[Updated 1:40 a.m. 21 February 2020 to expand the analysis to address additional text in the screenshot Warren tweeted.]
On 19 February, the Nation published this article by Ken Klippenstein about the Bloomberg campaign’s confidentiality agreement. The article contained this link to a copy of the confidentiality agreement. All I have to say about it is what I said on Twitter:
This NDA exhibits the standard dysfunction of traditional contract drafting, in terms of what it says, how it says it, and its layout. I'm shocked! Not. https://t.co/hO4bht3qyl
— Ken Adams (@AdamsDrafting) February 20, 2020
I have no interest in critiquing this sort of generic stuff. Life’s too short.
But this evening, during a CNN “town hall,” Elizabeth Warren brandished a “release and covenant not to sue” that she herself had written, seeing, as she says, that she used to teach contract law. The idea is that if Bloomberg signs it, it would have the effect of allowing anyone who had signed a confidentiality with Bloomberg or his campaign to speak freely. She read out the relevant language. This tweet contains the relevant clip:
— BoldProgressives.org (@BoldProgressive) February 21, 2020
She also posted a screenshot on Twitter:
Seeing as I analyze contract language for a living (go here for more about me), I thought would be interesting to look at Warren’s proposed language, with the real draw being that she apparently wrote it herself. Here are my thoughts, such as they are:
- I’d use the title RELEASE. The word covenant is old-fashioned and redolent of the Old Testament and Raiders of the Lost Ark. If you want to keep the “not to sue” part, I’d use the word undertaking.
- Why bold the title? Why underline it? That’s overkill: all caps is enough.
- It’s a bad idea to include subsidiaries and affiliates in the definition of the defined term for the company. Because the subsidiaries and affiliates aren’t party to the release and so wouldn’t be bound by any of its provisions, including them in the definition just confuses matters. See my book A Manual of Style for Contract Drafting (MSCD) ¶¶ 2.54, 2.95 (4th ed. 2017).
- In the defined-term parenthetical creating the defined term the Company, putting the definite article the within the quotation marks is unorthodox.
- It’s awkward to have two instances of language of performance using the verb release (the first one in the opening paragraph, the second in paragraph No. 2). To fix that, I’d turn paragraph No. 1 into a recital saying what Bloomberg and the company want the release to accomplish, and I’d have the next paragraph begin “Bloomberg and the Company therefore release ….”
- In the reference in paragraph No. 1 to “this Release and Covenant Not to Sue,” the initial capitals are unnecessary. See MSCD ¶ 2.20. In paragraph No. 2, it’s referred to more sensibly as “this release.”
- The wording of paragraph No. 1 (“come forth and speak out … without fear of recourse” is awkwardly legalistic).
- In paragraph No. 2, the phrase any and all is legalistic; just say all.
- One doesn’t release obligations; one releases people from obligations.
- In the phrase including, but not limited to, the but not limited to part is redundant, for reasons explained in this 2017 article. More to the point, in this context including examples serves no purpose, because “any agreement” means exactly that, so necessarily the stated kinds of contracts fall within the class, even without saying so.
- Using and/or is awkward. I’d say “between one or both of Bloomberg and the Company.”
- I’d use prohibit instead of preclude. People aren’t precluded from speaking out, but doing so might result in a claim against them.
- The word himself is unnecessary.
- I’d revise the final sentence to eliminate the word now—it inappropriately suggests that the release speaks at one moment in time. I might say something like from the signing of this release.
So there’s room for improvement, which isn’t surprising: teaching contract law has little to do with effective contract drafting. But taking into account that traditional contract drafting is profoundly dysfunctional, this draft is OK. To have addressed the points I make above, it would have had to have been written by a contract-drafting specialist, and there aren’t many of us. And it looks really good compared with the dumpster fire that is Trump’s contract with Stormy Daniels (go here for my analysis of that).
Can you think of any substantive issues raised by this proposed language? I can think of two. First, given that I’d want the defined term the Company to refer just to Bloomberg L.P., I’d want to have the release also signed by any other Bloomberg entities that signed contracts prohibiting disclosure, and I’d want to include a statement of fact that no other Bloomberg entities signed any such contracts. And I’d say that all counterparties to contracts falling within the scope of the release are third-party beneficiaries to the release.