Corporate & Securities Law

Some Features of Koncision Contract Automation

Posted on August 23, 2010
In the coming months we’ll be establishing the framework and policies of Koncision Contract Automation. The document-assembly engine that will power it, ContractExpress, operates as you’d expect: users answer a questionnaire, and based on the answers provided the system then compiles and adjusts the preloaded contract language...

Announcing Koncision Contract Automation

Posted on August 23, 2010
I’m pleased to announce that I’m partnering with Business Integrity, developer of ContractExpress document-assembly software, to develop Koncision Contract Automation, an online subscription-based service that will make available to lawyers document-assembly templates for business contracts...

Contract Drafting and Plagiarism

Posted on August 22, 2010
There’s been quite a bit of blogosphere chatter recently about lawyers and plagiarism. The most recent salvo is this post by Peter Friedman, who teaches legal analysis and writing at Case Western Reserve University School of Law. In my cloistered way, I pay real attention only when the discussion touches on contract drafting...

Signature Automation: A Dispatch from the Front Lines

Posted on August 21, 2010
I recently received the following inquiry from longtime reader John “Fitz” Fitzpatrick: Pardon me if I missed a blog discussion on e-signature (have you had one?), but recently a bunch of companies have requested that we sign our contracts with them using e-signature through a company called EchoSign...

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Innovation Is Easier If You Get Specific

Posted on August 16, 2010
I noted with interest this article on the website of the Association for Corporate Counsel. It’s entitled “Top Ten Innovations to Improve Enterprise-Wide Contract Management,” and it’s by Nancy Jessen and Bret Baccus of Huron Consulting Group...

Don?t Count on the Courts to Fix Your Mistakes

Posted on August 16, 2010
Drafting mistakes are mainly of interest to me for the lessons I can deduce about how not to draft; I don’t particularly care how the mess is cleaned up. But sometimes I’ll pause to examine the wreckage. In that spirit, I recently read this article by Alison Frankel for the American Lawyer...

Revisiting the Outsourcing of Law-Firm Contract Drafting

Posted on August 09, 2010
Last week the New York Times ran two stories on legal outsourcing. The first (click here), by Heather Timmons, describes the growth of legal outsourcing in India. The second (click here) is a “City Room” blog item by John Eligon; in it, two BigLaw partners offer differing takes on outsourcing...

A Redundancy Found in ?Efforts? Provisions

Posted on August 06, 2010
It’s commonplace for a contract to require a party to use efforts (reasonable efforts or some suboptimal variant) to accomplish something to the extent possible (using those words or words to that effect). The notion of to the extent possible is redundant, as it’s implicit in an efforts provision that the party under the obligation [...

On Typos in Contract Drafting

Posted on August 05, 2010
The ever-vigilant Steven Sholk told me about this post on Footnoted. It describes how in an exhibit to an employment agreement filed on the U.S. Securities and Exchange Commission’s EDGAR system, the company undertook that in addition to paying the executive’s moving expenses, “in consideration of other relocation expenses that Executive and his family will [...

What?s Your Experience with ?Most Favored Nation? Provisions?

Posted on August 02, 2010
Some months ago a reader asked the following: At some point down the road, can you do a blog posting on Most Favored Nation clauses?  My feeling is that within the last 2-3 decades, some professor in some business school somewhere wrote an article on how important these clauses are...

Talk of Commas at a Chrysler Bankruptcy Hearing

Posted on July 31, 2010
From Eoin O’Dell’s roundup of comma-related mischief on Cearta.ie I learned of a dispute that surfaced at a Chrysler bankruptcy hearing earlier in July. In June 2009, Fiat and the new Chrysler Group LLC agreed to honor all the rights consumers had against the ?Old Chrysler? under state “lemon laws...

You Say Mentoring, I Say Training

Posted on July 27, 2010
Yesterday I read this AmLaw Daily article by Steven J. Harper, a retired Kirkland & Ellis partner. It laments that the emphasis on short-term metrics at law firms means that increasingly, mentoring is falling by the wayside. Others, including the WSJ Law Blog and Above the Law, have waded in...

More Rhetorical Emphasis: ?Each and Every?

Posted on July 25, 2010
“Rhetorical emphasis” is the term I use to refer to a drafter’s not simply saying something, but saying it in a way that shows that they really, really, really mean it. The extra verbiage doesn’t affect meaning, and it’s best omitted...

Reading PDF-Only Publications: On-Screen or Printout?

Posted on July 25, 2010
My forthcoming work “The Structure of M&A Contracts” will be a PDF-only West publication. That raises an obvious question: will people be reading it on-screen, or will they read a printout? If I get my wish-list, the PDF will contain hyperlinks to cited authorities, the text will be hyperlinked to the endnotes and vice-versa, and all [...

A Defined-Term Lesson from the Bratz Doll Saga

Posted on July 23, 2010
In an opinion published yesterday, the Ninth Circuit reversed much of the December 2008 ruling that gave Mattel the rights to MGA?s Bratz doll products. (Click here for the Bloomberg story; click here for the opinion.) This dispute holds little interest for me, but I did sniff out a contract-drafting side to the story...

