Law Offices of Vance R. Koven | Latest Blog

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Law Offices of Vance R. Koven | Latest Blog

May (or might) the Force Majeure Be With You?

Thursday, April 16, 2020

One of the hottest topics in business law to come out of our sequestered and economically chaotic pandemic times is whether parties to contracts (including among other things commercial leases) that have been made functionally useless by people’s inability to do business in the normal course can suspend or even cancel their obligations. In most situations they have their eyes on a ubiquitous bit of contractual boilerplate usually referred to as the “force majeure” clause. The concerns addressed here are far from academic: I've fielded plenty of questions from clients conc more

Public Domain Expands at Last

Monday, February 04, 2019

Is it 2019 yet? Last Thursday (1°F in Boston that morning—OK, no competition with Minnesota, but still) I attended a program given by Suffolk University Law School’s Intellectual Property section on the subject of the public domain. This was in celebration of the fact that, for the first time in 20 years, works have started to age out of copyright coverage. Thus, works first published in the US in 1923, including classics of literature, art, music and film, are now free for everyone to use. Or pretty much so. One of the presenters at the program was an actor n more

Big Pharma Merger Case Teaches Many Lessons

Thursday, October 04, 2018

Holy hypodermic, Batman! Since my exposure to the pharma industry is pretty tangential, I haven't been following this dispute between Fresenius, a large German drug company, and Akorn, a US company it had agreed to acquire and then sought to drop like ein' heißen Kartoffel. The Delaware Court of Chancery handed down its judgment in the case Monday in an opinion by Vice Chancellor Laster, and it's quite remarkable--the opinion, for all its 246 pages, is quite the page-turner and discloses a pretty sordid set of facts. You can find the case here (). The detailed description of the facts more

Insure For When the SEC Knocks

Wednesday, April 18, 2018

An article published yesterday caught my eye in that it focused on a previously unremarked aspect of a Securities and Exchange Commission (SEC) enforcement action I have been following. It's worth mentioning here. A month or so ago the SEC brought a civil lawsuit against the founder of Mozido, a financial technology (fintech) company, alleging that he had fraudulently induced investors into putting money into companies he controlled, giving the investors to believe that they were investing in Mozido itself (Mozido is not a party to the SEC action). The factual settin more

Don't Download That Form!

Friday, September 22, 2017

An awful lot of people believe that they can research their own legal needs online and find a free or dirt-cheap legal form that will protect them in documenting their transactions. They’re wrong. Yes, yes, I know, it’s in my interest to have clients in need of documentation for business transactions come to me (or, more benevolently, any transactional attorney skilled in drafting) to prepare them and not rely on forms they downloaded from the Interwebs. But really, it’s in their own interest not to rely on those forms, and I’ll tell you why: 1. A form doesn’t know you more

New Case Shows̵̵̵-Yet Again-The Perils of Ambiguity

Thursday, June 22, 2017

A recent case in Pennsylvania has come to the refreshing, albeit to laymen blindingly obvious, conclusion that you can’t use bare grammatical or syntactic “rules” to avoid deciding what a contract means based on what the parties intended it to mean. In BL Partners Group, LP v. Interbroad LLC () (sadly not a precedental decision), a building owner leased a rooftop to BLP for a billboard. The lease, which had a 90-year term, included the following language in its termination provision: "In the event that Lessor's building is damaged by fire or other casualty and Lessor elects more learns, or at least teaches, a lesson

Thursday, May 25, 2017

There's been a flap in the news lately about the genealogy and DNA-testing site ("Ancestry"), which among other things offers to test users' DNA to ascertain their national and ethnic ancestry. Their terms of service, which (as they will remind you if ever you are in violation of them) constitutes the contract between them and the user, was found by one eagle-eyed privacy crusader () to contain a license from the user to Ancestry granting it a "perpetual, royalty-free, worldwide, sublicensable, transferable license" to the user's DNA data. Once the publicizing of these t more

Equity compensation for services in start-ups

Wednesday, March 23, 2016

Many times a start-up company will need services, for example software development, but doesn’t have the money to pay for them. At that point, many founders offer to give their key contributors “a piece of the action” by issuing equity in the company in exchange for the services. The services contributor might be willing to accept that bargain because the ultimate value of the equity stands to be much greater than the value of the time put in. Sounds like a win-win proposition. However, there are numerous factors to consider before agreeing to such a deal, on both sides of the equ more

Online advice, good and bad

Saturday, June 20, 2015

I happened on an infomercial for Intuit's QuickBooks® accounting program (which I neither endorse nor diss) that has some decent advice for small businesses about when to consult a lawyer, but which also points to some dangerously bad advice. Here's the link: While this article's checklist of things to look out for is reasonable, the advice with respect to "work for hire" agreements can lead more

Know your exposure!

Saturday, April 18, 2015

"You're over-lawyering it!" is one of the most common complaints leveled by a client's representative at a transactional attorney. What usually precipitates the comment is when the lawyer returns an agreement drafted by the client's counter-party and the lawyer has lavishly decorated it with comments and edits. It can be quite dismaying to see such a document; it means that the negotiating road ahead may be steep and rocky, with the date of signature not right around the corner, and a very real possibility that there won't be one at all if it turns out there are fundamental impediments more