A latecomer to the MSCD family of ambiguity is antecedent ambiguity—uncertainty over what the antecedent is of a given element. But it’s certainly making up for lost time. Today, thanks to that relentless source of leads known as Steven H. Sholk, I’m able to offer you an instance of antecedent ambiguity from the hot-off-the-presses opinion of the Delaware Court of … Read More
No one has commented publicly on my post about suboptimal drafting in the contract for Jeff Bezos’s acquisition of the Washington Post (here). That comes as no surprise: I’ve learned that M&A practitioners are reluctant to stick their neck out. But I did receive one comment privately: Digital delivery of movies to theaters is way more efficient and cost effective … Read More
A little birdy suggested that I should check out the definition of “Arbitrator” in section 12(a) of the agreement providing for Jeff Bezos’s acquisition of the Washington Post. (For more about that contract, see this post.) Here’s the sentence in question: If the Purchase Agreement is not executed within 60 days of the date hereof, the Seller and the Purchaser … Read More
[Updated most recently 18 October 2021. For details, go to the end of this post.] Over the years I’ve posted plenty of items about indemnification. (If you click on the “Indemnification” category to the right, you’ll be offered sixteen different posts.) But I’ve not posted any indemnification language … until now! Yes, I know, I feel very emotional about it … Read More
Dear Mr. Bezos: I noted with interest the contract providing for your acquisition of the Washington Post. (Go here for a PDF copy.) Whereas others have considered the substantive implications, I limited myself, as usual, to the drafting. I skimmed the contract and wasn’t surprised to conclude that it leaves something to be desired. Why am I telling you this? Because … Read More
Should a services agreement provide for a term? It depends. Imagine that Acme engages me, as an independent contractor, to service every Sunday the fleet of Segways at Acme’s headquarters. Acme asks me to sign a contract, which provides for a term of one year. Including a term makes sense, in that having Acme instead make an open-ended commitment would … Read More
Via @CharlesHGreen I learned of this 2006 post by David Maister, an authority (now retired) on managing professional service firms. The title is “Why (Most) Training Is Useless,” and much of what it has to say applies to the training I provide. The Limited Value of Stand-Alone Training Consider the following extract: Unfortunately, training and other kinds of meetings and conferences … Read More
A longtime reader had the following to say in an email to me: I use some outside counsel that I think are stellar brief-writers. Even their first drafts are generally very good. Then I get a draft settlement agreement or agreed protective order from them and groan. Why do they write contracts so badly? The prosaic reason is that they don’t write agreements … Read More
Family! One day you’re unaware that they exist, the next day they’re hocking you relentlessly. I’m speaking of course about Joshua Stein, my newfound second cousin once removed, recently introduced to readers of this blog in this post. I was minding my business late one night when an email from Joshua invaded my inbox. Here’s the meat of it: I … Read More
I’m not a fan of kitchen-sink definitions—definitions that include a grab-bag of items, not all of which belong together. Consider the following definition of “Claim,” culled from the grand flea market that is EDGAR: “Claim” means all losses, claims, damages, penalties, judgments, liabilities and expenses of any kind (including, without limitation, reasonable and documented out-of-pocket costs of investigation and defense thereof and reasonable … Read More
