevent Ambiguity” Strafford Continuing Legal Education (August 18, 2022)
  • “Sales Contract Clauses: Unilateral Renewals, Exclusivity Provisions, Hidden MFN Clauses, Broad Deliverables, Audits” Strafford Continuing Legal Education (June 21, 2022)
  • “Sale of Goods and UCC Remedies: Rejection, Revocation, Non-conforming Goods, and Seller’s Right to Cure,” Strafford Continuing Legal Education (January 4, 2022)
  • “Supply Chain Dynamics and Cost Recovery,” OESA CPO Council (November 11, 2021)
  • “Negotiating Requirements Contracts with Suppliers,” Strafford Continuing Legal Education (January 16, 2020)
  • OESA 2019 Automotive Raw Materials Summit, Contracting Strategies and Takeaways to Mitigate Raw Materials Exposure (August 15, 2019)
  • “Managing Warranty, Recall, and Litigation Risk for Automotive Suppliers,” The National Law Review (February 27, 2019)
  • “How to Manage Warranty, Regulatory and Commercial Litigation Risks in the Auto Supply Chain,” Supply Chain Dive (May 2, 2018)
  • “Auto Industry: Commercial Contract Risk in 2017,” The National Law Review (January 30, 2017)
  • “Warranty Issues in 2017,” The National Law Review (January 27, 2017)

 

Thomas-P.-Owen,-Jr._Stanley,-Reuter,-Ross,-Thornton-&-Alford,-LLC_myLawCLEThomas P. Owen, Jr. | Stanley, Reuter, Ross, Thornton & Alford, LLC

Thomas P. Owen, Jr., joined Stanley, Reuter, Ross, Thornton & Alford, LLC in 2004 following a two-year clerkship with the Honorable James L. Dennis of the United States Fifth Circuit Court of Appeals and became a member of the firm in 2011.

He concentrates his practice in providing legal advice and representing business clients – particularly concerning closely held companies – both in transactions and in litigation. This includes representing clients in contract negotiations, litigation and arbitration disputes as well as providing advice to clients regarding numerous business matters, including corporate formation and governance, mergers and acquisitions, employment issues, insurance coverage disputes, confidentiality concerns, and trade secret protection.

Mr. Owen graduated from Emory University in 1995 with a double major in Economics and International Studies. He graduated summa cum laude and Order of the Coif from Tulane Law School in 2002, where he served as Editor in Chief of the Tulane Law Review.

Mr. Owen is currently the Bar Examiner for Code I (Property and Family Law) of the Louisiana Bar Exam, is a member of the Board of Advisory Editors of the Tulane Law Review, is a former President of the Tulane Law Review Alumni Association, and has made multiple presentations on the issues of business transactions and litigation, legal ethics, and professionalism, and for the past several years has co-taught a Computer Law class with fellow firm member Bryan Reuter.

Mr. Owen has been selected for inclusion in Louisiana Super Lawyers every year since 2013 when he was initially listed as a Rising Star, has been selected for inclusion in The Best Lawyers in America every year since 2016 for Commercial Litigation and has also been selected in the areas of Appellate Practice, Ethics and Professional Responsibility Law and Mass Tort Litigation / Class Actions – Defendants. He has also been named a Top Lawyer by New Orleans Magazine in 2018 (Legal Malpractice Law), 2019 (Appellate Practice), and 2021 (Legal Malpractice Law).

Agenda

Session I – Elements of Prosecuting or Defending a Claim when Drafting | 12:00pm – 1:00pm

I. Mastering the Fundamentals | 12:00pm – 12:20pm

  1. Price, Quantity, Payment
  2. Defining the product and specifications
  3. Indexing and flexibility

II. Most Critical “Red Flag” Provisions | 12:20pm – 12:40pm

  1. Duration and termination
  2. Force Majeure
  3. Forum Selection and Choice of Law
  4. Warranties
  5. Indemnity
  6. Limitation of Liability/Remedies

III. Common Pitfalls | 12:40pm – 1:00pm

  1. The parties & jurisdiction
  2. Incorporation by reference
  3. Conflicting and ambiguous provision
  4. Master agreements with no teeth
  5. Waiver, Modification, Termination

Break | 1:00pm – 1:10pm

Session II – Frequently Used Business Contracts | 1:10pm – 2:50pm

I. Common Business Contracts: Identifying Often-Used Business Contracts for Closely Held Businesses | 1:10pm – 1:25pm

II. Non-Disclosure and Non-Circumvention Agreements: Promoting Discussions with Those Outside of a Company | 1:25pm – 1:40pm

III. Operating Agreements: Navigating the Relationships of an LLC’s Members and Managers | 1:40pm – 1:55pm

IV. Transfer Restriction Agreements: Protecting Members from Unwanted Business Associates | 1:55pm – 2:10pm

Break | 2:10pm – 2:20pm

V. Purchase Agreements: Selling the Equity in or Assets of a Company | 2:20pm – 2:50pm