“Efforts” + “Endeavor” = WTF
I’ve seen more than my fair share of unfortunate drafting, but my work for LegalSifter has exposed me to a whole new level of stoopid. This post is on the LegalSifter blog. Go here to read the rest.
Eliminating Unforeseeability as a Requirement in Force Majeure Provisions
A reader introduced me to a recent opinion of the Texas Court of Appeals in TEC Olmos, LLC v. ConocoPhillips Co., No. 01-16-00579-CV, 2018 WL 2437449, (Tex. App. 31 May 2018) (PDF here). It raises an interesting issue relating to force majeure provisions, one that has featured in other opinions. Rather than summarize the facts and the proceedings, I’ll cut … Read More
Why It Matters That I’ve Spotted Another “Efforts” Verb
Various verbs are used in efforts provisions. MSCD lists make, exercise, exert, expend, undertake, and use. Well, I’ve just spotted another one: exhaust. If you want to know why I bother paying attention to such oddities, stick around to the end of this post. But first, let’s explore exhaust. … Because this post relates to my work as advisor for LegalSifter, the AI document-review … Read More
Don’t Use a “Can Reasonably Demonstrate” Standard
Consider the following provision, which I encountered by chance: Confidential Information will not include information that the Recipient can reasonably demonstrate … was rightfully known by it or its Affiliates prior to the date it was disclosed by the Discloser. No, we’re not going to get into nuances of confidentiality agreements. Instead, this post is about the notion of a … Read More
“Compensation” Versus “Remuneration”
Today I tweeted the following: I suggest that we can consign "remuneration" (and "remunerate") to the scrapheap, use "compensation" (and "compensate") instead. — Ken Adams (@AdamsDrafting) December 20, 2017 It prompted the following tweet from the redoubtable @IPDraughts: No, no, no. Compensation is what you get when you are injured by an industrial accident. Pay is what you get from … Read More
Choosing Between Alternative Usages
Recently I received the following from longtime reader Jeff Wheeler: Here’s a little timewaster of an article that nonetheless got me pondering a drafting question: http://lifehacker.com/lets-end-the-gif-jif-pronunciation-debate-right-now-1796419121. After pondering the relevance of weightier debates to this one, the author seems to conclude there’s no objectively correct answer or superior argument to be made for one pronunciation versus the other, and advises that … Read More
“Irrevocably Consents”
[Updated 2 Jan. 2022: For a court that disagrees with Reyes as it applies to the TCPA, see Ammons v. Ally Financial, Inc., 326 F. Supp. 3d 578, 595 (M.D. Tenn. 2018).] Thanks to this post by Eric Troutman on Dorsey’s Consumer Financial Services Update, I learned about Reyes v. Lincoln Automotive Financial Services, No. 16-2104-CV, 2017 WL 2675363 (2d Cir. June 22, … Read More
“Excluding Without Limitation”
A reader asked me about excluding without limitation. Yes, it’s a thing, unfortunately, or at least enough of a thing to prompt me to look into it. It occurs in 55 contracts filed on the SEC’s EDGAR system in the past year. I’ve included at the bottom of this post extracts from some of those contracts. I don’t understand excluding … Read More
A Diagram of the Mix-and-Match “Efforts” Universe
It’s another wild night chez Adams. As you might have figured out, I’m reassessing the whole efforts thing. I just banged out the chart above, as a way of showing the main permutations of efforts provisions. It’s a wild world of efforts. The chart doesn’t even cover it all, as you can have the modifier following efforts, as in efforts in … Read More
Distinguishing Between Different “Efforts” Standards Makes No Sense
In this post yesterday I offered a limited critique of Chief Justice Strine’s dissent in Williams Companies, Inc. v. Energy Transfer Equity, L.P. But one benefit of having a traditionalist contract-drafting notion rear its head periodically is that it forces me to keep refining my arguments. So in this post I explain in greater detail why it makes no sense to suggest that … Read More