This morning I saw the following tweet by @section_sign: https://twitter.com/section_sign/status/609300513239085058 No, I haven’t suddenly acquired an active interest in the politics of bicycling. Instead, I spotted ambiguity. Here’s a sentence from a benefit plan that exhibits the same ambiguity: If every member of the Committee does not meet the definition of “outside director” as defined in Code (S)162(m), … That conveys two … Read More
Longtime readers will know that I have no time for the notion of “tested” contract language—instead of continuing to use confusing contract language because a court has had occasion to attribute meaning to it, I prefer to state meaning clearly. So instead of relying on caselaw to tell me how to draft contracts, I find caselaw mostly useful for the … Read More
What, you want another example of a court mishandling its analysis of potential ambiguity? My SuperGuide post (here) wasn’t enough for you? OK, if you insist … Reader Zach Courson alerted me to a recent opinion of the North Carolina Business Court, Medfusion, Inc. v. Allscripts Healthcare Solutions, Inc., No. 14 CVS 5192, 2015 WL 1455680 (N.C. Super. Mar. 31, 2015) (PDF copy here). … Read More
I got another tip from a participant at the recent “Drafting Clearer Contracts” seminar in Houston, although I didn’t have the wit to note his name. He suggested that I check out the 2004 opinion in SuperGuide Corp. v. DirecTV Enterprises, Inc., by then Circuit Judge (now Chief Circuit Judge) Sharon Prost of the United States Court of Appeals for the … Read More
[Updated December 9, 2014] One of the privileges of blogging is that it gives you the opportunity to talk utter BS without doing much damage. A case in point is this post, originally published on August 4, 2014. To recap, the issue was whether one of the two following alternatives was preferable to the other: Acme shall not sell the Shares unless … Read More
I was vaguely aware of news accounts of the contract travails of Jimmy Graham, a player for the American football team the New Orleans Saints. But it was only after reading this post by Megan E. Boyd (aka @LadyLegalWriter) on her blog Lady (Legal) Writer (after being told about it by Steven Sholk) did I realize that it fell within … Read More
Consider the following: If I don’t go to the movies because of your nagging … It conveys two possible meanings: If your nagging causes me not to go to the movies … If I go to the movies for one or more reasons other than your nagging … I encounter this sporadically in my general writing, but I don’t recall … Read More
Ah, what would life be without disputes over and and or! Here’s a fresh one (thanks to cousin Joshua Stein for alerting me) that arose in connection with a series of transactions that freed Caesars Entertainment from having to guarantee a portion of the $18 billion of debt of its subsidiary Caesars Entertainment Operating Co. As a result, investors lost something like $450 million on … Read More
I noticed a recent case out of the U.S. District Court for the Eastern District of Wisconsin, Redmond v. Sirius International Insurance Corporation (here). The language at issue used and/or. Here’s what the court had to say: The plaintiff contends that the court must reconsider its denial of his motion for summary judgment because the use of “and/or” in the policy … Read More
Thanks to this post on Peter A. Mahler’s New York Business Divorce blog, I learned that in a recent opinion of the New York Supreme Court (despite the name, a lower court), a judge considered the implications of either … or. I wasn’t about to let that pass without chiming in—regular readers will know that I have a thing about … Read More
