Barbed-Wire Steel-Cage Match: “In Accordance With” Versus “Under”

In this recent post, I considered as stated in as an alternative to in accordance with and found it wanting. But in this comment, A. Wright Burke proposed that under “is the better choice.” So he has thrown down the gauntlet; I accept the challenge, at the risk of having to run the gantlet.

Below are eight instances of in accordance with that I culled at random from the great compost heap that is the SEC’s EDGAR system. Readers, what do you think of replacing in accordance with with under in each of these examples? Does it work in all? Some? None? I’ll wade in after you’ve had your say. Bear in mind two things noted by Wright in his comment: These examples could do with being given a good scrubbing, but that’s not the point of this exercise. And saying which you prefer won’t advance the cause much unless you’re able to explain why.

  1. “Alternative Currency” means each of Sterling, Canadian Dollars, Euro, Australian Dollars and each other currency (other than Dollars) that is approved in accordance with Section 1.06.
  2. … as may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.
  3. … the capitalized amount thereof that would appear as indebtedness on a balance sheet of such Person prepared as of such date in accordance with GAAP.
  4. “Bid Solicitation Agent” means the Company or the Person appointed by the Company to solicit bids for the Trading Price of the Notes in accordance with Section 14.01(b)(i).
  5. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Notes, and the Trustee in accordance with such Company Order shall authenticate and deliver such Notes, without any further action by the Company hereunder.
  6. The Company may appoint one or more co-Note Registrars in accordance with Section 4.02.
  7. … all obligations of the Seller under the terms and conditions of the Permits listed in Schedule 1.01(a)(x) to be assigned to the Purchaser in accordance with Section 1.01(a), to the extent that such obligations relate to and are required to be performed during periods after the Closing;  …
  8. The parties agree that the Final Purchase Price (adjusted to reflect the “purchase price” for U.S. federal, state and local tax purposes) shall be allocated among the Assets in accordance with an allocation prepared in compliance with Section 1060 of the Code and the Treasury regulations promulgated thereunder (the “Allocation”).

Incidentally, note use of in compliance with in the last example. A unnecessary variant, methinks.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.