Environmental, Health, and Safety Contract Issues
When environmental, health, and safety obligations slip through the cracks, corporations confront more than lost productivity and strained supplier relationships. They face a landscape of legal liabilities that can swiftly erode balance‐sheet strength, derail strategic initiatives, and unsettle stakeholders. From enforcement actions and citizen suits to contract disputes and insurance claims, EHS failures ripple through […]
Examples of Earn-out Litigation
This blog post shares three real-world earn-out litigations—each in a different forum, each tied to a transaction in the $5 million–$20 million range, and each presumably costing total attorney’s fees greater than $1 million! 1. STX Business Solutions, LLC v. Financial-Information-Technologies, LLC Delaware Court of Chancery │ C.A. No. 2024-0038-JTL (Del. Ch. Oct. 31, 2024) […]
Boilerplate Language: Forum Selection and Choice of Law
Forum Selection Parties need to consider (a) the location where the dispute will be heard and (b) whether the dispute will be resolved by litigation, arbitration, or mediation. To add a little complexity, parties need to decide whether arbitration or mediation awards will be binding or non-binding. Contracts have choice of law provisions because a […]
Boilerplate Language: Final Terms, Amending Terms, Waiving Terms, Incorporating Terms, OH MY!
Each of these issues is typically found in the boilerplate at the end of a contract. Business owners who negotiate their contracts without legal counsel typically gloss over these provisions because they are unrelated to the business terms of the deal. They do so at their own peril. Entire Agreement. The integration or merger clause–also known […]
Privacy, Security, and Artificial Intelligence Checklist
Enforcement activity saw a significant surge throughout 2025, marked by landmark judgments and multi-million dollar settlements. These actions primarily targeted issues such as analytics, ad tracking, wiretapping, data subject rights, and the collection of sensitive data. As we move into 2026, this aggressive trend shows no signs of slowing. To help your organization navigate these […]
Five Real Estate Cases to Know
Economic uncertainty inevitably leads to litigation in all sectors. Here are five different real estate cases with issues that will lead to even more cases filed in the near future. 1. Return of Deposits for Unbuilt Co‑Living Units Case: Thirty‐Three South American Buyers v. Location Ventures (Miami‑Dade Cir. Ct., filed Feb. 2024)Issue: Breach of contract—developers […]
Proactively Avoiding Earn-Out Disputes
It is pretty straightforward: draft your agreement with precision, transparency and structured processes: Clarity. Accountability. Transparency. Bespoke. These are words that should define an attorney’s work at all times. David Seidman is the principal and founder of Seidman Law Group, LLC. He serves as outside general counsel for companies, which requires him to consider a […]
Preferred AI Clauses for Contracts
After drafting, reading, negotiating, and analyzing so many contracts–all done by me versus AI–I want to share some of the better clauses I have read. Of course, each clause likely needs additional tailoring to meet your particular situation including the proper defining of the capitalized terms used in the examples below. This blog post provides […]
What Is An Earnout?
