Limiting Liability in Business Agreements: Contract Clauses, Financial Caps, Indemnities, Liquidated Damages

Recording of a 90-minute CLE video webinar with Q&A


Conducted on Tuesday, June 1, 2021

Recorded event now available

or call 1-800-926-7926

This CLE course will advise counsel on how to structure deals to limit liability by focusing on contract clauses and financial restrictions or caps. The panel will discuss ways to include indemnification or liquidated damage provisions and how state contract laws may affect risk management.

Description

When business counsel begins working on a new agreement and assessing the risk, using a limitation of liability clause can be an effective tool to limit direct, indirect, consequential, special, and incidental damages in the event of a breach of contract claim. Establishing the restrictions on a limitation of liability provision may include terms that limit or exclude consequential damages unless the limitation or exclusion is unconscionable. When contracts fall under the UCC, the limitation of consequential damages for a consumer's injury is subject to prima facie unconscionability.

Limitation of liability provisions generally cap damages at an amount agreed by the parties, the contract amount, or the parties' insurance limits. The clauses may exclude certain types of damages; exclusions may depend on the state law that governs that contract.

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. Most courts disfavor contract provisions that limit a party's liability for gross negligence, fraud, intentional torts, or if the party seeking protection acted in bad faith.

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.

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Outline

  1. Drafting considerations and best practices for limitation of liability clauses
  2. Use of financial caps and liquidated damages to limit liability
  3. Enforceability challenges with limitation of liability clauses
  4. The intersection of limitation of liability clauses with indemnification provisions

Benefits

The panel will discuss these and other key issues:

  • What considerations should business counsel take into account when drafting and negotiating limitation of liability provisions in contracts?
  • How can financial caps and liquidated damages mitigate risks?
  • How do the UCC and state law affect limitations on liability in business agreements?
  • What enforceability challenges do parties commonly face when seeking to enforce a limitation of liability clause?
  • What is the interplay between limitation of liability clauses and indemnification provisions in business agreements?

Faculty

Crisafulli, Sara
Sara J. Crisafulli

Partner
Loeb & Loeb

Ms. Crisafulli maintains a diverse litigation and intellectual property practice with an emphasis on complex commercial...  |  Read More

Monterubio, John
John R. Monterubio, Jr.

Attorney
Loeb & Loeb

Mr. Monterubio focuses his practice on technology, media, advertising and corporate matters. He has experience...  |  Read More

Stern, Akiba
Akiba Stern

Partner
Loeb & Loeb

Mr. Stern has advised clients for over 30 years in all aspects of business law, both as in-house counsel and at law...  |  Read More

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Strafford will process CLE credit for one person on each recording. All formats include course handouts.

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