The Delaware Chancery Court recently issued Vice Chancellor Laster’s opinion in Akorn, Inc. v. Fresenius Kabi AG, C.A. No. 2018-0300-JTL (Del. Ch. 1 Oct. 2018) (PDF here). You can find plenty of information about this case elsewhere, including in this item on Reuters.
It will take some time to unpack what this opinion means for contract drafters. What caught my eye is that the court resisted, of course, the temptation to distinguish between different efforts provisions.
From a more crass perspective, I noticed that the Vice Chancellor cited the fourth edition of A Manual of Style for Contract Drafting eight times; cited seven times my article A Legal-Usage Analysis of “Material Adverse Change” Provisions, 10 Fordham J. Corp. & Fin. L. (2004) (PDF here); and cited my article Understanding “Best Efforts” And Its Variants (Including Drafting Recommendations), 50 Practical Lawyer, Aug. 2004, at 11 (PDF here).
The court also noted that Lou R. Kling & Eileen T. Nugent, Negotiated Acquisitions of Companies, Subsidiaries and Divisions cites my MAC article “with approval.” That’s nice to know, as Kling & Nugent is the foundation for everything I write that relates to M&A.
Those two articles date from my prehistory. For the general reader, they’ve been superseded by MSCD. But they have the virtue of being readily accessible. And with its footnotes and level of detail, the MAC article is more akin to scholarship. To be honest, it’s been years since I’ve looked at that article. When I revisited, it, my thought was, as usual, Did I write that freaking thing?