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The BUSKLAW August Newsletter: Lessons from the Court's Rejection of the Trump Family Non-Disclosure Agreement

Consider the ubiquitous non-disclosure agreement ("NDA"): every business (and the White House) has one, and it's often employed for dubious ends. To cover-up criminal activity.Or to keep a lid on the President's past sexual shenanigans. Most recently, President Trump's brother, Robert Trump, tried to use a family NDA from 2001 to stop the publication of Mary L. Trump's book entitled, Too Much and Never Enough. How My Family Created the World's Most Dangerous Man.(Mary Trump is Donald Trump's niece.)
But the attempt to weaponize that NDA to ban Mary Trump's book failed. It was released on July 14 and is #1 on the bestseller list. So let's see where this NDA went wrong according to Judge Greenwald. And perhaps the Court's opinion (issued 7/13/2020) will help NDA drafters avoid some of the pitfalls that plagued the Trump family NDA. (This post doesn't discuss the constitutional issues decided by the Court.)
First some context. The NDA at is…
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The BUSKLAW June Newsletter: Failing Business Practices and Your Contracts

I've been practicing corporate law for 40 years. And I've been privileged to work with many talented business people. One of the most talented was the late Fred Meijer, who always wanted his legal team to not only be good lawyers but also to protect the company by searching out business gaps - and filling them. So, partnering with my Meijer business clients, that's what I did, and that's what I'm still doing for other companies. 
But some companies suffer from dysfunctional contracting. In my experience, the following failed business practices are common in the business world: 
1. Poor Contract Management and Retention. Does your company have a single point of contact for your contracts? In smaller firms, this could be your CFO. This person should double as your records retention officer who should be charged with the maintenance and enforcement of a corporate records retention manual. Why do you need a records retention manual? Because without it some of your depart…

The BUSKLAW May Newsletter: Oh, Fudge! Famous Interior Designer Sues Mackinac Island's Famous Grand Hotel

As reported by MLive and ABC 12 News, famous interior designer Carleton Varney has sued the new owners of Mackinac Island's famous Grand Hotel. (Mackinac Island is also famous for its fudge, a guilty pleasure.)
You would expect the lawsuit to be for breach of contract, i.e., the Grand Hotel's owners failed to pay Mr. Varney for his interior design services rendered. His relationship with the Hotel goes back about 43 years, and the Hotel was recently sold by its long-time family owners, the Mussers, to an international investment firm, KSL Capital Partners.   
But there will be no pondering of any design contract's terms, no assessment of facts that may or may not constitute breach of contract, no rumination over contractual issues. Because Varney's lawsuit is for damages arising from first, age discrimination, and second, conversion of his personal property. Although Varney's Complaint isn't available online (and a trip to the Washtenaw County Circuit Court Clerk…

The BUSKLAW April Newsletter: Not Another Pandemic Force Majeure Post!

These are sad, strange times. I could tell you all about Michigan law on force majeure, typically embodied by a clause that lawyers throw into the tail-end of a contract as boilerplate, hardly ever thinking that it will ever be invoked. Because force majeure is used to excuse contractual performance, usually on a temporary basis, during an unforeseen event, which in today's environment is the CV-19 pandemic. For example, you propose that the CV-19 pandemic and your State's "stay-at-home" quarantine prevented your workforce from producing those 5,000 widgets and shipping them on time, so you shouldn't be liable to your buyer for breach of the purchase contract. But your buyer may point out that the contract's force majeure clause didn't specifically list pandemics or quarantines as trigger events, so you breached and are liable for damages. Such is the stuff that lawsuits are made of. Highly fact-dependent, highly contract-language dependent.
Consider this.…

The BUSKLAW March Newsletter: About That Goats-on-a-Roof Trademark!

(Author's Note: Thanks to my friend - and intellectual property attorney/patent litigator extraordinaire - Dave Donoghue for bringing this case to my attention.)
Do these goats on a roof look happy? Are they demeaned because they have been relegated to grazing on a grass-covered roof? Are you offended by these roof goats? 
That's what Plaintiff Todd Bank alleged in his attempt to have Defendant Al Johnson's Swedish Restaurant's "goats-on-a-roof" trade dress registration canceled, a dispute that found its way to the U.S. Court of Appeals last year. Here's the trade-dress mark at issue:

We start with the basics. U.S. trademark law allows registration of a trade dress as a symbol or device. That's what Al Johnson did to attract customers to his eatery. Mr. Bank took offense and sought to cancel the mark. The Court cited well-established law that the party seeking to cancel a mark must first prove that it has standing.

To establish standing, Bank needed to s…

The BUSKLAW February Newsletter: Are Your "Terms and Conditions" Sticky?

Please indulge me. Pretend that these flies are your customers and suppliers. Further pretend that this flypaper is your standard contract that you have posted on your website, no doubt to save time - and trees. 

Your standard contract is essential to protecting your company, right? It probably contains an indemnity, warranty or warranty disclaimer, a liability limitation, a remote damages exclusion, and a governing law provision. But what it doesn't contain is the business terms of your deals. Those are neatly packaged in a one-page document that you can quickly create and email to your suppliers (as a PO) or to your customers (as a sales acknowledgment). Ah, you are amazed by this beautiful simplicity of managing your customers and suppliers! You are enthralled by this well-oiled business process! 

Not so fast. Are the flies really stuck to the flypaper? Are you certain that your standard contract is legally binding on your customers and suppliers? 

Here's the fly in the ointme…

The BUSKLAW 2019 Year in Review

'Tis the week before "Happy New Year" and a good time to look back on the topics that we covered in 2019. So while you look forward to the 2020 college football bowl games, how to spend those gift cards, or what fine champagne to pop on New Year's Eve, let's reminisce: 

>January: We examined the reasons for auditing your contracts, pointing to five potentially troublesome contract provisions: identification of the parties, agreement term, payment, intellectual property rights, and confidentiality.  
>February: Wecontinued that discussion, examining these essential provisions: indemnification, insurance, limitation of liability, exclusion of certain damages, governing law, jurisdiction, venue, and whether it's better to resolve contract disputes through litigation or arbitration.
>March: We explained why you should never use "form" contracts
>April: We pulled apart the purchase agreement for the Icon A5 light-sport aircraft, a/k/a the "…