On Demand Audio

Recent Litigation of Force Majeure and Other Contract Defenses During COVID-19

(664 reviews)

Produced on October 22, 2020

$ 89 Contract, Legal Research & Writing, and Covid-19 In Stock
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Course Information

Time 1h 1m
Difficulty Intermediate

Course Description

This program, presented by Baker Hostetler partner Gilbert S. Keteltas and associate Kyle T. Cutts, will discuss recent developments regarding the enforceability of force majeure clauses, and other contract defenses, to excuse performance impacted by the COVID-19 pandemic. The course will benefit attorneys advising clients on their contractual rights and obligations during the pandemic, as well as counsel responsible for drafting new contracts in the time of COVID-19.

Learning Objectives:
  1. Assess recent case law addressing the enforceability of force majeure provisions in light of the pandemic
  2. Consider the viability of other defenses to contract performance and how those defenses have been interpreted in light of COVID-19
  3. Address how these case developments impact force majeure language in new contracts going forward 

Credit Information

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Kyle T. Cutts

Baker & Hostetler LLP

Kyle Cutts focuses primarily on appellate litigation, motions practice, and trial strategy in state and federal courts. His experience spans many areas of law, including consumer class actions, commercial contract disputes and antitrust matters. Kyle also has experience defending class action lawsuits related to auto-renewal or continuous-service subscriptions, including claims brought under California’s auto-renewal statute, Cal. Bus. & Prof. Code § 17600, et seq. Additionally, he maintains an active pro bono practice.

Kyle previously served as a law clerk for the Honorable Jay S. Bybee of the Ninth Circuit Court of Appeals. Prior to attending law school, he worked in Silicon Valley and in Hyderabad, India, for Google Inc. He also served as a Fulbright Scholar in Hamburg, Germany. 

Select Experience

  • Secured dismissal of a class action complaint challenging client’s use of an auto-renewal subscription service. At oral argument, the court dismissed the complaint in its entirety and denied the plaintiffs leave to amend.
  • Drafted a successful motion to dismiss a multi-count complaint asserting breach-of-warranty and negligence theories. I also drafted the briefing before the Fifth Circuit Court of Appeals, which affirmed the dismissal.   
  • Recently argued before the Seventh Circuit Court of Appeals in a case involving a dismissed petition for habeas corpus relief. 


  • Secured dismissal of a class action complaint challenging client’s use of an auto-renewal subscription service. At oral argument, the court dismissed the complaint in its entirety and denied the plaintiffs leave to amend.
  • Drafted a successful motion to dismiss a multi-count complaint asserting breach-of-warranty and negligence theories. I also drafted the briefing before the Fifth Circuit Court of Appeals, which affirmed the dismissal.   
  • Recently argued before the Seventh Circuit Court of Appeals in a case involving a dismissed petition for habeas corpus relief. 
  • Defended a leading home-goods manufacturer against a series of putative class actions in which plaintiffs alleged the manufacture and sale of failure-prone component parts.
  • Successfully defended a client against the FTC in an antitrust merger challenge.
  • Represented a department store chain against a competitor for tortious interference with a license agreement.


  • Case Western Reserve University Law School Alumni Board
  • American Bar Association
  • Ohio State Bar Association


Blog Posts


Pro Bono

  • Successfully secured release of a prisoner sentenced to life in prison without the possibility of parole as a juvenile.
  • Represented a prisoner appealing the dismissal of his federal habeas petition.
  • Successfully obtained asylum for individuals fleeing persecution in central Africa.



Prior Positions

  • Law Clerk for the Honorable Jay S. Bybee, U.S. Court of Appeals, Ninth Circuit (2011 to 2012)


  • Ohio
  • California


  • J.D., Case Western Reserve University School of Law, 2008, summa cum laude, Order of the Coif, Graduated First in Class
  • B.A., Wake Forest University, 2002

Gilbert S. Keteltas

Baker & Hostetler LLP

The practice team leader of BakerHostetler’s Commercial Litigation team, Gil Keteltas is a trial lawyer with more than 25 years of experience litigating complex commercial, tort and government enforcement disputes on behalf of national and international corporations. Recognized by the National Law Journal as a 2016 Litigation Trailblazer for innovative trial advocacy, Gil’s experience spans practice areas and industries. He has advocated in courtrooms across the country on behalf of manufacturers, engineers, hospitality companies, agricultural cooperatives and farmers, and has served as trial counsel in jury and bench trials. 

