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Why a Negotiated Contract Is Critical

By Contributor
Law

If It Cannot Run the Deal, It Cannot Protect the Business

By Tanzi Cannon-Eckerle, Esq.

Contracts are supposed to reflect the ‘meeting of the minds’ of the contracting parties. Yes, that is a legal term. It means the contract is supposed to be well thought out, and that, when Monday morning arrives and something goes sideways, as it inevitably does, both sides should understand the deal the same way.

A contract should not be a stack of recycled clauses, optimistic assumptions, and whatever someone copied from the last transaction. It should be a negotiated operating framework that turns business expectations into actual obligations, decision rights, escalation paths, and exit routes. If the document does not tell the business what performance is expected and what happens when performance slips, costs rise, or milestones move, it is not done. It is simply signed. And those are not the same thing.

By the way, I have heard from many business owners that they do not want to jinx the deal or upset the other company by negotiating or making changes to the contract. Negotiating material terms of the contract is not an offensive act. It is a thoughtful and prudent act, and it is expected by the courts. Furthermore, most companies want to do business with savvy companies that have transparent and honest business practices. A heavily negotiated contract is the epitome of transparent — when you draft what you mean.

When the Contract Is Vague, the Dispute Is Already Brewing

Most contract failures do not begin with villains or cinematic betrayal. They begin with imprecision. Most people leave the signing table thinking the business terms are clear, and then the team responsible for delivery opens the agreement and finds words like ‘timely,’ ‘reasonable,’ ‘commercially acceptable,’ and ‘best efforts.’

Tanzi Cannon-Eckerle

“A contract should not be a stack of recycled clauses, optimistic assumptions, and whatever someone copied from the last transaction. It should be a negotiated operating framework that turns business expectations into actual obligations, decision rights, escalation paths, and exit routes.”

Those are legal terms with legal meaning for sure. But for operational purposes, those phrases are only workable right up until a launch date slips, a service level is missed, or a deliverable turns out to be neither clearly defined nor practically achievable. The terms need to be clearly defined in plain language and measurable. Otherwise, operators are set up to fail, and a dispute is teed up for the first round of litigation.

What smart leaders do instead: they force the contract to say what the deal actually is. Deadlines. Service levels. Acceptance criteria. Payment triggers. Dependencies. Who approves what. What happens if any of those things fail. If a supplier reads a delivery date as aspirational and the customer has built a production schedule around it as fixed, the dispute did not begin later. It began in the drafting. The same goes for “full onboarding support,” “industry standard quality,” or “small event.” Those are not terms; those are opinions. If the contract leaves core obligations to assumption, the parties are not aligned. They are simply optimistic. Draft what you mean.

Boilerplate Is Where Leverage Hides

Executives sometimes treat boilerplate as background noise — the legal equivalent of the fine print nobody reads on the back of the shampoo bottle. That is a mistake. Those supposedly standard provisions often determine where a dispute gets decided, how notice must be given, whether a missed deadline can be cured, what damages are recoverable, and whether a party can force performance or is left holding a claim for money after the operational damage is already done. Boilerplate is often where the real allocation of business risk is hiding in plain sight. Don’t just cut and paste.

I have seen contracts Frankensteined together from well-loved templates where one clause requires litigation in Massachusetts and another mandates arbitration in New York. That is not efficiency. That is deferred cost wearing a nice suit. The same is true when a company signs a form saying time is ‘of the essence’ while the internal team is quietly thinking, ‘well, within reason.’ If the contract says one thing and operations is prepared to do another, legal will eventually be cleaning up the misunderstanding with invoices attached.

The operational takeaway: treat every clause that affects timing, money, remedies, notice, forum, exclusivity, or termination as a business term. If it changes leverage when something goes wrong, it is not filler.

If You Did Not Negotiate the Exit, You Did Not Finish the Deal

A surprising number of contracts explain (at length) how to begin a relationship and then get very coy about how to end one. That is a problem. There is nothing wrong with a prenup. Every meaningful agreement should address not only termination for cause and termination for convenience, but also what happens when one party signals ahead of time that it is not going to perform. That is called ‘anticipatory breach.’

It is not letting anyone off the hook, either — it is smart and practical and anticipates that things happen. If your supplier tells you in June that it cannot possibly make a September delivery, you should not be forced to sit there politely until the formal breach date arrives like some sort of legal waiting room. 

