Selected Usages

Don’t Use a “Can Reasonably Demonstrate” Standard

Consider the following provision, which I encountered by chance: Confidential Information will not include information that the Recipient can reasonably demonstrate … was rightfully known by it or its Affiliates prior to the date it was disclosed by the Discloser. No, we’re not going to get into nuances of confidentiality agreements. Instead, this post is about the notion of a … Read More

“Compensation” Versus “Remuneration”

Today I tweeted the following: I suggest that we can consign "remuneration" (and "remunerate") to the scrapheap, use "compensation" (and "compensate") instead. — Ken Adams (@AdamsDrafting) December 20, 2017 It prompted the following tweet from the redoubtable @IPDraughts: No, no, no. Compensation is what you get when you are injured by an industrial accident. Pay is what you get from … Read More

Choosing Between Alternative Usages

Recently I received the following from longtime reader Jeff Wheeler: Here’s a little timewaster of an article that nonetheless got me pondering a drafting question: http://lifehacker.com/lets-end-the-gif-jif-pronunciation-debate-right-now-1796419121. After pondering the relevance of weightier debates to this one, the author seems to conclude there’s no objectively correct answer or superior argument to be made for one pronunciation versus the other, and advises that … Read More

“Irrevocably Consents”

[Updated 2 Jan. 2022: For a court that disagrees with Reyes as it applies to the TCPA, see Ammons v. Ally Financial, Inc., 326 F. Supp. 3d 578, 595 (M.D. Tenn. 2018).] Thanks to this post by Eric Troutman on Dorsey’s Consumer Financial Services Update, I learned about Reyes v. Lincoln Automotive Financial Services, No. 16-2104-CV, 2017 WL 2675363 (2d Cir. June 22, … Read More

“Excluding Without Limitation”

A reader asked me about excluding without limitation. Yes, it’s a thing, unfortunately, or at least enough of a thing to prompt me to look into it. It occurs in 55 contracts filed on the SEC’s EDGAR system in the past year. I’ve included at the bottom of this post extracts from some of those contracts. I don’t understand excluding … Read More

A Diagram of the Mix-and-Match “Efforts” Universe

It’s another wild night chez Adams. As you might have figured out, I’m reassessing the whole efforts thing. I just banged out the chart above, as a way of showing the main permutations of efforts provisions. It’s a wild world of efforts. The chart doesn’t even cover it all, as you can have the modifier following efforts, as in efforts in … Read More

Distinguishing Between Different “Efforts” Standards Makes No Sense

In this post yesterday I offered a limited critique of Chief Justice Strine’s dissent in Williams Companies, Inc. v. Energy Transfer Equity, L.P. But one benefit of having a traditionalist contract-drafting notion rear its head periodically is that it forces me to keep refining my arguments. So in this post I explain in greater detail why it makes no sense to suggest that … Read More

Just When I Thought I Was Out: “Efforts” Provisions and the Delaware Supreme Court’s Opinion in the ETE–Williams Dispute

Well, here’s something I didn’t expect: that I would wade in again on efforts, and in a back-to-basics way. On 23 March, the Delaware Supreme Court issued its opinion in Williams Companies, Inc. v. Energy Transfer Equity, L.P. (here). I won’t mention the broader details of the opinion. Instead, I’ll limit myself to what it and some related discussion have to say … Read More

“Deemed to Be Continuing”?

Behold the following: The Sponsor hereby represents and warrants to BNY Mellon, which representations and warranties shall be deemed to be continuing, that: … I’ve seen this provision in different kinds of contracts, notably lending agreements. But I haven’t found any commentary about it. And I don’t believe it’s mainstream in M&A. Here’s how a related concept is usually expressed in M&A … Read More

“Et Seq.”

Can’t we do better than et seq.? Here’s the Black’s Law Dictionary definition: et seq. (et sek) abbr [Latin et sequens “and the following one,” et sequentes (masc.) “and the following ones,” or et sequentia (neuter) “and the following ones”] (18c) And those (pages or sections) that follow <11 USCA §§ 101 et seq.>. And here’s an example from EDGAR: … Read More