Last week Glenn West—this Glenn West—told me about Pivotal Payments Direct Corp. v. Planet Payment, Inc., No. CVN15C02059 EMD CCLD, 2015 WL 9595285 (Del. Super. Dec. 29, 2015) (PDF here). It involves representations. And warranties. He expected that I would freak. I can see him cackling and rubbing his hands together. Anyone who has read this blog for a while knows that those terms can get … Read More
I noted with interest this post on ContractsProf Blog by @StaceyLantagne. It’s about one of the lawsuits prompted by the ruling that Apple had engaged in anticompetitive price-fixing in ebooks. The opinion is DNAML Pty, Ltd. v. Apple Inc., No. 13CV6516 (DLC), 2015 WL 9077075 (S.D.N.Y. Dec. 16, 2015) (PDF here). In it, the court held that the plaintiff lacked the standing to … Read More
Linguistics nerdiness follows. Don’t say I didn’t warn you. Consider the following, at MSCD 13.551–.52: Black’s Law Dictionary defines reasonable as follows: “Fair, proper, or moderate under the circumstances.” So determining whether someone has acted reasonably requires an objective inquiry—you consider the circumstances, not the actor’s intent. That’s the meaning of reasonable as it’s used in, for example, a reasonable fee and in … Read More
I did my first series of “Drafting Clearer Contracts” webcasts way back in 2009. At long last, with the help of my partner in Canada, Osgoode Professional Development, I’ve created a new series. It consists of five segments, each a little over an hour long (well, the fifth segment is around 1.5 hours). Each segment will be launched with a “live” … Read More
You like fights over indemnification language? OK, here’s a reliable source of disputes: whether an indemnification provision covers just nonparty claims or whether it also covers claims between the parties. I wrote about that in this 2011 post, but given the perils of copying and pasting dysfunctional contract language, you can expect that sort of dispute to crop up in … Read More
In this comment to a recent post, longtime reader Chris Lemens mentions what he refers to as “no-contest” provisions. That sent me scurrying to the Bantar Gebang trash dump EDGAR, where I found the following examples (emphasis added): Each party hereto agrees and covenants that it will not contest the validity or enforceability of any exculpatory provision of this agreement … Read More
The phrase there can be no assurance that is mealy-mouthed securities verbiage that has made its way into contracts. Some examples (with emphasis added): There can be no assurance that Holders generally, or any Holder in particular, will be given the opportunity to receive elective distributions on the same terms and conditions as the holders of Shares. There can be … Read More
In this May 2014 post I wrote about a potential fight over an “and” in an indenture of Caesars Entertainment. Well, we now have an actual fight. For a summary of the current state of play, see this post on Language Log.
Consider the following: The User may monitor its Service account via the “Acme Portal,” which is available at www.acme.com/accounts. It’s phrased as language of discretion, but I don’t think that makes sense. Acme isn’t saying, “We’re allowing you to access your account in this manner.” Instead, the idea is that anyone who has an account can access it in that manner. … Read More
Consider this (emphasis added), recovered from the EDGAR tar pits: If … , Ultimus may terminate this Agreement upon 60 days’ prior written notice [to the Trust]. Although that formulation is standard, I suggest it doesn’t make sense. In that case, termination wouldn’t happen when Ultimus—let’s take a moment to appreciate that name—notifies whomever it is. Instead, it would happen 60 … Read More