What belongs in the contract: clear, practicable, and articulable exit rights. Who can terminate, on what grounds, after what notice, with what cure period, and with what post-termination duties. Can the customer walk for convenience on 30 or 60 days notice? Does the vendor get paid for work properly performed and non-cancelable commitments? Is there transition support or data return? And if anticipatory breach is in play, define what statements or conduct count, whether adequate assurances can be demanded, and how long the other side has to respond.

Remedies Deserve the Same Level of Practical Thinking

If delay creates measurable but hard-to-prove harm, liquidated damages may make sense, but only if they are drafted as a reasonable pre-estimate of likely loss. In real life, that means tying the number to something you can explain with a straight face: downtime costs, lost margin on delayed production, replacement costs, service credit exposure, or the carrying cost of idle labor and equipment. Where money is not enough, the contract should also preserve the right to seek specific performance and injunctive relief. Courts do not hand those remedies out automatically. If they matter, draft it.

A Signed Contract Still Needs an Owner

Even an excellent contract can fail if nobody owns execution after signature. This is why contract management should not be treated as clerical aftercare. It should be part of someone’s official duties, with authority and accountability to monitor milestones, approvals, change orders, notice deadlines, renewal dates, pricing adjustments, service levels, insurance certificates, and termination triggers. Once the agreement is signed, someone should be responsible for translating it into operational reality for the people who now have to live inside it.

What that looks like in the real world: a company misses an automatic renewal cutoff because no one owned the calendar, and suddenly it is committed to another year of underperforming service it never wanted. Strong contract management does not eliminate risk. It catches the problem before it grows teeth.

What Smart Operators Negotiate Up Front

For CEOs and COOs, the playbook is not academic. It is operational discipline in legal form:

• Write in executable terms. If the people running the deal cannot tell what happens next, the document is not ready.

• Negotiate for failure, not just success. Define what counts as breach, anticipatory breach, delay, non-conformity, and inadequate assurance.

• Build an exit before you need one. Termination rights, cure periods, transition support, data return, and payment consequences should be explicit. This is not expecting failure; it is just being prepared.

• Match remedies to real business harm. Use liquidated damages where losses are hard to measure, and preserve specific performance or injunctive relief where money is not enough.

• Assign an owner after signature. Contract management should be an actual responsibility, not an assumption. It is an essential function. 

• Document changes while the relationship is healthy. If scope, pricing, or deadlines move, the paper should move with them. Review contracts often. 

Heavily negotiated contracts are often the cheapest contracts a company will ever sign. The time spent clarifying scope, defining remedies, pressure-testing exit rights, and aligning the document with actual operations is almost always less expensive than litigating ambiguity later. A good general counsel does not just mark up clauses and hand back a cleaner draft. The job is to translate business reality into contractual architecture that protects the company when the relationship is working — and when it is not.

The Bottom Line for CEOs and COOs

Most contract disputes do not begin with dramatic table-flip moments. They begin with avoidable ambiguity, weak ownership, and a document that never captured how the business expected the relationship to function in real life. A contract must clearly express the deal, define the early warning signs of failure, and provide a practical off-ramp when performance breaks down. When that work is done well up front, companies spend less time arguing about what they meant and more time doing what they set out to do.

For more information about drafting contracts or fractional general counsel services, reach out to Tanzi Cannon-Eckerle at General Counsel by Cannon, PLLC, a New England-based labor and employment and business law firm offering fractional general counsel services in New England; [email protected]

Does Massachusetts Still Want a Legal Cannabis Industry?

By Contributor
Opinion

Opinion

By Meg Sanders

 

A few weeks ago, a community member out in the Berkshires was speaking with a staffer of ours at Canna Provisions. She had just heard that the petition to end adult use cannabis had potentially gathered enough signatures to move forward toward the 2026 ballot. “Well … that’ll never pass,” she said, waving her hand as if brushing away a fruit fly. “People love your store.” I wish that were enough.

In Massachusetts, we are now facing the most serious threat to the legal cannabis industry since voters approved it in 2016, and the most dangerous reaction I’m seeing is dismissal or the belief that progress is permanent. Or, worse, the assumption that someone else will handle it, that voters won’t move backward, that adult use is simply too big to fail. But let me be very clear as someone who has spent nearly 15 years in legal cannabis across multiple states: nothing in this industry is too big to fail. Not even legalization itself.

