Corporate & Securities Law

“In Each Case” and Disambiguation

Posted on April 23, 2009
A chapter of MSCD is devoted to syntactic ambiguity, in other words uncertainty over which part of a sentence a given word or phrase modifies. One source of syntactic ambiguity is closing modifiers. MSCD discusses how to avoid ambiguity caused by closing modifiers, but it doesn’t discuss in each case (or the wordier in each [...

Providing for Notice by Email (Including Information About RPost)

Posted on April 23, 2009
Not satisfied with having prompted my recent foray into fax terminology, reader David Baghdassarian posted to that item the following comment on providing for notice by email: As for email notices, the problem I have is that there is too much room for an email to inadvertently be deleted or overlooked, email server to crash, email [...

Adams Featured in Article in Financial Times

Posted on March 25, 2009
Click here to go to it. (You may need to register, without charge.) This is the first time I’ve gotten any real coverage outside of legal periodicals. I hope it’s a sign of increasing interest in clearer contracts in general and my approach in particular...

Automating Template Creation and Document Benchmarking: Q&A with Kingsley Martin, CEO of KIIAC

Posted on March 24, 2009
Through the contract-automation grapevine I heard about Kingsley Martin, president of KIIAC LLC, a company using proprietary software to help customers analyze contract models. Kingsley was kind enough to speak with me about KIIAC and show me how the software works...

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Speaking at DELVACCA Conference

Posted on March 24, 2009
On April 1 I’ll be in Philadelphia, speaking at the first conference for in-house counsel organized by DELVACCA, the Delaware Valley chapter of the Association for Corporate Counsel. Some three hundred in-house lawyers are expected to attend this all-day CLE event, but it’s almost sold out, so you’ll have to be quick if you want [...

Contract Lifecycle Management: A Q&A with Harry Angel of Symfact

Posted on March 23, 2009
I’ve written before about contract-lifecycle-management (CLM) software. (Click here for some general thoughts on CLM; the ACC Docket article I co-authored also discusses CLM.) I’m pleased that this post allows me to revisit the topic. During a trip to Switzerland a couple of years ago I met Chris Craddock, the marketing director of Symfact, an increasingly [...

Lexical Ambiguity: What Does ?Offshore? Mean?

Posted on March 20, 2009
Jones v. Francis Drilling Fluids, 2009 U.S. Dist. LEXIS 21388 (Mar. 17, 2008 S.D. Tex.), concerns a worker injured while working on a floating drill barge rig located in inland waters. He had been working for Francis Drilling, which had been working as a contractor for ADTI under a master services agreement (MSA)...

Using and Defining ?Subsidiary?

Posted on March 20, 2009
I was prompted to consider the word subsidiary when I realized that it’s not necessarily clear what kind of entities can be a subsidiary. And I stuck around to consider how one might define subsidiary. What Kind of Entities? The main problem with subsidiary is that it can create confusion regarding what kind of entities can be [...

Use of ?Spouse? in Business Contracts

Posted on March 19, 2009
Reader Jonathan Handel?he of the Digital Media Law Blog?sent me the following interesting inquiry: I’m wondering if you have any thoughts in regards to a gay rights issue related to drafting various corporate documents. This question may be on the edge as to whether it’s a drafting issue or a substantive one, but I figured I’d [...

Right and Wrong in Drafting Usages

Posted on March 17, 2009
Someone who does a lot of presentations to law firms recommended to me that when I field comments from the audience, I should avoid suggesting that I’m right and the speaker is wrong. I understand his point; after all, the customer is, in a larger sense, always right...

Businesspeople as Drafters and Reviewers of Contracts

Posted on March 17, 2009
I recently leafed through Business Contracts: Turn Any Business Contract to Your Advantage (Entrepreneur Press 2007). The publisher was kind enough to send me a review copy. It’s by Laura Plimpton, a lawyer. As the title suggests, it aims to help businesspeople get to grips with contracts...

?Latent Ambiguity? Is a Confusing Concept

Posted on March 16, 2009
This post isn’t intended for drafters so much as judges and litigators. In a recent bankruptcy case, In re IdleAire Technologies Corp., 2009 Bankr. LEXIS 343 (Bankr. D. Del. Feb. 18, 2009), the court had the following to say about “latent ambiguity”: The plain language of an insurance policy, however, can also be ambiguous, even when there [...

Presenting Contract Text in Full and in Bullet Points

Posted on March 16, 2009
Longtime reader D.C. Toedt pointed out to me this post on The Consumerist. It applauds the terms of use of a company called Aviary, in that it offers, in bullet points set out to the right of the full version of the terms of use, a plain-English summary of the provisions...

Some MSCD Testimonials

Posted on March 14, 2009
I’ve belatedly updated the testimonials on the MSCD page of this site. To spare you having to click on the link, I’ve copied the testimonials below. I thank all those who were kind enough to provide testimonials. I have a particular soft spot for the one that potential MSCD readers are least likely to pay [...

