39 Essex Chambers’ Post

The ASBCA has now issued a few opinions applying the Federal Circuit’s ECC decision to CDA sum certain challenges. In the March Nash and Cibinic Report, I discuss two such cases, which offer clues about the future of the sum certain rule–or at least illustrate the questions that the Boards of Contract Appeals and the Court of Federal Claims will need to resolve. In ECC, on remand from the Federal Circuit, the ASBCA ruled in two companion opinions that the government forfeited its right to challenge whether ECC’s claims stated sums certain by waiting until after the hearing on the merits to raise the issue. The Federal Circuit had held that the sum certain requirement was subject to forfeiture because it is not a jurisdictional requirement; the Board determined on remand that the government had in fact waited too long and its sum certain challenge was forfeit. That outcome was required based on Supreme Court precedent, and was consistent with the Board’s earlier holding in JE Dunn Construction Company. The bigger question, yet to be addressed, is whether government contracts tribunals will require sum certain challenges to be raised significantly earlier in litigation to avoid forfeiture. In McCarthy HITT - Next NGA West JV, on the other hand, the government filed a motion to dismiss for lack of a sum certain early, right after the contractor filed its complaint. Similar to ECC, the government argued that while the contractor stated a sum certain for its overall claim submittal, the contractor had in fact asserted multiple distinct claims, each of which required (and did not state) a sum certain. Board denied the motion, holding it “[l]acked sufficient information at this stage to resolve the parties’ dispute” on the sum certain issue. Citing ECC, the Board said “[a] disagreement over whether a claim comprises one or multiple claims, each requiring a sum certain, is a factual dispute for the Board to resolve on the merits.” When a claim "sum certain" is questioned early in litigation but the resolution is deferred because it turns on facts that require further development, that is not an ideal scenario for the Board or the litigants. The claimant faces the risk of litigating the entire appeal and proving entitlement in all other respects, but having the claims dismissed because sum certain subtotals were not provided for distinct claim elements. The Boards should provide a mechanism for the party asserting a claim (whether that is the contractor or the government) to address any sum certain questions without having to start over. I offer my own opinions on what that might look like in the article. I have enjoyed exchanging ideas on this important subject with Nathaniel Castellano and Teddie Arnold (and of course Ralph Nash) in this series of Postscripts. #govcon #cda #sumcertain 

Our book, CPA Firm Partner Agreement Essentials, can help you get a start on what to include in your partnership or operating agreement. You’ll want to work with an attorney to get all the details correct for your firm. Start here and finish strong with a signed agreement with your partners. Sample the book and purchase your copy today at https://lnkd.in/eSv-C_P4. #partneragreement #cpa #cpafirm #practicemanagement

Brief facts CIRP extension of 90 days was calculated Retrospectively from 10.05.2023 rendering the very extension practically an infructuous one.The Learned counsel for the Appellant points out that the Adjudicating Authority/Tribunal should have excluded the period. from 09.05.2023 to 27.07.2023 namely the period spent in Hearing. and disposal of the IA. Plea by learned RP was exclusion of 90 days from date of disposal of the IA and not retrospectively from 180days end.(10/5/23) Observation in the famous Essar case regarding extension Given the fact that timely resolution of stressed assets is a key factor in the succesful working of the code, the only real argument against the amendment is that the time taken in legal proceedings cannot ever be put against the parties.  Time taken in legal proceedings cannot possibly harm a litigant if the Tribunal itself cannot take up the litigant’s case within the requisite period for no fault of the litigant, a provision which mandatorily requires the CIRP to end by a certain date The important factor here is while drafting resolution for COC approval of extension of time for completion of CIRPproceedings.draft should be complete and indicate that ‘it is vital’ for the revival of the Corporate Debtor, that the extension of CIRP period for a further period of 90 days, be granted averment that for a ‘better negotiation’, ‘evaluation’ and ‘discussion’ on the Resolution Plan received from the Resolution Applicant and submission of the same to the Adjudicating Authority/Tribunal the Interim Resolution Professional has proposed to extend the CIRP period for a further period of 90 days from the date of approval of the instant IA. The Apellate authority after going into details and case laws-the period of pendency of instant Comp A At)(CHE)(Ins) No.450/2023 is ordered to be excluded and the extension of CIRP period of 90 days is granted by this Tribunal from the date of the disposal of the instant Appeal. The appeal there fore succeeds. - l