The Massachusetts Elections Division recently certified 78,301 signatures for a measure laughably called “An Act to Restore a Sensible Marijuana Policy,” which seeks to end all recreational cannabis sales and the ability for citizens to grow at home in Massachusetts, while preserving medical-only access. It is now officially moving to the Legislature, which has until this May to act. And if they decline a portion of the signatures collected, causing the initiative to fall under the required threshold, the proponents would need 12,429 more signatures to ensure the question gets on the November 2026 ballot.

That means the future of every retailer, cultivator, manufacturer, brand, and tens of thousands of direct jobs across the Commonwealth is officially on the line. Additionally, thousands of indirect jobs the industry supports will be lost. This means plumbers, landlords, snow plowers and landscapers, marketing professionals, electricians, accountants, lawyers, and more will all take a hard hit.

This is the beginning of a coordinated effort to unwind the very industry so many of us have spent years building — legally, transparently, and in partnership with our communities in Western Mass., as well as the state as a whole. And here’s the part that should alarm every business leader reading this: public opinion alone does not stop ballot initiatives. Organization does. Funding does. Showing up does.

We’ve already seen reporting that some of the signatures gathered may have been collected through deceptive or misleading tactics. But even if every signature were suspect, the measure is currently alive in the eyes of the state. That is what matters now. So the question before every operator comes down to a point of view. If someone is coming for your business, your staff, your customers, and your community partnerships, are you really going to sit this one out? If yes, how can you square that up with everyone mentioned in the previous sentence? Moreover, why would you want to?

“This is the beginning of a coordinated effort to unwind the very industry so many of us have spent years building — legally, transparently, and in partnership with our communities in Western Mass., as well as the state as a whole.”

At Canna Provisions, we’ve made our position crystal clear. We have long believed that every dollar spent is a vote for or against something. It’s why we stopped using Uline two years ago after learning about their aggressive anti-cannabis advocacy. And starting Jan. 1, 2026, we no longer accept deliveries in Uline packaging at all (and have encouraged partners to use a local service provider like W.B. Mason instead). If a partner still has stock, we will work with them, but we expect written assurances that they are transitioning vendors.

This is one example of a position showcasing voting with one’s dollars — because if you’re taking cannabis money while directly supporting anti-cannabis efforts, you are funding your own downfall. And if this rollback effort advances and a statewide campaign becomes necessary, we will not carry products or use vendors who refuse to financially support the fight to protect this industry, even if that support comes in the form of inaction and apathy to the threat level we are facing in 2026. That includes brands. Cultivators. Tech partners. Professional services. HVAC installers. Electricians. Plumbers. Everyone.

If that sounds harsh, ask yourself: what, exactly, is the alternative? What will the impact be, from tourism in the Berkshires (which we know has directly benefited from cannabis) to municipal revenue streams to the thousands of workers who rely on this economy? What happens to the local businesses we support, the charities we donate to, and the community partnerships we’ve built?

We are not talking about a minor regulatory adjustment. It would be the end of a business sector that has generated billions for the state, brought life into struggling towns, created pathways for equity and entrepreneurship, and, let’s not forget, delivered a safer, regulated alternative to the illicit market. Additional measures are now underway in both Maine and Arizona, making this an effort that may be beginning in the Commonwealth but is rapidly expanding across the country. If Massachusetts falls (or if the vote is precariously close), you can bet this will have ripple effects on cannabis freedom across the U.S.

Ending adult-use cannabis does not eliminate cannabis. It eliminates safe, regulated, legal cannabis, as it’s been embraced since voters passed Question 4 in 2016. This is the moment when our industry has to grow up. We cannot keep treating existential threats like spectator events. Operators cannot assume that the big companies will handle it. Equity operators cannot assume someone else will protect their hard-earned licenses. Vendors cannot assume their cannabis clients will still exist in two years if they stay on the sidelines now.

Everyone in the industry, including consumers, has skin in this game, and everyone has a responsibility to defend it. So here is my call to the business community, cannabis and non-cannabis alike. Pay attention. Ask your partners where their money goes. Support the organizations preparing to fight this ballot initiative. Refuse to fund vendors or suppliers who work against your interests. Stop assuming someone else will do the hard work — because they won’t. And because the people trying to end this industry are counting on your complacency.

