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Tel: 804.864.1100

business law

Nutriati in the News, Again

We were excited when our morning edition of RichmondBizSense arrived in our inbox to see our client Nutriati covered in some detail. This innovative client has been pioneering a chickpea-based food additive and the industry’s interest in their products is gaining momentum. We’re glad so many are paying attention to their work.

If you  have any questions about our business law work or have an issue you need to discuss, please contact any of our business lawyers.

U.S. Supreme Court Upholds Class Action Waivers in Arbitration Agreements

U.S. Supreme Court building.

U.S. Supreme Court building. (Photo credit: Wikipedia)

In a decision that could bode well for competitive retail energy suppliers, the U.S. Supreme Court on May 21, 2018 upheld employers’ arbitration agreements containing class action waivers. In a 5-4 opinion by Justice Gorsuch in Epic Systems Corp. v. Lewis, the Court deemed the arbitration provisions enforceable under the Federal Arbitration Act, 9 U.S.C. § 2 et seq., which requires courts to enforce an arbitration agreement unless there are grounds to refuse to enforce it under the Act’s savings clause (e.g. fraud, duress, or unconscionability).

In Epic Systems Corp., the employees challenging the arbitration agreements argued that mandated individualized proceedings (i.e. class action waivers) conflicted with language in the National Labor Relations Act, rendering the agreements unenforceable. The Court rejected the employees’ arguments, holding: “Congress has instructed in the Arbitration Act that arbitration agreements providing for individualized proceedings must be enforced, and neither the Arbitration Act’s saving clause nor the NLRA suggests otherwise.”

While this case involved employment contracts rather than retail energy supply contracts, the Court’s precedent upholding arbitration agreements with class action waivers is a good sign for retail energy suppliers concerned about potential class action claims.

If you have questions or would like to learn more issues to consider when preparing retail energy supply contracts, please contact one of GreeneHurlocker’s energy and regulatory lawyers.

Collin Atkins Joins Business Practice

Collin Atkins, business lawyerCollin Atkins, a business attorney in private practice in Richmond, has joined the business, renewable energy and corporate law practice of GreeneHurlocker PLC, co-managing member Eric Hurlocker announced today.

“Collin joins us with significant experience working with corporate clients, as well as a number of years as in-house counsel for a manufacturer, which will enhance and expand the services that we provide to our business and renewable energy clients throughout the region,” Eric said.

Atkins focuses his practice on assisting clients who require advice in formation, contract drafting, and employment and regulatory concerns. In addition, he offers counsel on a wide variety of commercial agreements across different industries, including distribution, manufacturing, service, and technology related industries, which will contribute to the expansion of the firm’s OPENgc services.

“I’m excited about joining GreeneHurlocker and partnering with clients who are growing and expanding their businesses,” Collin explains.

Atkins will be based in the firm’s Richmond office, but will also have an office at the firm’s  Harrisonburg location to support the firm’s growing practice throughout the Shenandoah Valley.

Atkins earned his undergraduate degree in history from Presbyterian College in Clinton, South Carolina. He earned his J.D. at the William & Mary Law School, where he was a graduate research fellow and a member of the William & Mary Bill of Rights Journal.

Setting a New Barre for Fitness

We were excited to read the Richmond BizSense article on our client, City Barre LLC, who is preparing to open a new fitness studio in the Scott’s Addition neighborhood of Richmond this spring. City Barre’s new studio will offer barre classes, which combines various types of exercise techniques including yoga and ballet. We are honored to have been a part of the team that has helped City Barre, and its founder Gretchen Stumpf, get to this point and we look forward to watching City Barre succeed in this exciting new chapter!

If you want to know more about how we worked with City Barre or more about business law, please contact one of our business and corporate lawyers.

Shenandoah Valley Organic Has Chicken Industry Clucking

Shenandoah Valley Organic's Farmer FocusOur client Harrisonburg-based organic chicken producer Shenandoah Valley Organic, LLC (SVO) first disrupted the poultry industry by creating a new business model of who owns the chickens while they are raised.  Now, with their new brand, FARMER FOCUS, SVO is tying into Millennials‘ desire to provide community support to local food sources by giving consumers the ability to learn more about the very farm and farmer that grew their chicken – and they are getting mainstream industry attention for doing so. (The link requires a free registration to read the news.)

If you want to know more about SVO’s business or have business law issues you would like to discuss, call one of our business lawyers in Harrisonburg or Richmond.

