Legal fine print in a recession

What is the role of legal "fine print" in an economic downturn? Is it something to ignore because of the overhead of dealing with it (lawyers, negotiations)? Does it go on the backburner because the most important thing now—really, the only thing, for heaven's sake—is landing the project before the other guy does? Some legalities deserve increased attention in an economic downturn, including...

03/01/2009


What is the role of legal "fine print" in an economic downturn? Is it something to ignore because of the overhead of dealing with it (lawyers, negotiations)? Does it go on the backburner because the most important thing now—really, the only thing, for heaven's sake—is landing the project before the other guy does?

I'm sure your company has its own answer for that and I am not here to fault it. Managing risk (including legalities) is one of the two or three most important buckets of institutional decisionmaking that every automation enterprise must make. And if your management doesn't have pretty strongly held opinions on those issues, just what is it that they do in those corner offices anyway?

But I am here to say (OK, I am here to urge) thoughtful risk managers to consider the following thesis: Some kinds of legalities deserve increased attention in an economic downturn. Why? Because during a recession, project risk is magnified in at least three ways.

Risk of insolvent partners

Let's face it—not everyone is going to come through this thing alive. Now I can already hear the rationalizations in response: "We can weather this thing. We know what we're doing. I'm confident it's going to be the other company—not us—that ultimately falls down."

But does that response really work on automation projects? There are typically several parties involved with legal connections to your company. What happens if one of those "project partners" goes bust? Obviously, such a development could have a cascading negative effect not just on the project as a whole, but on you.

How well you do in such a meltdown, in my opinion at least, will depend on whether you gave attention to some very specific fine print:

  • Are payments linked or unlinked? Unfair linkages include "pay when paid" clauses that can penalize your company for upstream problems that are not its fault. One potential upstream problem is an end user or middleman becoming insolvent.

  • Liens, bonds, upstream retainage. These are third-party sources of money that can make your company whole even when a contracting partner goes belly up. Do your project personnel have their eyes on all of the applicable requirements and notice deadlines?

Likelihood of litigation

A second reality in a recession is that litigation is more likely. When money is short, long-term business relationships are less certain, and backs are against the wall, companies fight. Are the negotiated "rules of engagement" for the war favorable? Does the battle have to be fought on your opponent's turf? Can you recover your expenses from your adversary if you win? Addressing those questions before problems start can be an investment with a huge return.

Risk of fewer projects

A third reality is that because projects are more scarce, each one can assume an outsized importance. This means that there is much less company resilience in the face of the upside-down project—and no resilience whatsoever in the face of a project that is suffering a meltdown. For this reason two questions in an economic downturn must always be asked:

  • Is the project a mine field? Although it's tough to turn away business in tough economic times, some automation projects are clearly "mine fields" and you are betting on walking a perfect path to make it through unscathed.

  • Is liability restricted? Limiting total liability to the contract price is fair. Excluding "consequential damages" should be a dealbreaker if not permitted.

I know what you're thinking. The guy writing this is a lawyer who makes his living advising automation companies throughout North America and beyond—and who therefore has a vested interest in promoting the use of lawyers. Well, true. But that just leads us to another reality that unhappily circumscribes all of the others: There is no avoiding lawyers in a recession.

In other words, see us now or see us later.


Author Information
Mark Voigtmann is a lawyer with Baker & Daniels, LLP (Indianapolis, Chicago, Washington DC and China). His group assists the automation and process industry in structuring projects and resolving disputes. Reach him at Mark.Voigtmann@bakerd.com or 317-237-1265.




The Top Plant program honors outstanding manufacturing facilities in North America. View the 2015 Top Plant.
The Product of the Year program recognizes products newly released in the manufacturing industries.
Each year, a panel of Control Engineering and Plant Engineering editors and industry expert judges select the System Integrator of the Year Award winners in three categories.
A new approach to the Skills Gap; Community colleges may hold the key for manufacturing; 2017 Engineering Leaders Under 40
Doubling down on digital manufacturing; Data driving predictive maintenance; Electric motors and generators; Rewarding operational improvement
2017 Lubrication Guide; Software tools; Microgrids and energy strategies; Use robots effectively
The cloud, mobility, and remote operations; SCADA and contextual mobility; Custom UPS empowering a secure pipeline
Infrastructure for natural gas expansion; Artificial lift methods; Disruptive technology and fugitive gas emissions
Mobility as the means to offshore innovation; Preventing another Deepwater Horizon; ROVs as subsea robots; SCADA and the radio spectrum
Power system design for high-performance buildings; mitigating arc flash hazards
Research team developing Tesla coil designs; Implementing wireless process sensing
Commissioning electrical systems; Designing emergency and standby generator systems; Paralleling switchgear generator systems

Annual Salary Survey

Before the calendar turned, 2016 already had the makings of a pivotal year for manufacturing, and for the world.

There were the big events for the year, including the United States as Partner Country at Hannover Messe in April and the 2016 International Manufacturing Technology Show in Chicago in September. There's also the matter of the U.S. presidential elections in November, which promise to shape policy in manufacturing for years to come.

But the year started with global economic turmoil, as a slowdown in Chinese manufacturing triggered a worldwide stock hiccup that sent values plummeting. The continued plunge in world oil prices has resulted in a slowdown in exploration and, by extension, the manufacture of exploration equipment.

Read more: 2015 Salary Survey

Maintenance and reliability tips and best practices from the maintenance and reliability coaches at Allied Reliability Group.
The One Voice for Manufacturing blog reports on federal public policy issues impacting the manufacturing sector. One Voice is a joint effort by the National Tooling and Machining...
The Society for Maintenance and Reliability Professionals an organization devoted...
Join this ongoing discussion of machine guarding topics, including solutions assessments, regulatory compliance, gap analysis...
IMS Research, recently acquired by IHS Inc., is a leading independent supplier of market research and consultancy to the global electronics industry.
Maintenance is not optional in manufacturing. It’s a profit center, driving productivity and uptime while reducing overall repair costs.
The Lachance on CMMS blog is about current maintenance topics. Blogger Paul Lachance is president and chief technology officer for Smartware Group.
The maintenance journey has been a long, slow trek for most manufacturers and has gone from preventive maintenance to predictive maintenance.
Featured articles highlight technologies that enable the Industrial Internet of Things, IIoT-related products and strategies to get data more easily to the user.
This digital report will explore several aspects of how IIoT will transform manufacturing in the coming years.
Maintenance Manager; California Oils Corp.
Associate, Electrical Engineering; Wood Harbinger
Control Systems Engineer; Robert Bosch Corp.
This course focuses on climate analysis, appropriateness of cooling system selection, and combining cooling systems.
This course will help identify and reveal electrical hazards and identify the solutions to implementing and maintaining a safe work environment.
This course explains how maintaining power and communication systems through emergency power-generation systems is critical.
click me