Consider these two alternatives: The laws of the State of Ohio govern … Ohio law governs … Any reason not to opt for the second alternative? It’s simpler, in that (1) Ohio acts as an adjective instead of forming part of a prepositional phrase and (2) it dispenses with State of. How about saying New York law governs? Could anyone plausibly … Read More
A couple of days ago I saw this @ronfriedmann tweet: .@LexPredict Agreement Database offers 400k groomed contracts http://t.co/D8WRnuemsa Interesting R&D + practical transaction resource — ronfriedmann (@ronfriedmann) June 30, 2015 So LexPredict enters the we’ve-got-lots-of-contracts space. Ron will of course guess my reaction, which is … lack of excitement. Yes, there are loads of contracts out there. Yes, we can … Read More
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
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
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
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
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.
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
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
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
