Contract Law: Indemnity Laws, Precise Drafting, and Negotiation Strategies

Steven O. Weise | Proskauer Rose, LLP

Steve Weise is a partner in the corporate department of Proskauer Rose LLP, practicing in its Los Angeles office. He practices in a wide range of commercial law. He spends much of his time on matters arising under the Uniform Commercial Code, especially under Article 9 – Secured Transactions. He is a nationally-recognized expert in these matters. Steve is also authoritative on third-party opinion letters and contract law matters, especially online contracting, plain English drafting, contract drafting, and boilerplate.

Steve is a member of the Permanent Editorial Board for the Uniform Commercial Code and of the Council of the American Law Institute. For thirty years, Steve has been on many Uniform Commercial Code drafting committees, including the comprehensive revision of UCC Article 9 in 1999 and the 2022 UCC Amendments addressing digital assets as collateral. Steve is a Lecturer in Law at UCLA Law School, where he teaches Uniform Commercial Code – Secured Transactions.

Steve was instrumental as an Adviser in the preparation of the recently completed American Law Institute Restatement of the Law, Consumer Contracts and is active in many other Restatement projects. Steve is the former chair of the American Bar Association’s Section of Business Law and its Legal Opinions Committee. He has been the Reporter for many TriBar Opinions Committee reports on opinions under the UCC and has long been a member of the board of the Working Group on Legal Opinions.

Edwin E. Smith | Morgan, Lewis & Bockius, LLP

Edwin E. Smith is a partner in the New York City and Boston offices of Morgan, Lewis & Bockius LLP. He concentrates his practice in general commercial and insolvency law. He has been a member of the teaching faculty at the Morin Center for Banking Law Studies at Boston University Law School, where he has taught secured transactions and transnational lending and trade finance.

He has also served as a lecturer on secured transactions at Northeastern University Law School of Law, Harvard Law School and Suffolk Law School. As a Uniform Law Commissioner for the Commonwealth of Massachusetts, he has served as a member of the drafting committees for the 1995 revisions of Article 5 (letters of credit) and the 1999 revisions of Article 9 (secured transactions) of the Uniform Commercial Code and as the chair of the drafting committees that formulated the 2002 amendments to Articles 3 (negotiable instruments) and 4 (bank deposits and collections) of the Uniform Commercial Code, the 2010 amendments to Article 9 (secured transactions) of the Uniform Commercial Code, the 2014 amendments to the Uniform Voidable Transactions Act (formerly the Uniform Fraudulent Transfer Act) and the 2018 Amendments to Articles 1, 3, 8 and 9 of the Uniform Commercial Code to address electronic mortgage notes secured by residential real property and registered in a federal registry.

He has also served on the drafting committees for the Uniform Certificate of Title Act (2005), the Uniform Assignment of Rents Act (2005), the Uniform Manufactured Housing Act (2012), the Uniform Limited Liability Company Protected Series Act (2017), the Uniform Regulation of Virtual- Currency Businesses Act (2017), the Uniform Supplemental Commercial Law for the Uniform Regulation of Virtual-Currency Businesses Act (2018), and the Uniform Special Deposits Act (2023). He is currently serving as a member of the Permanent Editorial Board for the Uniform Commercial Code and recently served as chair of an American Law Institute/Uniform Law Commission that drafted the 2022 amendments to the Uniform Commercial Code to account for emerging technologies.

Mr. Smith is a past Chair of the Uniform Commercial Code Committee of the Business Law Section of the American Bar Association and a past member of the Council for the Business Law Section. He is currently serving as co-chair of the committee to draft a uniform state law on assignments for the benefit of creditors. He also served as a U.S. delegate on the United Nations Convention on the Assignment of Receivables in International Trade and as a U.S. delegate to the United Nations Commission on International Trade Law (UNCITRAL) working group on creating a secured transactions guide for legislation in United Nations member countries. He is a member of the American Law Institute, the National Bankruptcy Conference (for which he serves on the executive committee), the American College of Bankruptcy (for which he served as a member on the board of directors and as chair of the Policy Committee) and the International Insolvency Institute and is a past President of the American College of Commercial Finance Lawyers. He is a graduate of Yale University and Harvard Law School.

I. The laws of indemnity and preliminary considerations | 1:00pm – 1:30pm

II. Drafting indemnification clauses | 1:30pm – 2:00pm

• Core components and key phrasing
• Drafting for risk allocation

Break | 2:00pm – 2:10pm

III. Negotiation, enforceability, and avoiding mistakes | 2:10pm – 3:10pm

• Negotiation tactics for indemnification provisions
• Enforceability challenges in drafting and disputes
• Drafting mistakes