Verb Use in the Introductory Clause

Posted on March 14, 2009
Yesterday I got a call from a reader inquiring about verb use in my recommended form of introductory clause. I love that kind of inquiry. More specifically, he pointed to the introductory clause in MSCD sample 1. It begins as follows: This asset purchase agreement is dated May 3, 2008, and is between … He wondered [...

?Best Efforts? Under Canadian Law

Posted on March 09, 2009
In connection with one of my Calgary seminars, someone suggest that my treatment of best efforts doesn’t apply in Canada. I thought I should address that, because if my analysis doesn’t work for Canada, it doesn’t work anywhere. Chapter 7 of MSCD contains my analysis of efforts provisions, and I’ve also done a good number of [...

How Not to State the Deadline for Submitting a Bid or Taking Any Other Contract Action

Posted on March 09, 2009
A few weeks ago, while driving my daughter Sydney somewhere in Garden City, I laid the following observation on her: If you have to take some action at a specified time, you’re likely going to be early or late, to a lesser or greater extent. That’s because any given time of day isn’t a period [...

More on ?Time Is of the Essence?

Posted on March 09, 2009
Drafters use the phrase time is of the essence to indicate that failure to meet a contract deadline constitutes grounds for termination. But as I explain in MSCD 12.394?403 and in this May 2006 blog post, saying Time is of the essence for purposes of this agreement is problematic, in that such provisions suggest that [...

Notes on a Week in Calgary

Posted on March 09, 2009
I’m at the tail end of a productive week spent in Calgary. Last Thursday I gave a seminar for Petro-Canada and its outside counsel, Fraser Milner Casgrain. On Friday I gave a lunchtime presentation for the Canadian Bar Association Alberta. And today, I gave a seminar for the law department of Enbridge Pipelines...

Addressing All Eventualities in Contract Procedures

Posted on March 05, 2009

Article in The Lawyers Weekly on ?Plain Language Movement?

Posted on March 02, 2009

Law, the Working Life, and Innovation

Posted on February 24, 2009
Recently I’ve enjoyed reading some thoughtful posts offering different takes on the working life in law?how to make it more meaningful, or at least how to survive. In particular, I’m thinking of Vickie Pynchon’s posts tracking how she picked herself up and dusted herself off after being laid off in 1992; click here for the [...

The Coin Toss in Dealmaking

Posted on February 21, 2009
I recently encountered a contract that had the parties making a decision by coin toss. That prompted me to scour the SEC’s EDGAR system looking for contracts that feature a coin toss, otherwise known as a coin flip. I found contracts that used a coin toss to accomplish the following: To determine who goes first when [...

A New Term Is Born??Backending?

Posted on February 20, 2009
In MSCD 3.57, I use the term “frontloading” for the process of pulling select information out of the body of the contract and placing it at the top of the contract. In MSCD 3.63 I acknowledge that instead of frontloading information, you could put it in a schedule...

My NYLJ Article on Retooling Your Contract Process for the Downturn

Posted on February 18, 2009
The New York Law Journal has published, in its “GC New York” section, my article entitled “Retooling Your Contract Process for the Downturn.” Click here to go to the online version (free registration required). (By the end of the day Friday I’ll be adding a link to a PDF reprint...

?Shall??Once More Unto the Breach

Posted on February 17, 2009
I’ve learned that Twitter can serve as an early-warning system. Thanks to a Twitter update by Lance Goddard?he of the blog Are You Writing This Down?I learned that Jay Shepherd had posted on his blog The Client Revolution this item recommending that one run a mile from shall...

Free Time in Houston on Feb. 25

Posted on February 16, 2009
On Wednesday, February 25, I’ll be in Houston, cooling my heels between seminars. If you’re in the Houston area and you’d like to meet with me to discuss what I do and whether I might be able to assist your organization, don’t hesitate to contact me.

?In Accordance With? and ?According To?

Posted on February 14, 2009
Reader Doug asked me about the difference, if any, between in accordance with and according to. Garner’s Modern American Usage says that according to means (1) “depending on”; (2) “as explained or reported by (a person)”; or (3) “in accordance with...

What Businesspeople Think of Contract Language

Posted on February 12, 2009
I’m at Tremblant, the Quebec ski resort, at the invitation of the Canadian Healthcare Licensing Association. I just finished giving a short version of my “Language and Layout” seminar to sixty business-development people from Canadian pharmaceuticals companies...

The Lilly Ledbetter Fair Pay Act and Syntactic Ambiguity?A Cautionary Tale

Posted on February 12, 2009
Reader Kazu brought to my attention the following language from the recently enacted Lilly Ledbetter Fair Pay Act (emphasis added): For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject [...

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