The May 2008 issue of The Business Lawyer contains a great article by Glenn D. West and Sara G. Duran of Weil Gotshal entitled “Reassessing the ‘Consequences’ of Consequential Damage Waivers in Acquisition Agreements.” Click here for a copy. Here’s the abstract: Consequential damage waivers are a frequent part of merger and acquisition agreements involving private company targets. Although these … Read More
I have a soft spot for nondisclosure agreements, or NDAs (also known as confidentiality agreements): They’re relatively short and straightforward, yet they’re subtle enough that drafters routinely screw them up. And they’re commonplace; in fact, they’re something of a nuisance—the cockroach of the contract-drafting world. These characteristics mean that they’re the obvious guinea pig for anyone contemplating innovation in contract … Read More
A common feature of M&A contracts is the “earnout” provision—a provision that specifies that the purchase price will be increased if the business being acquired meets, post-closing, stated financial-performance targets. If you’re interested in earnout provisions, of if you’d just like to see yet one more example of how lackadaisical drafting can result in litigation, you might want to check out … Read More
Thanks to the litigation in Lawler Mfg. v. Bradley Corp., recently I discovered the nuances of such as. That led me to write about such as in this post. Yesterday I received a message from Wayne Turner, a litigation partner in the downtown Indianapolis office of Bingham McHale. I enjoyed Wayne’s message, and I thought you might too, if you … Read More
Publication of the second edition of A Manual of Style for Contract Drafting is fast approaching. One sign is that a page for the book is now up on the ABA’s Web Store. (For the first six months, it will be available only through the ABA.) Check out the sharp new cover! Even more to the point, check out the … Read More
A reader recently asked me the following question: We frequently sign global services agreements that provide that the parent company is signing “for and on behalf” of an affiliate. What do you think of this practice? I’m uncertain about having a parent sign a contract on behalf of an affiliate. (In any event, the words “for and” are redundant.) Who … Read More
Here’s what Garner’s Modern American Usage has to say about anniversary: anniversary (= the day of the year on which an event occurred in a previous year) is today used informally to denote a milestone in months or even weeks. That usage has become increasingly common, perhaps because there is no convenient equivalent for terms shorter than a year (milestone … Read More
On July 17 I’ll be in Seattle giving my West Legalworks seminar. Afterwards, starting at 5:00 p.m., I’ll be meeting a few friends for drinks at the restaurant Sazerac, at 1101 Fourth Avenue, at the corner of Spring Street. It’s a few blocks from the Grand Hyatt, where the seminar is being held. If you’re in the area and have some … Read More
Maybe it’s sunspots. Or something in the water. At any rate, another second edition of a book related to contract drafting has just been published. This time it’s Charles Fox’s Working with Contracts: What Law School Doesn’t Teach You. (Click here to go to the Amazon page. Note that Amazon’s a little confused, in that the cover image on display is that … Read More
Normally I wouldn’t dream of going public with thoughts on writing in general. A vast number of people have busied themselves with that topic, so there’s no chance of my having anything novel to say. I regularly give thanks to the gods of writing that I’ve been given the near-virgin territory of contract drafting to explore. But I’ll tell you … Read More
