Security Dealer & Integrator

AUG 2018

Find news and information for the executive corporate security director, CSO, facility manager and assets protection manager on issues of policy, products, incidents, risk management, threat assessments and preparedness.

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26 Security Dealer & Integrator / www.SecurityInfoWatch.com August 2018 J ohn sits in a kitchen with Mr. and Mrs. Smith. He had just installed a secu- rity system in their large home, and now it was time to secure their signature on the security services contract. As John presented the contract for signature and explained some of its terms, the Smiths raised questions regarding the limitation of liability and other terms. e Smiths even asked John to strike or edit portions of the contract before signing. John was a great technician with vast expertise; however, he feared that if the Smiths refused to sign the contract, all of his hard work that day may have been in vain. Also, he never really understood why the limiting conditions in the contract were that important anyway. So, John and the Smiths edited portions of the contract – by hand – and initialed the changes before signing. John le a copy of the contract, as modified, for the Smiths, and he took a copy back to the office for the company's files. Months later, Mr. and Mrs. Smith were victimized by a security breach and suffered substantial economic loss, personal injury and emotional dis- tress. A million-dollar lawsuit followed against John's company, and the enforce- ability of the contract, as modified, was among the critical issues for trial. The Legal Issues at Hand e circumstances described above are fictional; however, John's story pres- ents a variety of legal issues (indeed, too many to address here): The Legal Pitfalls of Contract Modifications Should security companies allow technicians or sales personnel to modify security service agreements? Legal Brief BY TIMOTHY J. PASTORE, ESQ. Meet Timothy J. Pastore Tim Pastore is the newest columnist to join the SD&I family. He is a Partner in the New York law firm of Duval & Stachenfeld LLP (www.dsllp.com), where he is the Chair of the Security Systems and Real Estate Cybersecurity Practice Groups. Mr. Pastore's role with Real Estate Cybersecurity is an outgrowth of Duval & Stachenfeld LLP's commercial real estate practice. Known as the "Pure Play in Real Estate Law," the firm handles matters across all asset classes in virtually all U.S. jurisdictions and many non-U.S. jurisdictions. These matters span almost every conceivable real estate transaction and encompass various degrees of complexity. Before entering private practice, Mr. Pastore was an officer and Judge Advocate General (JAG) in the U.S. Air Force and a Special Assistant U.S. Attorney with the U.S. Department of Justice. As a JAG, in particular, Mr. Pastore was legal counsel to the Air Force Security Forces and Air Force Office of Special Investigations. Mr. Pastore has represented some of the largest companies in the secu- rity industry, including Protection One, Comcast, Charter, Cox, Altice, Mediacom, IASG, CMS and others. He regularly provides counsel on risk management, contracting, operations, licensing, sales practices, etc. Mr. Pastore also has served as lead counsel in courts throughout the country in dozens of litigation matters involving the security industry. Among other examples, Mr. Pastore led the successful defense at trial of cable giant Comcast in a home invasion case in Seattle, Washington. The case received significant press attention and was heralded by CVN as a top-ten defense verdict. Mr. Pastore is a graduate of Bucknell University and Boston College Law School. Reach him at (212) 692-5982 or by e-mail at tpastore@dsllp. com. For more information about Mr. Pastore, please see his professional biography at: www.dsllp.com/attorneys/timothypastore. • Should security companies permit their technicians or sales personnel to explain, or even worse, modify commercial or residential security service agreements? • Did John have actual authority to modify the contract? • If not actual authority, did John have apparent authority? • Were the hand-signed modifications of the contract enforceable against the company? • Is there a valid, enforceable merger and integration clause? e clause in the contract reads: "is Agreement contains the full understanding of the parties and can be modified only by a writing signed by the parties. No handwritten changes or modifications to this Agreement shall be accepted by the Company and no such changes shall be enforceable." ese questions and many others need to be confronted before, not aer,

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