This CLE presentation is being offered under the auspices of WestLegal Education Center. It is available at no charge under many WestLaw subscriptions. If you are not a WestLaw subscriber and would like to participate in the program, please contact Andrea Stimmel at astimmel@golenbock.com and she will assist you with registration.
This course is also offered to business people who seek to gain a better understanding of how to avoid costly litigation that might result from some Letters of Intent. If you would like to participate in a more business-oriented program at your offices, please contact Andrea Stimmel astimmel@golenbock.com.
The Duty to Negotiate in Good Faith and How to Avoid it
This seminar will examine the “duty to negotiate in good faith” that arises in some preliminary agreements, such as some standard letters of intent entered into at the initial stages of any corporate or real estate negotiation. Surprising to many, this duty can be implied in a preliminary agreement even where the parties do not expressly agree to it and use the words “non-binding”. If the duty exists, it may have serious consequences for the parties’ ability to change proposed terms or abandon the negotiations. What is more, the failure to negotiate in good faith can leave the parties open to potentially significant damages, that can far exceed the other side’s expenses in negotiating an unconsummated transaction.
Geared to both transactional attorneys and commercial litigators, this program will explain when this duty arises and how a party breaches, describe the risks associated with a claimed breach, and educate participants in how to anticipate and avoid this potential hazard.
The course will discuss:
• When parties have a “duty to negotiate in good faith.”
• The types of preliminary agreements that give rise to this duty.
• If the duty exists, what constitutes a breach.
• Litigating claims of breach of the duty.
• The greatest risk of breach: potential liability for “expectation damages” under Delaware law. The seminal Delaware Supreme Court decision SIGA Techs., Inc. v. PharmAthene, Inc., 67 A.3d 3030 (Del. 2013), and recent case law post-SIGA.
• Practical tips for drafting preliminary agreements to avoid this duty and the risk of protracted litigation.
Jacqueline (Jackie) Veit is an experienced commercial litigator who has successfully tried, litigated and provided counseling in a wide range of business disputes in state and federal trial and appellate courts, and in arbitration and mediation, throughout the U.S. Her practice focuses on complex fraud matters, both in the civil and bankruptcy settings; intracompany disputes arising from corporate or asset acquisitions, or among limited liability company members or partners; and management or distribution relationships. Jackie also represents clients in administrative proceedings, and advises and litigates employment matters, particularly in connection with the termination of employment, restrictive covenants and discrimination and retaliation issues. Jackie has been recognized by the Super Lawyers publication. She recently co-authored an article, “Duty to Negotiate in Good Faith” that appeared in the New York Law Journal. Jackie has served as an arbitrator for the American Arbitration Association.
Elizabeth (Beth) Conway is a litigator whose practice is particularly diverse, representing individuals and businesses, foreign and domestic, in all phases of dispute resolution – from investigation through trial and appeal. A strategic thinker, Beth focuses on a clear understanding of her clients’ ultimate goals and then works backwards to determine best how to achieve them. Her clients appreciate her thoughtful, calculated and realistic approach to disputes. Beth is a fierce advocate for her clients when in court; but she also aggressively manages the litigation process to avoid unnecessary and unproductive procedures when possible. She has been recognized by Best Lawyers® and Super Lawyers® for providing outstanding legal counsel and representation. Beth recently co-authored an article, “Duty to Negotiate in Good Faith” that appeared in the New York Law Journal.
Practice Areas: Business Organizations & Contracts, Commercial Real Estate, Corporate & Securities, Real Estate Law
Online Media Type: Video
Production Date: 01/31/2024 12:00 PM EST
Level: Intermediate
Category: Standard
Duration: 1 Hours, 0 Minutes
Online Format: Live
Click here for information on subscription discounts and Group Viewing opportunities.
Purchase of this product provides online access for 180 days. If you are purchasing a live webcast, you will receive complimentary access to the on demand version for 180 days once it becomes available. Please note that the on demand and podcast versions may, or may not be accredited in your state.
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