Ken Adams, Author at Adams on Contract Drafting

“At Least One of X and Y”: The Semantics Train Wreck That Is the Federal Circuit’s 2004 Opinion in SuperGuide Corp. v. DirecTV Enterprises, Inc.

7 February 201726 May 2015 by Ken Adams

I got another tip from a participant at the recent “Drafting Clearer Contracts” seminar in Houston, although I didn’t have the wit to note his name. He suggested that I check out the 2004 opinion in SuperGuide Corp. v. DirecTV Enterprises, Inc., by then Circuit Judge (now Chief Circuit Judge) Sharon Prost of the United States Court of Appeals for the … Read More

Oregon Moves to Standardize State Contracts

26 May 2015 by Ken Adams

Last month I noticed with interest this article by Carol McAlice Currie in the Statesman Journal. It’s entitled “House Passes Bill to Standardize Oregon Contracts.” I recommend that you read the entire article, but here’s the gist of it: Building on a promise to bring more transparency and accountability to government, Rep. Nancy Nathanson delivered on it this week when the … Read More

“No Later Than” or “Not Later Than”?

26 May 2015 by Ken Adams

To be consistent in your contract usages, you have to make decisions big and small. Here’s a small one: which to use, no later than or not later than? Behold what a Merriam-Webster “Ask the Editor” item (here) says: [T]here are differences in the way these two expressions are used. No later than is used more often than not later than, … Read More

This Site Is Now Mobile-Friendly

26 May 2015 by Ken Adams

Because Google thinks that it’s a good thing to do, I’ve spared no expense to make this site “mobile-friendly.” Let there be rejoicing through the land! Or not. One immediate benefit is that whatever made the blog glacially slow for at least some of you has now disappeared. It’s a work in progress. If you notice anything that needs fixing … Read More

Revisiting “Agrees That”: It Can Be Worse Than Just Clutter

21 May 201520 May 2015 by Ken Adams

Routine bits of contract clutter have the potential to create real problems. Baron Oursler, senior counsel at the transportation company FleetPride and one of the participants at last week’s “Drafting Clearer Contracts” seminar in Houston, told me about an amazing example of that. I now pass it on to you, dear reader. The Dispute It involves a dispute between UBS … Read More

“Amongst” and “Whilst”

10 May 2015 by Ken Adams

It’s easy enough to find contracts that use amongst. A search on Westlaw’s version of EDGAR that was limited to items filed in the past three years yielded 4,774 hits. Here are four examples, with those apparently drafted in Commonwealth countries noted with an asterisk: … then the Maximum Indemnification Amount or the balance thereof shall be divided amongst the Office Holders at … Read More

“Between” Versus “Among” When Listing the Parties to a Contract

10 May 2015 by Ken Adams

I was mildly surprised to find that I’ve apparently never written anything on this blog about which to use, between or among, when listing the parties to a contract, in the introductory clause or elsewhere. Here’s what MSCD 2.46–48 has to say: In all cases, use between as the preposition in the introductory clause rather than among or a silly couplet (see 1.42) such as by … Read More

Mark Anderson, Google’s Patent Purchase Agreement, and Public Shaming

2 May 2015 by Ken Adams

If you wish to witness an old-fashioned beatdown, scurry over to the IP Draughts corner of the marketplace of ideas to see Mark Anderson dismantle—Marquess of Queensbury rules!—a Google patent purchase agreement (here). I too am prone to meting out vigilante justice. Go here for my analysis of another Google contract, a services agreement. But it’s a model of professionalism compared … Read More

Variations on “Breach”

3 May 20152 May 2015 by Ken Adams

Choices in contract drafting come in big and small packages. Today, let’s think small; let’s think breach. Count Noun or Mass Noun? Consider the following: It will not constitute [a breach] [breach] of the Recipient’s obligations under this agreement for the Recipient or any of its Representatives to disclose … Both of the bracketed alternatives work. How so, you ask? Well, … Read More

The UT System Administration Contract Office Goes All-In

5 July 201530 April 2015 by Ken Adams

[Updated June 30, 2015: Here’s an update from Blake: In our job search, we stated that knowledge of MSCD was a “preferred qualification.” Out of dozens of qualified applicants, we narrowed the pool to four people. We gave all four candidates a “homework” assignment of drafting a contract in accordance with MSCD. (We assigned the candidates random numbers and graded … Read More

Ken Adams

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