Corporate & Securities Law

?Thereby? in Language of Performance?

Posted on October 02, 2008
Another day, another unexpected contract usage. Today, I saw the following: Upon issuance of an oral or written work, service, or purchase order, Company thereby hires Contractor to promptly provide the products, materials, and supplies and perform the services set forth in the Order...

I?m Featured in the September 2008 YourABA

Posted on September 30, 2008
The lead item in the September 2008 YourABA, the ABA’s e-newsletter for members, is a Q&A with yours truly. Click here to go to it. Regular readers of this blog will not be astonished at what I have to say.

?For Example?

Posted on September 30, 2008
When in my seminars I discuss the phrase including without limitation, I’m sometimes asked what I think of for example. Here’s my answer: Don’t use for example in contracts to introduce lists of items, but by all means use it to introduce illustrative scenarios...

Seeking Your Input on MSCD?s Binding

Posted on September 30, 2008
The second edition of A Manual of Style for Contract Drafting has been out for less than two months, and we’ve already sold almost all of the first printing. So the response has been positive, to say the least. But I’d appreciate your input on MSCD’s binding...

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?Consecutive Months?

Posted on September 28, 2008
I’m looking at a contract that contains the following provision: During the term of this agreement and the following 24 consecutive months, the Consultant shall not … In this context, the word consecutive is redundant, as it is in any period of six consecutive months...

The State of the Blog, Two Years On

Posted on June 02, 2008
With age, birthdays become less important, so it shouldn’t come as a surprise that on the second anniversary of this blog (give or take a few days) I’m less inclined to wax lyrical than I was after the first anniversary. But a few stray thoughts come to mind: I pay little attention to my blog’s statistics...

?Such As?

Posted on June 02, 2008
Such as is ambiguous?it might be unclear whether the clause it introduces serves to reduce the scope of the class represented by the preceding noun. This can result in contract disputes. Consider the following sentence: Richard collects books about painters such as Botticelli and Donatello...

Emory Law School Conference on Teaching Drafting and Transactional Skills

Posted on June 02, 2008
This past Friday and Saturday I was in Atlanta, at Emory Law School’s conference on “Teaching Drafting and Transactional Skills: The Basics and Beyond.” (Click here to go to the relevant page of Emory Law School’s website.) The conference was organized by Tina Stark, an Emory professor and the executive director of the school’s new Center for [...

Appropriate Use of ?And/Or??

Posted on June 02, 2008
In MSCD 8.55 I recommend that you steer clear of and/or unless using it would spare you some verbiage. Well, consider the following basis for terminating an employee for cause: the Employee is charged with any crime that (1) is punishable by a custodial penalty, instead of or in addition to any fine or other non-custodial [...

Using Parentheses in Contracts

Posted on June 02, 2008
A couple of months ago, reader Kent asked me what I thought about using parentheses in contracts. Here, belatedly, is my answer: In regular prose, parentheses (namely round brackets, like those enclosing these words) are used to offset text that constitutes an explanation or aside...

The Duration of Confidentiality Agreements

Posted on May 21, 2008
Reader David recently posed the following question: I have a question for you that has bugged me for several years. From time to time, my company shares company-related information with a third party and, before doing so, enters into a confidentiality agreement (CA) [also known as a nondisclosure agreement?KAA] with the third party...

?Continuance?

Posted on May 20, 2008
Reader Steven Sholk sent me a case today. I found it of interest, but not for the reason he anticipated. What caught my eye was the phrase during continuance of this agreement. A search of the SEC’s EDGAR database showed that it’s not a complete rarity: it occurs in about 200 contracts filed in the past [...

Webcast on ?Contracts in the Technology Sector?

Posted on May 13, 2008
I’m on the panel for a webcast on the topic of “Contracts in the Technology Sector.” It’s being hosted by West Legalworks; click here to go to relevant page of the West website. It’s being held on Friday, May 23, from noon to 1:00PM EDT...

A New Article on ?Best Efforts?

Posted on May 12, 2008
Reader Larry Bell pointed out to me that the April 2008 issue of Corporate Counsel’s Quarterly contains an article by the publisher’s editorial staff entitled “Best Efforts Clauses.” I’m afraid that I can’t provide a link, as I have only a hard copy...

Overlapping Definitions?A Real Issue?

Posted on May 11, 2008
I recently posted this item discussing Lexicon, a tool for organizing and checking defined terms. Lexicon’s website contains a page discussing “The Seven Deadly Sins of Defined Terms.” Among the sins described is the following: Overlapping Definitions–When one Defined Term is contained within another, confusion can arise...

