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May 2023
Welcome to readers of Making the Connection!   
In this issue, you will find: 
  • In Focus: Managing Risk Through Contracts
  • Question of the Month, on the limits of trademark protection
  • Case on Point, balancing free speech and reputation protection
  • At the Podium, listing my speaking engagements and public appearances
  • Client Corner, spotlighting client events and announcements
In Focus
Managing Risk Through Contracts
Understandably, people's eyes glaze over when they read contracts with lots of "legalese". But many of these provisions play a crucial role in allocating risks between the parties when things go wrong. Examples of such provisions include:
  • Disclaimers of liability, typically unless there is gross negligence or misconduct;

  • Limitations of liability,  imiting the amount of any recovery; 

  • Indemnity provisions,  shifting risks of losses or claims  to the other party, even if the party avoiding liability is best positioned to avoid or limit such risks; and

  • Contractual limitations provisions, limiting the period within claims must be asserted.
Even when such provisions appear on "standard contracts", they are often negotiable.  So, before signing any such agreement, make sure to understand what such provisions provide, the risks presented, and consider what can be done to mitigate them. 
Question of the Month
This month's question was inspired by a recent Touro Law Review podcast discussing the tension between trademark rights and the First Amendment:
Q: When do trademark rights expire?

A: Unlike patents and copyrights which are granted for specific periods of time, trademarks are valid as long as they are used in commerce to designate the source of a product or service. For registered trademarks, the owners must filed affidavits of use periodically to preserve their rights.
Case On Point

US Dominion, Inc.v. Fox News Network
(Del. Sup. Ct. 2023)

The law of defamation balances the First Amendment right to free speech and societal interests in protecting reputations against unfair attacks. Recently, US Dominion settled its defamation lawsuit against Fox New Network for hundreds of millions of dollars. The lawsuit was based on Fox's broadcast of false statements regarding the integrity of Dominion and its voting machines in the 2020 presidential election. The parties' use of a mediator on the eve of trial was credited with facilitating the sttlement. What got a lot less attention, though, was the court's decision on the parties' summary judgment motions significantly limiting the scope of issues to be submitted to the jury. The court's key rulings were:

  • The challenged statements were statements of fact (not opinions, which cannot be the basis for a defamation claim); and
  • All of the statements were false as a matter of law.
These rulings left only two issues for the jury to decide:

  • Did Fox broadcasters make the statements with malice, defined as "knowledge that [they were] false or with reckless disregard of whether [they were] false or not?
  • If so, what damages did Dominion suffer?
While the court did not find "malice" as a matter of law, its opinion recounted numerous instances of Fox announcers expressing disbelief about the election fraud claims and disregarding the results of various investigations rejecting those claims. Fox had little to gain from going to trial which would have focused on its broadcasters' disregard for the truth. 

At the Podium
This is a listing of speaking engagements, workshops, events and other public appearances.  To book me as a speaker or facilitator at your next company, client or association function, contact me at    

  • On May 19, 2023, I will chair a panel discussion on Challenges of On-Line Mediation at the International Mediation Symposium sponsored by the Center for International Legal Studies in Salzburg. Visit for information and registration.

  • I will again be teaching Interviewing, Negotiating and Counseling at Touro Law School this summer.

Client Corner
Client Corner features client announcements and events of potential interest to readers. 

  • Moxxie Network will host a networking lunch on May 19, 2023 from 12:30  to 2:00 p.m. at Hotel Indigo in Riverhead. Click here for information and registration.
80 Orville Drive, Suite 100 | Bohemia, NY 11716
© 2023, Lisa Renee Pomerantz. All rights reserved.

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