Law Offices of Vance R. Koven | Latest Blog

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Law Offices of Vance R. Koven | Latest Blog

New Case Shows̵̵̵-Yet Again-The Perils of Ambiguity

Thursday, June 22, 2017

A recent case in Pennsylvania has come to the refreshing, albeit to laymen blindingly obvious, conclusion that you can’t use bare grammatical or syntactic “rules” to avoid deciding what a contract means based on what the parties intended it to mean. In BL Partners Group, LP v. Interbroad LLC () (sadly not a precedental decision), a building owner leased a rooftop to BLP for a billboard. The lease, which had a 90-year term, included the following language in its termination provision: "In the event that Lessor's building is damaged by fire or other casualty and Lessor elects  ...read more

Ancestry.com learns, or at least teaches, a lesson

Thursday, May 25, 2017

There's been a flap in the news lately about the genealogy and DNA-testing site ancestry.com ("Ancestry"), which among other things offers to test users' DNA to ascertain their national and ethnic ancestry. Their terms of service, which (as they will remind you if ever you are in violation of them) constitutes the contract between them and the user, was found by one eagle-eyed privacy crusader () to contain a license from the user to Ancestry granting it a "perpetual, royalty-free, worldwide, sublicensable, transferable license" to the user's DNA data. Once the publicizing of these t  ...read more

Equity compensation for services in start-ups

Wednesday, March 23, 2016

Many times a start-up company will need services, for example software development, but doesn’t have the money to pay for them. At that point, many founders offer to give their key contributors “a piece of the action” by issuing equity in the company in exchange for the services. The services contributor might be willing to accept that bargain because the ultimate value of the equity stands to be much greater than the value of the time put in. Sounds like a win-win proposition. However, there are numerous factors to consider before agreeing to such a deal, on both sides of the equ  ...read more

Online advice, good and bad

Saturday, June 20, 2015

I happened on an infomercial for Intuit's QuickBooks® accounting program (which I neither endorse nor diss) that has some decent advice for small businesses about when to consult a lawyer, but which also points to some dangerously bad advice. Here's the link: http://quickbooks.intuit.com/r/employees/4-common-legal-mistakes-small-businesses-make/?cid=psoc_PDT_FB_Desktop_QBO_US_QDS_NS_H1_C2_I1&cvosrc=social+network+paid.facebook.QDS_NS_H1_C2_I1 While this article's checklist of things to look out for is reasonable, the advice with respect to "work for hire" agreements can lead   ...read more

Know your exposure!

Saturday, April 18, 2015

"You're over-lawyering it!" is one of the most common complaints leveled by a client's representative at a transactional attorney. What usually precipitates the comment is when the lawyer returns an agreement drafted by the client's counter-party and the lawyer has lavishly decorated it with comments and edits. It can be quite dismaying to see such a document; it means that the negotiating road ahead may be steep and rocky, with the date of signature not right around the corner, and a very real possibility that there won't be one at all if it turns out there are fundamental impediments  ...read more

Why you need a business lawyer to write a contract

Friday, March 27, 2015

There has been a lot of talk among contract-drafting lawyers about a recent case in New York called Buckingham v. Buckingham (http://law.justia.com/cases/new-york/appellate-division-first-department/2015/14335-314297-11.html). In it, a wife who filed for divorce reached a settlement with her husband, which was memorialized in an agreement drafted by the the wife's divorce lawyer, who is prominent in her field. The husband owned a majority stake in a business and the deal was—we think—that if he ever sold out, the wife would get a share of the proceeds. What the contract sai  ...read more

Clickwrap, Browsewrap, and All That

Sunday, August 31, 2014

People who do business online, or even just set up websites as to which they want their users to agree to terms of use, which may also include specific business terms, are always anxious about the degree to which those terms will be enforced against users who violate them. Back in 2012 Zappos, Inc. (a subsidiary of Amazon.com) lost a case in Federal District Court in Nevada against users who, having been informed by Zappos of a security breach, sued as a class rather than going to arbitration as required by Zappos' terms. Now another similar case has arisen, this time at the Court of Appea  ...read more

Software Escrow Clauses: Be Careful Out There

Thursday, May 15, 2014

A discussion in a LinkedIn group I belong to caught my eye today. It was about escrow clauses in software license agreements, with the initiator taking the position that an escrow clause (which typically involves a licensor putting its software in the hands of an escrow agent--there are several who specialize in this--and releasing the source code to the licensee if specified things happen, such as the licensor's bankruptcy, its failure to provide support and maintenance, or other types of contract breach) should be in every license agreement. Well, if you're the licensee, that would be a   ...read more

The defuser: what a transactional lawyer does for a client

Tuesday, May 13, 2014

Couldn't have said it better myself: The Contracts Guy (http://www.thecontractsguy.net/2014/05/13/whats-the-role-of-a-commercial-attorney/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+thecontractsguy+%28theContractsGuy%29)   ...read more

Don't Sign That NDA...

Friday, April 11, 2014

...at least not without reading and understanding it. People are presented with non-disclosure or confidentiality agreements all the time in business relationships; they're probably the most common type of bilateral written contract out there. Since in most contexts the subject matter is non-controversial (though in some industries, like publishing and entertainment, there is hostility to them for a variety of good and bad reasons), people often just sign them without reading, as if they were click-through terms on a website, and even when they do, they don't have their lawyers review them  ...read more