In RAA Management, LLC v. Savage Sports Holdings, Inc. (decided May 18, 2012; copy here), the Delaware Supreme Court held that no-reliance language included in a confidentiality agreement can serve to defeat claims for fraud brought by the recipient of confidential information. For more on this, go here for Francis Pileggi’s analysis and go here for Weil Gotshal’s analysis. I’m happy … Read More
Earlier this week I received the following message and photo from Karen Belair, of Union Pacific Railroad’s law department: I just wanted follow up and let you know what an indelible impression you left on our department since the Drafting Clearer Contracts seminar at Union Pacific last fall. If nothing else, you have made many of us stop and think … Read More
I thought that after my recent post on using states instead of represents and warrants (here) I’d feel at peace. But it was not to be. Instead, I felt a yearning, that something was missing. And I knew what I had to do. I set off on my quest, and in the Karakoram, on a ledge high on Gasherbrum IV, I … Read More
In this recent post I discussed my overuse of any. I’d now like to suggest one possible reason for overuse of any. Consider the following: a tax imposed by a government authority a tax imposed by any government authority I suspect that some drafters think that using any in the second example would ensure that the provision couldn’t be read … Read More
Someone steered me to this post on the California Corporate & Securities Law blog. It’s about a recent California case on the meaning of best efforts. The court held—shock horror probe!—that best efforts is subject to a reasonableness standard, leading my informant to suggest that the court agrees with my views on this subject. I’m delighted to receive tips of … Read More
In case you’re still mulling over my post on using states instead of represents and warrants (here), allow me to try to put in a broader context what makes represents and warrants irrelevant for purposes of statements of fact in a contract. After putting it off for, oh, ten years, we finally had a lawn sprinkler system installed. An important component … Read More
Parts of the Uniform Commercial Code require that text be “conspicuous.” For example, section 2-316(2) states that a disclaimer of the implied warranty of merchantability must be conspicuous. Although section 1-201(10) of the UCC specifies that “language in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type or color,” the UCC doesn’t say … Read More
[Updated 5 January 2016: Go here for my 2015 article on this topic under U.S. and English law; go here for my shorter 2015 article on this topic under U.S. law.] [Revised 11:00 p.m. EDT, May 23, 2012, to add that you should say “states the following facts.” Further revised 8:30 a.m. EDT, May 24, 2012, to change it to … Read More
An eagle-eyed reader who is aware of my long-standing interest in the phrase represents and warrants told me about a 2008 opinion of the Arizona U.S. District Court, Aspect Systems, Inc. v. Lam Research Corp. (Go here for a PDF copy.) Here’s the bit that the caught my reader’s eye: Neither Aspect nor Lam has proved the absence of a … Read More
Steven Sholk, that bloodhound, let me know about an article in the current issue of the Journal of Legal Education. It’s by Robert C. Illig, associate professor at the University of Oregon School of Law, and it’s entitled A Business Lawyer’s Bibliography: Books Every Dealmaker Should Read. (Go here for a PDF copy.) Here’s its stated purpose: This article briefly surveys … Read More
