Ken Adams

The Texas Court of Appeals on Words-and-Digits Inconsistency

While in Seattle last week I had the opportunity to reconnect with Jessica Pearlman, a corporate partner in the Seattle office of K&L Gates. (We were on an ABA panel together many moons ago.) During our conversation, Jessica mentioned a recent case highlighting the perils of stating a number using words and digits. She later sent me a link to the case. It … Read More

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 Industry Regulatory Authority … 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 … 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 … 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: … 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 … 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 defined in Code (S)162(m), … That conveys two … 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), … 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 … Read More