Corporate & Securities Law

?And/Or? as Scapegoat

Posted on April 07, 2010
Judges and commentators have long fulminated against and/or. One particularly irate judge?perhaps spittle-flecked, with neck veins bulging?referred to it as “that befuddling, nameless thing, that Janus-faced monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning, or too dull to know what he did [...

The Lawyers Weekly Ponders Clearer Contract Language

Posted on April 06, 2010
This article by Donalee Moulton in the current issue of the Canadian periodical The Lawyers Weekly considers what’s involved in making contracts clearer. Yours truly makes a brief appearance. If you’re interested, by clicking here you can get on SSRN a copy of the Gelpern and Gulati article mentioned in the Lawyers Weekly piece.

Avoiding Fights Over Double Materiality

Posted on April 06, 2010
An M&A-lawyer boogeyman is “double materiality,” which ostensibly arises when a materiality qualification is included in the bringdown condition to one party’s obligation to close, as well as in one or more representations made by the other party...

?Sole and Exclusive?

Posted on April 06, 2010
The recent Lawyers Weekly article that I linked to in a previous post contains the following: The phrase ?sole and exclusive license,? for example, is common yet contradictory. ?Sole,? on the one hand, means only one person has the legal right to use the product...

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The Novell?SCO Litigation: A Lesson in Thinking Through the Implications of Your Drafting

Posted on April 04, 2010
In this May 2007 blog post I wrote about the litigation between Novell and SCO. (That post dealt with the implications of retaining drafts of a contract.) Well, last week brought further news in this saga, as a federal jury found that two key Unix copyrights belonged to Novell and not to SCO...

Some Resources on Document Assembly

Posted on April 02, 2010
The comments to last Tuesday’s post about Kingsley Martin’s new blog veered unexpectedly into a detailed discussion of document-assembly technologies. That got me to thinking that it might not be a bad idea for me to provide links to some resources...

?Forsooth?

Posted on April 01, 2010
Regular readers of this blog will know that I’m committed to drafting contracts in standard English?English as spoken and written by the average educated native English speaker. But sometimes, nothing can take the place of that olde-worlde lingo...

The ?Amendment? Section and Categories of Contract Language

Posted on March 31, 2010
Once you’re attuned to my framework of “categories of contract language,” as laid out in chapter 2 of MSCD, you’ll see its implications at every turn. A big part of my recent article on the AAA standard arbitration clause (pdf here) was a discussion of categories of contract language...

Some BigLaw In-House-Seminar Testimonials

Posted on March 30, 2010
I’ve been remiss about asking my in-house-seminar clients for testimonials, and I resolved to fix that. Last week I was in Houston, and I’m pleased to have received the following testimonials (my thanks to Lori and Tim): Ken Adams has continually presented a great ?Drafting Clearer Contracts? training program for our associates...

Arising Out of What?

Posted on March 30, 2010
Here’s yet another cautionary tale. This article on Lexology by Doug Batey of Stoel Rives LLP considers a recent Idaho Supreme Court opinion addressing a dispute over a fee-shifting provision in a limited-liability-company operating agreement. Here’s the contract provision at issue: In any action or proceeding brought to enforce any provision of this Agreement, or where any [...

Kingsley Martin?s ?Contract Analysis and Contract Standards? Blog

Posted on March 30, 2010
In March 2009 I did this Q&A with Kingsley Martin, developer of KIIAC, a software for creating templates and clause libraries for use in drafting contracts. I continue to think that KIIAC is invaluable for anyone looking to create a new template from a large group of comparable precedent contracts, so it was with interest that [...

Free Time in Calgary on Wednesday, April 28

Posted on March 30, 2010
I’ll be in Calgary the week of April 26, in part for my “Drafting Clearer Contracts” public seminar for Osgoode Professional Development. (Click here for more information about that.) But what’s currently on my mind is that I’m free on Wednesday, April 28, until mid-afternoon...

How Not to Specify Jurisdiction, Part Deux

Posted on March 29, 2010
As a follow-up to this recent post, let me tell you about another opinion featuring a dispute over a jurisdiction provision. (My thanks to the indefatigable Steven H. Sholk for the lead.) The case is D.B. Zwirn & Co. v. Dittman, No. 09 Civ. 10498 (S...

Inertia and Law Departments: It?s Not Only Law Firms That Have a Problem with Change

Posted on March 25, 2010
I noticed that in their current “Question of the Week,” the ABA Journal is asking who is better equipped to promote change, law firms or their clients. I won’t attempt to answer that. But I’ll note that although most of the chatter on change in the legal profession seems to assume that clients will be dragging [...

AdamsDrafting Incentive Program: If You Adopt an MSCD-Based Contract-Drafting House Style, I?ll Help You Out

Posted on March 25, 2010
Winning hearts and minds one contracts person at a time is a noble undertaking, but things certainly would go faster if I could convert entire organizations. For any organization looking to put its contract process on a more efficient footing, the first step would be to adopt a rigorous house style...

Reminder: MSCD Works Outside the U.S.

