Fresh Syntactic Ambiguity! Step Right Up!

Via D.C. Toedt, I learned of the Second Circuit's decision in Lloyd v. J.P. Morgan Chase & Co. (here), decided yesterday. This case involved J.P. Morgan Chase & Co.'s appeal of a lower-court ruling denying their motion to compel arbitration. The Second Circuit affirmed, holding that the lower court had correctly read the arbitration agreement to incorporate the rules of the Financial … [Read more...]

“At Its Sole Discretion” Outside Its Normal Habitat

I've written plenty about at its sole discretion over the years. The full discussion is at MSCD 3.168–96, but there's also this 2011 article about a relevant California court opinion. Well, today I encountered the following in a contract: If the Company in its sole discretion agrees to such change, the Company shall … Previously I've written about at its sole discretion only in the context of … [Read more...]

Neutralizing “Represents and Warrants”

OK, so we now all know that the phrase represents and warrants is pointless and confusing. My recent article on the subject (here) establishes as much in excruciating detail. But I don't recommend that you ask that the lawyers on the other side of a deal replace represents and warrants with states. The benefit of doing so would be more than outweighed by all the hand-wringing and posturing that … [Read more...]

Information Now Available for My “Drafting Clearer Contracts” Seminars in Seoul, Tokyo, and Singapore

Go here for information about my "Drafting Clearer Contracts" seminars for Thomson Reuters in Seoul (12 November), Tokyo (17 November), and Singapore (19 November). Go here for information about my other public "Drafting Clearer Contracts" seminars. … [Read more...]

Relying on Templates

Last year, while I was at a prominent law firm to do a seminar, someone from the law firm emphasized to me that they don't use standard templates. Instead, they want their junior lawyers to figure out for themselves what should be in a given contract. I thought of that when I read the following in Milgrim on Licensing, at § 10.00: It is ironic that I offer you not only a commentary about … [Read more...]

“Will Be Given the Opportunity To”

Over the years I've compiled the many confusing and wordy ways drafters have found to say may. Here's another one: will be given the opportunity to (and its variant will have the opportunity to). Here are some examples from the great coal-ash pond that is the SEC's EDGAR system: Each Tag Along holder will be given the opportunity to exercise their vested Options prior to or in connection with … [Read more...]

The Ambiguity of “Every … Not”

This morning I saw the following tweet by @section_sign: https://twitter.com/section_sign/status/609300513239085058 No, I haven't suddenly acquired an active interest in the politics of bicycling. Instead, I spotted ambiguity. Here's a sentence from a benefit plan that exhibits the same ambiguity: If every member of the Committee does not meet the definition of "outside director" as … [Read more...]

The Time for Taking Action “Upon” Something Happening

In addition to analyzing topics that are entirely new to me, part of what I do is fill small gaps in MSCD's coverage. So in that spirit, here's a neat little gap-filler, fed to me by a law student. The case is IPE Asset Management, LLC v. Fairview Block & Supply Corp., 123 A.D.3d 883, 999 N.Y.S.2d 465 (2014) (PDF here), a New York appellate opinion. The plaintiff, as purchaser, and one of … [Read more...]

A Suggestion for Those Litigating the Meaning of Contract Language

For a while now I’ve been harping on about how courts should admit expert testimony on ambiguity. (For my most recent statement on the subject, see the bottom of this post.) But from private conversations, I’ve gotten the sense that even if admitting expert testimony on ambiguity makes sense, judges aren’t keen to do anything that would add to paperwork and prolong trials. So I’m prepared to … [Read more...]

Upcoming Overseas Seminars: Bangkok, Kuala Lumpur, Doha, London, Seoul, Tokyo, Singapore (Plus U.S. and Canada)

Here's how the overseas one-day and two-day "Drafting Clearer Contracts" seminars are shaping up through the end of the year: Bangkok, 6–7 August (with Marcus Evans): For more information, go here. Kuala Lumpur, 10–11 August (with Marcus Evans): For more information, go here. Doha, 18–19 October: This is still in the planning stages; details to come. London, 2 November (with University … [Read more...]

