Articles Posted in Contracts

When you sign a commercial contract, you do so with the expectation that the other side dealt with you openly and honestly. Sometimes, though, that’s not reality. When you encounter a situation where your contract partner has made a mistake or engaged in fraud with relation to one or more essential contract terms, you have certain legal rights. You must, however, know exactly what to do and when to do it because, if you take the wrong step or act at the wrong time, you could lose those rights due to something called a “waiver.” To make sure you are safeguarding all of your rights and those of your business, you need the protection of an experienced Atlanta commercial contracts lawyer, who can advise and guide you through this potentially tricky process.

Here’s an example of how things can go wrong with a misstep. The underlying commercial contract was one between a healthcare company and a supplier of COVID-19 rapid tests. Before signing the deal, the healthcare company made sure to inquire about the tests’ “general availability.” The healthcare company agreed to the deal based upon the supplier’s assurances that it could supply 3.75 million tests immediately.

The buyer asked the supplier to begin delivering the 3.75 million tests, but the supplier balked. The buyer contacted the manufacturer, who informed the buyer that it only had 1.2 million tests. The buyer asked the supplier to provide it with the 1.2 million tests that the manufacturer had available, but the delivery was not forthcoming.

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In today’s business world, commercial transactions cross state lines with regularity. What may start as a lawsuit in Texas could later spawn action in New York. As a result, now more than ever, it is important to understand when a choice of law provision is (and isn’t) triggered. When it comes to drafting an agreement that will do what you want in the event of future litigation, be sure that you have representation from a skilled Atlanta business contract attorney.

A contracts case recently dismissed by a federal judge here in Georgia (and affirmed by the 11th Circuit Court of Appeals) is a good example. It all started with a Kansas construction project that went awry. The subcontractor on the project filed suit and eventually settled its case against both the general contractor and the insurance company that operated as the general contractor’s surety.

That didn’t resolve everything, however, as the subcontractor and the insurance company continued to contest the amount of attorney’s fees the surety owed. The courts in Kansas determined that the insurance company owed $0. Eventually, the subcontractor went bankrupt and, in 2017, assigned its legal rights related to the case to its Kansas attorney.

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For many commercial ventures — both great and small — business is a multi-state and, often, multinational venture. Even if your company doesn’t directly conduct business activities in a given state, that doesn’t automatically mean that you might not find yourself in a position where you need to sue in that state. When that state is Georgia, make sure you act swiftly to retain a skilled Atlanta commercial litigation lawyer to help you defeat efforts by the defense to derail that lawsuit.

In Georgia, as in other states, there is something known as a “Certificate of Authority to Transact Business” that shows that your non-Georgia business entity is authorized by the Secretary of State to do business in this state.

Not getting a certificate comes with various risks, which include potentially barring your business from pursuing a commercial litigation action in the Georgia courts. That is only true, though, if your business’s activity in the Peach State exceeds a certain minimum threshold.

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Commercial contracts allow you to include a variety of clauses, including one that dictates where disputes will be litigated. Even if you agreed to this kind of forum selection clause, you may still desire to litigate your case somewhere other than the forum required in your contract. If that’s you, it is important to recognize that you potentially may be able to get this done. Successfully doing this requires many things, and those things often include representation from a skilled Atlanta commercial contracts lawyer.

One way you can succeed in litigating outside the forum required by your contract is if the other side waives its right to demand enforcement of the forum selection clause.

So, what does this kind of waiver look like? A recent breach of contract case in federal court makes a good illustration. The dispute pitted a generator manufacturer and distributor against the Pennsylvania software developer and the California software installer it retained to create and install new software that the manufacturer needed.

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Signing an agreement to license your intellectual property is, not unlike signing a lease to rent your commercial real estate, something you enter into with high expectations. You’ve put in lots of work prior to the execution of that contract, and you expect the arrangement will be profitable for both sides. Of course, that doesn’t always happen. If your licensee has failed to pay you what you’re owed, it may be time to sue to collect that money and perhaps collect interest on top of it. When that becomes necessary, look to an experienced Atlanta commercial litigation attorney to help you get the most from your case.

A great many things in this world can be big business, including camouflage patterns. Indeed, one such designer, who had copyrighted an array of camo patterns, was able to make money by granting licenses to use its designs.

One licensee obtained a license agreement to put the patterns on its energy drink containers. Later on, the energy drink’s sales began to decline, and it fell behind on its royalty payments.

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The law of contracts allows entities to contract for many things. You can stipulate where disputes will be litigated, and you can declare what state’s laws should be used for resolving the arguments made in that litigation. When it comes time to negotiate and draft your next commercial contract, deciding on the venue and the law for resolving disputes will be among many vital considerations. Count on an experienced Atlanta commercial contracts lawyer to help you through every step from negotiation to litigation.

So, what happens if your commercial contract contains a venue selection clause but no choice of law provision? This contract dispute from the federal court in Atlanta offers a good illustration.

The parties were “a provider of consulting and sales services to educational institutions” and a provider “of data and analytics products and services to educational institutions.” The parties’ sales referral agreement said that the consulting firm “would act as the exclusive referrer for all of [the data analytics company’s] solicitation of business from the Houston Independent School District.”

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There are lots of ways that a knowledgeable Atlanta commercial litigation attorney can help your Georgia case. Some are things that you probably can identify readily, while others are less obvious. For example, what if a statute that impacts your case gets changed by the legislature while your lawsuit is going on? What happens then? You reasonably might not know, but rest assured that your experienced lawyer will, and will know how to use that change to your optimal benefit.

That’s exactly what happened in one breach of contract case from Savannah. A large manufacturer and supplier of industrial-use sulfuric acid sued the Tampa, Florida-based contractor it hired to renovate a storage tank at the supplier’s Savannah facility.

Allegedly, the Florida firm committed multiple errors, resulting in sulfuric acid leaking from the base of the tank. The Florida entity did its work from 2000 until January 2002. The supplier discovered the leak almost 10 years later, in July 2011. It filed suit in January 2012.

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