I’ve said for years that trust and sustainability are the foundation of this industry. Today, I’ll add one more: vigilance. The rights we earned in 2016 can still be taken away, and if that happens, it will be because too many people thought their silence was harmless.

The next year will determine whether Massachusetts remains a leader in legal cannabis or becomes the first state in history to voluntarily dismantle its adult-use market. I know which future I’m fighting for. I hope the rest of the industry joins us.

The clock has already started.

 

Meg Sanders is CEO and co-founder of Canna Provisions.

Yes, You Can Fire That Guy!

By Contributor
Law Special Coverage

Processes, Procedures, Practices, and Protocols Are Kings

By Tanzania Cannon-Eckerle, Esq.

In this new, enlightened era of increased employee rights and employee shortages, many employers are scared to terminate employees in fear of litigation — or of not having enough staff to enable the company to produce at the desired level.

The second question we can save for later, but I will mention now that additional widgets will most likely never justify the havoc that a toxic employee will create.

In my opinion, the answer to the first question is simple: do not fear what you cannot control. You cannot control who goes down to the courthouse to file a complaint. Just be prepared for the battle. So, yes, you can fire that guy (or girl, or them). The question is, should you?

 

Don’t Shoot Before Aiming — Consider Your Goal First

Don’t respond emotionally or consider someone else’s emotional response. Stop and think. Ask, why is this employee on the chopping block (i.e., what did they allegedly do)? How did they get there (was the proper process followed)? Who placed them there (who is bringing this up? Does the person have the authority to raise this issue? Anything nefarious here)?

Notice that I did not ask ‘who’ this employee is. We don’t assess the ‘who’ on the chopping block. It doesn’t matter who did it. It matters what was done, why it was done, whether it was actually done, and whether it rises to the level of termination.

Essentially, assess the conduct. What do you hope to attain by terminating this employee? A safer workplace? Good. To stop disruptions in operations or the beginnings of a hostile work environment? Good. Now prove it.

 

Prove It (in Preparation for the Battle)

If you can’t prove it, abort the mission. Go back to the drawing board. Go to plan B. Joking aside, preparing for appropriate employee terminations is a long game. It starts with consistent application of procedures, processes, policies, and practices. Probably the most important thing is documentation.

Consistent application of the ‘four Ps’ over time may take an investment of time and money into creating them if you don’t already have them, and training managers and supervisors in the art of holding employees accountable.

“Preparing for appropriate employee terminations is a long game. It starts with consistent application of procedures, processes, policies, and practices. Probably the most important thing is documentation.”

Tanzania Cannon-Eckerle

Tanzania Cannon-Eckerle

Among other things, there should be consistent application of all conduct and performance-related policies. There should be consistent application of all of the policies, procedures, and practices associated with managing human-resources functions such as leaves of absence and request for accommodations, as well as employee complaints made and investigated.

All of these should contain a component that enables tracking the underlying data and providing the ability to obtain and distribute the underlying information that supports assertions made. So you want to terminate an employee because he has been to work only seven out of 19 days, and on the seventh day he violated a safety policy and then stole your candy bar? You should be able to show documentation of these occurrences that were created in real time — including, of course, when the company had the initial conversation with him for being absent the first few times, checking to make sure it wasn’t actually a protected leave of absence.

Once you have the documentation, sit him down and tell him that he is being terminated from the job because of his inability to perform and because of his violation of the attendance policy. Have a witness. If you don’t have the documentation, sit him down, put him on notice that he is in the line of fire, and start documenting. Provide him with expectations, and then document it thereafter. Most likely, this will just delay the inevitable, but you never know. Regardless, at least you will have something to take with you into battle.

Make the Business Decision Informed by the Data, and Document It

Please know, you can terminate an employee for any reason at any time so long as it is not an illegal reason. That means you cannot terminate because of an employee’s protected status or activity or in a manner inconsistent with a collective bargaining agreement or other employment agreement.

As such, if you want to terminate a person for business reasons that have nothing to do with the person and everything to do with your business needs, that is OK too. But you should prove it. Do you have the data to back up your decision? You don’t have to have it, but if that person files a complaint, you will want it, and you will want to be able to attest that the business analysis was done prior to the termination. Otherwise, they will scream ‘pretext,’ meaning you just made that up. Plus, doing the analysis first may help you assess the risks of terminating an employee for business reasons.