Posted on March 24, 2010
In the course of telling someone in Canada where they could buy my book, I visited the MSCD page on Amazon.ca, Amazon’s Canada storefront. In addition to noticing that Amazon.ca doesn’t itself sell the book (I’m looking into that), I saw that one “Mary M...

Arrogance as a Response to Change

Posted on March 23, 2010
The other day while reading in the Atlantic Monthy “A Conversation with Jules Feiffer,” the great cartoonist, the following Feiffer observation caught my eye: Amidst all the insecurity, and the ambition, and determination, there are two things always at work...

?Terms and Conditions?

Posted on March 17, 2010
A particularly prevalent usage is terms and conditions (and the shorthand T&Cs). Heck, it even surfaces in the everyday world?I’ve been known to throw a slipper at the TV when, at the end of a car ad, some voiceover guy drones on about how “terms, conditions, and limitations apply...

An AdamsDrafting Mini-Exhibit of Contract-Drafting Art: Recent Illustrations by Russell Christian

Posted on March 16, 2010
Contrary to reputation, I’m not just a dry-as-dust, express-the-meaning-of-the-parties guy. I have a sensitive, truth-and-beauty side too. And to demonstrate that, I now bring you?cue tasteful music?the first AdamsDrafting art exhibit! It showcases the work of Russell Christian, a talented illustrator...

How Not to Specify Jurisdiction

Posted on March 15, 2010
I generally explain the concept of ambiguity by saying that if reasonable people read a given contract provision and derive different meanings from it, that provision is ambiguous. But that doesn’t quite capture the problem that alternative meanings pose for the contract drafter...

Upgrades and Fixes to this Site

Posted on March 11, 2010
I launched this site in 2006, and recently it’s been showing its age. That’s not entirely due to sloth on my part, as getting anything adjusted had become a protracted annoyance. So recently I engaged web designer Tom Leadbetter, and here’s what we did: The left-hand column is wider, to take into account that people have been migrating [...

Working with Contracts If You Aren?t a Native English Speaker: Some Notes from All Over

Posted on March 10, 2010
I’m attuned to the particular challenges facing anyone who isn’t a native English speaker and is required to draft or negotiate contracts in English. Indeed, my site contains this note on the subject. I was recently reminded of this issue in a number of ways...

My NYLJ Article Critiquing the AAA Standard Arbitration Clause

Posted on March 09, 2010
Today’s issue of the New York Law Journal contains my article “The AAA Standard Arbitration Clause: Room for Improvement.” Click here to go to a pdf copy. (It’s also available here if you subscribe to the New York Law Journal.) It was fun to write, and here’s why: I got to revisit a topic, arising out of or [...

Negotiating Around the Duty of Good Faith

Posted on March 09, 2010
In this May 2007 blog post I mentioned the dispute between Crusader Entertainment and schlockmeister Clive Cussler. In this post, the ContractsProf Blog provides the latest installment in this gripping saga?an opinion by a California appellate court. Here’s the bit that caught my eye: On the key issue in the appeal, the court found that Cussler had [...

Adding General Terms to a Stand-Alone Purchase Order

Posted on March 09, 2010
My recent post on stand-alone purchase orders prompted a related thought: When you issue a stand-alone purchase order (in other words, one not issued under a master contract), you could incorporate the general terms (in other words, everything that doesn?t relate to deal-specific matters such as product and price) in different ways...

Tacking an Acknowledgment on to the End of a Contract

Posted on March 05, 2010
You sometimes see a contract that has a paragraph entitled “Acknowledgement” added at the end, after the party signatures. For example, a search on the SEC’s EDGAR system quickly retrieved this document, a “forebearance agreement and amendment to indenture” between Gulfstream International Group, Inc...

Comparing General Terms in a Master Contract and General Terms in a Stand-Alone Purchase Order

Posted on March 03, 2010
I received the following inquiry from a reader: As you know, goods or services can be purchased by means of purchase orders issued under a master contract or by POs that aren’t issued under a master contract?I’ll refer to the latter as “stand-alone” POs...

Follow-Up on Consequential Damages

Posted on March 02, 2010
After chewing over the comments to this post on excluding consequential damages, I’m left with the following thoughts: I remain of the view that putting a cap on damages is the simplest and least contentious way to limit damages. And it can make excluding certain kinds of damages less relevant, or even entirely irrelevant...

One Kind of Fix for Overreliance on a Comma

Posted on February 24, 2010
It’s a bad idea to draft a provision so that its meaning changes significantly when you remove a comma. For one thing, commas have a way of disappearing in the course of revisions. And if a party is disgruntled enough, it might not be inclined to let a pesky little comma block its march to [...

Can Contracts Be Counterproductive?

Posted on February 22, 2010
Without any editorializing by me, here’s an extract from this article by Sathnam Sanghera in the Times Online: On the one hand, written agreements protect parties if things go wrong and provide a useful framework for engagement. But, on the other, drafting contracts slows business down?something Stephen Covey emphasises in The Speed of Trust: The One [...

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