When it occurs in contracts (apart from its use in the phrase specific performance), more often than not the word specific serves no purpose. Consider the following examples, which I harvested at random from the SEC’s EDGAR system: Within 60 days following such request for a review, the Plan Administrator will, after providing a full and fair review, render his final … Read More
Longtime readers of this site will be familiar with the name Business Integrity, developer of ContractExpress (formerly DealBuilder) document-assembly software. Fixing contract drafting involves fixing not only language but also process, and fixing the process means using document assembly. So I’ve long had a keen interest in document assembly. About three years ago I became acquainted with Business Integrity, and … Read More
Here are some follow-up thoughts prompted by reader Chad’s comment to my recent post on use of the couplet fraud or intentional misrepresentation in indemnification provisions. Chad suggested that although fraud includes intentional misrepresentation, at least three state courts have treated the terms fraud and intentional misrepresentation as synonyms. That doesn’t worry me, because if you use in the contract just the word … Read More
Today I came upon yet another article exploring law students’ lack of basic writing skills: Aïda M. Alaka, The Grammar Wars Come to Law School, 59 J. Legal Educ. 343 (2010). (Click here to go to a pdf copy.) Professor Alaka notes that “many, if not most, legal writing instructors have been surprised by the sometimes astounding lack of basic … Read More
The other day a law-firm partner who specializes in M&A called me to discuss the terms fraud and intentional misrepresentation. He noted that it’s commonplace for both terms to be used in specifying exceptions to limits on indemnification. Here’s the sort of provision he was referring to (I haven’t attempted to clean it up): Notwithstanding the above, the Basket and … Read More
The following is from this article by Drew Combs on the AmLaw Daily: Latham & Watkins and Manatt Phelps & Phillips are the targets of a malpractice lawsuit filed by ECC Capital Corp., which accuses the firms of botching a deal to sell its mortgage-origination business and a subprime-loan portfolio to Bear Stearns & Co. … In the suit–filed on … Read More
On the Law Technology News website is “The Law of Unintended E-Consequences,” an interesting article by Stanley P. Jaskiewicz, a member of the Philadelphia law firm of Spector Gadon & Rosen. It discusses how boilerplate that is easily skimmed over can end up acquiring unexpected significance. The article mentions me, but that’s not how it came to my attention. Honest.
This from reader Chris Lemens: This bugs me. I see a lot of nondisclosure agreements. A typical definition of the information protected by such an agreement includes a notion that the information is “confidential or proprietary.” The “proprietary” part just seems wrong to me. So what if the information is owned as property? A company’s website is owned as property, … Read More
Last week I was at West’s headquarters in Eagan, Minnesota, with a dozen or so journalists and bloggers, attending a series of presentations on WestlawNext, the next generation of Westlaw. After some five years of development, it’s being launched today. Others who were in Eagan with me have already offered their thoughts on WestlawNext. I now do so. And I … Read More
The following oddity from a reader: When is an amendment not an amendment? When it’s a separate agreement! From the introductory paragraph of a supplier’s attachment to another agreement: IMPLEMENTATION ASSISTANCE AMENDMENT NUMBER ONE TO BASIC LICENSE AGREEMENT NUMBER [redacted] CUSTOMER: [redacted] This Amendment, together with the terms and conditions contained int he Basic License Agreement, dated January ___, 2010 … Read More