There are always risks. Is it cheaper to keep him after assessing those risks, or not? That is a legitimate fiscal business concern. There are risks associated with not terminating employees as well. Be sure to document those, too — not just in the business case (e.g., budget concerns), but also in the ‘do I have enough to terminate this employee for conduct?’ case. Some examples: if I don’t terminate, there will be allegations that I did not maintain a harassment-free workplace; or, I terminated another employee for this same behavior last year, and there is no legitimate reason distinguishing this employee from being terminated for the same; or, he keeps violating safety procedures, and someone may get hurt.

 

Terminate with Grace and Pay What You Owe

Be respectful to all employees, including those who are coming and going. He knows what he did to get terminated (if you have done it right). There is no legitimate reason to be rude about it.

Terminating with dignity or grace does not mean that you should not terminate an employee. Once an employee gets to termination, he should have already had an opportunity to cure the conduct or behavior for which he is getting terminated. As such, by the time the writing is on the wall, he should not be surprised. If he is, that might partly explain why he is getting terminated.

Next, make sure you reach out to your employment counsel for assistance with properly preparing a termination package (necessary correspondence, pay requirements, and timing considerations). A misstep here can get you in hot water — triple hot water. Failure to pay an employee what is due at termination has no defense, and the remedy to the employee includes three times the wages due. Call your counsel before terminating.

I know this article is not going to make me popular among some folks. I am not trying to be cold. I am just being practical. Your employees are your life force. I get it. I am one. But they are also human capital. If you manage your human capital like you manage your non-human capital, then you should be able to terminate employees without fear.

Processes, procedures, practices, and protocols are kings. Remember, keeping a toxic employee is more costly, in a variety of ways, than the cost of defending a claim — that is, if you have your ducks in a row. So get your ducks in a row. Plus, the remainder of your staff will appreciate the decision. Heck, the terminated employee may appreciate it in time; sometimes it just isn’t a good fit. Cut them free to find their better role. In the case of the business decision, your shareholders or business partners will appreciate your fiscal responsibility.

 

Tanzania Cannon-Eckerle, Esq. is chief legal and administrative officer for the Royal Law Firm; (413) 586-2281.

Senate Passes Sports-gambling Bill 

By
Daily News


The state Senate on Thursday passed a bill that would legalize sports betting in the Commonwealth, but prohibit wagering on college sports. 

The legislation was narrower than the version the House passed last summer, which allowed for betting on both professional and college sports.  

If signed into law, the new gambling program would bring in a projected $35 million in annual revenue to the state, according to Senate Ways and Means Chairman Michel Rodrigues. 

Passage of the measure sets up negotiation between the two chambers before the end of the formal session in July. 

The Senate measure prohibits the use of credit cards to place bets, allows people to set limits on how much money, and how often, they gamble, and addresses compulsive and problem gambling. 

Enforcement of Contracts During a Public-health Emergency

By Contributor
Coronavirus

The Bottom Line

By Michael A. Fenton, Esq. and Mark J. Esposito, Esq.

The COVID-19 pandemic has touched the lives of billions across the globe. In Massachusetts, Gov. Charlie Baker recently extended an emergency order directing that all non-essential businesses cease in-person operations and banning large gatherings.

Michael A. Fenton, Esq.

Michael A. Fenton, Esq.

Mark J. Esposito, Esq.

Mark J. Esposito, Esq.

With each closure, cancellation, or indefinite postponement comes a flurry of legal questions pertaining to contract law. Indeed, the postponement of the comic-book convention scheduled to take place in Boston in March has already resulted in a lawsuit stemming from a disagreement over a contract.

This article focuses on how contracting parties may be excused from certain obligations due to COVID-19.

To a great extent, businesses are in uncharted waters. The last comparable public-health emergency occurred more than 100 years ago: the Spanish Flu of 1918-19. Partly as a result of that rarity, instructive legal precedents are also few and far between. In these unprecedented times, the often-overlooked doctrine of impossibility of contract and the underlying legal concept of force majeure are positioned to play primary roles in the interpretation of contracts during the coming weeks and months.

