Litigating Force Majeure, Impossibility, and Other Contractual Performance Issues: New Developments and Strategies
Recording of a 90-minute CLE video webinar with Q&A
This CLE course will discuss how force majeure, impracticability and impossibility, and comparable "change of law" clauses have continued to be formidable defenses and points of leverage in breach of contract cases and also the bases of affirmative relief to recover prior payments. The program will also address best strategies for recovering from a third party that has caused a company to declare a force majeure with its existing customers. Finally, the panel plans to review recent decisions and how litigants have faired.
Outline
- Force majeure clauses and related doctrines
- Impracticability and impossibility
- Change of law clauses
- Types of cases in which they have been raised
- Industries in which the doctrines appear most frequently
- The relative success of arguments made
- Timeliness and waiver
- What facts must be shown
- Whether an objective or subjective standard applies to the definition of impossibility
- Whether the party invoking the defense contributed to the event
- In what fact patterns have force majeure proved most valuable
- Conflict of laws issues
- Settlement
- Recent cases
Benefits
The panel will review these and other critical matters:
- How force majeure clauses and related doctrines of impracticability and impossibility are similar and different
- Notice requirements and deadlines
- How and when such defenses are best raised
- Burdens of proof
- Likely fact issues
- Choice of law issues
- Best drafting practices for revising force majeure provisions
Faculty
Matthew G. Nielsen
Partner
Bracewell
Mr. Nielsen represents companies, boards, executives, and securities firms and professionals in internal and government... | Read More
Mr. Nielsen represents companies, boards, executives, and securities firms and professionals in internal and government investigations and litigation involving civil and criminal misconduct. He has deep experience in handling matters involving public company accounting and disclosure issues, insider trading, securities fraud, US export controls and sanctions, Foreign Corrupt Practices Act (FCPA), whistleblower complaints and healthcare fraud. In addition, Mr. Nielsen regularly represents clients before and in litigation with the Securities and Exchange Commission (SEC), Department of Justice (DOJ), Financial Industry Regulatory Agency (FINRA), Bureau of Industry and Security (BIS), Department of the Treasury and other federal and state agencies.
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David A. Shargel
Partner
Bracewell
Mr. Shargel is a business litigator with extensive experience representing clients in complex commercial disputes and... | Read More
Mr. Shargel is a business litigator with extensive experience representing clients in complex commercial disputes and arbitrations. Selected as a Super Lawyers “Rising Star” for five consecutive years (2012 – 2016), he has built his practice representing clients in a wide range of business sectors and circumstances. Mr. Shargel's experience includes litigating contract disputes, shareholder disputes, business valuation, insurance coverage and fraud. He also handles real estate, construction and employment disputes as well as matters involving constitutional law such as under the Commerce and Due Process clauses. Additionally, as co-head of the firm’s ePractice Department, Mr. Shargel assists firm attorneys with eDiscovery best practices and guidance, as well as case-specific discovery strategy and management.
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