Corporate & Securities Law

The Breast Cancer Research Foundation Taking Part in the Penn Law 2009 Redrafting Project

Posted on September 14, 2009
In this April 2009 post I solicited submissions from any company interested in taking part in this semester’s Penn Law redrafting project. But then I had a change of heart?why not invite a not-for-profit organization to take part? So we’re going to be redrafting a trademark license agreement that The Breast Cancer Research Foundation enters into [...

Lawyer and Contract Manager: Compare and Contrast

Posted on September 14, 2009
I was recently reminded of this article on the role of contract managers, as well as this follow-up article prompted by the recession. Both were written by Tim Cummins of the International Association for Contract and Commercial Management (IACCM). These articles caught my eye because my public seminars and my in-house seminars at companies are attended by [...

?In Other Words?

Posted on September 14, 2009
The other day I encountered in other words in a contract. An Edgar search indicates that it occurs often enough to be worth mentioning. In effect, in other words allows the drafter to take a second crack at articulating something. As a general matter, say something once, why say it again?

?Is Advisable and in the Best Interests Of?

Posted on September 11, 2009
It’s commonplace for resolutions in board consents to state that something is advisable and in the best interests of the company. I say omit is advisable and as being redundant. I thought that maybe this couplet occurs in some statute or other; I can understand why drafters would want to track the language of statutes...

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Superfluous Recitals in Merger Agreements

Posted on September 11, 2009
Methinks that the recitals in the average big-time-M&A merger agreement are bloated. By way of example, below are the recitals from the August 31, 2009, merger agreement for Disney’s acquisition of Marvel. I’ve noted some big-picture comments in bracketed italics; I’ll spare you my many micro-level objections...

?Confidentiality? or ?Nondisclosure??

Posted on September 10, 2009
Here’s a gripping issue: What should one call a contract requiring that certain information be kept confidential?confidentiality agreement or nondisclosure agreement? What nondisclosure agreement has going for it is the convenient and universally recognized initialism NDA...

New Edition of ?Garner?s Modern American Usage?

Posted on September 10, 2009
I noticed that a third edition of Garner’s Modern American Usage has been published. I’ll be purchasing a copy, as GMAU has been the first thing I turn to when looking for guidance on general English usage. Would GMAU be of any use to contract drafters? The language of contracts is limited and stylized?it’s analogous to computer [...

If You Don?t Feel Challenged, You?re Not Paying Attention

Posted on September 09, 2009
I was pleased to receive the other day the following wry email: You?ve inspired me since your presentation to our firm back in May. I used to be content with my drafting before I met you, but I now live in constant internal turmoil. My correspondent’s state of mind comes as no surprise...

More on ?Relating To? (Wherein Adams Eats Some Crow)

Posted on September 08, 2009
In my post on the AAA standard arbitration clause, I reiterated my doubts about the relating to part of arising out of or relating to. Here’s what MSCD 12.10 says on the subject: In arising out of [or] relating to, the phrase arising out of might express a narrower meaning that does relating to...

A Reference Set of Definitions?

Posted on September 08, 2009
While at a social event in Saratoga recently, I had the pleasure of meeting Jerry Kaplan, senior counsel in McDermott Will & Emery’s Chicago office. Ever the imaginative conversationalist, I turned the topic to?what else??contract drafting. At some point in our conversation Jerry wondered whether contracts wouldn’t be more efficient if drafters were able to refer [...

My Version of the AAA Standard Arbitration Clause

Posted on August 30, 2009
Here’s the standard arbitration clause recommended by the American Arbitration Association, as stated in the AAA commercial arbitration rules (free registration required): Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on [...

An Instance of Formula Ambiguity

Posted on August 30, 2009
No one has ever mentioned to me MSCD chapter 13 (Numbers and Formulas) or asked me any questions about it, so evidently the subject isn’t high on anyone’s list of concerns. But I have a soft spot for that chapter anyway?it discusses the fiendishly subtle forms of ambiguity that can arise in expressing formulas in [...

Referring to FedEx and its Competitors

Posted on August 27, 2009
A standard way of giving notice under a contract is by overnight delivery by FedEx or one of its competitors. To articulate this notion, many drafters use the word courier, with varying degrees of specificity. For example, the phrase nationally recognized overnight courier occurs in 204 contracts filed on Edgar last month as Exhibit 10 material [...

?Including With Limitation??

Posted on August 27, 2009
Reader Jason recently posted the following comment to my April 2007 post on including without limitation: I just ran across an instance of including with limitation XXX. I couldn’t determine if with limitation meant: only; that XXX is included, but with limitations on what parts of XXX are included; or things that are limited, and XXX is one example of [...

When to Provide for Indemnification

Posted on August 27, 2009
Now that my summer is officially over … I suspect that many drafters think that an indemnification section should appear in contracts as a matter of course, much like a governing-law provision. But before you include an indemnification section, consider the pros and cons...

Defining ?Government Body?