Doctrine of Impossibility of Contract

The doctrine of impossibility of contract may be raised as a defense in response to a lawsuit seeking to enforce a contract. Under the legal theory, if both parties entered into the contract assuming that a certain state of facts would continue to exist, and that assumption turned out to be wrong, without the fault of either party, the obligation to perform under the contract would be excused (Chase Precast Corp. v. John J. Paonessa Co. Inc., 409 Mass. 371, 373 [1991]). While the doctrine of impossibility of contract may be (somewhat) succinctly summarized, it is not necessarily so easy to interpret in practice.

The circumstances triggering the doctrine of impossibility need not be written into an agreement in order for the doctrine to apply. However, the applicability of the legal theory can be expressed in a contract through what is called a force majeure clause.

Force Majeure

Black’s Law Dictionary defines force majeure as “an event or effect that can be neither anticipated nor controlled; esp., an unexpected event that prevents someone from doing or completing something that he or she had agreed or officially planned to do. The term includes both acts of nature (e.g., floods and hurricanes) and acts of people (e.g., riots, strikes, and wars).” Force majeure intersects with the doctrine of impossibility when a contract cannot be performed as intended because of a war, natural disaster, or the like.

The general definition of force majeure can be customized in an individual contract. Each contract should be reviewed carefully to determine how force majeure is defined, if at all, and to assess whether the current pandemic circumstances preclude enforcement of the contract obligations.

Force majeure clauses are clearly implicated if they explicitly include pandemics or public-health crises within the contractual definition, but what about less obvious situations? Does the COVID-19 crisis qualify as an unanticipated, uncontrolled ‘act of nature’ or ‘act of people’? The pandemic certainly is an unexpected event that is preventing a great many people from doing or completing a great many things. But an insurer being sued in Louisiana disagrees.

Which Applies?

In the midst of the current health crisis, parties with (and some without) a force majeure clause in their agreements find themselves wondering if the doctrine of impossibility of contract applies. Is a commercial tenant required to continue to pay rent to a landlord, when the leased premises have been ordered closed by the governor because of a public-health emergency? What rights does the landlord have in the same situation? Surely the tenant anticipated that it would be able to operate its business out of the space; otherwise, there would have been no reason to rent it. What specifically did the parties think at the time that they entered the agreement?

The general definition of force majeure can be customized in an individual contract. Each contract should be reviewed carefully to determine how force majeure is defined, if at all, and to assess whether the current pandemic circumstances preclude enforcement of the contract obligations.

The general definition of force majeure can be customized in an individual contract. Each contract should be reviewed carefully to determine how force majeure is defined, if at all, and to assess whether the current pandemic circumstances preclude enforcement of the contract obligations.

If the doctrine of impossibility of contract applies, whether through the express provisions of a force majeure clause or otherwise, contracting parties must determine what obligations are excused and to what extent. Most contracts will not be completely invalidated by a force majeure event. Rather, force majeure will operate to relax certain obligations based on the facts and circumstances (e.g., extending deadlines, waiving mandatory production requirements, abating rent, or other payments owed).

It is worth noting that many commercial leases have provisions that expressly define what qualifies as force majeure and narrowly enumerate what obligations can be excused under it. Many commercial leases state plainly that the tenant’s obligation to pay rent cannot be excused by triggering the force majeure provisions. Where losses are realized as a result of the doctrine of impossibility of contract and/or force majeure provisions in a contract, an aggrieved party might reasonably consult with their insurance carrier as business interruption insurance could conceivably be a useful tool in mitigating these losses. Unfortunately, insurance companies are almost uniformly denying such claims.

Uncertain Times

The COVID-19 pandemic has turned our lives upside down. While contractual obligations are the last thing many of us want to be thinking about during this time, it is an undeniable truth that business and professional obligations are on the minds of many as we struggle to honor our commitments. For some, the doctrine of impossibility of contract and force majeure contractual provisions may provide some measure of relief from obligations, while it will only further compound the damage for others who seek to enforce such obligations.

Michael A. Fenton, Esq. and Mark J. Esposito, Esq. are attorneys at Shatz, Schwartz and Fentin, P.C., and specialize in business and estate planning, commercial and tax-exempt bond financing, real estate, litigation, and bankruptcy; (413) 737-1131; ssfpc.com