INDEMNIFICATION CLAUSES: IMPORTANT?
updated 04/05/13 08:41 PM
Limit Your CU's Liability
It has become increasingly common to learn of credit unions being targeted with patent infringement lawsuits.
Whether the lawsuit is by an opportunistic patent holder merely seeking a quick buck (such as patent trolls) or the lawsuit is based on legitimate infringement of a patent, such lawsuits represent a significant threat to any defendant. Patent suits are, by nature, extremely expensive and time consuming.
When the focus of the patent infringement is within a product or service provided to or on behalf of a credit union by a vendor, protecting the credit union from these and other types of lawsuits often depends on a properly drafted indemnification clause.
A credit union should obtain a copy of the proposed contract at the beginning of the due diligence/negotiation process as opposed to waiting until the business terms are agreed upon. Attorneys stress that contract terms are as equally important as the business terms and should be negotiated in unison.
A credit union should also inform vendors from the onset of the negotiation process that it expects the vendor to "stand behind" its product and/or service. This means the credit union should demand indemnification from the vendor (or its agents, employees, subcontractors) not only for patent infringement, but also copyright and trademark infringement.
Furthermore, the credit union should demand indemnification against claims made by any third party which arises due to the vendor's (or its agents, employees, subcontractors) breach of the contract, negligence, and/or willful misconduct.
Elements of a Good Clause
The key to a good, properly drafted indemnification clause is to:
Limitation of Liability
Care must be taken if the contract has a limitation of liability section. Without a "carve out" for indemnification obligations, a vendor's maximum indemnification obligation would be up to the limitation negotiated.
This could leave the credit union liable to the third-party claimants for all amounts in excess of the limitation, even though the credit union had nothing to do with the issue under which the claim was made.
Therefore, limitation of liability sections are equally important to review and negotiate, as are indemnification clauses.
Recent lawsuits serve as a reminder to credit unions of the importance of having contracts reviewed by an attorney, not only for proper indemnification clauses, but to help limit credit union liability.
FEDERAL ADVOCACY DEVELOPMENTS updated
02/09/16 09:12 AM
FOM Rule and District Meetings
As recently reported in the California and Nevada Credit Union League's Advocacy Blog, two developments have recently occurred on the federal side of advocacy.
REP. LINDA SANCHEZ' LETTER TO NCUA updated
02/09/16 08:55 AM
Support for FOM Rule
As reported in the California and Nevada Credit Union League's Advocacy Blog, California Rep. Linda Sanchez (D- Norwalk), a member of the House Committee on Ways and Means (which governs the credit union tax status) and Chair of the Congressional Hispanic Caucus, submitted a letter to the NCUA in support of the field of membership rule. Rep. Sanchez states in her letter, "with a large Latino constituency that is comprised of many unbanked consumers, this rule is a positive step toward addressing this issue."
CA ASSEMBLY BANKING CHAIR SPEAKS updated
02/08/16 09:50 AM
So. Cal Leaders Meet with Dababneh
As reported in the California and Nevada Credit Union League's Advocacy Blog, Southern California credit union leaders met with Assemblymember Matt Dababneh (D-Encino) last Friday at Wescom Credit Union.
THINK 16 CONFERENCE SPEAKERS updated
02/04/16 09:19 AM
May 3-6 in San Diego
CO-OP Financial Services has announced eight featured speakers for THINK 16, focusing on leading social, consumer and technology trends to help credit unions re-envision what “People Helping People” means in 2016 and beyond.
FIELD OF MEMBERSHIP (FOM) RULE updated
02/04/16 09:12 AM
More Congressional Action
As reported yesterday in the California and Nevada Credit Union League's Advocacy Blog, Rep. Doug LaMalfa (R-Chico) has sent the attached support letter to the NCUA for their Field of Membership rule.
ONLY 7 DAYS TO COMMENT ON PROPOSAL updated
02/02/16 07:04 AM
NCUA's Field-of-Membership Rule
The countdown is on as the Feb. 8 (Monday) deadline approaches for federal and state chartered credit union leaders to submit comments supporting the National Credit Union Administration’s (NCUA) Field-of-Membership (FOM) proposal.
CEOs SOUND OFF ON NCUA'S PROPOSAL updated
02/01/16 03:36 PM
Urge Peers to Comment on FOM
California credit union CEOs are sounding off as the deadline approaches (Feb. 8) to comment on the National Credit Union Administration’s Field-of-Membership (FOM) proposal—one that will update rules to reflect marketplace changes and give the industry a broader menu of flexible options for remaining competitive.
UNCLAIMED PROPERTY AND 'PACE' REFORM updated
02/01/16 01:47 PM
Rounding Out CA Legislative Goals
Threats to credit unions are already being spotted on the horizon by the California Credit Union League’s advocacy team as the state legislature’s Feb. 19 deadline to introduce new legislation looms.
ANNUAL PRIVACY NOTICES updated
01/29/16 11:47 AM
As reported in the League's Advocacy Blog, after the release of the NCUA Letter to Credit Unions, #16-CU-03, about privacy notices, the California and Nevada Credit Union Leagues took action to clarify applicability to state laws. The NCUA letter addressed the recent federal law change on annual privacy notices related to Gramm-Leach-Bliley that states that when a financial institution meets certain statutory requirements, it no longer must send annual privacy notices.
