Welcome back to Inside Track!

As an increasing number of companies go mobile and utilize clickwrap or clickthrough agreements, the number of lawsuits over those agreements will increase, according to a report from PactSafe.

“Litigation regarding clickwrap is only going to continue trending up. With trillions of agreements signed each year, it is the most prolific form of contracting,” Brian Powers, founder and CEO of PactSafe, said. “It is possible to prove the validity of online acceptance, but the critical part is knowing what proof you need to do that.”

The report indicates that courts have ruled differently on the validity of these agreements. However, courts have largely sided with those users who check an “I agree” box.

In-house counsel for companies that have clickthrough agreements should also note the three types of evidence the courts want to see: screenshots, affidavits or declarations, and backend efforts of acceptance.

“It is entirely possible for a company to prove the validity of the agreement in court. Numerous companies have done just that,” the report says. “However, doing so in-house can cost valuable time, money, and energy. In order to prove that the contract is valid, companies need to be able to offer evidence that the user manifested assent to the agreement.”

Do you have any best practices for making sure your clickthrough agreements can withstand litigation? Let me know by emailing me at [email protected].

What’s Happening

Trade Tips On China

There are still unknowns relating to the China Tariff Exclusion Requests, Jason Waite, a partner at Alston & Bird in Washington, D.C., told Law.com Phillip Bantz. However, lawyers have been working with companies on how to navigate the request process.

▶ Do not avoid basing your exemption petition on the assertion that it will cost too much to make a product on the tariff list. “We try to tell [clients] that the [United States Trade Representative] is trying to identify products that really can only be sourced from China,” Adams Lee, an international trade lawyer at Harris Bricken in Seattle, said. “It then goes to the issue of trying to define the product that you’re asking to be excluded.”

▶ Companies would also do well to not define their product too broadly. A detailed definition of the product may help emphasize the claim that the product can only be made in China. “The flip side of the product description issue is if you define it too narrowly the danger is customs officials aren’t going to be able to recognize the product at the port and administer the exclusion,” Lee said.

▶ See if you have a case on the merits of a product. “The core element of that has been the lack of availability of the product in the United States and, secondarily, outside of China,” Waite said. “That’s the thing that deserved to be analyzed from a few different angles. What is the product? What’s unique about the product? Where is it available and why might it not be available elsewhere?”

An Advocate for Attorneys of Color

Rafael Medina, a longtime in-house attorney at McDonald’s Corp., passed away on Aug. 4. He’s being remembered as an advocate for attorneys of color.

“My whole McDonald’s experience is really tied up with Rafael, both as a boss but also as a mentor and frankly beyond that. He really looked after everyone that worked for him and everyone that came across his path,” Suheily Natal Davis, general counsel of McDonald’s Latin America, said.

National Employment Law Council president Barbara Johnson said Medina helped countless in-house attorneys and outside counsel advance their careers.

“Rafael was totally committed to advancing the next generations of lawyers. He was passionate about ensuring that younger attorneys had opportunities and giving them career advice,” Johnson said.

Medina most recently oversaw all litigation issues for McDonald’s labor and employment practice group. He began his career at the National Labor Relations Board after graduating from the University of Pennsylvania in 1977.

What I’ve Been Reading

The University of Utah is setting aside nearly $1 million to make its campus safer following the murder of student Lauren McClusky, according to a report in The Salt Lake Tribune. General counsel Michele Ballantyne said one of the new initiatives is to consolidate night classes to prevent students from being alone in the building around late hours.

James Whittle, associate general counsel and chief claims counsel of the American Property Casualty Insurance Association, told the Florida Record that third-party funding of civil litigation has the “potential of undermining the entire civil justice system.” He explained one major litigation financing company has foreign governments investing in it. He further emphasized that third parties should have to disclose where their financing comes from.

Ohio State University learned this year that several high-profile investigations have led to expensive legal fees, according to a report in The Columbus Dispatch. The cost, as of now, of an investigation relating to sexual abuse from deceased physician Richard Strauss has cost the university $7.8 million. The general counsel, Peter McDonough, said these investigations become costly because the technical forensic experience that may be needed.

Don’t Miss

Thursday, Aug. 29 – The Barristers Club Diversity Committee and Airbnb will be hosting an In-House Diversity Attorney Mixer. The event will take place from 5:30 to 8 p.m. at the BASF Conference Center in San Francisco.

Wednesday, Sept. 25 to Thursday, Sept. 26 – Corporate Counsel will be hosting its annual General Counsel Conference at the New York Marriott Marquis. Speakers this year include Peter Gyr, global general counsel of wealth management at JP Morgan Wealth Management; Graham Luce, general counsel at BJ’s Wholesale Club; and Megan Ryan, general counsel at NuHealth.

Monday, Oct. 14 to Wednesday, Oct. 16 – The Minority Corporate Counsel Association will be hosting its Creating Pathways to Diversity Conference in New York at the New York Hilton Midtown. The MCCA will host a Diversity Gala on the last night of the conference at the American Museum of Natural History.

On The Move

✦ Revlon ✦ Cari Robinson has become the top lawyer of the New York-based cosmetics and fragrance company. Robinson previously worked in-house as a cybersecurity attorney at IBM. She succeeds Mitra Hormozi, who will remain as a consultant to the company.

✦ The Travelers Cos. Inc. ✦ Yafit Cohen has been promoted to be the first chief sustainability officer of the insurance company. Cohen will be responsible for the insurance company’s environmental, social and governance, or ESG, efforts.

✦ University of North Carolina at Chapel Hill ✦ Charles Marshall has been tapped to be the top lawyer at the college. Hill previously served as a partner at Brooks Pierce and replaces Mark Merritt. Merritt left the role in 2018 to return to Robinson, Bradshaw & Hinson.