David Munn, general counsel of contracts intelligence company Pramata Corporation and longtime friend of this blog, recently alerted me to some mystery contract language. Here’s the text of a question he posted on a couple of online forums of the Association for Corporate Counsel, to no avail: I’m reviewing some proposed website terms of use and came across the following … Read More
If all goes according to plan, in a few months I’ll be publishing with West, as a pdf download, my booklet “The Structure of M&A Contracts.” And I’ll also be doing with West a new webcast with the same title; an M&A “name” has already agreed to join me as co-presenter. Here are the opening three paragraphs of the current manuscript … Read More
In the course of rooting around online, I encountered this 2007 analysis by Morris, Manning & Martin of a Georgia Court of Appeals case, Covington Square Associates, LLC v. Ingles Markets, Inc., 283 Ga.App. 307, 641 S.E.2d 266 (Ga. Ct. App. 2007) [pdf]. Better late than never, let’s look at this case. It involves a dispute over a shopping-center lease … Read More
I’ve found myself using increasingly often on this blog the phrase “magic words,” so I thought it high time that I explain, to myself and anyone else interested, what I mean by that phrase. It’s in widespread use in legal circles—a search of Westlaw’s “tp-all” database retrieved over 3,500 items that refer to “magic words.” But generally it’s used to … Read More
The “Newsroom” feature of the University of Pennsylvania Law School’s website contains this item about the redrafting project my class worked on last semester—we redrafted the Breast Cancer Research Foundation’s trademark license agreement. For the fall 2010 redrafting project, I’d like to work once more with a not-for-profit organization, this time one that works on matters relating to the environment … Read More
Judges and commentators have long fulminated against and/or. One particularly irate judge—perhaps spittle-flecked, with neck veins bulging—referred to it as “that befuddling, nameless thing, that Janus-faced monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning, or too dull to know what he did mean.” And here’s David … Read More
[Updated July 14, 2015: This topic is revisited in this 2012 post and this 2015 post.] The recent Lawyers Weekly article that I linked to in a previous post contains the following: The phrase “sole and exclusive license,” for example, is common yet contradictory. “Sole,” on the one hand, means only one person has the legal right to use the product. … Read More
An M&A-lawyer boogeyman is “double materiality,” which ostensibly arises when a materiality qualification is included in the bringdown condition to one party’s obligation to close, as well as in one or more representations made by the other party. The concern is that double materiality could mean that even though a seller representation qualified by materiality is inaccurate, it’s not inaccurate … Read More
This article by Donalee Moulton in the current issue of the Canadian periodical The Lawyers Weekly considers what’s involved in making contracts clearer. Yours truly makes a brief appearance. If you’re interested, by clicking here you can get on SSRN a copy of the Gelpern and Gulati article mentioned in the Lawyers Weekly piece.
In this May 2007 blog post I wrote about the litigation between Novell and SCO. (That post dealt with the implications of retaining drafts of a contract.) Well, last week brought further news in this saga, as a federal jury found that two key Unix copyrights belonged to Novell and not to SCO. (Click here for the WSJ Law Blog’s account.) … Read More