Gil also is experienced in coordinating and leading the defense of multi-jurisdictional, multi-party disputes – including disputes involving a mix of government and private plaintiffs – and in developing and implementing litigation risk-reduction strategies before litigation is filed.

Gil’s national trial practice benefits from his experience in electronic discovery. He brings a practical approach to e-discovery that recognizes the importance of focused advocacy in addressing the burdens, costs and opportunities of discovery in modern complex litigation. Clients and peers recognize Gil as “a notable electronic discovery expert with significant trial experience” (Chambers USA 2018).


  • Co-lead trial counsel to a global engineering company in an indemnity case arising out of the 2009 explosion of a food manufacturing plant in Garner, North Carolina. After a four-week jury trial, the jury returned a verdict of $108.9 million in favor of the client, two times the amount of the largest verdict in Nebraska at that time. This verdict, recently affirmed by the Nebraska Supreme Court, was recognized by the National Law Journal as a “Top 50 Verdict” of 2016 in its Elite Trial Lawyers report.*
  • Counsel to multiple hospitality companies in litigation and enforcement actions arising out of data breaches. Secured voluntary dismissal of a class action brought by issuing banks against one client, negotiated a favorable mediated resolution of a consumer class action brought against another and is actively involved in a regulatory enforcement investigation involving a third.
  • Lead counsel to the growers and processors of more than half of the nation’s domestically grown sugar in multiple lawsuits, defending his client’s ability to plant, harvest and process biotech sugarbeets. Directly sued opposing food advocacy groups through use of the Declaratory Judgment Act. Developed and implemented a trial strategy that challenged the credibility of opposing claims and exposed the absence of injury to plaintiffs, ultimately voiding injunctive remedies. Center for Food Safety, et al. v. Vilsack, et al.
  • Led client and joint defense in six consolidated multi-plaintiff tort actions brought by New York City transit workers alleging injuries from diesel exhaust exposure in enclosed transit terminals. Won dismissal of all claims on federal pre-emption grounds. In re Jackson, et al. v. General Motors Corp., et al.
  • Won an unprecedented trial verdict as lead trial counsel in a case of first impression defended by the California Attorney General. The court invalidated a California regulation, finding it unconstitutionally impaired contracts with the world’s leading diesel engine manufacturers and amounted to an illegal recall. Caterpillar Inc., et al. v. California Air Resources Board
  • Assisted a client in defense and resolution of an industrywide investigation and government enforcement dispute concerning the regulation of engines, which remains one of the largest government enforcement efforts in history. Led client and industry joint defense of multiple follow-on lawsuits alleging claims of unfair business practices, breach of contract and warranty, and violations of the RICO statute. United States v. Caterpillar Inc., et al.
  • Served on the defense, trial and appellate teams of the second-largest environmental enforcement action ever tried before a jury, involving allegations of unpermitted operations under the Resource Conservation and Recovery Act, the Clean Water Act, the Clean Air Act and the Comprehensive Environmental Response, Compensation, and Liability Act. A settlement was eventually approved between the parties. U.S. v. Marine Shale Processors
  • As counsel to a multinational food and beverage company in an antitrust class action, negotiated and obtained significant limits to the scope, burden and expense of electronic discovery. In re: Chocolate Confectionary Antitrust Litigation
  • Exposed a competitor’s role in secretly funding a citizen suit against a client. The suit ended on the eve of the preliminary injunction trial after citizens unsuccessfully sought to withdraw their own preliminary injunction motion. Pennsylvania Environmental Enforcement Project, Inc. v. Keystone Cement Co.
  • Co-leader of a nationwide team that managed a national litigation docket involving more than 100 active cases. Developed and utilized cutting-edge case management and litigation budgeting tools. Unocal National Litigation Docket (See American Lawyer, “The Fix Is In,” Nov. 1, 2005).


  • Chambers Global:
    • E-Discovery & Information Governance (USA) (2020)
      • Band 4 (2020)
    • Litigation: E-Discovery (USA) (2019)
      • Band 4 (2019)
  • Chambers USA: Nationwide Litigation: E-Discovery (2014 to 2019)
    • Band 4 (2018 to 2019), Recognized Practitioner (2014 to 2016)
  • National Law Journal "Litigation Trailblazer" (2016)
  • 2016 “Top 50 Verdict,” National Law Journal’s Elite Trial Lawyer’ report.
  • Bondareff Award Winner: recognition of extended and dedicated service to the Cornell Club of Washington (2002)
  • Washington, D.C. "Super Lawyer" (2013 to 2019)


