In an opinion published yesterday, the Ninth Circuit reversed much of the December 2008 ruling that gave Mattel the rights to MGA’s Bratz doll products. (Click here for the Bloomberg story; click here for the opinion.) This dispute holds little interest for me, but I did sniff out a contract-drafting side to the story. An important issue in the litigation was … Read More
I just had occasion to consider for the first time, while working on my M&A manuscript, some issues that arise when more than one party makes a set of representations. I’d be happy to hear what you think of the following analysis: When a set of representations is being made by more than one party, you can address that in … Read More
I just added the following to the manuscript of my forthcoming booklet “The Structure of M&A Contracts,” in the preface: But change is hampered by inertia. Deviating from standard language, no matter how defective, might spark debate, and debate creates delay and increases transaction costs. But inertia by itself isn’t a valid reason to reject change—if it were, the precedent-driven … Read More
I have one fix and one possible enhancement to report: The fix is that now, finally, clicking on one of the categories links on the right-hand side of the page will take you to a comprehensive listing. Previously, a glitch meant that some posts were omitted. And at the request of a reader, at the top of each post you’ll … Read More
This item at The Volokh Conspiracy noted that the “serial comma” has been appearing less and less frequently in the New York Times. At Legal Blog Watch, Eric Lipman pointed out that a Volokh commenter had suggested that the serial comma is important for clarity in contracts. Here’s the entire comment, posted by “Mark”: I think we should at least all … Read More
Following on my recent post on document-comparison etiquette, longtime reader Jim Brashear sent me the following: I’d be interested in reading others’ thoughts and comments on document filename conventions and etiquette. For example, one distributes a set of draft documents with filenames (descriptive or otherwise), and one receives back from various counterparties their edits in documents with completely different filenames … Read More
On Wednesday, July 14, the Law Department Management Committee of the Association of Corporate Counsel will be holding their monthly teleconference, and the featured speaker for the half-hour “Legal Quick Hit” portion is yours truly. It will be in the form of a Q&A with the esteemed David Munn, general counsel and director of customer operations at Pramata Corporation. But … Read More
I sporadically write about contract instances of lexical ambiguity, which arises when context is insufficient to allow one to determine the sense of a word that has more than one meaning. (See MSCD 6.5 and these three blog posts.) Well, here’s another one for you fans of lexical ambiguity: in this item over at Legal Blog Watch, Bruce Carton describes … Read More
I recently received the following message from a longtime reader: When you eventually revise MCSD to its third edition, could you consider adding an appendix that talks about redlining protocol? Here’s what routinely happens to me: I send the other side a draft marked using Microsoft Word’s “track changes” feature. Using that feature, they accept some of my changes, reject … Read More
In a phone call with a law-firm M&A partner today, I was reminded that sometimes M&A contracts reflect a deferred closing even though the parties actually do a simultanous signing and closing. If the signing and closing are simultaneous, the contract would usually contain deal provisions, representations, indemnification provisions (unless the target is public), and boilerplate, as well as any post-closing … Read More
