Corporate & Securities Law

Affiliates or Subsidiaries as of When?

Posted on December 28, 2009
Reader Bob Bramson suggested to me that I have a look at GTE v. Cellexis, 341 F.3d 1 (1st Cir. 2003). So I did. At issue was whether GTE could enforce its settlement agreement with Cellexis so as to preclude Cellexis from suing Cellco, a GTE affiliate that hadn’t been a GTE affiliate when GTE and [...

Go Easy on the Capitalization

Posted on December 22, 2009
A few readers let me know about a Minnesota bankruptcy court judge who issued a set of guidelines for lawyers submitting proposed orders to him. Included was a request that lawyers limit their use of capitalization. For more information, see this post on Lawyerist...

Redacted Version of My Response to a Template-Redrafting RFP

Posted on December 17, 2009
Recently I’ve been having more discussions with companies regarding redrafting their templates. In particular, I recently responded to an RFP (”request for proposal”) from an international company that wanted to redraft its commercial-contract templates...

More Mischief with Commas

Posted on December 16, 2009
I learned from this post on Language Log that use of commas in a provision of the Bankruptcy Code has become an issue in the bankcruptcy case of the Philadelphia News. Being a veteran of comma-related strife myself, I have a soft spot for such matters...

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Practitioners and Scholarship: Oil and Water?

Posted on December 11, 2009
I’m prone to suggesting that the dysfunction in mainstream contract language can largely be attributed to the precedent-driven nature of transactional work. But perhaps another factor plays a supporting role. (Caveat: what follows is semi-informed speculation...

Other Header and Footer Information?

Posted on December 02, 2009
Two items I posted today considered the format of page numbers and use of logos in headers and footers. And comments to this October 2009 post alluded to putting file names in the footer. So I got to thinking about other things that can go in headers and footers...

Adding Logos to Your Contracts

Posted on December 02, 2009
I’ve occasionally seen, or heard of, contracts with a company or law-firm logo in the header or footer. And contracts can be printed on letterhead. Do you include a logo in your contracts? If you do, I invite you to post a comment explaining how and why.

?Page X of Y?

Posted on December 02, 2009
While leafing through a company’s template contracts today, I noticed that they use the page-number format Page X of Y. This page-numbering format offers two benefits. First, it lets the reader know how long the document is. And second, it precludes anyone from surreptitiously tacking on additional pages post-signing...

So I?m in the Blawg 100

Posted on December 02, 2009
This blog has been included in the ABA Journal’s “Blawg 100“?their listing of “the best legal blogs as selected by the Journal?s editors.” It’s always gratifying to have one’s efforts recognized. And although I haven’t read all other 99 blogs, I visit a good number of them regularly and have heard good things of many of [...

Penn Law Panel Discussion on Contract Drafting at Law Firms (Including Edited Transcript)

Posted on December 01, 2009
Last week?s class in my Penn Law course on contract drafting was devoted to a conference call on the topic of contract drafting at law firms. Longtime readers of this blog will recognize two of the participants: Michael Fleming, partner at Larkin & Hoffman in Minneapolis and well-known cyberspace guy, and Mike Wokasch, a savvy fourth-year [...

License-Granting Language Is Just Another Contract Provision

Posted on November 29, 2009
Yesterday I revisited the question of the relationship between a license and the contract that grants the license. This issue arose in connection with a trademark license agreement I’ve been redrafting. The original version says that the license is “nonassignable,” and I’ve been contemplating deleting that adjective on the grounds that the question of assignment of [...

?Shall Never?

Posted on November 27, 2009
Today I encountered shall never in a contract. I think it’s a form of rhetorical emphasis?you’re saying the same thing as shall not, but you’re also banging your shoe on the table. So I never say shall never.

?Product? and ?Units of Product?

Posted on November 24, 2009
I was reminded today how the word product can be a nuisance when drafting, for example, a license agreement providing for a royalty based on products sold. Product can be used to refer to a product line, with its own SKU, or it can mean individual samples of a product line...

Why Bother Learning to Draft Contracts More Clearly?

Posted on November 20, 2009
In my recent blog post about how BigLaw associates have thus far been immune to the charms of my West seminars (click here), I offered some reasons as to why that might be the case. But I omitted one possible reason?that learning how to draft contracts ranks low one’s list of priorities...

The Not-So-Mysterious Dearth of BigLaw Associates at My Public Seminars

Posted on November 13, 2009
On November 17 I’ll be giving a West LegalEdcenter seminar in New York. I suspect that although I’ll be in the densest BigLaw cluster in the land, BigLaw associates will be underrepresented at the seminar, as compared to company counsel and contracts professionals...

The Passive Voice Has Its Uses

Posted on September 30, 2009
MSCD 2.18 notes that the passive voice can be of use in contracts. Consider the following example: If any Person brings a proceeding to compel the Recipient to disclose any Confidential Information … In this context, the active voice is wordy. It’s obvious that a proceeding would have to be brought by someone...

