Recently I expressed to a group of patent lawyers my reluctance to use sole and exclusive in granting language to indicate that the licensor retains or doesn’t retain, respectively, the right to use the intellectual property. But on revisiting MSCD 13.606–10 and this 2012 post, I realized that I haven’t yet offered suitable alternatives. So here goes: In contracts on EDGAR, … Read More
[Updated 16 October 2021: In this 2019 post I consider a law review article that discusses this issue and reaches broadly the same conclusion I do.] [Updated 13 July 2015: In my original post, I proposed not bothering to say in a governing-law provision that the court is to consider just the substantive law of the jurisdiction in question, instead of using … Read More
Like many a teenager in olden times, I had my Beat Generation phase. As far as I can see, it had no demonstrable effect on my life. No Neal Cassady I! But one fragment has somehow stuck in my mind. Here’s what William Burroughs says in the introduction to Naked Lunch: The title means exactly what the words say: naked lunch, … Read More
[Updated 4 April 2018: I’m no longer an advisor to LexCheck (formerly Lit IQ), and the last time I did any work for them was in 2016.] At LegalTech West on Tuesday, July 14, during the session starting 1:30 p.m. PDT entitled “Legal Disruption Lightning Round Two,” Gurinder Sangha will make a five-minute presentation about Lit IQ. Let me tell … Read More
Consider these two alternatives: The laws of the State of Ohio govern … Ohio law governs … Any reason not to opt for the second alternative? It’s simpler, in that (1) Ohio acts as an adjective instead of forming part of a prepositional phrase and (2) it dispenses with State of. How about saying New York law governs? Could anyone plausibly … Read More
A couple of days ago I saw this @ronfriedmann tweet: .@LexPredict Agreement Database offers 400k groomed contracts http://t.co/D8WRnuemsa Interesting R&D + practical transaction resource — ronfriedmann (@ronfriedmann) June 30, 2015 So LexPredict enters the we’ve-got-lots-of-contracts space. Ron will of course guess my reaction, which is … lack of excitement. Yes, there are loads of contracts out there. Yes, we can … Read More
While in Seattle last week I had the opportunity to reconnect with Jessica Pearlman, a corporate partner in the Seattle office of K&L Gates. (We were on an ABA panel together many moons ago.) During our conversation, Jessica mentioned a recent case highlighting the perils of stating a number using words and digits. She later sent me a link to the case. It … Read More
Via D.C. Toedt, I learned of the Second Circuit’s decision in Lloyd v. J.P. Morgan Chase & Co. (here), decided yesterday. This case involved J.P. Morgan Chase & Co.’s appeal of a lower-court ruling denying their motion to compel arbitration. The Second Circuit affirmed, holding that the lower court had correctly read the arbitration agreement to incorporate the rules of the Financial Industry Regulatory Authority … Read More
I’ve written plenty about at its sole discretion over the years. The full discussion is at MSCD 3.168–96, but there’s also this 2011 article about a relevant California court opinion. Well, today I encountered the following in a contract: If the Company in its sole discretion agrees to such change, the Company shall … Previously I’ve written about at its sole … Read More
OK, so we now all know that the phrase represents and warrants is pointless and confusing. My recent article on the subject (here) establishes as much in excruciating detail. But I don’t recommend that you ask that the lawyers on the other side of a deal replace represents and warrants with states. The benefit of doing so would be more than outweighed … Read More