“Never restart a journey and use the same road that failed you before” …the plaintiff filed a plaint, which was accompanied by a Notice of Motion application under certificate of urgency. The Court gave directions on the application and directed that the suit be mentioned on 31st July, 2023 for further direction. The law firm of MN & Co. Advocates filed a Notice of Change of Advocates dated 18th July, 2023 to come on record for the plaintiff in place of JA & Co. Advocates. The Notice of Change of Advocates was followed by a Notice of Withdrawal of Suit dated 18th July, 2023. Annexed to the said Notice of Change of Advocates was the plaintiff company’s resolution authorizing the law firm of MN & Co. Advocates to take over the conduct of the suit, and file a Notice of Withdrawal of Suit. When the matter came up for mention on 31st July, 2023, the two learned Counsel appeared before Court and stating that their law firms were on record for the plaintiff. The issue that arose for determination is which of the two law firms was properly on record for the plaintiff. Order 4 Rule 1(4) of the Civil Procedure Rules, 2010 provides as follows- “Where the plaintiff is a corporation, the verifying affidavit shall be sworn by an officer of the company duly authorized under the seal of the company to do so.” In the case of Affordable Homes Africa Limited v Ian Henderson & 2 others HCCC No. 524 of 2004 cited by the Court in Directline Assurance Company Limited v Tomson Ondimu [2019] eKLR the Court held the following- “…that as an artificial body, a company can take decisions only through the agency of its organs, the Board of Directors and the shareholders; and that where a company’s powers of management are, by articles, vested in the Board of Directors, the general meeting cannot interfere in the existence of those powers…. The upshot of these considerations is that in the absence of a board resolution sanctioning the commencement of this action by the company, the company is not before the court at all. For that reason, the preliminary objection succeeds and the action must be struck out with costs such costs be borne by the advocates of the Plaintiff.” In the circumstances, the Court found that the law firm of JA & Co. Advocates was not properly on record for the plaintiff …

Law firm - “I need better cashflow”🔴🟠🟢 Top tips from someone who’s been there and now helps others (me 🤓): (This is just a few) 💲check your client account interest - if you’re not getting at least 4.5%, let me know (that’s £450k per year on £10m in client account!) 💲if you find that you are paying out cash at poor income times, consider moving payment dates (talk to suppliers) or your year end date: think about your cash income and output cycles and make them work for you 💲consider billing twice monthly 💲change your client payment terms to “on demand” 💲get a dedicated member of staff to call AND email all clients who owe you money 💲do deals: eg if a client owes you £5k, take £4500; or say that it will be £4500 if they pay today but £6k if later or a payment plan 💲think about your scoping - what is included and excluded? Charge for extra work 💲when did you last increase your hourly rates? 💲is your pricing appropriate? Competitor analysis Charge more if you are better! 💲always get monies on account (dm me for my magic 🪄 triangle) 💲for new or recently commenced work, call clients and offer a deal if they pay as a fixed fee now rather than hourly rates later 💲charge extra for urgent work or work outside scope or where appropriate - eg demanding client, complexity, value 💲go back over cases where you have gone over estimate or over scope or over the fixed fee bill; ask the client for extra (dm me for my magic 🪄 wording) 💲fixed fee deals: £5k if one payment now; £6k if 2 instalments You must always charge extra if you are waiting to be paid 💲do you turn away work you don’t do? Refer to other firms and receive a percentage instead This is just a tiny sample of tips Let me know if I can help; I cover this plus much more in my billing workshops and my law firm mentoring #law #lawyer #lawfirm #solicitor #profit #cashflow #managingpartner #litigation #familylaw

Law firm - “I need better cashflow”🔴🟠🟢 Top tips from someone who’s been there and now helps others (me 🤓): (This is just a few) 💲check your client account interest - if you’re not getting at least 4.5%, let me know (that’s £450k per year on £10m in client account!) 💲if you find that you are paying out cash at poor income times, consider moving payment dates (talk to suppliers) or your year end date: think about your cash income and output cycles and make them work for you 💲consider billing twice monthly 💲change your client payment terms to “on demand” 💲get a dedicated member of staff to call AND email all clients who owe you money 💲do deals: eg if a client owes you £5k, take £4500; or say that it will be £4500 if they pay today but £6k if later or a payment plan 💲think about your scoping - what is included and excluded? Charge for extra work 💲when did you last increase your hourly rates? 💲is your pricing appropriate? Competitor analysis Charge more if you are better! 💲always get monies on account (dm me for my magic 🪄 triangle) 💲for new or recently commenced work, call clients and offer a deal if they pay as a fixed fee now rather than hourly rates later 💲charge extra for urgent work or work outside scope or where appropriate - eg demanding client, complexity, value 💲go back over cases where you have gone over estimate or over scope or over the fixed fee bill; ask the client for extra (dm me for my magic 🪄 wording) 💲fixed fee deals: £5k if one payment now; £6k if 2 instalments You must always charge extra if you are waiting to be paid 💲do you turn away work you don’t do? Refer to other firms and receive a percentage instead This is just a tiny sample of tips Let me know if I can help; I cover this plus much more in my billing workshops and my law firm mentoring #law #lawyer #lawfirm #solicitor #profit #cashflow #managingpartner #litigation #familylaw