Trade Groups, Criticism, and Effecting Change in Contract Drafting

I used to think that trade groups were a promising route to change. After all, they should have a broad perspective. They should be able to achieve economies of scale. And they should have resources. But I no longer take that for granted. Change involves determining that the current way of doing things doesn’t work as well as it should and instead adopting another way of doing things. Promoting … [Read more...]

From Caselaw, Cautionary Tales for Contract Drafters

Longtime readers will know that I have no time for the notion of “tested” contract language—instead of continuing to use confusing contract language because a court has had occasion to attribute meaning to it, I prefer to state meaning clearly. So instead of relying on caselaw to tell me how to draft contracts, I find caselaw mostly useful for the lessons it offers on how not to draft … [Read more...]

The North Carolina Business Court and the Serial Comma: It’s Not Pretty

What, you want another example of a court mishandling its analysis of potential ambiguity? My SuperGuide post (here) wasn't enough for you? OK, if you insist ... Reader Zach Courson alerted me to a recent opinion of the North Carolina Business Court, Medfusion, Inc. v. Allscripts Healthcare Solutions, Inc., No. 14 CVS 5192, 2015 WL 1455680 (N.C. Super. Mar. 31, 2015) (PDF copy … [Read more...]

One-on-One Coaching in Contract Drafting? Perhaps Not

In this post from last year I mentioned how I was about to start a program of one-on-one coaching with someone from the procurement department of a major company. A few months later, I did the same sort of thing with an associate from one of the big law firms. Yesterday I was asked if I would be available to do further such coaching, and my response was decidedly lukewarm. For one … [Read more...]

“Shall Not Permit”

I noticed this post on Keith Bishop's California Corporate and Securities Law blog, on the meaning of the verb "permits" in a proposed change to the securities regulations. Here's the relevant bit of Keith's post: The verb “permit” means to give assent to some action or event. This implies an affirmative action on the part of the registrant. Applying this definition, a registrant that has no … [Read more...]

The Rise of “States”

As I explain in this article, my replacement for represents and warrants is states. Scary, huh? No, not really. For one thing, so far my consulting clients haven't had a problem with states. And consider what Kevin Heaney has to say. He's a partner in the Billings, Montana, office of the law firm Crowley Fleck. We exchange emails sporadically, and in February he attended my "Drafting Clearer … [Read more...]

“Represents and Warrants” Is a Zombie Usage

Yes, the phrase represents and warrants is a fixture in contracts. And it won't disappear from the scene any time soon. But now that my article (this one) is out there, I can declare that represents and warrants is a zombie usage. And no, it's not like one of those fast zombies. Fast zombies are badass. Instead, represents and warrants is like one of these zombies: Yeah, the kind … [Read more...]

My New Article on “Represents and Warrants”

My article Eliminating the Phrase Represents and Warrants from Contracts is now available. It's in the latest issue of Transactions: The Tennessee Journal of Business Law. Go here for a PDF. This article shows that it’s pointless and confusing to use represents or warrants in a contract to introduce statements of fact. It recommends that instead you use states to introduce statements of fact, … [Read more...]

Feedback from My Public “Drafting Clearer Contracts” Seminar in Houston

In two ways, my approach to seminar testimonials has changed over the years. First, I no longer include the name and organization of the person providing a testimonial: I don't think that information enhances the value of the testimonial, and I'm sure that many people who otherwise would give testimonials decline to do so because they don't want me parading their name in public. And second, … [Read more...]

Some Thoughts on “Bloomberg Law: Corporate Transactions”

Last week I noticed this post on Dewey B Strategic about Bloomberg BNA's new product "Bloomberg Law: Corporate Transactions. (Gotta love the colon, which gives it an action-movie-sequel vibe.) For Bloomberg BNA's own announcement, go here. Above is part of a post on Contract-Automation Clearinghouse. To see the rest, go here. Contract-Automation Clearinghouse is where I now put my posts on … [Read more...]