Business Contracts – Lessons Learned from COVID

as published in the Boston Business Journal, and The American Bar Association   Peter Kelman, Esq. Several weeks ago, a client asked for advice with respect to this COVID induced situation.  His best customer had retained his company to perform $2,000,000 worth of services to host an elaborate corporate party in May of this year.  My client had already received $1,500,000 under the contract, and had spent about $1,000,000 in advance payments to vendors.  Given COVID, the customer notified my client that the party was off and that it was cancelling the contract.  The customer wanted his money back. My …

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The WHO CARES Act

  On March 27, 2020, President Trump signed into law the bill entitled the “Coronavirus Aid, Relief and Economic Security Act” or the “CARES Act.” I suspect that this title was an abbreviation of the original, more accurately descriptive title: “We Help Ourselves: Coronavirus Aid, Relief and Economic Security Act” or the “WHO CARES Act.”  The original title captured the true spirit of the law. And WHO was the muse in WHOse honor the WHO CARES Act was entitled?  None other than the First Lady, WHOse custom designed jackets broadcast the truth about the concerns motivating our legislators WHO passed …

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How to Dance with a Partner Without Being Stepped On

By Peter Kelman, Esq.   Published in Mass High Tech, November 18, 2002. Introduction Now that the squeeze is on to be leaner and more efficient than ever, companies are turning to “partners” to help market, distribute and develop their products.  The premise is simple: you can spread the word about your products by taking advantage of the connections that another company has created.  In today’s highly networked world, the notion makes sense.  If you have a core product or competency, partner with another organization that can add value and market it to their customers.  Take a tip from Nike: …

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Recycled Intellectual Property – Phoenix from the Ashes

  This article appeared in substantially the same form in the Boston Law Tribune, June 3, 2002 edition.   By Peter Kelman, Esq.    and Jonathan Nilsen, Esq. Dots may com and dots may go but what happens to the underlying concepts, or intellectual property, behind the dots?  Presumably within each Internet and e-commerce venture that has come and gone there was some kernel idea or core technology that ignited initial investment and development.  But when a company goes down in flames, does its intellectual property (I.P.) go up in smoke, or can it provide the fuel for another venture?  …

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The Shape of Things to Come

By Peter Kelman, Esq. This article appeared in substantially the same form in the Boston Business Journal, November 12, 2001. What are we to make of the post-new economy?  Or more importantly for businesses that grease the wheels of the economy – banks, law firms, and accounting firms – how are we to staff for the post-new economy?  There is a disconcerting quiet in the Boston financial services community.  After the nose-to-the-grindstone, no-time-to-breathe, go-go 90’s, many professionals are unnerved by the current slowdown in business deals.  The smell of the flowers simply can’t substitute for the smell of money. The …

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The Name Game, or Who is Kicking ICANN’S Can?

“C’mon people, if we all cooperate, we can get through this thing.” – Chip Monk, Woodstock, 1969. By Peter Kelman, Esq. This article appeared in substantially the same form in the Boston Business Journal, August 24, 2001. While ecommerce undergoes its shakeout, the Internet infrastructure undergoes a shakedown.   Like physical real estate, the real estate of cyberspace has one key: location, location, location.  To navigate cyberspace, just like to navigate physical space, you need a map.  Today, the issue is who gets to draw the map, and if there is no consensus, can there be more than one map?  Even …

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To Err is Human, To Prepare is Good Business

By Peter Kelman, Esq. This article appeared in substantially the same form in the Boston Law Tribune, April 30, 2001. You would not deposit money in a bank that did not lock its vault.  You would not bring a ring for repair to a jeweler that did not secure its premises.  As consumers, we expect that merchants will take appropriate steps to safeguard our property.  In the world of traditional retail, where we interact with merchants whose “sites” are stores, we feel capable of assessing the security of that which we can see and touch.  Think of the assurance you …

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Electronic Signatures – The Law of the Land

By Peter Kelman, Esq.   This article appeared in substantially the same form in the Mass HighTech, February 5, 2001. As of October 1st of 2000, typing your name at the bottom of an e-mail may be enough to create an enforceable contract.  Such is the result of the legislation passed by Congress this summer that recently took effect.  The Electronic Signatures in Global and National Commerce Act, or E-SIGN (certainly one of the better acronyms for federal legislation) was enacted to facilitate electronic commerce.  E-SIGN is a federal statute (Public Law 106-229) that affects transactions involving interstate commerce conducted …

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Beware of What You Offer – It May be Accepted

By Peter B. Kelman, Esq.      Danielle N. Cannito, Esq.   This article appeared in substantially the same form in the Boston Business Journal, August 25, 2000.   Our parents’ dream was to have one job for life and then collect pension for retirement.  How times have changed.  Today the prospective employee targets the “pre-ipo” employer and hopes to remain for the public offering, or until the employee’s stock options vest and stock restrictions lapse.  Perhaps we have not quite gotten to where everyone has fifteen minutes of fame; but it seems that we are moving to a job market …

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Microsoft Antitrust in the People’s Court

By Peter Kelman, Esq. This article appeared in substantially the same form in Mass HighTech, July 10, 2000. This memo was recently leaked to the press from undisclosed sources. U.S. DISTRICT COURT MEMO To:                   Judge Penfield From:               Law Clerks Re:                   Consumer Remedies against Microsoft   Issue: Judge, you have asked us to explore whether the orders of this court sufficiently redress the harm Microsoft’s practices have inflicted on the public at large.  This memo contains our conclusions.   Answer: The briefs submitted by the parties have not adequately addressed the relief due individual purchasers of Microsoft products (IPOMP’s).  However, …

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Microsoft Act III – What Remedy will the Doctor Prescribe?