Law firm - “I need better cashflow”🔴🟠🟢 Top tips from someone who’s been there and now helps others (me 🤓): (This is just a few) 💲check your client account interest - if you’re not getting at least 4.5%, let me know (that’s £450k per year on £10m in client account!) 💲if you find that you are paying out cash at poor income times, consider moving payment dates (talk to suppliers) or your year end date: think about your cash income and output cycles and make them work for you 💲consider billing twice monthly 💲change your client payment terms to “on demand” 💲get a dedicated member of staff to call AND email all clients who owe you money 💲do deals: eg if a client owes you £5k, take £4500; or say that it will be £4500 if they pay today but £6k if later or a payment plan 💲think about your scoping - what is included and excluded? Charge for extra work 💲when did you last increase your hourly rates? 💲is your pricing appropriate? Competitor analysis Charge more if you are better! 💲always get monies on account (dm me for my magic 🪄 triangle) 💲for new or recently commenced work, call clients and offer a deal if they pay as a fixed fee now rather than hourly rates later 💲charge extra for urgent work or work outside scope or where appropriate - eg demanding client, complexity, value 💲go back over cases where you have gone over estimate or over scope or over the fixed fee bill; ask the client for extra (dm me for my magic 🪄 wording) 💲fixed fee deals: £5k if one payment now; £6k if 2 instalments You must always charge extra if you are waiting to be paid 💲do you turn away work you don’t do? Refer to other firms and receive a percentage instead This is just a tiny sample of tips Let me know if I can help; I cover this plus much more in my billing workshops and my law firm mentoring #law #lawyer #lawfirm #solicitor #profit #cashflow #managingpartner #litigation #familylaw

Do you know the financial metrics that are critical to your law firm's success? I'm really exited to moderate next week's free ABA webinar where Terrell A Turner, CPA will identify the key financial metrics that all law firms should track, and show how law firms can use these metrics as a basis for powering profitability and growth. #cle #freecle #lawyers #lawfirmmanagement #lawfirmmarketing

When times are tough or uncertain, as they are right now, it might seem prudent to cut back on external legal spend and keep more work in-house. But this is actually counter intuitive.   The saying “you don’t know what you don’t know” certainly applies here. Appointing the right external counsel can pay dividends in terms of tackling the unique set of challenges your business is facing, as well as mitigating the damage of future risks.  The right external counsel should be considered an extension of your own team rather than a cost centre, guiding you seamlessly through the day-to-day matters of regulation, contracts and so on, providing a fresh perspective on legal matters, and handling complex issues quickly, efficiently and cost effectively. They can also provide a constant stream of best-practice advice to keep you on that growth trajectory. Imagine then if your external counsel could comprise of a crack team of solicitors and barristers! The traditional approach of instructing a solicitor, who in turn instructs a barrister, who then both work separately, is expensive and inefficient. Leverets does things differently when it comes to superior external counsel provision. We’re a combined practice that delivers a uniquely streamlined, cost-effective, and highly personal client experience. If you’re thinking about cutting external counsel spend, then speak to Leverets first and find out about our added value approach.

📑 As an attorney specializing in LLP agreements, I understand the importance of clarity and precision in legal documents. Here are 35 key clauses you should consider including in your LLP agreement: 1. Name of the LLP 2. Registered office address 3. Business objectives 4. Duration of the LLP 5. Capital contribution of partners 6. Profit sharing ratio 7. Rights and duties of partners 8. Decision-making process 9. Management structure 10. Appointment and removal of designated partners 11. Authority of designated partners 12. Meetings of partners 13. Quorum requirements 14. Voting rights 15. Financial provisions 16. Drawing of profits and salaries 17. Allocation of losses 18. Interest on capital and loans 19. Accounts and audit 20. Annual financial statements 21. Taxation matters 22. Admission of new partners 23. Retirement or resignation of partners 24. Expulsion of partners 25. Transfer of partnership interest 26. Dissolution and winding-up procedures 27. Distribution of assets upon dissolution 28. Non-compete clauses 29. Confidentiality agreements 30. Dispute resolution mechanisms 31. Governing law 32. Amendments to the agreement 33. Indemnification provisions 34. Insurance requirements 35. General provisions and miscellaneous clauses Crafting a comprehensive LLP agreement tailored to your specific needs and circumstances can safeguard your interests and promote smooth operations. Need assistance? Feel free to reach out for legal guidance. #law #legal #legalinsights #legaladvice #contract #contractlaw #drafting #agreements #partnership #LLP