This week a reader asked me about including at least—yet another phrase I’d never thought about before.
That phrase is unobjectionable when it’s used to express that a given set must including a minimum number, or minimum proportion, of something or other. Here are some random examples from EDGAR:
… the Parties shall refer such dispute to the Chief Executive Officer of CG and the Chief Executive Officer of Aptose (collectively, the “Executive Officers”) for attempted resolution by good faith negotiations, including at least one in-person meeting, within thirty (30) days after the dispute is referred to them.
… provided, that such issuances are approved by the Board of Directors of the Corporation, including at least one Series A Director; …
… render to the Trust’s Board of Trustees such periodic and special reports with respect to each Fund’s investment activities as the Board may reasonably request, including at least one in-person appearance annually before the Board of Trustees.
But I suspect you won’t be surprised to hear that including at least can also be abused. There’s no point using it to say that a given set must include a non-quantified thing—including by itself accomplishes that. Again, some examples from EDGAR, with the offending at least stricken:
… a summary of the disclosures in the disclosure log required by Section III.G that relate to Federal health care programs, including
at leastthe following information: a description of the disclosure, the date the disclosure was received, the resolution of the disclosure, and the date the disclosure was resolved (if applicable).Sobi shall in the Hospital Agreements oblige the Hospital to keep the key for decoding the data of the Patient, including
at least(i) donor identification, (ii) age and sex, (iii) signed Informed Consent Form and (iv) copy of the Laboratory Test results, for a period of 30 (thirty) years after clinical use.All rights and obligations of the PARTIES set forth herein that expressly or by their nature survive the expiration or termination of this LICENSE, including
at leastthe provisions of this Section 10.9, Section 12(e) and Articles 15, 16 and 17, shall continue in full force and effect …Each report delivered by Licensee to Symphony shall contain in reasonable detail the calculation of the royalties payable to Symphony for the immediately preceding calendar quarter, including
at leastthe following information:
Perhaps the drafters who use “including at least” are worried about “including” being interpreted to be restrictive as opposed to illustrative — the same concept that underlies the frequent use of “including, but not limited to,…” and related formulations.
Good point. But including at least has a clearly legitimate function, so I wouldn’t use it to convey a different meaning too. And then there’s the little matter of use of including but not limited to being unhelpful. Anyone interested in exploring that should search for that phrase on this blog.
I would imagine you got asked the question by a college debater and/or coach, as this year’s topic includes that phrase. I’ll let you google it, as pasting verbatim might have untoward effects on people’s searching. Thanks for being so responsive to questions; a useful resource.
That’s in fact the case. I just now looked at the debate topic; the “including at least” falls into the second, bogus, use of the phrase.
I’m not so sure that ‘including at least’ is ever free of the two problems that attend ‘including’ generally, namely, exhaustion and sui generis.
Take for example ‘shall attempt to resolve the dispute by good faith negotiation, including at least one in-person meeting’.
It’s arguable that one in-person meeting would minimally but completely satisfy the entire duty of good faith negotiation. (Exhaustion issue.) That’s a drafting problem, yes?
If we assume for argument that ‘good faith negotiation’ requires something beyond the one in-person meeting, it’s arguable the ‘something beyond’ is limited to more in-person meetings. (Sui generis issue.) That seems like another drafting problem.
My way of avoiding both problems that afflict ‘including’ formulas is to reject those formulas in favour of the ‘tomatoes and all other similar and dissimilar fruit’ approach. Here’s my attempt to apply it here:
‘…shall have one in-person meeting and shall, by other similar and dissimilar good faith negotiation, attempt to resolve the dispute’.
I make no claims for smoothness, but I do claim that ‘including at least’ runs risks that this approach reliably removes.