In the past year, 265 contracts filed as “material contracts” on the SEC’s EDGAR database contained a provision stating that the recitals were true and accurate. Here’s an example: The above recitals are hereby made a part of this Agreement and the Borrower acknowledges and agrees that each of the recitals is true and correct. That’s not an enormous number … Read More
Kevin O’Keefe’s Real Lawyers Have Blogs has posted a Q&A with yours truly. Click here to go to it.
I received the following from reader Nigel Madeley, of the U.K. law firm Addleshaw Goddard: Ken, I know this one raises your blood pressure a little. A case about nuisance by vibration—an adjoining occupier sought an injunction against a developer. The injunction was awarded. The developer had to keep to agreed vibration limits; if it exceeded them, it had the … Read More
Avoid the prefixes bi- and semi- for purposes of references to time—they’re confusing. Bimonthly means “every two months” and semimonthly means “every half-month,” in other words “twice a month.” Biweekly and semiweekly reflect the same distinction. But biannual and semiannual both mean “occurring twice a year,” whereas biennial means “occurring once every two years.” So if someone is under an … Read More
What’s wrong with this picture: “Subsidiary” includes only any company in which the applicable entity, directly or indirectly, has a beneficial ownership interest of greater than 50 percent. Well, includes only equates to means— what includes gives, only takes away. So use instead means.
Reader Steven Sholk of the Gibbons law firm alerted me to the February 6 decision by the Mississippi Supreme Court in Barbour v. Mississippi ex rel. Hood. Click here for a copy of the opinion. Steven had been alerted to this case by Rick Hasen of the Election Law blog. This case involves a squabble between the governor of Mississippi … Read More
Here’s yet another issue regarding the introductory clause that I haven’t previously written about: How, if at all, should you address in the introductory clause the fact that performance under the contract will be by a division of a company? You could ignore it. After all, the company will be on the hook, not the division, which isn’t a separate … Read More
A couple of days ago I received from a reader an email that included the following: I’ve got a question about the use of apostrophes in notice period provisions. I was rather surprised to see that section 8.96 of the MSCD includes apostrophes after the number of days/weeks/months in your example provisions. Shouldn’t such provisions simply refer to “days”, “weeks” … Read More
As I mentioned previously, Alliance Data Systems and Blackstone Group are in litigation over Blackstone’s proposed acquisition of ADS. More specifically, ADS has filed a complaint alleging that Blackstone breached its obligations under the merger agreement by failing to use its “reasonable best efforts” to obtain the approval of the Office of the Comptroller of the Currency to transfer of … Read More
Quick—what’s the difference between promptly and immediately? I bet that what comes to mind is the notion that immediately requires speedier action that does promptly. Well, if that’s what you thought, you’re in good company. For example, the District Court for the Southern District of New York has said that promptly doesn’t mean immediately, but rather within a reasonable time. … Read More
