Drafting Enforceable Limitation of Liability Clauses in Business Contracts
Limiting Potential Damages and Avoiding Enforceability Pitfalls With Carefully Negotiated Provisions
Recording of a 90-minute CLE webinar with Q&A
Conducted on Thursday, March 30, 2017
Recorded event now available
This CLE webinar will provide guidance to business counsel for drafting and negotiating enforceable limitation of liability clauses in business contracts. The panel will discuss key considerations when crafting the provisions, enforceability challenges, and the interplay of limitation of liability clauses with indemnification provisions.
The limitation of liability clause can be an effective tool for limiting a company’s direct, indirect, consequential, special and incidental damages in the event of a breach of contract claim. Limitation of liability provisions generally cap damages at either an amount agreed upon by the parties, the contract amount, or the parties’ insurance coverage limits. The clauses may also specifically exclude certain types of damages.
Courts routinely scrutinize limitation of liability provisions to ensure that they are not ambiguous, unconscionable, unfairly bargained for, or in violation of a state statute or public policy. Limitation of liability clauses that were not clearly drafted or fairly negotiated may be held unenforceable.
Listen as our authoritative panel explains best practices for drafting and negotiating limitation of liability provisions in business agreements. The panel will provide strategies for avoiding common negotiation pitfalls, anticipating and overcoming enforcement hurdles, and reconciling limitation of liability provisions with indemnification clauses.
- Drafting considerations and best practices for limitation of liability clauses
- Enforceability challenges with limitation of liability clauses
- Interplay of limitation of liability clauses with indemnification provisions
The panel will review these and other key issues:
- What considerations should business counsel take into account when drafting and negotiating limitation of liability provisions in contracts?
- What enforceability challenges do parties commonly face when seeking to invoke a limitation of liability clause?
- What is the interplay between limitation of liability clauses and indemnification provisions in business agreements?
Kenneth M. Gorenberg, Partner
Barnes & Thornburg,
Mr. Gorenberg is a member of the firm’s Litigation Department and its Policyholder Insurance Recovery and Counseling Practice Group. His insurance practice focuses on a number of complex issues for corporate policyholders. He assists clients in litigation, arbitration, and negotiation of a wide variety of business disputes. His commercial clients have included financial institutions, hoteliers, real estate developers, publishers, and web-based ticket brokers. He defends manufacturers, design engineers and premises owners in “bet the company” asbestos personal injury litigation.
Steven M. Richman, Member
Mr. Richman practices in the areas of domestic and international commercial law, including distributorships, intellectual property, agency, art and photography law, professional responsibility and contracts. He is chair of the New Jersey State Bar Association's International Law Committee. Within the American Bar Association, Steven is incoming vice-chair of the ABA's Section of International Law and chairs the IBA's Multidisciplinary Practice Committe. He is a frequent CLE lecturer both in this country and around the world.
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CLE Credits By State
The presentation was perfect - not too technical or legal. Keep up the good work!!
I liked the concise and clear presentation of the subject matter.
Moss & Barnett
I thought the content covered in the webinar was very helpful.
Hinckley, Allen & Snyder
The program was well organized and had knowledgeable speakers.
Alticor Inc. (Amway)
Business Contracts and Franchise Advisory Board
Bowman and Brooke
Davis Wright Tremaine
Chief Legal Officer
Coverall North America
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