Quinn Emanuel Flashcards
Why Quinn Emanuel
Reason 1: Type of work
(1) large / “bet the company” / complex
(2) multi-jurisdictional; and
(43 Play ‘both sides of the fence’. Conflict-light model means you are not conflicted in acting against large corporates.
Why Quinn Emanuel
Reason 2: How you do the work
(1) Lean team with more responsibility
(2) pooled associates (non siloed)
(3) High partner to Associate model (32 Partners; 11 Counsel; 73 Associates)
Why Quinn Emanuel
Reason 3: Reputation and business fundamentals
(1) Business is good: revenue up 47%; profits up 60% (one-off success fee).
(2) London brand strength is exceptional. Not a US satellite: it’s a UK Band 1 litigation powerhouse.
(3) It is ambitious. It isn’t resting on its laurels. It wants to grow.
How to get out of a contract?
A. What are our options? Safe to risky:
(1) Contractual right to terminate for convenience?
(2) Amicable solution - by agreement via deed of release; or variation to contract?
(3) Rescission (equitable remedy that unwinds the contract). Need a cause of action: misrepresentation; undue influence or duress.
(4) Does client have right to terminate for repudiators breach by other party?
(5) Discharge by frustration (narrow): has something occurred after formation that renders contract physically, legally, or commercially impossible to fulfil?
(6) Force majeure (act of god?)
B. What is likelihood of a claim against us?
C. Damages
(1) Liquidated damages - are damages fixed under the contract?
(2) Unliquidated damages - compensate injured party for loss (place to claimant in the same position as if ht contract had been performed).
Key considerations:
a. causation
b. mitigation
c. remoteness
d. loss
Implied terms
A. Implied in fact:
A term may be implied only if it is necessary to make the contract work, which may be if:
(1) Belize test: it is so obvious that it goes without saying; or
(2) Moorcock test: it is necessary to give the contract business efficacy.
B. Implied in law
C. Implied by custom
(1) certainty
(2) notoriety in the locality/industry
(3) belief that it is legally binding
(4) reasonableness and consistency with express terms
Interpretation of express terms
Meaning that document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties.
Excludes subjective intent.
Tort of Unlawful means - primary liability
OBG / Servier
(1) Unlawful means: D employed unlawful means against 3rd party which would be independently actionably by 3rd party against D.
- sufficient if 3rd party suffers no loss
(2) Dealing requirement: D’s unlawful means affected 3rd party’s freedom to deal with the claimant
(3) intention to cause loss
Tort of unlawful means conspiracy
(1) agreement/combination between two or more persons
(2) concerted action pursuit to the agreement/combination
(3) action uses unlawful means
(4) conspirators intend to injure claimant
- does not have to be the only or main purpose, but it does have to be amongst the intended outcomes.
(5) claimant suffers damage
Tort of inducing breach of contract (Lumley v Gye) - accessorial liability
(1) knowledge that breach of contract was being induced
(2) intention to procure a breach of contract as an end or a means to an end, but not merely as a foreseeable consequences
(3) breach of contract
Effects of an entire agreement clause?
(1) EAC stops a party from relying on a pre-contractual statement to establish a collateral warranty or side agreement.
- exception to parol evidence rule permits extrinsic materials to show that there is a collateral contract or warranty (i.e., not an entire agreement).
- EAC stops this by allowing the court to objectively ascertain that the contract is the parties’ entire agreement.
(2) Establishes a contractual estoppel - precluding a party from assertion that something outside of the four corners of the contract was a term.
(3) Does NOT exclude implied terms if EAC is silent.
(4) Does NOT exclude liability for misrepresentation.
(5) does NOT stop extrinsic materials being relied upon as part of factual matrix in contractual interpretation exercise to ascertain meaning of express terms (i.e., what was the factual and commercial context).
Entire agreement clause and misrepresentation
R: Courts are slow to interpret an EAC as excluding liability for misrepresentation.
Clearer words are needed, such as:
(1) No-reliance statement: parties acknowledge that they have not relied on any representation in entering the contract; or
(2) No representation statement: neither party has made a representation.
– These clauses negate an element needed to establish misrepresentation through contractual estoppel.
(3) Express exclusion of liability clause. However:
– cannot exclude liability for fraudulent conduct (ineffective as matter of policy)
– subject to s 3 of Misrepresentation Act (reasonableness test).
Parol evidence rule
Concerns permissibility to adduce extrinsic evidence of terms other than those included in the four corners of the contract.
The “presumption” is that parol evidence may not be admitted to add to, vary, or contract written terms of a contract.
However, its application first depends on the court objectively determining that the parties’ agreement is wholly contained in the written document.
Is not concerned with “interpretation” of contractual terms - but rather adducing evidence of additional terms