  • Georgetown Law Advanced E-Discovery Institute
    • Board of Advisors (2008 to 2018)
    • Planning Committee Co-Chair (2016 to 2017)
    • Faculty
  • Georgetown Law Corporate Counsel Institute: Advisory Board Member (2005 to 2018)
  • Sedona Working Group 1: Electronic Document Retention & Production
  • Practicing Law Institute: Faculty (2014 to 2018)


Press Releases




  • Cornell University Speech & Debate Society: Advisory Board (2015 to 2018)
  • Cornell University Glee Club: Alumni Board (2017 to 2018)
  • Cornell Club of Washington, D.C.
    • Office of the President (1994 to 1995; 1995 to 1996)
    • Office of the Vice-President (1992 to 1993; 1993 to 1994)
    • Office of Scholarship Vice-President (1991 to 1992)
    • Investment and Audit Committee (1996)
  • Cornell University Council (2005 to 2007)

Pro Bono

  • Represented a client in an issue related to denial of Social Security and disability benefits. Examined a vocational expert at appeal before an administrative law judge and won appeal of denial of benefits. Worked with a neighborhood association to fight an open-air drug market using a nuisance law. Resulted in closure of a “problem” business property following a contested DCRA hearing and license revocation.



  • U.S. Supreme Court
  • U.S. Court of Appeals, Third Circuit
  • U.S. Court of Appeals, District of Columbia Circuit
  • U.S. Court of Appeals, Ninth Circuit
  • U.S. District Court, District of Columbia
  • U.S. Court of Appeals, Fifth Circuit
  • District of Columbia


  • J.D., Georgetown University Law Center, 1989, Business Editor, Georgetown International Environmental Law Review (1988-89)
  • B.S., Cornell University, 1986


Rachel D.

Excellent presentation.

Lisa L.

Interesting program on a current event. Appreciate the insights.

Dax R.

Very timely and well done. Thank you

Martha A.

Especially interesting and timely -- good suggestions!

Jeanelle M.

Thank you!

Marlon S.

Terrific. I never truly appreciated the depth of the clause.

Michael B.

Thank you; very interesting and to my practice in particular

John N.

Very helpful on force majeure commercial lease issues.

Paula J.

Really great summary of key contracting provisions and their application during the pandemic.

tina w.

Speakers were very knowledgeable and presentation was enjoyable as well.

Kathryn S.

Excellent course and very timely

Anu M.

Well done and I came away with some practical tips for my practice.

Alison C.

Well presented.

L. Lars H.

I appreciated the instructors breaking it up between them and adding a little colloquy here and there. It made it more interesting than most.

Tommy M.

Presenters did a great job. Good tips at the end. Relevant cases.

Megan B.

Best course I've taken. Incredibly helpful and relevant. Thank you.

Timothy H.

Timely update on recent litigation!

Jesse L.

Thank you, fellas. You had some great content.

Raymond M.

excellent presentation


Excellent review of current status of cases.

Bridget H.

Timely and interesting.

Troy F.

Timely course with the right mix of law and practical insights.

John M.

Very good, and timely topic that is useful for me in my own practice.

Donna W.

This was an informative and practical review pf the topics and was extremely current. Very knowledgeable faculty!

Larry S.

Very well done.

Nancy S.

Very articulate and interesting presentation

Alissa W.


Michael M.

Very timely and valuable information. Bravo.

Diane R.

This course was well organized. The presenters were articulate and the material was presented in a clear and concise manner

Anne P.


Kai-yu H.

Easy to understand and helpful.

Shira C.

Very informative.

Regina H.



Good course, very informative and helpful

Gary D.

Helpful information towards contract issues that can arise during COVID and how to successfully arguments that can be made on behalf of clients.

Richard W.

Excellent program. Both lecturers were exceptional.

Laura H.

Very helpful! I teach contract law to undergraduate students and cover force majeure. The information in this presentation will enable me to enhance the materials by using contemporary examples involving COVID. Great information, especially about what the courts are doing!

Carrie K.

Interesting, timely, and useful!

Victoria C.


Julie C.

Interesting and timely.

Sarah R.

This is one of the most interesting courses I've attended - the staff did a great job choosing colorful cases that illustrate a range of COVID force majeure issues. Also, the technique of one attorney questioning the other on case specifics/establishing a dialogue was really effective.

Marc K.

It covered the current litigation as promised. I was thinking of some more practical advice on F.M. and C-19 clause drafting, but that was my error. It was good.

Jessica H.

very timely and interesting

Constance H F.

Very informative and provided insight for an issue I'm working on.

Joseph S.

Very good and timely.

Lisa C.

Timely and very interesting.

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