Nutriati Keeps Moving Forward

Photo by RTD, Alexa Welch Edlund

We were excited to read the front page coverage about our client, Nutriati, who we have mentioned before, here and when they were selected for a ChamberRVA IMPACT Award, in yesterday’s Richmond Times Dispatch Metro Business section.

You can see and read about the strides the Company continues to take on the RTD website.  We wish the Nutriati Team continued success, and we’re looking forward to tasting those brownies someday soon.

Words Matter in the Heart of the Deal

Lawyers trade in words.  It goes beyond dropping Latin phrases like ipsi dixit (“a dogmatic and unproven statement”) and nunc pro tunc (“now for then”) into legal briefs.  It is part of the business law as well.  Attorneys write into their contracts musty-looking words that are meaningful to them (like “hereby” and “therefor”) to telegraph something to the lawyers on the other side and to courts who might interpret the document years later.

Adherence to customs like this is tied to the fact that lawyers live in a world where the consequences of imprecision can be a serious matter.   There are two ways to accomplish precision: write with rigorous terseness that no one can misunderstand or throw up a fence of words that hems in an unruly concept so tightly that it can’t escape.

Representations, warranties, covenants and conditions are found in most commercial contracts of any complexity, such as shopping center leases and an asset purchase agreement.  These provisions are, or at least should be, sources of comfort to the parties to a contract, because they can greatly reduce the risk that arises from the unknown.   But they are often glossed over by the principals in a deal – perhaps perceived as another lawyerly way of saying the same thing in four different ways.

The contractual basics of offer, acceptance and consideration are usually dispensed with at the top of the book – the first two or three pages of the contract.  These provisions establish the “what” of the deal.  A few pages in come the provisions in which the parties represent to each other that certain facts are true, warrant that a set of facts are accurate, covenant to do things and not do things, and state the conditions on their performance under the contract.  These sections answer the question of “why.”  The representations, warranties, covenants and conditions, and the indemnification and remedy provisions that interact with them, lay bare the reasons for the deal – the preconceptions of the parties.  This is why these provisions are usually negotiated with a high level of precision, whether the method is the rigorous terseness or the high fence of words.

The four concepts are distinct but interrelated.

  • A representation is an assertion of fact that is given by one party to another party to induce that party to enter into a contract, close on the contract, accept the risks inherent in the deal, or take some other action. If the representation of fact is untrue, it is inaccurate, and the remedies for misrepresentation set forth in the contract are available, which could include undoing the contract.   The contract sets the remedies.
  • A warranty is a promise that the facts asserted are true, which is impliedly supported by a promise to make it right if it isn’t true. If the warranted facts are untrue, it is a breach of contract, which, technically, is different than misrepresentation.
  • A covenant is a promise made by a party to take certain action, or refrain from acting. Not doing as promised is a break of contract, and the contract will usually say specifically what the remedies are.
  • A condition is a fact that must be true or an event that must have occurred before a party’s obligations or rights are triggered.

Representations and warranties, while technically different concepts, are so closely related to each other in practicality that it is excusable that the two words are written and spoken as a couplet, as with “over and done” and “peace and quiet.”    Some commentators point out differences, such as that the former is about the past and the latter is about the future.  At the end of the day, though, the distinctions are not important.  Courts often ignore the difference between the two terms, and a contract usually provides the same remedies for both.

Quite a bit is going on with representations and warranties in a corporate acquisition agreement.  They apportion risk.  They create direct claims in the case of inaccuracy.  They form the basis of the parties’ indemnification obligations.  And, they are informational.  The disclosure schedules that lay out the exceptions to the statements of fact will often increase the size of the document to the width of the Hamilton biography or beyond, because it’s in the schedules that the details of the to-be-acquired company are set forth, dialoguing with the legal, financial tax due diligence that the acquirer has undertaken.

Covenants are often intermingled with the representations and warranties – for example, when the party represents and warranties that certain facts will be true at some moment in time in the future.   This is not usually a conscious choice, and for a variety of good reasons (often having to do with clarity as to what remedies apply to what breaches), mixing these concepts together should be avoided.  It is best to keep the future – the realm of covenants — separate from the present and past – the realm of representations and warranties.

