I recently mentioned in this post that my works were cited liberally in the Delaware Chancery Court’s high-profile opinion in Akorn, Inc. v. Fresenius Kabi AG (PDF here). I’ve now had occasion to look through the opinion; here are some thoughts. They reflect my interests: you can find no end of commentary if instead you’re interested in the broader implications of … Read More
In this recent post (now extensively revised) I consider two standard exceptions to the definition of Confidential Information and propose what I’d do instead. Now we’ll look at another exception, the one relating to public information. With this exception, the question is how exactly to phrase it. The Kind of Information Let’s look at the different components of the exception, starting … Read More
Ah, you never know what you’re going to dredge up from the murky depths of Edgar! As regular readers will know, two recommendations I make in MSCD tend to cause brains to implode. One of those recommendations is that you dispense with using this agreement as a defined term. (The other recommendation is that you use states instead of represents and … Read More
[Substantially revised 29 October 2018] I’ve had occasion to revisit something I explored a while ago. Here’s a relatively standard set of exceptions to the definition of Confidential Information, with my shorthand term for each exception noted in brackets: at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a … Read More
At one of my recent Asia seminars, someone asked me about the practice of making a contract between fewer than all the listed parties, presumably when some drop out. I haven’t encountered that. I would have thought you simply revise the contract to eliminate those who are dropping out, instead of manually striking their signature blocks and any other references … Read More
Behold the following introductory clause: AMENDMENT, dated as of October 10, 2018, to the ISDA Master Agreement , dated as of July 12, 2017 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), between JPMORGAN CHASE BANK, N.A. (“Party A”) and CAMBRIDGE MASTER FUND L.P. (“Party B”). Note the defined terms Party A and Party B. They’re a … Read More
You all know how I earn a living, but it’s a sideshow to my real passion, the time my contracts buddies and I spend in an immersive contracts virtual reality. There you might find, for example, @IPDraughts playing Hadley, @AlexHamiltonRad playing Baxendale, and me playing the crucial role of “another,” Hadley’s partner. It all takes weeks to unfold, and the … Read More
Go here for the second in my “City of Contracts” podcasts, with Preston Clark, co-founder of LawInsider, a wildly popular contracts research database. For my first podcast, a conversation with Michael Woronoff of Proskauer, go here.
A reader told me about this Butler & Snow newsletter on the opinion of the Sixth Circuit Court of Appeals in Dark Horse Express, LLC v. Lancer Insurance Co., 733 F. App’x 826 (6th Cir. 2018) (PDF here). At issue is how the word legally relates to contracts. In 2014, Dark Horse contracted to transport $250,000 of meat for the … Read More
I recently had a random Edgar encounter with the following set of internal rules of interpretation: Welcome to the suck: the first, second, third, and fifth are hopeless. And dig that crazy period-and-parentheses enumeration combo. But the fourth is what caught my eye. So the notices provision says that notices must be in writing to be effective, but elsewhere we’re … Read More
