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  • HBJ
    April 23, 2018
  • Captive Insurance Times
    April 6, 2018
  • Atlanta Inno
    March 2018
    In an article published on February 25, 2018 in Atlanta Inno, Gregg Jacobson discusses the benefits of smart contracts over standard contracts in business, including increased security, efficiency and cost savings. Jacobson provides guidance for companies interested in streamlining processes with smart contracts and addresses potential concerns as the technology emerges.
  • Unnecessary Paternalism: Why Bad Faith Limitations on Liability Should Be Enforced Between Sophisticated Entities
    Journal of The American College of Construction Lawyers
    February 2018
    In an article published in the Winter 2018 issue of the Journal of The American College of Construction Lawyers, Gregg Jacobson discusses the enforcement of limitation of liability and exculpatory clauses in construction contracts. “These types of protective clauses are typically enforced by courts. The protection afforded by these clauses, however, is far from air-tight,” Jacobson explains. “There are legal exceptions that give parties numerous ways to get around exculpatory and limitation on damage clauses.” Though different risks are theoretically protected against through different clauses, many states have made the paternalistic decision that a finding of bad faith bars all protections. This means that sophisticated entities of relatively equal bargaining power do not have the freedom to agree to contractual provisions barring recovery for bad faith actions. “Any companies that want to agree to a contract with the broadest possible protections, however, are unable to do so. This overprotection is unnecessary in the modern commercial industry,” he writes. In the article, Jacobson describes the history of paternalism in the legal world and bad faith laws of New York, Pennsylvania and Delaware as they relate to limitation on liability clauses and exculpatory provisions. He then analyzes each state’s position on bad faith and poses three concerns that states without strong objection to a bar on bad faith recovery may nonetheless have. In addition, he discusses why each concern does not warrant protections by the state, and why Delaware’s lead in this area should be followed.