Litigating Merger Clauses Amid Courts' Increasing Skepticism: Leveraging New Theories of Contract Interpretation
Recording of a 90-minute CLE video webinar with Q&A
This CLE course will sharpen commercial litigators' knowledge, authority, and persuasiveness when pressing clients' position on the meaning and applicability of "merger" clauses in contracts. The program will discuss courts' increasing reluctance to enforce merger clauses, review the different ways merger clauses are construed and the parol evidence rule, suggest how to recognize potentially flawed or incongruent methodologies their judge might be using, and offer strategies to counteract them.
- Overview of contract interpretation and the parol evidence rule
- Role of merger clauses
- Enforcing (or challenging) merger clauses
- Textual vs. contextual approach
- Explaining vs. contradicting
- Evidence required
The panel will review these and other crucial issues:
- What weight should a merger clause be given, and should the answer depend on factors such as the sophistication of the parties?
- Is the parol evidence rule still viable, or have the exceptions swallowed the rule?
- When is a contract ambiguous, really?
- What evidence should a court consider to determine, for example, how thoroughly a contract was negotiated or the relative leverage of the parties?
- What is the practical difference between the textual and contextual approaches?
- What is the difference between a complete merger clause and a partial merger clause?
- What language in merger clauses creates the most debate?
Rachel B. Goldman
Ms. Goldman is a commercial litigator with over 20 years of experience in federal and state courts, at the trial and... | Read More
Ms. Goldman is a commercial litigator with over 20 years of experience in federal and state courts, at the trial and appellate levels, and in both domestic and international arbitration proceedings. She represents clients in various sectors, including finance, renewable and conventional energy, construction and private equity. Ms. Goldman's practice focuses on complex commercial disputes, such as breach of contract and fraud claims, securities litigation, bankruptcy litigation, construction litigation, RICO and False Claims Act litigation. Her practice also includes challenges to government action under the Commerce, Takings and Supremacy Clauses, and First Amendment and libel actions. In addition, Ms. Goldman is actively involved in the firm’s monitorship and compliance matters.Close
David A. Shargel
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.Close