Re: Software Sale Agreements

On Wed, 5 Feb 1997, John Bailey <case[_at_]eden.com> wrote:
>
> What if the opinion letter expressly states that it is based upon
> representations of the seller, in a sworn affidavit by the client, and
> further expressly states that counsel cannot independently warrant that
> those facts are true. Wouldn't the opinion letter then be binding on
> the attorney only if the representations in the affidavit were in fact
> true? In other words, if the opinion letter indicates on its face that
> it is the attorney's opinion only if the representation of the client
> are in fact true, and the attorney has no reason to believe (or ability
> to verify) that they are not, wouldn't that protect the attorney in the
> event the client had made misrepresentations or failed to reveal material
> facts?

What would be the practical value of this opinion letter to Licensee? If Licensee's counsel were really worried about title wouldn't the focus of the negotiations become the indemnity provisions and possible escrow? Also, isn't the estoppel upon Licensor already created by Licensor's representations and warranties? Interested in any thoughts on this.

> > One question here is whether, if the buyer comes after you, your
> > carrier would cover this. I have a feeling that the carrier may
> > contend that your policy doesn't cover the "sale" of "title
> > insurance."
>
> Good point.

Seems to come back to not asking for opinion letters that you wouldn't feel comfortable giving if you were in opposing counsel's shoes.

> > I also wonder whether this suggests there might be a market for title
> > insurance in intellectual property. Now there's an actuarial nightmare.
>
> You're telling me....

Agreed, although, was at a Mass. Software Council, legal issues meeting, the other day and mention was made of E&O policies available to Licensors. One litigator made it clear that he was defending a copyright infrigment action for which the carrier was paying the bill. This corresponds with the results my own inquiries to a broker on behalf of a client.

Barry M. Dicker
Attorney at Law
872 Massachusetts Avenue
Cambridge, MA 02139
(617) 576-9990
<tribune[_at_]world.std.com> Received on Fri Feb 07 1997 - 23:04:51 GMT