Are Law-Firm Contract-Drafting Services a Commodity?

In this post on his Law Department Management blog, Rees Morrision—prolific consultant to law departments—quotes a survey in the July 2008 issue of Inside Counsel as saying "33.5% of in-house counsel reported that law firm services are a commodity." Here's Rees's take on this: Loyalty rates of law departments to law firms suggest otherwise, and incessant fee increases by law firms suggest … [Read more...]

Observing Contract Deadlines—A Cautionary Tale Involving FaceTime Communications and Reuters

In this post on his Goldman's Observations blog, Eric Goldman describes a dispute between FaceTime Communications and Reuters. Reuters licensed FaceTime's software for two years and devoted significant resources to customizing the software. Reuters had an option to pay $150,000 for a perpetual license, but for reasons that aren't entirely explained, Reuters didn't exercise the option before the … [Read more...]

Whether to Refer to the Possibility of Dispute Over an Invoice

Eric Goldman recently sent me the following inquiry: A typical vendor's contract will say something like "Customer shall pay invoiced amounts within 30 days of invoicing." With some frequency, customers have been marking up this language to read: "Customer shall pay *UNDISPUTED* invoiced amounts within 30 days of invoicing." From a vendor's perspective, I think the added language is objectionable … [Read more...]

ABA Cyberspace Law Committee Looking to Develop New Model Contracts

Through this post by Michael Fleming on the Cyberspace Lawyer's Blogger, I learned that the Cyberspace Law Committee of the ABA Section of Business Law is proposing to draft new model contracts. This project sounds interesting: The Liberty Alliance Project is, in its own words, working to "enable a networked world based on open standards where consumers, citizens, businesses and governments can … [Read more...]

2009 U.S. Seminar Dates, Plus Stray Thoughts on Public Seminars

For those who like planning in advance, here are my West Legalworks seminar dates for 2009: Feb. 24, Houston Mar. 3, Atlanta April 9, Cleveland May 7, Chicago June 2, Philadelphia July 16, Seattle Sept. 15, Los Angeles Sept. 24, Washington, D.C. Oct. 13, Minneapolis Oct. 27, Boston Nov. 17, New York Dec. 8, San Francisco I'm pleased that West Legalworks opted to re-up … [Read more...]

New Article on Consequential Damages

The May 2008 issue of The Business Lawyer contains a great article by Glenn D. West and Sara G. Duran of Weil Gotshal entitled "Reassessing the 'Consequences' of Consequential Damage Waivers in Acquisition Agreements." Click here for a copy. Here's the abstract: Consequential damage waivers are a frequent part of merger and acquisition agreements involving private company targets. Although … [Read more...]

Abuse of Nondisclosure Agreements

I have a soft spot for nondisclosure agreements, or NDAs (also known as confidentiality agreements): They're relatively short and straightforward, yet they're subtle enough that drafters routinely screw them up. And they're commonplace; in fact, they're something of a nuisance—the cockroach of the contract-drafting world. These characteristics mean that they're the obvious guinea pig for anyone … [Read more...]

Article on Clumsy Drafting of an Earnout Provision

A common feature of M&A contracts is the "earnout" provision—a provision that specifies that the purchase price will be increased if the business being acquired meets, post-closing, stated financial-performance targets. If you're interested in earnout provisions, of if you'd just like to see yet one more example of how lackadaisical drafting can result in litigation, you might want to check … [Read more...]

Behind the Scenes of the “Such As” Case

Thanks to the litigation in Lawler Mfg. v. Bradley Corp., recently I discovered the nuances of such as. That led me to write about such as in this post. Yesterday I received a message from Wayne Turner, a litigation partner in the downtown Indianapolis office of Bingham McHale. I enjoyed Wayne's message, and I thought you might too, if you found my such as post of interest. Here's Wayne's … [Read more...]

MSCD Second Edition Available on Preorder

Publication of the second edition of A Manual of Style for Contract Drafting is fast approaching. One sign is that a page for the book is now up on the ABA's Web Store. (For the first six months, it will be available only through the ABA.) Check out the sharp new cover! Even more to the point, check out the ABA's preorder offer. The regular price is $74.95 ($59.95 for members of the ABA Section … [Read more...]

Having a Parent Company Enter Into a Contract “On Behalf” of an Affiliate

A reader recently asked me the following question: We frequently sign global services agreements that provide that the parent company is signing "for and on behalf" of an affiliate. What do you think of this practice? I'm uncertain about having a parent sign a contract on behalf of an affiliate. (In any event, the words "for and" are redundant.) Who has the obligations under these contracts? … [Read more...]

Using “Anniversary” to Denote a Milestone in Months

Here's what Garner's Modern American Usage has to say about anniversary: anniversary (= the day of the year on which an event occurred in a previous year) is today used informally to denote a milestone in months or even weeks. That usage has become increasingly common, perhaps because there is no convenient equivalent for terms shorter than a year (milestone is close, but it doesn't connote … [Read more...]