CU LEADERS MEET WITH LEGISLATOR updated
01/29/16 05:09 PM
Asm. Kim Tours Credit Union
As reported earlier today in the California and Nevada Credit Union League's Advocacy Blog, Southern California credit union leaders met with Assemblywoman Young Kim (R-Fullerton).
CU LEADERS MEET WITH ASSEMBLY MEMBER updated
01/28/16 01:47 PM
Portantino Running for Senate
As recently reported in the Leagues Advocacy Blog, credit union leaders met with former member of the Assembly, Anthony Portantino, who served from 2006 until being termed out in 2012. Prior to his time in office, he spent many years working in film and television production and is currently is a Visiting Fellow teaching Values Based Political Leadership at USC.
COMMENTS NEEDED: NCUA'S FOM PROPOSAL updated
01/26/16 10:06 AM
Deadline is February 8
With less than two weeks until the comment deadline of Feb. 8, it is crucial the National Credit Union Administration (NCUA) hear from credit unions in support of the proposed chartering and field-of-membership (FOM) amendments.
LEAGUE'S 2016 CA LEGISLATIVE AGENDA updated
01/26/16 09:10 AM
Charter Modernization, CUSOs, LICU
The final year of the two-year state legislative session (2015-2016) in California is here, and the California Credit Union League’s advocacy team is primed to roll out a robust legislative package.
ANAHEIM DUCKS HONOR RICHARD JOHNSON updated
01/21/16 03:09 PM
Recognized For Military Career
Before Richard Myles Johnson was a credit union industry icon, he was a Marine. He joined the U.S. Marine Corps in 1941. He ended his military career as a colonel in 1972. Along the way, he amassed a vast number of ranks, honors, and awards, including the Bronze Star and Purple Heart.
FINANCIAL OPPORTUNITY: TWO TALES updated
01/19/16 10:40 AM
CUs Can Take Pulse of Econ. Mobility
As financial “opportunity” for low and middle-income Americans is debated leading up to a national election this November, many within the credit union industry can take a pulse of their members’ financial health and how economic changes are shaping that opportunity.
ROYCE HELPS FORM COOPERATIVE CAUCUS updated
01/19/16 07:18 AM
Business CO-OP: Focus on Legislation
Last week Rep. Ed Royce, R-CA (Brea), joined Rep. Mark Pocan, D-WI, to found the Congressional Cooperative Business Caucus. With Royce’s dedication and expertise in credit unions, it comes as no surprise he is chairing a new caucus to focus on legislation that impacts cooperative businesses.
FIELD OF MEMBERSHIP RULE updated
01/13/16 10:53 AM
CA Congressman Gives Support
California Congressman Ted Lieu (D-El Segundo) has just sent the NCUA a support letter in favor of their Field of Membership Rule. In his letter, Rep. Lieu endorses for several of the provisions in the rule (letter linked below).The League has been working with our congressional delegation to ensure there is overwhelming support for this rule.
RMJ TO BE HONORED AT HOCKEY GAME updated
01/13/16 01:59 PM
Recognized as Armed Services Vet
Richard Myles Johnson— who joined the credit union movement after finishing a 30-year career in the United States Marine Corps, where he retired as a colonel—is scheduled to be recognized as the honored armed services veteran by the Anaheim Ducks hockey team at its home game Wednesday, Jan. 20.
FHLB MEMBERSHIP updated
01/12/16 12:51 PM
Final Rule Issued
Today the Federal Housing Finance Agency (FHFA) issued their final rule on Federal Home Loan Bank (FHLB) membership. After receiving over 1,300 comment letters—an unprecedented amount, with most in opposition—the FHFA’s final rule does not include two provisions for which the Leagues strongly opposed. That is, the final rule does not require financial institutions to hold one percent of their assets in home mortgage loans and 10% of assets in residential mortgage loans (RML) on an ongoing basis.
TARGET SETTLEMENT DETAILS updated
01/12/16 10:34 AM
Available on New Website
Credit unions have begun receiving email and paper mail directing them to a dedicated website that offers information on the Target data breach litigation, including settlement terms, important dates, frequently asked questions, information on filing a claim, directions for opting out, court and settlement documents, and contact information.
CO-OP CEO STAN HOLLEN TO RETIRE updated
01/12/16 09:39 AM
More Than 10 Years at CUSO
In a landmark moment for the nation’s largest credit union service organization, CO-OP Financial Services (based in Rancho Cucamonga, CA) announced this morning that President and CEO Stan Hollen will retire on May 31, 2016.
MATZ TO MEET CA-NV LEADERS AT 'GAC' updated
01/12/16 08:05 AM
Plus, Upcoming Regulatory Webinar
California and Nevada credit union leaders will have the opportunity to engage with National Credit Union Administration (NCUA) Board Chairman Debbie Matz during an exclusive meeting arranged by the California and Nevada Credit Union Leagues at the upcoming 2016 Governmental Affairs Conference (GAC).
CA CONGRESSMAN PREPARES TAX REFORM updated
01/11/16 02:59 PM
Credit Union Tax Status Honored
As first reported on the California and Nevada Credit Union Leagues’ Advocacy Blog last week, Rep. Devin Nunes, R-CA (Tulare), has been drafting a comprehensive tax reform package which will honor the credit union tax status.
CUs4KIDS 20 YEAR CMN PARTNERSHIP updated
01/08/16 01:40 PM
Raised $150M in Donations
This year, Credit Unions for Kids celebrates 20 years of fundraising for Children’s Miracle Network Hospitals (CMN Hospitals), a collaboration that has yielded more than $150 million in donations.