FORETHOUGHT - Whyte Hirschboeck Dudek SC

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Conclusion The possibility of creating enforceable contract modifications by informal communications such as email or IM is particularly relevant to businesses or individuals who operate under the terms of contracts that were negotiated some time ago. A significant amount of email and IM correspondence can occur between parties during the course of a relationship. In light of the decisions discussed above, these informal communications could amount to an enforceable contractual amendment or even waiver of key contractual provisions. Following are a few issues to consider if you are currently operating under the terms of a formal written contract: • Don’t underestimate the power of an email or IM exchange to modify the terms of a contractual relationship, even contracts that seem to be set in stone. If possible, avoid discussing contract terms via email or IM. But how did the court find that the IM conversation was “signed by both parties” It didn’t. Instead, the court sidestepped the NOM clause by concluding that the defendant waived its protections under that clause when the plaintiff “materially changed its position” in reliance on the new terms. In other words, the court barred the defendant from using the NOM clause as a defense. Implications for Wisconsin Although Wisconsin state courts have not specifically addressed the issue of contract modification by email or IM correspondence, they have examined email correspondence in the context of contract disputes to determine the parties’ intent. Further, the U.S. District Court for the Eastern District of Wisconsin has stated that the issue of “whether or not defendant’s emails constitute a writing signed by defendant” is a question for the jury to decide. These cases suggest that Wisconsin courts may enforce a contract amendment evidenced only by email or IM, as long as the parties’ intent is clearly discernible. • Think about how easy (or how difficult) you want it to be to modify your contract. Does your contract’s modification clause reflect that level of ease or difficulty • In the eyes of many judges, actions speak louder than words. Are your day-to-day actions consistent with the terms of your written contract If, for example, you have agreed to change certain contract terms via email even though your contract contains an NOM clause, you may have inadvertently waived that contractual protection. • Take the time to review your written contracts and determine whether they still reflect your contractual relationships, or whether they need to be updated. n 32 WHD <strong>FORETHOUGHT</strong>
STATE VENTURE CAPITAL BILL IN THE WORKS Written by Thomas J. Springer and Gabrielle B. Adams Job creation was at the heart of last year’s national election campaign. It comes as no surprise that Wisconsin’s political leaders are seeking to encourage job creation in the state. Leaders from both parties have seized upon entrepreneurship as the driver of future job creation. Many see state subsidizing of venture capital funding as the best way to promote entrepreneurship. In particular, getting more venture capital to Wisconsin’s startup enterprises—earlystage, high-growth, high-risk companies that specialize in information technology, biotechnology or software—is seen as a policy goal. In 2011, the governor, state Senate and Assembly all proposed versions of a venture capital promoting bill. Unfortunately, a consensus was not reached and no bill was passed. It is expected that passage of a venture capital bill will occur in the next legislative session. Why Should We Care The calculus for state government promotion of venture capital is simple: More venture capital would fund more startups, and more startups will result in more jobs. According to the Kauffman Foundation, all of the net job growth in the United States in the past decade has come from startup businesses. Historically, successful companies in their first five years are job creators, averaging 3 million new jobs each year. In contrast, companies more than 5 years old tend to shed jobs, on average of 1 million annually. Wisconsin is poised for more venture capital investment. The state has long had a strong foundation in research, intellectual property and patents. According to the 2012 edition of the Wisconsin Portfolio, an annual publication of the Wisconsin Technology Council through its Wisconsin Angel Network, Wisconsin has 2.15% of the nation’s academic research spending and 2.11% of the nation’s patent filings. However, this intellectual capital has not translated into startup creation. The lack of crossover of research and intellectual capital into startup enterprises is attributed to a lack of venture capital. Again according to the Kauffman Foundation, Wisconsin companies fetch less than 1% of venture capital invested nationwide. That puts it in the bottom 10% of the 50 states in entrepreneurial activity. Equalizing the amount of investment with the intellectual capital status of the state would create enormous potential for job growth. Wisconsin’s Numbers • 223,602: Wisconsin’s unemployed (September 2012). • 3: Percentage of the Wisconsin workforce in venture-backed businesses. The national average is 11%. • 1.2 billion: Amount of venture capital Wisconsin has attracted in the past 40 years. • 72 million: Amount of venture capital raised by Wisconsin in 2011, ranking last out of the nine states its size. • 0.25: Percentage of the nation’s venture capital raised by Wisconsin in 2011. • 1.84: Percentage of the nation’s population Wisconsin represents. • 0.13: Percentage of all venture capital under management in Wisconsin. In contrast to these numbers, Wisconsin’s peer state, Minnesota, has performed well in the venture capital economy. In 2009, Minnesota attracted more than $6.5 billion in venture capital investment, 19% of the Minnesota workforce was attributed to venture capital, and its unemployment rate is at 5.8%. LITIGATION 33
Page 1: FORETHOUGHT Find opportunities. Ant
Page 4 and 5: FOREWORD
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Page 8 and 9: CORPORATE 8 WHD FORETHOUGHT
Page 10 and 11: Taxes The U.S. Tax Code is complica
Page 12 and 13: structures become even more critica
Page 14 and 15: DODD FRANK ACT: A THREAT TO MAINSTR
Page 16 and 17: further, will ensure that the CFPB
Page 18 and 19: A BUMPY ROAD AHEAD FOR EMPLOYERS: E
Page 20 and 21: (2) disclose the analysis to employ
Page 22 and 23: ule or order of the DWD, compensati
Page 24 and 25: Will Employers be Subject to Immigr
Page 26 and 27: TAKE HEED, O INVENTOR: BEWARE THE I
Page 28 and 29: WHY ARE INTELLECTUAL PROPERTY NOTIC
Page 30 and 31: LITIGATION 30 WHD FORETHOUGHT
Page 34 and 35: According to Zach Brandon, Director
Page 36 and 37: IS IT AS EASY AS CLICKING “I ACCE
Page 38 and 39: REAL ESTATE/ ENVIRONMENTAL 38 WHD F
Page 40 and 41: agriculture. Even during normal yea
Page 42 and 43: HUD CERTIFICATION FOR CONDOMINIUM A
Page 44 and 45: ABOUT THE AUTHORS 44 WHD FORETHOUGH
Page 46 and 47: served as Editor of the Nebraska La
Page 48 and 49: employment-based immigration issues
Page 50: U.S. Congressman, in which she rese

FORETHOUGHT - Whyte Hirschboeck Dudek SC

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