The word likely occurs frequently in contracts. Here are some examples that I selected at random from EDGAR: There is no Action pending or, to the Knowledge of the Company, threatened that could result in … nor, to the Knowledge of the Company, is there any event or set of circumstances which are reasonably likely to result therein. As used herein, … Read More
[Updated June 27, 2011: Prompted by Paul’s and Eric’s comments, I revised this post to make my point clearer.] I keep half an eye on the LinkedIn Contract & Commercial Management group, and today I noticed that someone had posted the following question: What is the best metrics or KPI (besides order volume or revenue) to measure the performance of … Read More
In Meso Scale Diagnostics, LLC v. Roche Diagnostics GMBH (go here for a PDF copy), the Delaware Court of Chancery held that it’s not clear whether for purposes of a no-assignment provision a reverse triangular merger constitutes an assignment “by operation of law.” (A reverse triangular merger is when Sub merges into Target.) I’m not going to go into any detail … Read More
I’m starting to prepare for my July seminars in Geneva [link no longer available]. If you’re still wondering whether you wish to attend, I offer the following propositions: Regarding My “Drafting Clearer Contracts” Seminar Traditional contract language is bloated and confusing, resulting in organizations wasting vast amounts of time and money and assuming unnecessary risk. It’s overwhelmingly likely that you … Read More
In this April 2011 blog post, I said that it would be a simple matter to commoditize the drafting of M&A contracts. Since then I’ve discussed this notion with a couple of friendly M&A practitioners, and here’s what’s on my mind: The Benefits of Commoditizing Both of my interlocutors think that I’d be unlikely to get any of the major … Read More
According to this account in the ABA Journal, a third-year law student at the University of La Verne who was suspended for using an online contract in her drafting class has lost an appeal in state court. As part of the student’s drafting class, she and two other students had been asked to prepare a coffee-supply contract on behalf of … Read More
A few weeks ago I was reminded of Swissblawg, the German-language blog dealing with—you guessed it—Swiss law, when it linked to some of my stuff. Because next month I’ll be giving my series of Geneva seminars [link no longer available], my thoughts are turning to things Swiss, so I figured it would be interesting to have a chat with a … Read More
Steven Sholk, director at the Newark, New Jersey office of Gibbons and a longtime source of valuable leads, sent me the Eleventh Circuit’s recent opinion in News America Marketing In-Store, LLC v. Emmel (PDF copy here). It contains an interesting lesson for anyone who drafts confidentiality agreements. Emmel was an account director for News America. Starting in 2005, the relationship … Read More
[Updated 2:40 p.m. June 15: Time for Adams to eat some crow. With respect to the first example, I agree with Paul Comeaux’s comment: the reference to “shall not be unreasonable” echoes the reasonableness standard of the requirement for consent, so it would probably be counterproductive to eliminate the double negative. Paul, thanks for setting me straight. I’m still comfortable … Read More
The New York Times has just published this depressing article by Adam Liptak on judges citing dictionaries. (To access it, you’ll need to comply with the NYT’s subscription plan.) For the reasons cited in the article, it’s generally a bad sign when a judge cites a dictionary. In particular, the notion of judges seeking to clarify the language of statutes … Read More
