Two of the most common queries Proskauer’s UK litigation team is asked to advise upon are (i) the interpretation and scope of indemnities and (ii) liability caps. Over the summer, the English Courts handed down two judgments that focus on the interpretation of such provisions. These cases serve as a useful reminder of the importance of (1) clear drafting, (2) consistent drafting throughout a contract, and (3) fully considering all relevant risks at the outset of negotiations.
Commercial Litigation
Where Do We Go From Here? Practical Considerations When Multidistrict Litigation Comes to an End
By Christina Maria Assi on
When product liability actions involving one or more common issues of fact (e.g., an allegedly harmful product or chemical) are filed in multiple jurisdictions, they are typically consolidated for pretrial proceedings in a multidistrict litigation (MDL). 28 U.S.C. § 1407(a). In an MDL, the lawsuits are transferred from their filing courts to a single “transferee” Court (the MDL Court) chosen by the Judicial Panel on Multidistrict Litigation (JPML). The purposes of this centralization are to avoid duplication of discovery, to prevent inconsistent pretrial rulings, and to conserve the resources of the parties, their counsel and the judiciary. For example, overarching issues of law, such as preemption admissibility of common-issue expert opinions, are often resolved by the MDL Court instead of needing to be re-litigated in several different courts. Additionally, MDL Courts can hold bellwether trials to help the parties structure a global settlement process to resolve many or all of the filed cases.
Conduct Over Confusion: Supreme Court Holds Lanham Act to the Presumption Against Extraterritoriality
By Isaiah D. Anderson on
In April, we discussed oral arguments at the Supreme Court for Abitron Austria GmbH et al. v. Hetronic International, Inc., a case in which the Supreme Court considered the extraterritorial reach of the Lanham Act (“Act”) for the first time since 1952. Last month, the Court ruled that the Lanham Act only reaches claims of infringement where the infringing use in commerce is domestic.
Negotiating with a Noob M&A Target? Go Easy on Them, says Delaware Chancery
By Adam Farbiarz on
Buy-side executives in an M&A deal negotiate with their sell-side counterparts for months, plying them for information, assessing the seller’s weaknesses and pressure points, and even making informal entreaties when the parties’ standstill agreement says they shouldn’t —all to get the best deal for the acquirer. Under Delaware’s contractarian corporate regime—that would seem to be a good thing.
Drafting an Arbitration Agreement? – Remember Four S’s
By Alexis L. Namdar & Dorothy Murray on
Last month saw the end of the second round of the UK Law Commission’s consultation on reform of the Arbitration Act 1996, the legislation which provides the framework for arbitration in England and Wales. We have reported on the current status of the consultation and are watching for the final recommendations.
Reform of the English Arbitration Act 1996: Three Areas under Scrutiny
By Alexis L. Namdar & Julia Bihary on
England is one of the most popular jurisdictions for commercial parties to resolve disputes through arbitration: London and Paris were ranked as the top two preferred cities in the world in 2022. To ensure England’s arbitration regime remains modern and competitive, the Law Commission – a body responsible for considering and recommending legislative change to the UK government – is currently considering updates to the legal framework of arbitration in England & Wales, the Arbitration Act 1996 (the Act).
Supreme Court Affirms Andy Warhol’s Prince Series Not Transformative Fair Use
On May 18th, the Supreme Court handed down its much‑anticipated opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. We’ve tracked the progress of this case through the trial court, Second Circuit, and Supreme Court.
The case concerns whether the Andy Warhol Foundation violated a copyright held by photographer Lynn Goldsmith when it licensed a Warhol work called Orange Prince, based on Goldsmith’s photo, to Condé Nast for use on the cover of Vanity Fair magazine. Goldsmith’s photo of Prince was the basis of a series of silkscreen portraits and drawings by Warhol known as the Prince Series. The work at issue was created without Goldsmith’s knowledge or consent. She received none of the $10,000 licensing fee paid to the Warhol Foundation for use of the image.
Banks as Gatekeepers Against Fraud: Customer Protection and the So-Called Quincecare Duty in the UK
By Dorothy Murray, Julia Bihary & Hena M. Vora on
Who can be held responsible when a rogue actor directs payment from a company’s bank account? Unless discovered quickly, stolen funds are usually quickly spirited away from easy recovery. Victims of fraud therefore look for other sources of compensation, including the bank itself who executed the instruction. In England, when banks and financial institutions have reasonable grounds to believe that a payment instruction is an attempt to misappropriate a customer’s funds, they owe a duty of care to that customer to refrain from making or executing the order and make necessary inquiries before proceeding.