An “earn-out” is a contingent‐payment mechanism commonly used in mergers and acquisitions to bridge valuation gaps and share future‐performance risk between buyer and seller. Instead of paying the full purchase price at closing, the buyer pays a base amount up front and defers a portion of the consideration—often 10–50% of the total—to be “earned” only […]
Boilerplate Language: Scope of Exposure
Seidman Law Group will be posting a series of pieces on issues that are commonly overlooked as boilerplate provisions. The first topic discusses the scope of exposure for contracting parties. Scope of exposure is a fancy term for allocation of risk: what are the possible damages awards if a contract is breached or becomes impossible […]
Predictions on AI and Procurement
Several people have asked me for my thoughts on how AI will affect procurement. Really. First, I will share what companies are doing right now to implement AI in procurement: • Building centralized AI “governance hubs” to enforce standardized contracting playbooks. • Running tabletop exercises for AI failure scenarios linked back to contractual remedies. • […]
Illinois Law: Use of Proceeds Clauses
This imaginary case serves as a great reminder that precise drafting and prompt enforcement of use‑of‑proceeds covenants can make—or break—a commercial real‑estate loan recovery. CASE FACTS AY Properties, LLC advanced a $2.5 million construction loan to DS Investments, Inc. for the development of a mixed‑use retail property in Chicago, Illinois. Under the loan agreement, disbursements were conditioned strictly […]
All About Earnouts
Earnout Basics An earnout is a transaction mechanism where the buyer agrees to pay additional consideration to the seller post-closing that is contingent on the target’s future performance, milestones, or events. Earnouts serve several crucial purposes in M&A deals: Key Terms in Earnout Negotiations Several critical terms must be decided upon when negotiating an earnout […]
Enforcing Carve-Out or “Bad Boy” Guaranties
Enforcing carve-out or “bad boy” guaranties in real estate loan agreements—especially in Illinois and other jurisdictions that favor lender protections—requires a strategic blend of contract clarity, trigger precision, and procedural discipline. Here’s how to do it effectively: First, the guaranty must be clearly drafted, with carve-out events precisely defined. Courts have upheld full recourse liability […]
Key Legal Issues in Real‑Estate Loan Defaults
Both lenders and borrowers–no matter how sophisticated they are or how much artificial intelligence they may use–often need reminders of the key issues they need to think about. Are There Any Event of Default & Acceleration Clauses?Most commercial loans define specific “events of default” (e.g., missed payment, breach of a covenant, insolvency). Upon default, lenders […]
Drafting Carve-Out or “Bad Boy” Guaranties
Drafting effective carve-out or “bad boy” guaranties—especially in Illinois or similar jurisdictions—requires a careful balance between lender protection and guarantor fairness. Here are some nuanced tips to help you structure them strategically: Start with precise definitions. Avoid vague terms like “waste” or “bad acts” unless they’re clearly defined. Courts have interpreted ambiguous carve-outs as triggers […]
Case Update: Post-Closing Litigation
In Northern Data AG v. Riot Platforms, Inc., a Delaware court dealt with a case in which the parties disagreed on the final price and submitted several issues to an accounting expert. The expert resolved four issues in favor of the Buyer. To no surprise, the Seller then ran to court. For two of the four […]
Extreme Heat and Manufacturing/Distribution Agreements
I have been asked several questions recently about this issue for obvious reasons. Rather than bore you in one blog post, I decided to bore you in two blog posts. 1. Definitions & Scope 2. Manufacturing-Phase Obligations 3. Distribution-Phase Protections 4. Force Majeure & Excusable Performance 5. Indemnities, Warranties & Liability Caps Clause Type Purpose […]
Getting Ready for the Get Ready: Selling a Business
I hope the cheesy photo grabbed your attention because overlooking key legal aspects of an M&A deal can lead to delays, disputes, or even derail the deal entirely. Here’s a breakdown of the most important legal considerations: 🧾 1. Business Structure and Ownership 📑 2. Due Diligence Preparation 📜 3. Contracts and Assignability 🧠 4. […]
