1. The exam is open book, meaning you may consult your assigned
texts, course notes and group prepared outlines, but nothing else.
2. If a question asks to revise the text of a document, clearly
indicate what portion of your answer is the revised text and what portion
is additional comments.
A. Evaluate the following contract clause indicating ambiguous terms,
phrases or inappropriate word choices which adversely effect the interpretation
and meaning of the clause:
Quality. The coal to be delivered shall, in all respects, closely
approximate in character and quality the coal heretofore delivered to the
Gas Company by the Coal Company from its said mines and shall analyze on
a dry basis approximately as follows:
| Volatile Matter | 30.00 percent |
| Fixed Carbon | 63.25 percent |
| Ash | 6.75 percent |
| Sulphur in Ash | .65 percent |
The Coal Company guarantees that said coal, upon fair tests, dry basis,
in carload lots, will not show less than twenty-eight and one-half percent
(28 ½%) volatile matter, will not show more
than eight percent (8%) ash, and will not show more than eight-tenths of
one percent (.8 of 1%) sulphur in ash.
The Gas Company may test each carload of coal upon receipt at its plant,
and if it shall not meet the requirements specified herein, the Gas Company
shall at once notify the Coal Company of the fact and set said car aside
as subject to the order of the Coal Company. If the Coal Company shall
question the correctness of such test, it shall have the right to have
such carload of coal tested by a competent chemist of its own selection.
If the chemists of the parties disagree in the results of their respective
tests, then the parties shall select a third chemist competent and disinterested
in every way, who shall test said car of coal and whose determination shall
be final and binding on both parties. Provided, however, that the failure
of the Gas Company at any time to make such tests and to make complaint
shall not estop it from thereafter making such testes and complaint of
the qualify of the coal, although there may be no apparent change in such
qualify.
B. Our client, Employee Specialists, provides employment placement
services for client companies who need skilled and technical employees.
The company has developed substantial proprietary information on employee
assessment and evaluation when screening new candidates for potential positions.
The company's copywrited systems materials match work place characteristics
and objectives with employee characteristics to arrive at a best fit for
a customer's particular situation. This system has been highly successful
and the client considers the information and systems it has developed as
proprietary.
The company recently hired Sam Saless to perform marketing services
for the company with its existing clients and potential new business prospects.
Saless has extensive experience in providing sales and marketing for temporary
employment services. The company anticipates providing orientation and
training on its systems and proprietary materials as a part of preparing
Saless for his duties with the company.
The company has asked us to draft an employment contract for Mr. Saless.
The company wants to have several key provisions addressed in the contract,
including:
If he should leave the company for any reason, he would be precluded from utilizing any of the company's proprietary information in any other business venture whatsoever.
Please draft proposed contract language for each of these two provisions.
Please evaluate what language will be adequate to express the company's
concerns and to give effect to the client's wishes.
C. You are negotiating the resolution of a dispute over the application
of a noncompete agreement with a former employee of your client. The former
employee's attorney is providing you mixed messages. On the one hand, he
is indicating that he believes that any disagreement about the application
of the noncompete agreement should be resolved without the parties having
to go to court, but at the same time he steadfastly maintains that the
company's noncompete's language is entirely unenforceable and should be
given no consideration whatsoever. In dealing with the attorney, you find
that he is abrupt, abrasive and has thus far demonstrated little willingness
to listen to the points you raise on behalf of your client. The attorney
is approximately 60 years old and has been practicing for over 30 years.
In addition to his terse tone, he seems to come across as becoming increasing
more agitated as you attempt to discuss matters with him and refers to
his client as the poor disadvantaged individual who is being bullied by
your client with its substantial resources. Your information indicates
that the former employee has engaged in competitive activities which appear
to be quite lucrative.
Identify the issues presented by this situation and outline the strategies you would employ for dealing with the situation.