Top Ten Most Favorited Posts of 2025

These are the top 10 most favorited Redline queries, as of this last day of 2025.

10. Excluding injunctions and IP infringement actions from the scope of binding arbitration: you could be doing it wrong (source) 

Agreements to arbitrate often include a carveout for injunctive relief claims, especially in technology or IP-related agreements, so that the vendor/licensor can go to court quickly to secure quick injunctive relief in the case of breach/infringement. But if the arbitration clause doesn't negate the default rule that the arbitrator decides arbitrability, the tech vendor is forced to first secure an arbitral decision confirming the right to pursue court-ordered injunctive relief, before being able to actually pursue court-order injunctive relief.

I'm a business/tech/contracts lawyer but as an occasional observer of e-discovery in litigation involving my clients, I've had the unsettling experience of observing the hellishly complex and expensive process of e-discovery --  trying to find every e-document relevant to a given dispute. No one in their right mind would volunteer to do an e-discovery project unless forced to do so by litigation.

Yet business people do so all the time, in the form of the "return or destroy" clause in NDAs and in confidentilality provisions of other contracts. 
And quite often, they even volunteer to have one of their corporate officers (hereinafter the "Perjurer") certify in writing that complete return or destruction has occurred. 

And of course the destruction requirement, and sometimes the definition of Confidential Information, may include all or relevant parts of any "copies, analyses, reports, summaries, descriptions, extracts, derivatives, simulacra" etc. of the original.  OK I was kidding about simulacra but not by much.

Sellers of tech, goods, services, content etc are frequently required to grant warranties concerning, inter alia, the quality of that being purchased. One common way for sellers to deal with those is to agree with the warranty but then fix the remedy to be either curing the breach or, failing that, permitting termination and a refund of sums paid by the buyer, as well as fixing the warranty period.

But insisting on making the remedy exclusive, and advancing a termination/refund option, is not always the best approach. Depending on the deal, it may be sufficient to simply require a warranty period within which a breach of notice must be filed, coupled with a cure period to attempt to fix the problem.

Even when a developer assigns copyrights in software code, patent rights remain with the inventor absent an express patent assignment or clear “hired‑to‑invent” arrangement, which can create standing to seek inventorship correction. This can be a trap for the startup hiring outside developers for key startup offerings.

Consider the following fact pattern: a startup, let's call it Startup Inc., hires a rockstar software developer, let's call her Morgan, via an independent contractor agreement between Startup and Morgan's company, let's call it DevMaster Inc., of which Morgan is the sole shareholder. Morgan is not a party to the agreement.

Me: If you know that a non-compete obligation is unenforceable in California, why are you insisting on it?
Out-of-state counsel: Well if it’s not enforceable, you don’t have any reason to object to it.
Me: ????

In non-disclosure agreements, or any type of agreement that contains confidentiality provisions, clauses that terminate the confidentiality obligation after a certain period of time are common. "The obligations of confidentiality under this agreement expire five years after termination", e.g., is a typical formulation.

I understand the arguments of those that defend such clauses. But A trade secret derives its protection from proof that the owner has exercised reasonable efforts to safeguard its secrecy. It's not difficult for an adverse party in any trade secrets litigation to discover and use the fact that the purported trade secret owner routinely signed time-bound NDAs, to potentially devastating effect.

This is a compilation of what I consider to be fairly valuable language that I've seen in various law firm engagement letters over the years, with my edits as well as some of my original work. This is probably more suitable for transactional lawyers. Redlines and comments welcome.

I regularly see broad waivers of consequential damages in confidentiality agreements.  It seems to me that in most cases, in the even of a breach of an NDA the damages would be consequential.  If I am trying to protect my client's information I insist on striking such provisions.

I have run into counterparties who have a corporate policy requiring waiver of consequential damages in all contracts and trying to get an exception - even in an NDA - is nearly impossible.  If it is the counterparty's information that is being protected, I don't worry about the waiver.

I am curious of other's thoughts on this.  What is the value of an NDA that broadly waives consequential damages?

This is a checklist for reviewing and drafting contract language governing ownership of intellectual property rights in deliverables created by the vendor in professional or custom services agreements (generally tech-related). This checklist is neutral as between vendors and customers. The intention is to provide guidance on the issues and questions that arise when IP rights are to be, or are proposed to be, transferred in whole or in part to a party paying for the service and the content/deliverables in question.

Among the nearly infinite variety of legal agreements in use today, the non-disclosure agreement (NDA) is by far the most ubiquitous. Thousands of NDAs are signed on a daily basis. Every company has their own unique NDA template; paradoxically, most companies sign the opposite party's template more often than not. The party larger in size, reputation, market cap, or perceived importance usually wins the battle of the NDA form. This NDA ritual takes place thousands of times a day all over the world.