Simple Mistakes That Cause Expensive Litigation
No one is perfect. This is why many of us have jobs. However, many mistakes are avoidable. REALLY AVOIDABLE. These three cases are reminders to sweat the small stuff. Bissell Street I, LLC v. Westbrook Partners LLC (New York): Parties that co-funded and worked together in the acquisition of a $139,000,000 real estate property failed […]
Delta v. Crowdstrike: Third Party Risk Management
The Blue Screen of Death. It scared everyone who saw it. Let’s just say CrowdStrike’s update to customers’ Microsoft systems did not go according to plan. CrowdStrike later explained the error was attributed to a logic flaw in its Falcon sensor configuration update. Put differently, CrowdStrike claims it was a failure in its development process […]
AI and Hiring: A Growing Minefield
A recent analysis published by MIT (Here) analyzed AI technologies that are used to screen and hire potential employees. The analysis found that improvements made using AI interviewer bots, resume screening software, and other platforms that rely on advanced language models are real but significant flaws remain that are problematic. This blog post points out […]
Real Estate LOI Basics
Real estate letters of intent (LOIs) set forth economic terms, provide a checklist of the basic substantive terms, and serve as the starting point for attorneys to draft the formal agreements. Put differently, LOIs are the preliminary understandings of parties who intend to enter into a contract in the future “if the deal works out.’” […]
Knows Your PIK Part 2
PIK Borrowers PIK interest loans benefit borrowers when they have significant growth potential but temporary cash constraints, need to conserve cash in periods of underperformance, or face a lack of equity funding or uncertain liquidity options. These types of borrowers are not serviced by traditional banks or ABL lenders. Borrowers seeking PIK interest loans in […]
Knows Your PIK Part I
Paid-In-Kind (PIK) interest features allow borrowers to add interest to the principal of a loan versus making cash payments. This is different than traditional interest payments where borrowers pay interest in cash at regular monthly or quarterly intervals. A growing number of private market loans are being structured or amended to include PIK interest in […]
Web Scraping vs. Terms of Use
Data scraping extracts and copies data from websites. Often this is done to train AI large language models. Because scraped data commonly includes user-generated content and personal information, many companies explicitly prohibit data scraping through their terms of use. This includes X (formerly Twitter) which tried to enforce its anti-scraping terms of use. X’s argument […]
Key Tenant Issues In Data Center Leasing Agreements
Leasing a data center is a strategic decision that comes with unique challenges. Here are some of the critical issues you should be aware of before signing a data center lease. 1. Security and Access Data centers house critical infrastructure, making security a top priority. Here are some considerations: 2. Maintenance Responsibilities Data center tenants […]
Choosing A Law Firm: Supersizing Often Fails
Would you hire a vendor that does not properly regard conflicts of interest? Fails to abide by basic business rules and laws? Loses you in the shuffle of other and larger clients? Violates its own internal procedures? Of course not. Yet business owners do this every day when engaging law firms. So please accept this […]
Liquidated Damages In Real Estate Agreements
Liquidated damages provisions must be given careful consideration when negotiating a real estate agreement. Liquidated damages provisions usually appear as “earnest money” or a “non-refundable deposit” to set forth the negotiated amount of money that a seller can retain if a buyer breaches a purchase and sale agreement. Buyers are generally entitled to a return […]
AI and the Future of Contracts
Contract negotiations and interpretations present unique challenges for AI. For millennia contract law has been all about contextual understanding, personal analyses, concern for the future, and preventing (or creating) ambiguities. These issues are why solely relying on AI to draft contracts is unwise. Unsurprisingly, AI-generated contracts lack the ability to adapt for changes in the […]
Intercreditor Agreements
Intercreditor agreements are key. This is particularly true for real estate investors.