Posted on August 20, 2009
I interrupt my August recess to consult you all on how I should define “Government Body”. Here’s what I’ve come up with: ?Government Body? means (1) the government of any nation or of any political subdivision of any nation, (2) any official or instrumentality of any such government (including any court), (3) any other person or [...

If You?ve Watched the Webcasts and Are Contemplating Attending a Seminar

Posted on July 24, 2009
If you’ve watched my webcasts and are contemplating attending one of my live seminars, you might want to read the following: The seminars cover the same topics as the webcasts?that’s why the seminars and webcasts will, by 2010, share the same title, “Drafting Clearer Contracts...

Thinking of Adopting a House Style for Contract Drafting? Here?s How I?d Do It

Posted on July 24, 2009
I’ve recently been emphasizing, in print and in speaking engagements, that for any organization that wants to gain control of the drafting process, a necessary first step is to adopt a house style for contract drafting. (I know of three law firms that are currently working on adopting a house style...

Webcast 7: It?s on Automating the Contract Process, and It?s Free

Posted on July 20, 2009
Webcast 7 in my Drafting Clearer Contracts series of webcasts will be launched with a live session starting 1:00 p.m. EDT on Wednesday, July 22. (”Live” means that panel members will be on hand to reply, by email, to questions submitted in writing during the session...

?Contractual?

Posted on July 18, 2009
I can’t recall ever having used the adjective contractual, meaning “of, pertaining to, or secured by a contract.” I find it an awkward mouthful. As a general matter, I’d rather simply use contract, as in contract terms and contract obligations rather than contractual terms and contractual obligations...

Lawyers Weekly Article About Adams and Commodification of Contract Drafting

Posted on July 14, 2009
The current issue of The Lawyers Weekly, the Canadian periodical, contains a nifty article on how to make contract drafting a commodity. Yours truly is featured prominently. Click here for the first page of a pdf copy and click here for the second page...

Webcast 6: My Conversation with Bryn Vaaler

Posted on July 12, 2009
Excuse me if I mention another upcoming webcast, the sixth in my Drafting Clearer Contracts series. It runs for the first time as a “live” webcast on Tuesday, July 14, starting at 1:00 p.m. EDT. Thereafter it will be available on demand. This webcast consists of my conversation with Bryn Vaaler, longtime partner at Dorsey & [...

Yet Another Instance of Semantic Ambiguity: ?Salary?

Posted on July 12, 2009
The case of Citgo Petroleum Corp. v. Ranger Enters., 2009 U.S. Dist. LEXIS 58676 (Conn. Mar. 17, 2009), revolved around whether, as used in the context of a separation agreement, the word salary included bonuses. A careful drafter would want to avoid any confusion on that score...

Making a Release Automatic

Posted on July 12, 2009
A court opinion doesn’t have to come from an exalted court in order for it to raise an issue of interest to drafters generally. A case in point is Managment Strategies v. Hous. Auth. of New Haven, 2009 Conn. Super. LEXIS 1550 (Conn. Super. Ct. June 2, 2009)...

Wal-Mart Case Raises Issue of Categories of Contract Language

Posted on July 11, 2009
D.C. Toedt has posted on his On Technology Contracts blog this item about an opinion of the Ninth Circuit Court of Appeals dismissing a case against Wal-Mart. Here’s D.C.’s summary: Wal-Mart requires its suppliers to agree to a code of conduct...

Another Instance of Semantic Ambiguity: ?Buys?

Posted on July 11, 2009
In Comtide Holdings, LLC v. Booth Creek Mgmt. Corp., 2009 U.S. App. LEXIS 15086 (6th Cir. July 2, 2009), the following provision was at issue: CLOSING. Broker shall receive reasonable notice of closing. The BROKER’s fee referred to in Paragraph 4 above is payable in full to the BROKER only upon closing of the escrow/settlement account [...

Contract Interpretation and Contract Drafting

Posted on July 09, 2009
Oxford University Press was kind enough to send me a review copy of their new book Elements of Contract Interpretation, by Steven J. Burton, a professor at the University of Iowa College of Law. I’m now going to repay them for their generosity by observing that I’m having a hard time getting into it...

My Response to Someone Seeking Advice on Contract Drafting

Posted on July 09, 2009
Today I came across a blog post entitled, straightforwardly enough, “Looking for Advice on Contract Drafting.” It was posted on the Marquette University Law School faculty blog and was written by a part-time student by the name of Tiffany...

Any Webcast Feedback?

Posted on July 08, 2009
Today sees the launch of webcast 5 in my series Drafting Clearer Contracts, which is being offered by West LegalEdcenter and is sponsored by Business Integrity. Webcast 5 will run as a “live” webcast starting at 1:00 p.m. EDT, meaning that I’ll be on hand to respond in writing to any questions submitted...

Contract Interpretation and Contract Drafting

Posted on July 08, 2009
Oxford University Press was kind enough to send me a review copy of their new book Elements of Contract Interpretation, by Steven J. Burton, a professor at the University of Iowa College of Law. I’m now going to repay them for their generosity by observing that I’m having a hard time getting into it...

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