Fall 2008 Penn Law Contract-Redrafting Project?Now Accepting Submissions!

Posted on May 08, 2008
It’s that time again: I’m looking for a company that would be interested in taking part in a contract-redrafting project with my class at the University of Pennsylvania Law School. The idea is that I’ll select one contract out of those submitted by June 15...

Doing an Online Run-Through of My Seminars

Posted on May 08, 2008
Considering having me do an in-house seminar but want to know more? Then I suggest you might want to have me give you and any other decisionmaker at your organization a run-through of whichever of my seminars interests you, “Contract Drafting?Language and Layout” or “The Structure of M&A Contracts...

Some Recently Published Books on Contract Drafting

Posted on May 08, 2008
A few books on contract drafting have been published in the last couple of years: Butt, Peter & Castle, Richard, Modern Legal Drafting: A Guide to Using Clearer Language (2d ed. 2006). Darmstadter, Howard, Hereof, Thereof, and Everywhereof (2d ed...

MSCD2 Production Notes

Posted on May 08, 2008
In case you’re interested, here’s the latest on MSCD2: I wasn’t satisfied with the design of MSCD, so I was ready for a fight over the design of MSCD2. But I’ve just seen some sample pages, and they look great. I’m already looking forward to seeing the finished product...

Outage

Posted on May 08, 2008
The site was offline for most of yesterday due to high drama involving my server. Sorry about that; it shouldn’t happen again.

Capitalization in References to U.S. States

Posted on May 04, 2008
Listen up, drafters! Here’s what The Chicago Manual of Style 8.55 has to say about use of initial capitals in references to political divisions: Words denoting political divisions?from empire, republic, and state down to ward and precinct?are capitalized when they follow a name and are used as an accepted part of the name...

New 2008 U.S. Seminar Dates

Posted on May 04, 2008
Be still my beating heart! Here are the U.S. cities where I’ll be giving my “Contract Drafting?Language and Layout” seminar with West Legalworks in the second half of 2008: Seattle, Thursday, July 17 Washington, D.C., Wednesday, September 24 Minneapolis, Thursday, October 16 Boston, Wednesday, October 29 New York, Tuesday, November 18 San Francisco, Tuesday, December 9 I’ll soon be putting full details [...

More Words Not to Include in a Contract? ?Therefore? and Its Relatives

Posted on May 02, 2008
In this November 2006 post I wrote about words that are fine in narrative writing but would be out of place in a contract. Well, I’ve thought of some more?therefore and related words such as thus, hence, and consequently. Here’s an example I just spotted: The term of this agreement will end three years following the date [...

Rethinking Waiver Provisions

Posted on April 29, 2008
Here’s a standard waiver provision: Waiver. No provision in this agreement may be waived, except by means of a writing signed by the party against whom the waiver is sought to be enforced. I find such provisions very odd. Let’s start by considering what a waiver is...

How to Introduce a Set of Autonomous Definitions

Posted on April 29, 2008
I’m going over one of my contract redrafts. Here’s how I introduced a set of autonomous definitions: For purposes of this agreement, the following terms have the following meanings: You see this language, or some variation, in innumerable contracts...

More Signature-Automation Solutions

Posted on April 29, 2008
In this May 2007 post I wrote about the signature-automation tool EchoSign. And my ACC Docket article with Brian Quinn mentions DocuSign. Well, there are other fish in that particular sea. I noticed that The Connected Lawyer?always a source of interesting information?recently posted about one of them, ConXPoint...

Waiver of the Statute of Limitations in ?Survival? Provisions

Posted on April 29, 2008
In this July 2006 post I said that although it’s standard to refer to “survival” of representations, it’s unhelpful to do so. I quoted language that I find much clearer. Well, it would seem that both the traditional language and my preferred language were found wanting in a 2007 case applying California law that I saw [...

More on the Cerberus Litigation

Posted on April 28, 2008
In February, the New York Law Journal published my article about the litigation between Cerberus and United Rentals. If you’re hungry for more on the subject, check out this article in the American Lawyer. I make a brief guest-appearance.

Last Call for Geneva

Posted on April 14, 2008
On Friday I’ll be heading for Geneva, where I’ll be giving a series of public seminars from April 21 through April 25. Click here for more information. If you want to explore the language of contracts in the company of a few like-minded people, these seminars would provide an unmatched opportunity.

?Dated for Reference?

Posted on April 14, 2008
I often come away from a seminar having learned something new. For example, a participant at my recent Vancouver seminar asked me what I thought of the phrase dated for reference, as used in the introductory clause. I confessed that I hadn?t previously encountered it...

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