An anonymous informant—oh what the heck, it was Glenn West—told me that in Channel MedSystems, Inc. v. Boston Scientific Corporation (here), an opinion issued just yesterday by the Delaware Court of Chancery, Chancellor Bouchard cites A Manual of Style for Contract Drafting.
More specifically, here’s footnote 236:
The parties frame their arguments in terms of “breaches” of representations. The court finds it more helpful to frame the alleged “breaches” of representations as “inaccuracies” because they are statements of fact. See Kenneth A. Adams, A Manual of Style for Contract Drafting 116 (4th ed. 2017) (“One breaches an obligation, but not a statement of fact (whether you call it that or a representation). Instead, a statement of fact is accurate or inaccurate. If Abigail says that it’s Monday but in fact it’s Tuesday, Abigail hasn’t ‘breached’ anything. Instead, she’s made an inaccurate statement.”).
What do I take from this? A legitimate answer would be, “Nothing, you self-centered freak.” After all, the Court of Chancery has cited me several times, the most recent previous instance being the Akorn opinion, in 2018, as I noted in this blog post. Why bother noting the mention in Channel MedSystems?
Because being cited is always meaningful. For one thing, I expect that when a court cites my work, some people previously unfamiliar with me learn my name and might look into what I do. Maybe as a result a few people decide that they expect more from contract language. That’s how bottom-up change happens—one person at a time.
Then there’s top-down change. If the Delaware Court of Chancery says it finds it more helpful to refer to representations as being inaccurate, you can expect that some portion of the transactional world will pay attention. (And incidentally, if a court acknowledges that representations are just statements of fact, it’s one step closer to acknowledging that it’s simpler to ditch the word representation and just call them statements of fact.)
But there’s something else I’m certainly grateful for this time around: the court didn’t have occasion to give me the [sic] treatment, as they did in 2011 (see this post).
