Some months ago a reader asked the following: At some point down the road, can you do a blog posting on Most Favored Nation clauses? My feeling is that within the last 2-3 decades, some professor in some business school somewhere wrote an article on how important these clauses are. Current CEOs, CFOs, and procurement leaders must have read that article, … Read More
From Eoin O’Dell’s roundup of comma-related mischief on Cearta.ie I learned of a dispute that surfaced at a Chrysler bankruptcy hearing earlier in July. In June 2009, Fiat and the new Chrysler Group LLC agreed to honor all the rights consumers had against the “Old Chrysler” under state “lemon laws.” The agreement was contained in a bankruptcy court judge’s order, but … Read More
Yesterday I read this AmLaw Daily article by Steven J. Harper, a retired Kirkland & Ellis partner. It laments that the emphasis on short-term metrics at law firms means that increasingly, mentoring is falling by the wayside. Others, including the WSJ Law Blog and Above the Law, have waded in. I don’t doubt that the situation is as depicted by … Read More
My forthcoming work “The Structure of M&A Contracts” will be a PDF-only West publication. That raises an obvious question: will people be reading it on-screen, or will they read a printout? If I get my wish-list, the PDF will contain hyperlinks to cited authorities, the text will be hyperlinked to the endnotes and vice-versa, and all cross-references will be hyperlinked. That … Read More
“Rhetorical emphasis” is the term I use to refer to a drafter’s not simply saying something, but saying it in a way that shows that they really, really, really mean it. The extra verbiage doesn’t affect meaning, and it’s best omitted. Contracts contain no shortage of examples of rhetorical emphasis; you can find my previous posts on the subject by … Read More
In an opinion published yesterday, the Ninth Circuit reversed much of the December 2008 ruling that gave Mattel the rights to MGA’s Bratz doll products. (Click here for the Bloomberg story; click here for the opinion.) This dispute holds little interest for me, but I did sniff out a contract-drafting side to the story. An important issue in the litigation was … Read More
I just had occasion to consider for the first time, while working on my M&A manuscript, some issues that arise when more than one party makes a set of representations. I’d be happy to hear what you think of the following analysis: When a set of representations is being made by more than one party, you can address that in … Read More
I just added the following to the manuscript of my forthcoming booklet “The Structure of M&A Contracts,” in the preface: But change is hampered by inertia. Deviating from standard language, no matter how defective, might spark debate, and debate creates delay and increases transaction costs. But inertia by itself isn’t a valid reason to reject change—if it were, the precedent-driven … Read More
I have one fix and one possible enhancement to report: The fix is that now, finally, clicking on one of the categories links on the right-hand side of the page will take you to a comprehensive listing. Previously, a glitch meant that some posts were omitted. And at the request of a reader, at the top of each post you’ll … Read More
This item at The Volokh Conspiracy noted that the “serial comma” has been appearing less and less frequently in the New York Times. At Legal Blog Watch, Eric Lipman pointed out that a Volokh commenter had suggested that the serial comma is important for clarity in contracts. Here’s the entire comment, posted by “Mark”: I think we should at least all … Read More