AI: Choice of Law Provisions
One of my favorite “boilerplate” provisions now needs even more analysis. With state legislatures passing legislation and state court starting to issue rulings the choice of law governing your contract is more important than ever. The most notable state is California. Straightforward compliance with the California Consumer Privacy Act is not the whole battle because […]
Supply Chain and Pricing
“Supply chain issues” is the post-Covid version of saying “the check is the mail.” It is a perfect analogy. When a person blames the post office, that person is blindly blaming everyone from the clerk at the post office to the person who delivers your mail plus an untold number of people who have […]
SaaS Agreements – Part 3
And now for the conclusion of SaaS agreements…. 8. Warranties. Software providers try to disclaim every possible warranty in their agreements. When they are willing to provide any warranty, it is likely because there are multiple redundancies in the software that enable to the software to function under most every circumstance. That being said, customers […]
SaaS Agreements Part 2
For those of you who missed part one, please click here. I am diving right in. 5. Customer Support. For software companies, there is a delicate balance to be struck the amount of customer support and the pricing for customer support. Smart software companies have already decided these issues well before customer outreach starts. Customers […]
SaaS Agreements – Part 1
Everyone knows software rules the world. Few people know how to draft and to negotiate Software as a Service (SaaS) Agreements. Before analyzing any contract language, it is important to list the key terms and conditions in a SaaS Agreement: This article will address the first four points above. 1. Access Rights and Users: Software […]
IP Licenses Are IP Leases
An intellectual property license is a lease for use of Intellectual property. If attorneys and their clients understood this elemental principle, then licensing negotiations would often be less complicated, less fought over, and less expensive. Certain words are used in the same manner in both types of agreements, such as the words “term”, “termination”, and […]
When Good Non-Recourse Loans Go Bad
More than $5 trillion of commercial real estate-related debt is scheduled to mature by the end of 2024. Significant demand to refinance debt over the next fourteen months will occur regardless of economic conditions. But current and anticipated economic conditions for commercial real estate owners are not promising. Finding affordable refinancing opportunities will grow increasingly […]
Force Majeure Clauses Remain Very Important
Simply adding “pandemics” or “Covid-19” to force majeure clauses is lazy lawyering. Courts analyze force majeure clauses according to their specific language. Ironically, this is one area where attorneys are failing to put in the time—billable time!—to ensure their clients are properly advised. The following are issues that are commonly overlooked: How does climate change […]
Smart Ways To Minimize Legal Risk
Smart businessowners understand managing legal risk increases a company’s bottom line and, therefore, its value. More than ever, attorneys are the generals leading defense preparation and implementation to protect the company’s assets from attacks coming from every direction. It is well understood business risks are frequently unintended or unforeseen. When this happens, the company faces […]
Price Escalation Clauses
Inflation has made price escalation clauses a relevant topic. Yet many of these clauses fail to create a clean, straightforward understanding as to how the escalation will work. A well-drafted price escalation clause should have the following five elements: Many business considerations need to be addressed within the five elements. In talking with business owners […]
Limitation of Liability Clauses
A limitation of liability clause is a term in an agreement that limits potential exposure if a lawsuit or claim is filed. Liability caps can focus on prohibiting liability beyond specific amounts of money: This is rather straightforward. Limiting the types of damages that can be recovered is trickier. Many agreements permit parties to recover […]
#MeToo Clauses
#MeToo clauses are still relatively new additions to the numerous representations and warranties in M&A agreements. These clauses focus on a seller’s knowledge or awareness of accusations of sexual misconduct against its executives and others, which could be internal and financial land mines. It is unsurprising that these provisions are now being inserted into other […]
NDA No-Nos
It is common knowledge that a Non-Disclosure Agreement (NDA) does not provide absolute protection of a company’s intellectual property or other proprietary information. Unfortunately, many business owners are not advised with sufficient detail as to (1) why an NDA is insufficient and (2) how to keep an NDA enforceable. Receiving poor or no advice concerning […]
June 2022 Hotel Newsletter
HOTEL LAW NEWSLETTER – JUNE 2022 Seidman Law Group represents various clients in the hotel sector. Our extensive work in this field requires us to stay current with the everchanging federal, state, and legal landscapes that affect our clients. It is our pleasure to share insight into issues we recently encountered while advising our […]
Short Post: Defining “Indemnify”
Ironically, failure to properly define the word “indemnify” is the root of significant number of lawsuits because the definition varies from state to state. In a majority of states, the duty to indemnify does not automatically include the duty to defend the indemnitee. A number of states, including California, define indemnification to cover both legal […]
Effective Use of Arbitration Clauses
Clients often want dispute resolution provisions to include only jurisdiction, venue, and choice of law terms to avoid overwhelming their clients. In these circumstances, I always recommend one additional term: mandatory non-binding mediation before a claim or lawsuit is filed. When the stakes are very high, I often recommend clients to include details that do […]