Conditions in a contract are critical because they provide the “outs” that a party needs to have in something as complex and nuanced as a corporate acquisition agreement or the contract to purchase an office complex.  The list of things which must be true to finally and inalterably bind a party to close on such a deal is long, and among the most important of them will be that the reps and warranties are accurate as of the closing date and that all actions that the other party has covenanted to take have been taken.

Some say that the only time contracts are necessary is when everything is falling apart.  If that is true, then representations and warranties, covenants, and conditions – and the thick disclosure schedules and indemnification and remedy provisions they spawn – are truly at the beating heart of the business deal.

Jared Burden Opens New GreeneHurlocker Harrisonburg Office

Eric Hurlocker welcomes Jared Burden to the firm.

Eric Hurlocker welcomes Jared Burden to the firm.

We’ve expanded our footprint by bringing on a new partner, Jared Burden, based in Harrisonburg to open the firm’s second Virginia office as of January 9, says co-managing partner Eric Hurlocker.

“Our expansion into the Valley and the I-81 corridor with the addition of a talented lawyer like Jared are examples of GreeneHurlocker’s client-driven strategy at work,” says Brian Greene, co-managing partner.

“We will be able to provide clients with greater depth and reach of representation in matters relating to corporate, business, project development, and commercial real estate, among others,” he concludes.

“Jared adds a seasoned practitioner to the firm’s business and corporate law practice and also brings the firm a strong commercial real estate attorney.  He represents sophisticated and diverse business clients that dovetail nicely with our clients.  He’s an exceptional fit for our firm,” says Eric Hurlocker.

Burden will oversee the opening and ongoing operations of GreeneHurlocker’s Shenandoah Valley office, the firm’s first office outside of Richmond. He is a graduate of Duke University and UVA Law School.

Burden brings more than 27 years of experience as a corporate lawyer encompassing acquisitions, joint ventures, venture capital, and thousands of contracts of all sizes and types.   Burden’s commercial real estate practice is based in experience both as an attorney and as an executive with a DC-area retail real estate development company.

Additionally, through Burden’s innovative OPENgc service, GreeneHurlocker will be providing outside general counsel services to businesses in a custom-designed program for a flat fee.

“The fixed fee general counsel service is one of the many unique offerings that Jared brings to the firm. This will be a key value proposition for our clients in emerging markets,” says Eric.

“While I enjoyed practicing law in large law firms in Washington, DC and San Francisco, I’m most proud of the success of the solo law practice I founded here in Harrisonburg in 2015,” Jared explains.

“It leads perfectly to joining GreeneHurlocker, because the firm is a dynamic practice that is focused, as I am, on growth-stage businesses in innovative industries,” he says.

GreeneHurlocker’s Harrisonburg, VA office is located at The Hub, 128 W. Bruce St. in downtown Harrisonburg, VA, across the street from the Ice House and minutes from James Madison University.

Top Lawyers Make the Virginia Legal Elite

Eric Hurlocker and Will Reisinger, of our business, energy law and regulation practices, are listed among the Virginia Legal Elite, published in the December issue of Virginia Business magazine, publisher Bernie Neimeier has announced.

Eric Hurlocker at his desk

Eric Hurlocker is co-managing member of GreeneHurlocker

“Will and I are honored and pleased to be counted among the lawyers that our peers consider experienced and trustworthy, and to be recognized for the continued growth of the firm’s business and energy practices,” said Hurlocker.

Named to the list in Business Law, Hurlocker is a co-founder and co-managing member of the firm, with over two decades of practice in business and energy law. He has focused on advising clients in the areas of energy law as well as commercial transactions and general corporate work for energy and technology companies, manufacturers and services providers. After working in large law firms and for utility firms, Hurlocker joined with Brian Greene five years ago to form the GreeneHurlocker firm, which concentrates on work in energy law and for businesses operating in the mid-Atlantic.

Lawyer Will Reisinger

Will Reisinger is counsel in the energy and regulatory law practices.

Named to the list in Legislative/Regulatory/Administrative law, Reisinger, before joining GreeneHurlocker in 2016, served in the Office of the Attorney General of Virginia representing ratepayers in energy and utility matters before the Virginia State Corporation Commission, Federal Energy Regulatory Commission, and the Supreme Court of Virginia. Earlier, he was a staff attorney for a non-profit environmental organization, where he worked to enforce state and federal environmental standards.

The Virginia Business Legal Elite list is compiled from nominations and votes submitted by the members of the Virginia Bar Association and Virginia State Bar. It has been published annually since 2000 by the magazine.