By Peter Kelman, Esq. This article appeared in substantially the same form in Mass HighTech, May 10, 2000. Judge Penfield Jackson, the presiding judge in the Microsoft antitrust case, now confronts his most difficult issue.  His Court must fashion a “remedy” to cure the harm caused by Microsoft’s monopolistic practices.  The Justice Department has recommended that Microsoft be “split” into two separate companies.  But will that solve the problem that got us here?  Or would court ordered corporate mitosis merely create two smaller monopolies where there had once been one?  Before suggesting a remedy, let us first trace the historical …

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Does Technology Heal Itself? Does the Y2K bug make its own vaccine?

by Peter Kelman, Esquire This article appeared in substantially the same form in the Aspen Y2K Advisor, December, 1999. Introduction A funny thing seems to have happened on the way to Y2K.  Without trying to be too bold a prognosticator, the Y2K meltdown anticipated by many appears unlikely to occur, at least in this country.  If we experience Y2K “lite” instead of Y2K darkness, it is interesting to speculate on the reasons adversity was minimized.  Perhaps the very same technology that brought us Y2K also delivered its cure. Recently, I moderated a town meeting on the status of Year 2000 …

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Will Insurance Cover Y2K Remediation Efforts? Would the Y2K bug torpedo your computer system?

by Peter Kelman, Esquire This article appeared in substantially the same form in Mass HighTech, November 21, 1999. Introduction Just when it seemed like we had done all there was to do for Y2K preparation, just when it seemed like it was time to kick back, wait if the lights go out and the lawsuits ensue, a new “hot topic” has emerged in Y2K insurance coverage.  Several companies are testing the limits of insurance coverage by demanding that their insurers pay for their Y2K remediation costs.  Relying on an obscure provision, called the “sue and labor clause,” found in certain …

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Are You Sure You are Insured? the Y2K Commercial Insurance Exclusion

by Peter Kelman, Esq. This article appeared in substantially the same form in the MetroWest Daily News, July 12, 1999. You own a business.  You’ve heard about the Y2K computer bug, you’ve read about the bug and, in fact, you have squashed the bug.  You have a new computer system and the latest software.  You’re Y2K compliant.  January 3, 2000 rolls around and you go to work (January 1, 2000 is on a Saturday).  You are at work and your employees are at work but your in box is empty because your delivery company could not deliver your raw materials …

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Splatter the Chatter – How to Control Employee Gossip in Internet “Chat Rooms”

by Peter Kelman, Esquire Published in Mass High Tech in two parts, October 11, 1999 & October 25, 1999. Introduction The “Instantnet” could be another name for the Internet.  Once a statement is published on the Internet, it is instantly available to hundreds of millions of readers worldwide.  Unlike printed material which has a short shelf-life, Internet content remains accessible to more and more readers until the author erases it.  If material is anywhere, it is everywhere; if material is available at any time, it is available all the time.  In other words, the Internet is the perfect medium to …

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Start-Up Q & A

By Peter Kelman, Esq. This column appeared in substantially the same form in the Boston Software News, July, 2000. Question:        I am thinking about starting my own company.  Do I really need to see a lawyer for legal advice? Answer:          This is a tough question.  Certainly with all the information available to individuals, whether via the web or in the business section of a bookstore, it is tempting to say that legal advice need not be dispensed by a lawyer.  I suppose the difficulty for do-it-yourselfers is to determine which of the many sources is the right one for you.  …

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Employment Q & A  

By Peter Kelman, Esq. This column appeared in substantially the same form in the Boston Software News, August, 2000. Question:        My employment agreement has a “non-compete” provision.  What does this really mean?  I have heard they are non-enforceable, is this true? Answer:          Before you can start a job with a company, the employer will probably ask you to sign a “non-compete” agreement.  These agreements generally restrict certain activities you can undertake during and after your job.  Typical restrictions may limit your right to: a) set up a business which competes with your employer; b) work for your employer’s clients; c) …

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Primer for Stock & Options

By Peter Kelman, Esq. This column appeared in substantially the same form in the Boston Software News, September, 2000. What is a stock option?          Many technology companies offer employees options in the company’s stock.  An option is different from the stock itself.  An option represents your right, not obligation (that’s why it’s an “option”), to acquire the stock of the company at a pre-determined price.  A stock option is a contract between you and the company that allows you to buy a certain number of shares of the company’s stock at a fixed price, as determined by the board …

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How to Collect your Fees and Keep Them Too – Contract Tips for Systems Developers

by Peter Kelman, Esquire Introduction Have you ever been caught in any of these situations: You’re in the middle of a development contract with an important client; your client relationship seems good but the payments are coming very slowly; you’re not going to terminate the job, but what leverage do you have to accelerate payments? You have developed a system for a client.  Under your contract, you receive a large payment upon the client’s “acceptance of the system.”  The client maintains the system has substantial errors and is not acceptable.  Yet you know, despite the so-called bugs, the client is …

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Guide to Trademark Applications

memorandum TO: My Clients FROM: Peter Kelman DATE: April 1, 2001 SUBJECT: Trademark Application Process   Please supply the following information about your trademark.  The administrative filing fee for a trademark application is $325 per class.  I will need a check from you in this amount made out to the Assistant Commissioner of Trademarks. For item number 9, you will need to supply an example of material using the mark in the way we describe it. Please call with any questions. Data Needed to complete a trademark application: Company Name Company Address Type of corporate entity you are (eg. Delaware …

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