Here’s yet another issue regarding the introductory clause that I haven’t previously written about: How, if at all, should you address in the introductory clause the fact that performance under the contract will be by a division of a company? You could ignore it. After all, the company will be on the hook, not the division, which isn’t a separate … Read More
As I mentioned previously, Alliance Data Systems and Blackstone Group are in litigation over Blackstone’s proposed acquisition of ADS. More specifically, ADS has filed a complaint alleging that Blackstone breached its obligations under the merger agreement by failing to use its “reasonable best efforts” to obtain the approval of the Office of the Comptroller of the Currency to transfer of … Read More
Quick—what’s the difference between promptly and immediately? I bet that what comes to mind is the notion that immediately requires speedier action that does promptly. Well, if that’s what you thought, you’re in good company. For example, the District Court for the Southern District of New York has said that promptly doesn’t mean immediately, but rather within a reasonable time. … Read More
This post on use of all capitals in contracts—it’s from Legal Frontier, Andrew Mitton’s blog—reminded me of a question that I’ve asked myself occasionally. The Legal Frontier post is about how use of all capitals makes contract text harder to read. That wouldn’t come as a surprise to anyone who pays the slightest attention to typography, but it bears repeating, … Read More
A few months ago someone at a public company mentioned to me that her department was about to embark on a redraft of their templates. I was familiar with the subject matter, so I knew that the templates must be complex. I recently checked in with her to see how the process was going. In her reply, she mentioned in … Read More
If anyone is wondering why I’ve been devoting time to efforts standards, have a look at this post on DealBook by Steven Davidoff regarding a development in Blackstone Group’s proposed acquisition of Alliance Data Systems. For reasons I discuss in MSCD, in this article, and in last week’s blog post, it would be bizarre for a court to hold that … Read More
I suspect that the one usage that causes me most aggravation is best efforts. That’s because the way I see it is diametrically opposed to the way many practitioners see it. I think the problem is that people approach it as an issue to be resolved by case law, whereas I see it first of all as a matter of … Read More
Sidestepping a contentious contract issue with the notion of working it out in litigation is a standard strategy, but you don’t often find examples of it in the wild. That’s why I noted with interest oral argument before the Supreme Court on January 16 in Quanta v. LG, as case dealing with patent exhaustion. (Click here for the transcript.) I’m … Read More
One sure route to a stiff, starchy prose style is not to use contractions. They’re suitable in all but the most formal kinds of writing, and they help you achieve a more natural, conversational rhythm. For some reason that I’ve since repressed, I didn’t use contractions in MSCD. So for the second edition, I’m now adding them in wherever I … Read More
Have you thought to yourself, as you flipped through A Manual of Style for Contract Drafting, that I’d failed to address adequately, or at all, some issue that’s dear to your heart? Do you have a beef with any of my recommendations? Do you not like the binding? The cover? The font? If so, now’s the time to speak up, … Read More
