Who is best placed to make decisions about a company’s contracts? I don’t know; I guess it depends. How about the general counsel? After all, they should have the broadest perspective, and they should be able to think long-term: How much longer does each deal take because our contracts are wordy and confusing? What’s the risk of our exposing ourselves … Read More
Yesterday someone suggested to me that the main problem with contracts is that they’re too complicated. That’s consistent with the message of an article that appeared in Legaltech News this week, entitled Are Law Firms Too Sophisticated for Their Own Good? (here). It’s also consistent with a recommendation I’ve heard over the years: lawyers should take pity on those who … Read More
Recently I received the following from longtime reader Jeff Wheeler: Here’s a little timewaster of an article that nonetheless got me pondering a drafting question: http://lifehacker.com/lets-end-the-gif-jif-pronunciation-debate-right-now-1796419121. After pondering the relevance of weightier debates to this one, the author seems to conclude there’s no objectively correct answer or superior argument to be made for one pronunciation versus the other, and advises that … Read More
I bring you glad tidings of a new post by Glenn West on Weil’s Global Private Equity Watch blog. It’s entitled On Naval Ramming Bows and Contractual Boilerplate—Are Standard “No Third-Party Beneficiary” Clauses Always a Good Thing? To whet your appetite, I present you the key bits: Glenn reminds us of the limited utility of no-third-party-beneficiary provisions: While most contracts contain … Read More
[Updated 2 Jan. 2022: For a court that disagrees with Reyes as it applies to the TCPA, see Ammons v. Ally Financial, Inc., 326 F. Supp. 3d 578, 595 (M.D. Tenn. 2018).] Thanks to this post by Eric Troutman on Dorsey’s Consumer Financial Services Update, I learned about Reyes v. Lincoln Automotive Financial Services, No. 16-2104-CV, 2017 WL 2675363 (2d Cir. June 22, … Read More
In this post I mention that I troubleshoot company templates. I’ll now explain why that service that has value. Contract-drafting is long and life is short, particularly if decisions regarding contract drafting are left to the individuals in an organization. You’re a fan of clear and modern contract language? That’s great, but you have some obstacles to overcome before you … Read More
I have a fantasy. Let me tell you about that fantasy. Don’t worry, it’s nothing lurid. In my fantasy, a company adopts a detailed set of guidelines for contract language. Those guidelines apply to every contract, regardless of what part of the company is responsible for it. They’re not namby-pamby, we-think-this-would-be-a-good-idea guidelines: if you want to keep drafting, reviewing, and … Read More
This is from an intercompany services agreement dated 3 July 2017 between General Electric Company and Baker Hughes that I happened upon in the SEC’s EDGAR system (PDF here): SECTION 10.16 Integrity. Each Party covenants that it is committed to unyielding integrity and will act in a manner consistent with the GE Integrity Guide for Suppliers, Contractors and Consultants, a … Read More
Recently I sent a consulting client a short explanation of how I handle statements of fact. Here it is, in case it’s of interest: I thought you might find it helpful if I summarized how I treat statements of fact. As a general matter, incorrect statements of fact give rise to a remedy. If the idea is that an incorrect … Read More
I figured that rather than just speaking generally about dysfunctional contract templates, it might be helpful if I give you a sense of the different kinds of dysfunction I see. So I’ve co-opted the “defense readiness condition,” or “DEFCON,” alert state used by the U.S. armed forces. It prescribes five graduated levels of readiness (or states of alert) for the U.S. … Read More
