Talk of Commas at a Chrysler Bankruptcy Hearing

From Eoin O'Dell's roundup of comma-related mischief on I learned of a dispute that surfaced at a Chrysler bankruptcy hearing earlier in July. In June 2009, Fiat and the new Chrysler Group LLC agreed to honor all the rights consumers had against the “Old Chrysler” under state "lemon laws." The agreement was contained in a bankruptcy court judge’s order, but it's analogous to a … [Read more...]

You Say Mentoring, I Say Training

Yesterday I read this AmLaw Daily article by Steven J. Harper, a retired Kirkland & Ellis partner. It laments that the emphasis on short-term metrics at law firms means that increasingly, mentoring is falling by the wayside. Others, including the WSJ Law Blog and Above the Law, have waded in. I don't doubt that the situation is as depicted by Harper, but when it comes to contract drafting, … [Read more...]

Reading PDF-Only Publications: On-Screen or Printout?

My forthcoming work "The Structure of M&A Contracts" will be a PDF-only West publication. That raises an obvious question: will people be reading it on-screen, or will they read a printout? If I get my wish-list, the PDF will contain hyperlinks to cited authorities, the text will be hyperlinked to the endnotes and vice-versa, and all cross-references will be hyperlinked. That would add a … [Read more...]

More Rhetorical Emphasis: “Each and Every”

"Rhetorical emphasis" is the term I use to refer to a drafter's not simply saying something, but saying it in a way that shows that they really, really, really mean it. The extra verbiage doesn't affect meaning, and it's best omitted. Contracts contain no shortage of examples of rhetorical emphasis; you can find my previous posts on the subject by using the site's search function. But every so … [Read more...]

A Defined-Term Lesson from the Bratz Doll Saga

In an opinion published yesterday, the Ninth Circuit reversed much of the December 2008 ruling that gave Mattel the rights to MGA’s Bratz doll products. (Click here for the Bloomberg story; click here for the opinion.) This dispute holds little interest for me, but I did sniff out a contract-drafting side to the story. An important issue in the litigation was whether Carter Bryant, the man … [Read more...]

When More Than One Party Makes a Given Set of Representations

I just had occasion to consider for the first time, while working on my M&A manuscript, some issues that arise when more than one party makes a set of representations. I'd be happy to hear what you think of the following analysis: When a set of representations is being made by more than one party, you can address that in the representations lead-in in one of two ways. First, you can have … [Read more...]

A Note on Inertia

I just added the following to the manuscript of my forthcoming booklet "The Structure of M&A Contracts," in the preface: But change is hampered by inertia. Deviating from standard language, no matter how defective, might spark debate, and debate creates delay and increases transaction costs. But inertia by itself isn’t a valid reason to reject change—if it were, the precedent-driven nature of … [Read more...]

Two Blog Tweaks

I have one fix and one possible enhancement to report: The fix is that now, finally, clicking on one of the categories links on the right-hand side of the page will take you to a comprehensive listing. Previously, a glitch meant that some posts were omitted. And at the request of a reader, at the top of each post you'll now find a link to the post that precedes it, the post that follows it, … [Read more...]

More Syntactic Ambiguity: The Serial Comma

This item at The Volokh Conspiracy noted that the "serial comma" has been appearing less and less frequently in the New York Times. At Legal Blog Watch, Eric Lipman pointed out that a Volokh commenter had suggested that the serial comma is important for clarity in contracts. Here's the entire comment, posted by "Mark": I think we should at least all agree that the serial comma is an absolute must … [Read more...]

File-Naming Etiquette

Following on my recent post on document-comparison etiquette, longtime reader Jim Brashear sent me the following: I'd be interested in reading others' thoughts and comments on document filename conventions and etiquette. For example, one distributes a set of draft documents with filenames (descriptive or otherwise), and one receives back from various counterparties their edits in documents with … [Read more...]

ACC Events: Phone-In Q&A Tomorrow, Panel Discussion at Annual Meeting in October

On Wednesday, July 14, the Law Department Management Committee of the Association of Corporate Counsel will be holding their monthly teleconference, and the featured speaker for the half-hour "Legal Quick Hit" portion is yours truly. It will be in the form of a Q&A with the esteemed David Munn, general counsel and director of customer operations at Pramata Corporation. But it's open only to … [Read more...]

Lexical Ambiguity: What Does “Spinoff” Mean?

I sporadically write about contract instances of lexical ambiguity, which arises when context is insufficient to allow one to determine the sense of a word that has more than one meaning. (See MSCD 6.5 and these three blog posts.) Well, here's another one for you fans of lexical ambiguity: in this item over at Legal Blog Watch, Bruce Carton describes a dispute between actor Michael Douglas and his … [Read more...]

Document-Comparison Etiquette

I recently received the following message from a longtime reader: When you eventually revise MCSD to its third edition, could you consider adding an appendix that talks about redlining protocol? Here's what routinely happens to me: I send the other side a draft marked using Microsoft Word's "track changes" feature. Using that feature, they accept some of my changes, reject others, and make … [Read more...]

When the Deal Signs and Closes Simultaneously But the Contract Is Structured for a Deferred Closing

In a phone call with a law-firm M&A partner today, I was reminded that sometimes M&A contracts reflect a deferred closing even though the parties actually do a simultanous signing and closing. If the signing and closing are simultaneous, the contract would usually contain deal provisions, representations, indemnification provisions (unless the target is public), and boilerplate, as well … [Read more...]

Can You Recommend a Book on Comparative Contract Law?

A reader asked me what books I could recommend. More specifically, he asked as follows: Say I wanted one book that would give a good treatment of comparative foreign law (French, UK, Belgian, etc), with key discussion on contract remedies available, what would you go with? I haven't yet had occasion to consult such a book. If you can recommend anything, please post a comment. … [Read more...]

One Person Signing for More than One Party?

A reader recently asked as follows: If someone is signing a contract on behalf of more than one party, and that person serves each party in the same capacity, would it be OK to use just one signature block, as in the following example? ACME HOLDINGS, LLC ACME ACQUISITIONS, LLC ACME INVESTMENTS, LLC By:     ______________________           Richard Roe           President I responded that … [Read more...]

When What’s In the Contract Is Inconsistent with the Signature Block

What happens if a contract says that someone is personally liable for an obligation, but that person signs the contract not in their individual capacity, but as an officer of a limited liability company? In this newsletter article, Doug Batey of Stoel Rives considers a recent Washington Court of Appeals opinion that addressed exactly that issue. Here, from Doug's article, are the facts … [Read more...]

“Together” and “Collectively”

I recently received the following inquiry: I was wondering if you could clarify a point for me and my boss. It has been my understanding that when defining terms in an agreement, it is standard to use the word “together” when referring to two entities only, and to use the word “collectively” when referring to three or more entities. When I recently discussed this point with my boss and our other … [Read more...]