[Updated 16 August 2020] I saw in a discussion on the LinkedIn “Contract and Commercial Management” group a reference to “leaving the law bit to the lawyers.” That got me wondering what, when it comes to deciding the terms of a deal and expressing it in a contract, “the law bit” might consist of. By my reckoning, the law bit … Read More
Through M&A Law Prof, I learned of a paper by John Coates, a professor at Harvard Law School, entitled Managing Disputes Through Contract: Evidence from M&A. It considers dispute-management provisions in a sample of 120 randomly chosen M&A contracts from 2007 and 2008. Here’s the abstract: An important set of contract terms manages potential disputes. In a detailed, hand-coded sample … Read More
As you probably know, Google and Motorola Mobility recently entered into a merger agreement providing for Google’s acquisition of Motorola. (Go here for a copy.) If you’re interested in the deal terms, there are plenty of other places you could look. Me, I’m interested in the drafting—more specifically, the language and structure of the merger agreement. So I’ve prepared an outline … Read More
I’m revising the guidance to Koncision’s confidentiality-agreement template to note that being bound by a confidentiality agreement might not preclude an employee from acting as a whistleblower and disclosing information that might otherwise be covered by the confidentiality agreement. In that regard, consider section 21F-17(a) of the Securities Exchange Act of 1934, which implements the Dodd-Frank Act’s securities whistleblower provisions. … Read More
In this post on the Conglomerate blog, Joan Heminway, professor at the University of Tennessee College of Law, offers a brief—and positive—assessment of The Structure of M&A Contracts. She does so after noting a dearth of texts that could be used to teach basic M&A concepts, and she says that my book “may well serve as a component piece of … Read More
A few weeks ago I was reminded of Swissblawg, the German-language blog dealing with—you guessed it—Swiss law, when it linked to some of my stuff. Because next month I’ll be giving my series of Geneva seminars [link no longer available], my thoughts are turning to things Swiss, so I figured it would be interesting to have a chat with a … Read More
You’d have thought that by now I’d be inured to how problematic contract drafting is at all levels of the legal profession, but I find myself continually amazed. So how should I respond? Constant kvetching can make me look like a crank. But saying nothing seems defeatist. So I’ve decided that what I’ll do is periodically dissect deficient drafting offered … Read More
I’m a big believer in the notion that until you name a phenomenon, you likely don’t understand it thoroughly. So I’ve given names to plenty of features of contract topography; I’ll be happy if half of them stick! In that spirit, my recently published book The Structure of M&A Contracts offers some new terminology. Now that the usual post-publishing dread … Read More
Much of the recent blogosphere discussion of stratification in the legal market has alluded to the “bet the farm” and “law factory” law-firm models. (Mad props to Ron Friedmann and Toby Brown for offering those terms in this post.) But the two models perhaps don’t represent as clear a dichotomy as you might think. For one thing, “bet the farm” suggests a … Read More
It’s time that I tidied up one loose end. In this recent post, I proposed indemnification language to include in a confidentiality agreement in order to say who is responsible for liabilities resulting from disclosure of confidential information by representatives of the recipient. I thought that the new language would make it clear that when bringing a claim for indemnification … Read More