?And? and ?Or? and Covering a Disparate Group

Posted on September 30, 2009
One of my afflictions is paranoia regarding and and or. (You may recall my deconstruction of a Toronto restroom notice.) Consider the following: If a proceeding seeks to compel the Recipient or any of its Representatives to disclose any Confidential Information … I’m not keen on that formulation?it wouldn’t cover a proceeding to compel the Recipient and one [...

?Except As Otherwise Specified in this Agreement?

Posted on September 30, 2009
As reported on ContractsProf Blog, the phrase except as otherwise specified in this agreement featured in newscaster Dan Rather’s contract with CBS. It also featured in a New York appellate court’s opinion in CBS’s appeal of the trial court’s refusal to dismiss Rather’s breach of contract claim against CBS...

On Declining to Post Comments

Posted on September 27, 2009
To my recollection, until a couple of weeks ago I had outright rejected only a single comment, and that was on grounds of undue snarkiness. I had avoided posting perhaps a couple of dozen other comments, but in those cases I attempted to smooth things over by treating the comment as an email and sending [...

?Representations and Warranties??Glenn West Wades In

Posted on September 25, 2009
Following on this September 18 post and this September 20 post, the saga continues: Glenn West, partner at Weil Gotshal and author of the two most useful articles on substantive contract law that I’ve come across in a long time, agrees with me on represents and warrants and representations and warranties...

?Representations and Warranties??A Handy 558-Word Analysis

Posted on September 20, 2009
It’s clear from reader feedback that I need to do a better job of explaining myself. Here goes: It’s pointless and confusing to use in contracts the phrases represents and warrants and representations and warranties because … Because my informal inquiries indicate that most lawyers treat the elements of those phrases as synonyms, much as they do [...

Some Kinds of Backdating May Be Permissible, But that Doesn?t Make It a Good Idea

Posted on September 20, 2009
On the website of the state bar of Wisconsin I came across an article entitled “Backdating Documents: Not Necessarily the Stuff of Scandal.” It contains the following passage: Drafting and executing a document after an event occurs, but in a manner that accurately reflects the date on which the event transpired, is a permissible form of [...

Revisiting ?To the Best of Its Knowledge? (Plus Thoughts on the Marketplace of Ideas)

Posted on September 20, 2009
While reading Lorne & Bryan’s discussion of representations and warranties I encountered the following statement: Similarly, there should never be any objection to “representations” being made to the best of the knowledge of a party (as opposed to “to the knowledge” of a party, a phrase that is at best ambiguous and at worst contrary to [...

Who Gets to Draft Contracts?

Posted on September 20, 2009
In this post on his licensinghandbook.com blog, Jeffrey Gordon suggests that lawyers should consider the value that contract specialists can bring to the contract process. That got me to wondering whether any such contract specialist would have to be a lawyer...

If You?re New to This Site

Posted on September 20, 2009
If you’ve been lured to this site by my ABA Journal “Legal Rebels” profile and would like to learn more about what I do, you might want to check out the following: the page of this site dealing with my book A Manual of Style for Contract Drafting information about my public seminars with West LegalEdcenter (in [...

?Representations and Warranties??Once More, With Feeling

Posted on September 18, 2009
I?ve previously explained why the phrases representations and warranties and represents and warrants are pointless and confusing. And that applies whatever the governing law. My most detailed take on the subject is in MSCD, but I also addressed it in this Business Law Today article and in these four blog posts...

New Article on Extra-Contractual Liability

Posted on September 18, 2009
The August 2009 issue of The Business Lawyer contains a great article by Glenn D. West and W. Benton Lewis, Jr. of Weil Gotshal entitled “Contracting to Avoid Extra-Contractual Liability?Can Your Contractual Deal Ever Really Be the ‘Entire’ Deal?...

If You?re New to This Site

Posted on September 18, 2009
If you’ve been lured to this site by my ABA Journal “Legal Rebels” profile and would like to learn more about what I do, you might want to check out the following: the page of this site dealing with my book A Manual of Style for Contract Drafting information about my public seminars with West LegalEdcenter (in [...

So I?m a Legal Rebel

Posted on September 18, 2009
As part of their ambitious Legal Rebels project, the ABA Journal has named me one of their fifty “Legal Rebels.” They’ve been rolling out profiles of their Legal Rebels, and they’ve now posted mine; click here to go to it. Rebellion isn’t something that usually comes to mind when I think of the American Bar Association, but [...

The Limits of ?Relating To?

Posted on September 17, 2009
For all my dwelling on relating to, I haven’t considered at what point something might be too remote to a given circumstance to be related to it. That, of course, is a fact-driven issue that isn’t susceptible to generalization. But it can be useful to consider examples, and Vickie Pynchon provides one in this post on [...

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