[Updated Sept. 20 12:30 p.m. EDT: I realized that I needed to provide a more succinct version of my analysis. If that’s what you’re looking for, check out this blog item, which I just posted.] 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 … Read More
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?.” Click here for a copy. Glenn is getting into the habit of writing articles that are essential reading for anyone looking … Read More
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 I commend Ed Adams … Read More
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 her Settle It Now … Read More
In this April 2009 post I solicited submissions from any company interested in taking part in this semester’s Penn Law redrafting project. But then I had a change of heart—why not invite a not-for-profit organization to take part? So we’re going to be redrafting a trademark license agreement that The Breast Cancer Research Foundation enters into with its corporate alliance … Read More
I was recently reminded of this article on the role of contract managers, as well as this follow-up article prompted by the recession. Both were written by Tim Cummins of the International Association for Contract and Commercial Management (IACCM). These articles caught my eye because my public seminars and my in-house seminars at companies are attended by both lawyers and contract … Read More
The other day I encountered in other words in a contract. An Edgar search indicates that it occurs often enough to be worth mentioning. In effect, in other words allows the drafter to take a second crack at articulating something. As a general matter, say something once, why say it again?
[Revised 2:00 p.m. Sept. 11 to reflect comment by randomjohn] It’s commonplace for resolutions in board consents to state that something is advisable and in the best interests of the company. My first instinct was to say that is advisable and is redundant. But responding to my call for input, reader randomjohn pointed out that in a number of provisions, … Read More
Methinks that the recitals in the average big-time-M&A merger agreement are bloated. By way of example, below are the recitals from the August 31, 2009, merger agreement for Disney’s acquisition of Marvel. I’ve noted some big-picture comments in bracketed italics; I’ll spare you my many micro-level objections. RECITALS WHEREAS, the parties intend that, subject to the terms and conditions hereinafter set forth … Read More
Here’s a gripping issue: What should one call a contract requiring that certain information be kept confidential—confidentiality agreement or nondisclosure agreement? What nondisclosure agreement has going for it is the convenient and universally recognized initialism NDA. By contrast, I’ve rarely seen CA used for confidentiality agreement. Nevertheless, I prefer confidentiality agreement, because nondisclosure agreement expresses the concept in the negative. … Read More
