A cautious drafter would be advised to include in a comprehensive forum-selection provision elements that might seem redundant. Here’s why: An agreement could provide for either permissive (also know as non-exclusive) jurisdiction or mandatory (also know as exclusive) jurisdiction. The following language provides for permissive jurisdiction: Any party commencing against the other party any legal proceeding (including any tort claim) … Read More
I’ll be in Chicago October 28–31, attending the annual meeting of the ACC (the Association of Corporate Counsel). And I’ll be attending as part of the DealBuilder team. DealBuilder is the leading logic-based document-assembly software. It’s developed by Business Integrity, a company with an impressive roster of clients. I’ve long said that only by embracing document assembly will major organizations … Read More
Today’s issue of the New York Law Journal contains my article “Making Sense of ‘Shall.’” Click here to go to the PDF reprint. And click here to access it for free—at least for the time being—on the NYLJ’s website. My thanks to those who were kind enough to review drafts of this article. The topic of shall came up during … Read More
Last year I drafted the following introductory clause to a merger agreement: This merger agreement is dated March 23, 2006, and is between DARIUS TECHNOLOGIES, INC., a California corporation (“Parent”), SWORDFISH ACQUISITION, INC., a California corporation and a wholly-owned subsidiary of Parent (“Sub”), TROMBONE SOFTWARE, INC., a Delaware corporation (“Target”), and the stockholders of Target, namely XYLER XAVIER, an individual … Read More
You’ve been very kind to tolerate my vendetta against best efforts, or more specifically against the notion that a best efforts obligation requires a greater effort than a reasonable efforts obligation. But I’m not done yet. The foundation of my argument is the notion that the best in best efforts constitutes rhetorical emphasis. I discuss that in this post. And … Read More
Last week, 260 contracts filed on the SEC’s EDGAR system include one or more references to 50%. By contrast, only 85 used the word half, and mostly in contexts where one couldn’t have used 50%, as in references to “half-time basis” and “seven and one-half percent.” I prefer half over 50%. Saying “50% of the shares” rather than “half the … Read More
Way back in this August 2006 post I described how select information is often pulled out of the body of a commercial contract and placed at the top. In my post I expressed reservations about this practice, but the commenters set me straight. I referred to this practice as “the box,” given that the abstracted information is often presented in … Read More
A few weeks ago David Munn of Fair Isaac Corporation sent me the following email: Your email below reminded me of a pet peeve of mine that I don’t believe you’ve written about. You wrote “My class runs from 4:30PM to 6:30PM EST.” Your usage is correct because you are referring to a time in November. However, I’m seeing more … Read More
In this March 2007 post I discussed language to use, and language not to use, when making an ancillary document—including a web page—part of a contract without physically attaching it. (I subsequently invented the term “virtual attachment” to describe any such ancillary document.) What prompted that post was a case that held that saying that the contract at issue was … Read More
One of the consequences of my having written articles on “material adverse change” provisions is that I get calls from reporters asking for insightful observations about any MAC dispute that makes the news. This time, it’s the lawsuit filed by Sallie Mae against a buyout group led by J.C. Flowers. Click here to see the WSJ Law Blog’s item on … Read More
