In this May 2014 post I wrote about a potential fight over an “and” in an indenture of Caesars Entertainment. Well, we now have an actual fight. For a summary of the current state of play, see this post on Language Log.
Consider the following: The User may monitor its Service account via the “Acme Portal,” which is available at www.acme.com/accounts. It’s phrased as language of discretion, but I don’t think that makes sense. Acme isn’t saying, “We’re allowing you to access your account in this manner.” Instead, the idea is that anyone who has an account can access it in that manner. … Read More
Consider this (emphasis added), recovered from the EDGAR tar pits: If … , Ultimus may terminate this Agreement upon 60 days’ prior written notice [to the Trust]. Although that formulation is standard, I suggest it doesn’t make sense. In that case, termination wouldn’t happen when Ultimus—let’s take a moment to appreciate that name—notifies whomever it is. Instead, it would happen 60 … Read More
I consult the cooking website Serious Eats quite often; I find it reliable, interesting, and innovative. The presiding genius is Kenji López-Alt, aka @TheFoodLab. He has a new book out, unsurprisingly also called The Food Lab; go here for the website. In true Christmas spirit, I purchased a copy for myself. I’ve only just started looking at it, but already something has … Read More
Today I saw the following tweet: If you want to be a deals lawyer, read at least one new contract every day of your 2d and 3d years of law school. 1,000 before passing bar. — Kyle E. Mitchell (@kemitchell) December 12, 2015 @kemitchell is one of the good guys, so I don’t think he’ll mind if I take issue with … Read More
The New York Law Journal has just published my article Reconsidering the Recital of Consideration. You won’t be surprised to hear that after reconsidering it, I remain of the view that recitals of consideration should be terminated with extreme prejudice. Go here for a PDF version; go here for the online version, although at some point it might end up behind a … Read More
Today I spent some time considering section 365(n) of the U.S. Bankruptcy Code. If in bankruptcy the debtor or trustee rejects a license, under section 365(n) a licensee can elect to retain its rights to the licensed intellectual property. For more on that, see this post by Bob Eisenbach on his In the (Red) blog. (You might recall that Bob joined me … Read More
Updated: For information about my 2016 Geneva seminars, go here. To register, go here. *** I’m pleased to announce that after a year’s absence, on Tuesday, 5 April 2016 and Thursday, 7 April 2016 I’ll once more be giving “Drafting Clearer Contracts” seminars in Geneva, Switzerland. My hosts will be the Geneva office of Orrick, Herrington & Sutcliffe LLP—an unfamiliar name … Read More
The Law Society Gazette—a publication of the Law Society of England and Wales—has published my conversation with Mark Anderson, aka @IPDraughts. No, wait—Mark’s conversation with me. Whatever. It’s called Adams v Anderson on contract drafting; go here for a PDF and go here for the posh online version of the entire issue of the magazine (it’s on pages 20 and 21). … Read More
Well, I guess it’s language of performance’s turn in the spotlight, since this is my third post on the subject today. Below is a sentence from EDGAR that uses language of performance to appoint an agent. It’s following by a version using language of obligation. The Fund hereby appoints the Agent as its “Investor Servicing Agent” on the terms and … Read More
