In this comment to a recent post, longtime reader Chris Lemens mentions what he refers to as “no-contest” provisions. That sent me scurrying to the Bantar Gebang trash dump EDGAR, where I found the following examples (emphasis added): Each party hereto agrees and covenants that it will not contest the validity or enforceability of any exculpatory provision of this agreement … Read More
The phrase there can be no assurance that is mealy-mouthed securities verbiage that has made its way into contracts. Some examples (with emphasis added): There can be no assurance that Holders generally, or any Holder in particular, will be given the opportunity to receive elective distributions on the same terms and conditions as the holders of Shares. There can be … Read More
In this May 2014 post I wrote about a potential fight over an “and” in an indenture of Caesars Entertainment. Well, we now have an actual fight. For a summary of the current state of play, see this post on Language Log.
Consider the following: The User may monitor its Service account via the “Acme Portal,” which is available at www.acme.com/accounts. It’s phrased as language of discretion, but I don’t think that makes sense. Acme isn’t saying, “We’re allowing you to access your account in this manner.” Instead, the idea is that anyone who has an account can access it in that manner. … Read More
Consider this (emphasis added), recovered from the EDGAR tar pits: If … , Ultimus may terminate this Agreement upon 60 days’ prior written notice [to the Trust]. Although that formulation is standard, I suggest it doesn’t make sense. In that case, termination wouldn’t happen when Ultimus—let’s take a moment to appreciate that name—notifies whomever it is. Instead, it would happen 60 … Read More
I consult the cooking website Serious Eats quite often; I find it reliable, interesting, and innovative. The presiding genius is Kenji López-Alt, aka @TheFoodLab. He has a new book out, unsurprisingly also called The Food Lab; go here for the website. In true Christmas spirit, I purchased a copy for myself. I’ve only just started looking at it, but already something has … Read More
Today I saw the following tweet: If you want to be a deals lawyer, read at least one new contract every day of your 2d and 3d years of law school. 1,000 before passing bar. — Kyle E. Mitchell (@kemitchell) December 12, 2015 @kemitchell is one of the good guys, so I don’t think he’ll mind if I take issue with … Read More
The New York Law Journal has just published my article Reconsidering the Recital of Consideration. You won’t be surprised to hear that after reconsidering it, I remain of the view that recitals of consideration should be terminated with extreme prejudice. Go here for a PDF version; go here for the online version, although at some point it might end up behind a … Read More
The great Glenn West let me know about the Delaware Court of Chancery’s recent opinion in Prairie Capital III, LP v. Double E Holding Corp. (PDF here.) This dispute involved purchase of a business; the buyer alleged fraud on the part of officers of the target company. In his opinion, Vice Chancellor Laster dismissed the buyer’s fraud claims to the extent they … Read More
Today I spent some time considering section 365(n) of the U.S. Bankruptcy Code. If in bankruptcy the debtor or trustee rejects a license, under section 365(n) a licensee can elect to retain its rights to the licensed intellectual property. For more on that, see this post by Bob Eisenbach on his In the (Red) blog. (You might recall that Bob joined me … Read More
