Alliance Data Systems, Blackstone Group, and “Reasonable Best Efforts”

If anyone is wondering why I've been devoting time to efforts standards, have a look at this post on DealBook by Steven Davidoff regarding a development in Blackstone Group's proposed acquisition of Alliance Data Systems. For reasons I discuss in MSCD, in this article, and in last week's blog post, it would be bizarre for a court to hold that reasonable best efforts conveys a meaning different … [Read more...]

What the Heck Does “Best Efforts” Mean?

I suspect that the one usage that causes me most aggravation is best efforts. That's because the way I see it is diametrically opposed to the way many practitioners see it. I think the problem is that people approach it as an issue to be resolved by case law, whereas I see it first of all as a matter of semantics. What does best efforts mean in general usage? And what are the implications of … [Read more...]

Quanta v. LG—Chief Justice Roberts on the “Let’s Sort It Out in Litigation” Approach

Sidestepping a contentious contract issue with the notion of working it out in litigation is a standard strategy, but you don't often find examples of it in the wild. That's why I noted with interest oral argument before the Supreme Court on January 16 in Quanta v. LG, as case dealing with patent exhaustion. (Click here for the transcript.) I'm not going to touch with a barge-pole the substance … [Read more...]

Contractions? In a Contract?

One sure route to a stiff, starchy prose style is not to use contractions. They're suitable in all but the most formal kinds of writing, and they help you achieve a more natural, conversational rhythm. For some reason that I've since repressed, I didn't use contractions in MSCD. So for the second edition, I'm now adding them in wherever I think appropriate. Here's a representative example of … [Read more...]

What Don’t You Like About MSCD?

Have you thought to yourself, as you flipped through A Manual of Style for Contract Drafting, that I'd failed to address adequately, or at all, some issue that's dear to your heart? Do you have a beef with any of my recommendations? Do you not like the binding? The cover? The font? If so, now's the time to speak up, seeing as I'm working on the manuscript for the second edition. All input welcome! … [Read more...]

Great Case on Whether Discretion is Limited

I love it when I spot an issue and analyze it, and subsequently a case comes down that hinges on exactly that issue. You may recall that in this June 2007 post I discussed two subtle issues involving may. One issue involved limited discretion and the expectation of relevance. Here's what the manuscript of MSCD2 has to say about this: A grant of discretion to do one thing doesn’t necessarily … [Read more...]

Including “Plan of Merger” in the Title of a Merger Agreement

Here's another fresh extract from the manuscript of MSCD2. It's from the section "The Title," and it addresses at greater length something I mention in MSCD 2.3: And don’t feel obligated to track the terminology of state statutes. For example, statutes in Nevada, New York, and other states use the term “plan of merger.” As a result, it’s commonplace for drafters to give merger agreements a … [Read more...]

Contracts Under Seal?

I've snickered at the notion of contracts under seal, but I've never studied the topic. Here's what I found out: In medieval England, a seal—consisting of wax attached to a writing and bearing an impression—served as a marker to identify the parties to an agreement. As literacy increased, signatures slowly replaced seals as identifying markers. And the value of seals as a device for formally … [Read more...]

Vancouver Seminar on April 1, 2008

On April 1 I'll be giving my "Contract Drafting—Language and Layout" seminar in Vancouver, B.C., for the first time. Click here for the brochure. As with my Toronto seminars, my host will be Osgoode Professional Development. The Toronto seminars have gone very well, so I expect the same for Vancouver. Come one, come all! … [Read more...]

Including Headings in Cross-References

Here's a paragraph from the manuscript for MSCD2. It's so fresh that steam is still rising from the words: An internal cross-reference that consists of only a number gives the reader no indication of what’s addressed in the specified provision. That’s why in some contracts each cross-reference includes the heading of the article or section in question, as in article 12 (Indemnification). (If … [Read more...]

“From Time to Time”

In this November 2007 post, I suggested that the phrase at any time is always extraneous. Well, the same goes for from time to time. Used With Language of Discretion The phrase from time to time is used to mean, in essence, "on one or more occasions." It’s only used with language of discretion, as it wouldn’t make sense to obligate someone to do something on one or more occasions. The … [Read more...]

January 9 ACC Teleconference

On Wednesday, January 9, at 1:00PM Eastern Time, the Law Department Management Committee of the Association of Corporate Counsel will be holding their monthly teleconference. I'll be the featured speaker—starting around 1:30PM I'll be talking, for 15 minutes or so, about "Issues of Quality and Process in Handling Your Contracts." That will be followed by 15 minutes of questions. It should be … [Read more...]