Rachel J. Barnett - A Short & Happy Guide to Business Contracts

West Academic Publishings Emeritus Advisory Board

Jesse H. Choper

Professor of Law and Dean Emeritus
University of California, Berkeley

Yale Kamisar

Professor of Law Emeritus, University of San Diego
Professor of Law Emeritus, University of Michigan

Mary Kay Kane

Professor of Law, Chancellor and Dean Emeritus
University of California, Hastings College of the Law

Larry D. Kramer

President, William and Flora Hewlett Foundation

James J. White

Robert A. Sullivan Emeritus Professor of Law
University of Michigan

West Academic Publishings Law School Advisory Board

Joshua Dressler

Distinguished University Professor Emeritus
Michael E. Moritz College of Law, The Ohio State University

Meredith J. Duncan

Professor of Law
University of Houston Law Center

Rene McDonald Hutchins

Dean and Joseph L. Rauh, Jr. Chair of Public Interest Law
University of the District of Columbia David A. Clarke School of Law

Renee Knake Jefferson

Joanne and Larry Doherty Chair in Legal Ethics &
Professor of Law, University of Houston Law Center

Orin S. Kerr

Professor of Law
University of California, Berkeley

Jonathan R. Macey

Professor of Law,
Yale Law School

Deborah Jones Merritt

Distinguished University Professor,
John Deaver Drinko/Baker & Hostetler Chair in Law
Michael E. Moritz College of Law, The Ohio State University

Arthur R. Miller

University Professor, New York University
Formerly Bruce Bromley Professor of Law, Harvard University

Grant S. Nelson

Professor of Law Emeritus, Pepperdine University
Professor of Law Emeritus, University of California, Los Angeles

A. Benjamin Spencer

Dean & Chancellor Professor of Law
William & Mary Law School

Business Contracts

Second Edition

Rachel J. Barnett

Lecturer in Law
Columbia Law School

A SHORT & HAPPY GUIDE SERIES

The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

a short & happy guide series is a trademark registered in the U.S. Patent and Trademark Office.

2017 LEG, Inc. d/b/a West Academic

2021 LEG, Inc. d/b/a West Academic

444 Cedar Street, Suite 700
St. Paul, MN 55101
1-877-888-1330

Printed in the United States of America

ISBN: 978-1-64708-600-8

Legal Disclaimer

The information in this book should not be construed as legal advice or legal opinion on specific facts. This book is not intended to be a definitive statement on the subject matter addressed. Rather, it is intended for general understanding and to provide practical tools and references. It is meant to make you smarter and improve your communications with attorneys to seek the right advice and make the contracting process more transparent and efficient. Your use of this book does not in itself establish an attorney-client relationship with the author or any contributor.

All content in this book is presented AS-IS, WITH NO WARRANTIES OF ANY NATURE, EXPRESS OR IMPLIED; USE AT YOUR OWN RISK. If you do not know what the previous sentence means, you have much to learn (for starters, check out the section on warranty disclaimers herein). Every case is unique, and laws and regulations change constantly. If you have questions or concerns about legal documents, feel free to discuss them with an attorney. Oh, and any views that might be expressed here are the authors and not necessarily those of any current or former employers, colleagues or anyone else.

Rachel J. Barnett

January 2021

Acknowledgments

I would like to thank the many people who have made this book possible.

First, to Avery Katz for giving me the opportunity to teach a course at Columbia Law School that simulates real life challenges faced by legal departments, and to Louise Firestone for taking this journey with me. I would also like to express my sincere gratitude to those that read through the books many drafts, Alan Howard, David Glogoff, Kristin Pauley and my editor, Jill Nawrocki. Thank you for taking time out of your busy schedules to provide helpful suggestions and thoughtful feedback to move this project forward.

I would like to thank Courtney Maggart and Lily Gunn Townsend for encouraging me to do this in the first place. You convinced me to write down my thoughts to make it easier for anyone to understand complex legal concepts. Had it not been for our conversation over pizza and wine in Palm Springs, this book would not have come to fruition.

Most importantly, I would like to thank my husband Jeff who spent months listening to me talk about a book on contracts. If that was not enough, he also proofread the manuscript multiple times, allowed me to take over his home office and has been my project manager throughout this process and in life. Finally, I dedicate this book to Asher and Parker, our greatest joys.

About the Author

Rachel Barnett is an experienced lawyer who has held a wide variety of roles as in-house General Counsel and within private practice. She is also a Lecturer in Law at Columbia Law School where she co-teaches a course entitled Exploring the Role of the General Counsel. The course teaches students how to combine practical business judgment with legal knowledge to achieve commercial objectives. The course is designed specifically to expose law students to real-world experience and to learn about the inner workings of Corporate America.

In 2019, Ms. Barnett joined Brooks Brothers, Americas oldest apparel company, as General Counsel and Secretary overseeing its global legal affairs. Prior to joining Brooks Brothers, she was a member of the Board of Directors and General Counsel of Travelzoo (NASDAQ: TZOO), a global Internet media company and publisher of travel, entertainment and local deals.

In her roles as General Counsel, Rachel has managed a wide-range of legal matters, including, among other things, corporate governance, employment, intellectual property, real estate, M&A transactions, securities compliance and general litigation. She embraces technology, develops business processes to improve efficiency and papers transactions from beginning to end. Rachel is a General Counsel that provides more than just legal analysis but also serves as a strategic business partner committed to advancing the companys goals.

Prior to transitioning in-house, Rachel was an attorney at Skadden, Arps, Slate, Meagher and Flom, LLP, where she specialized in representing corporations and their officers and directors in a variety of litigation matters, including merger and acquisition litigation, shareholder derivative lawsuits and securities fraud class actions at both the trial court and appellate levels.

Ms. Barnett began her legal career as a clerk for the Honorable Vice Chancellor Stephen P. Lamb of the Delaware Court of Chancery. Rachel earned her Juris Doctor degree from Columbia Law School and a Bachelor of Science degree from Cornell University.

Table of Contents

Are You Paying Close Enough Attention to the
Limitation of Liability Clause?

What to Watch out for in a Limitation of Liability
Clause

Other Common Carve-Outs in a Limitation of