Limitation of Liability Clauses That Hold Up: Caps, Carve-Outs, and the Indemnification Interplay

Mark S. Adams, Partner | Blank Rome LLP

Mark S. Adams is a partner in the Business Litigation group of Blank Rome LLP, based in the firm’s Irvine, California office. A trial lawyer with extensive commercial dispute experience, including complex multi-party litigation and class actions, he concentrates his practice on contracts, corporate and partnership disputes, shareholder and investment controversies, real estate matters, and hospitality litigation.

• Education & Credentials

Mark earned his J.D. from Loyola Law School, his M.B.A. from Baylor University, and his B.S. from the University of California, Los Angeles. He is admitted to the California bar and practices before the U.S. District Courts for the Central, Eastern, Northern, and Southern Districts of California, the United States Court of Appeals for the Federal Circuit, and the United States Court of Federal Claims.

• Recognition & Leadership

Mark has been listed in Best Lawyers in America from 2023 through 2026 and was named a 2024 Legal Visionary by the Los Angeles Times Business of Law. His trial victories have drawn coverage in Forbes, Reuters, and Life Science Weekly, and the Wall Street Journal has recognized him as an authority on noncompete agreements. A frequent author and lecturer, he speaks in the United States and Europe on litigation strategies in hotel management and franchise disputes.

• Professional Involvement

Mark is a member of the Orange County Bar Association and the Federal Bar Association. He devotes more than 200 hours each year to pro bono and community service work, including supporting underserved domestic violence victims, educating people with limited access to legal resources, representing pro bono clients, and providing meals to the underprivileged.

• Experience

Mark has tried numerous cases in state and federal courts and in domestic and international arbitrations, has taken or defended nearly 1,000 depositions across North America, Europe, and the Middle East, and achieved two of California’s top 50 largest jury verdicts in a single year. In the hospitality sector, he has represented hundreds of hotel owners in disputes with management brands including Hilton, Hyatt, IHG, Fairmont, Choice, and Marriott, has litigated the termination of numerous long-term hotel management and franchise agreements, and represents the largest independent hotel management company in the United States, one of the largest globally. His results include a $10.5 million judgment in a defamation per se action, a directed verdict for defendants in a jury-tried investment dispute, dismissal of a $27 million breach of contract and fiduciary duty claim against a hotel management company, and resolution of a dispute over a terminated development agreement for a luxury hotel project in Miami, Florida, for more than $30 million.

Leah S. Baucom, Partner | K&L Gates LLP

Leah S. Baucom is a partner in the Corporate practice of K&L Gates LLP, based in Charlotte, North Carolina. She concentrates her practice on mergers and acquisitions and other corporate transactions, representing public and private companies, private equity sponsors, and financial institutions in mergers and acquisitions, investments, joint ventures, recapitalizations, and other business combination transactions, with frequent involvement in cross-border deals for clients based in multiple jurisdictions.

• Education & Credentials

Leah earned her J.D., magna cum laude, from Duke University School of Law in 2011, where she served as Executive Editor of the Duke Law & Technology Review and as Executive Editor and Symposium Manager of the Duke Environmental Law & Policy Forum. She holds an M.S. (2008) and a B.S. (2006), magna cum laude, from the University of Massachusetts, where she graduated from the Commonwealth Honors College. She is admitted to the bars of New York and North Carolina and speaks Chinese.

• Recognition & Leadership

Leah was named a 2021 Top Rising Star by The Deal, which recognizes exemplary US-based partners focused on M&A and private equity, and was recognized in The Deal’s Top Women in Dealmaking in 2023. The Legal 500 United States has recognized her as a Next Generation Partner for M&A: Middle-Market ($500m-999m) from 2024 through 2026 and as a Recommended Lawyer for Private Equity Buyouts: Middle-Market (Up to $500m) in 2024.

• Professional Involvement

Leah is a member of the American Bar Association, the New York Bar Association, and the Asian American Legal Defense and Education Fund.

• Experience

Leah regularly advises on the full range of business combination transactions and often handles cross-border matters involving parties and operations in multiple jurisdictions, serving many foreign-based clients. Before joining K&L Gates, she practiced as an associate in the New York office of another international law firm. Her published work includes “Who Owns the Virtual Items?” in the Duke Law & Technology Review (2010).

SESSION 1 – Drafting Liability Caps and Consequential Damages Waivers That Survive Challenge | 1:00pm – 2:00pm

This session examines how liability caps and consequential damages waivers are drafted, challenged, and struck down, with close attention to the most significant 2025 decisions reshaping enforcement standards. Attorneys will learn to identify the structural, definitional, and jurisdictional failure points that cause these clauses to collapse in litigation and to apply drafting techniques that improve enforceability. Participants leave with a concrete checklist of enforceability-enhancing practices drawn from recent case law and current market standards.

BREAK | 2:00pm – 2:10pm

SESSION 2 – Negotiating Carve-Outs, Super-Caps, and the Indemnification Interplay | 2:10pm – 3:10pm

This session covers the negotiation architecture for liability carve-outs, super-caps, and indemnification provisions in commercial contracts, with emphasis on technology and data-intensive agreements. Attorneys will learn how to structure and defend tiered liability frameworks, identify and close the most dangerous drafting traps in indemnification clauses, and apply current case law and market data to client negotiations. Attendees leave with a practical three-tier liability model and the vocabulary to benchmark client positions against market standards.