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|July 16, 2014|
|TIPs Bulletin #14-14||Canada’s Anti-SPAM Legislation (CASL) and Its Impact to U.S. Credit Unions|
|June 30, 2014|
|TIPs Bulletin #14-13||Voluntary Liquidation|
|TIPs Bulletin #14-12||Annual Indexing of HUD’s Basic Statutory Mortgage Limits for Multi-Family Housing Programs|
|June 10, 2014|
|TIPs Bulletin #14-11||Interim Rule - Exchange of Mutilated Paper Currency|
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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.
TIPs, FinCEN PUB, HANDBOOK UPDATE
updated 07/21/14 12:44 PM
The Latest in Compliance
A new TIPs Bulletins (Technical Information and Procedures) has been posted by the California and Nevada Credit Union Leagues on Canada’s anti-SPAM legislation, which went into effect July 1 and is similar to the U.S. government’s CAN-SPAM Act of 2003.
CFPB ISSUES INTERPRETIVE RULING
updated 07/14/14 03:48 PM
'Ability to Repay' Discussed
The Consumer Financial Protection Bureau (CFPB) has issued an interpretive rule to clarify that when a borrower dies, the name of the borrower’s heir generally may be added to the mortgage without triggering the bureau’s Ability-to-Repay Rule.