Structuring Risk Allocation Through Remedies Clauses: Special, Indirect, and Consequential Damages; Waivers; Indemnification; Insurance

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

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Conducted on Monday, November 22, 2021

Recorded event now available

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Course Materials

This CLE course will advise counsel on negotiating and structuring remedy provisions contained in commercial contracts, as well as the considerations for such provisions in the current economic environment.

Description

Remedies provisions outlining the damages available to contracting parties in a contractual breach are heavily negotiated clauses in a wide array of commercial agreements. These provisions can help the non-defaulting party maximize recovery and shield them from excessive damages, including monetary damages, specific performance, and equitable remedies.

Unfortunately, counsel often relies on the ill-defined terms "special, indirect, or consequential damages," a phrase that has lacked a reliable and predictable definition for 160 years of jurisprudence. Counsel must also consider when and how to approach consequential damage waivers, liquidated damages, attorneys' fees, and exclusive remedies clauses to minimize legal and practical challenges when enforcing remedies. Parties must also ensure that the scope of the remedies provision interacts with the indemnity and insurance provisions in the contract.

Listen as our authoritative panel discusses strategies for business counsel negotiating and drafting remedies provisions in commercial contracts. The panel will discuss best practices to protect client interests during contract negotiation and remedy enforcement.

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Outline

  1. Common remedies provisions
    1. Special, indirect, and consequential damages
    2. Liquidated damages
    3. Attorneys' fees
    4. Exclusive remedies
    5. Other remedies
  2. Damage waivers
  3. Interplay with indemnity
  4. Interplay with insurance requirements
  5. Negotiating, drafting, and enforcing risk allocations
    1. Negotiation considerations and strategies
    2. Enforcement considerations and strategies

Benefits

The panel will review these and other key issues:

  • What are the most commonly negotiated remedies in commercial contracts?
  • What best practices should counsel to contracting parties apply when negotiating and drafting remedies provisions?
  • What legal and practical challenges do counsel to contracting parties face when seeking to enforce remedies provisions--and how can they overcome them?
  • What is the interplay between the remedies provision and the indemnity and insurance provisions in commercial contracts?

Faculty

Oles, Karl
Karl F. Oles
Partner
Stoel Rives

For more than 30 years, Mr. Oles has helped owners, architects, engineers, and contractors solve complex legal problems...  |  Read More

Soble, Jeffrey
Jeffrey A. (Jeff) Soble
Partner
Foley & Lardner

Mr. Soble’s practice focuses on product liability, commercial disputes between businesses, class action defense,...  |  Read More

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