When More Than One Party Makes a Given Set of Representations

Posted on July 22, 2010
I just had occasion to consider for the first time, while working on my M&A manuscript, some issues that arise when more than one party makes a set of representations. I’d be happy to hear what you think of the following analysis: When a set of representations is being made by more than one party, [...

A Note on Inertia

Posted on July 21, 2010
I just added the following to the manuscript of my forthcoming booklet “The Structure of M&A Contracts,” in the preface: But change is hampered by inertia. Deviating from standard language, no matter how defective, might spark debate, and debate creates delay and increases transaction costs...

Two Blog Tweaks

Posted on July 19, 2010
I have one fix and one possible enhancement to report: The fix is that now, finally, clicking on one of the categories links on the right-hand side of the page will take you to a comprehensive listing. Previously, a glitch meant that some posts were omitted...

More Syntactic Ambiguity: The Serial Comma

Posted on July 19, 2010
This item at The Volokh Conspiracy noted that the “serial comma” has been appearing less and less frequently in the New York Times. At Legal Blog Watch, Eric Lipman pointed out that a Volokh commenter had suggested that the serial comma is important for clarity in contracts...

File-Naming Etiquette

Posted on July 19, 2010
Following on my recent post on document-comparison etiquette, longtime reader Jim Brashear sent me the following: I’d be interested in reading others’ thoughts and comments on document filename conventions and etiquette. For example, one distributes a set of draft documents with filenames (descriptive or otherwise), and one receives back from various counterparties their edits in [...

ACC Events: Phone-In Q&A Tomorrow, Panel Discussion at Annual Meeting in October

Posted on July 13, 2010
On Wednesday, July 14, the Law Department Management Committee of the Association of Corporate Counsel will be holding their monthly teleconference, and the featured speaker for the half-hour “Legal Quick Hit” portion is yours truly. It will be in the form of a Q&A with the esteemed David Munn, general counsel and director of customer [...

Lexical Ambiguity: What Does ?Spinoff? Mean?

Posted on July 06, 2010
I sporadically write about contract instances of lexical ambiguity, which arises when context is insufficient to allow one to determine the sense of a word that has more than one meaning. (See MSCD 6.5 and these three blog posts.) Well, here’s another one for you fans of lexical ambiguity: in this item over at Legal [...

Document-Comparison Etiquette

Posted on July 06, 2010
I recently received the following message from a longtime reader: When you eventually revise MCSD to its third edition, could you consider adding an appendix that talks about redlining protocol? Here’s what routinely happens to me: I send the other side a draft marked using Microsoft Word’s “track changes” feature...

When the Deal Signs and Closes Simultaneously But the Contract Is Structured for a Deferred Closing

Posted on July 06, 2010
In a phone call with a law-firm M&A partner today, I was reminded that sometimes M&A contracts reflect a deferred closing even though the parties actually do a simultanous signing and closing. If the signing and closing are simultaneous, the contract would usually contain deal provisions, representations, indemnification provisions (unless the target is public), and boilerplate, [...

Can You Recommend a Book on Comparative Contract Law?

Posted on July 05, 2010
A reader asked me what books I could recommend. More specifically, he asked as follows:  Say I wanted one book that would give a good treatment of comparative foreign law (French, UK, Belgian, etc), with key discussion on contract remedies available, what would you go with? I haven’t yet had occasion to consult such a [...

One Person Signing for More than One Party?

Posted on July 03, 2010
A reader recently asked as follows: If someone is signing a contract on behalf of more than one party, and that person serves each party in the same capacity, would it be OK to use just one signature block, as in the following example? ACME HOLDINGS, LLC ACME ACQUISITIONS, LLC ACME INVESTMENTS, LLC By:     ______________________ [...

When What?s In the Contract Is Inconsistent with the Signature Block

Posted on July 03, 2010
What happens if a contract says that someone is personally liable for an obligation, but that person signs the contract not in their individual capacity, but as an officer of a limited liability company? In this newsletter article, Doug Batey of Stoel Rives considers a recent Washington Court of Appeals opinion that addressed exactly that [...

?Together? and ?Collectively?

Posted on July 01, 2010
I recently received the following inquiry: I was wondering if you could clarify a point for me and my boss. It has been my understanding that when defining terms in an agreement, it is standard to use the word ?together? when referring to two entities only, and to use the word ?collectively? when referring to three [...

When Adding ?Material? to a Representation, Which Noun Should You Modify?

Posted on June 27, 2010
Over the years I’ve written about materiality a number of times. The discussion in MSCD represents my most recent take, but I’m revisiting the subject for purposes of my forthcoming booklet on the structure of M&A contracts. While finalizing the booklet?a task that has taken me away from blogging?I’ve found myself considering an issue that I haven’t [...

Watch Out for Metadata

Posted on June 18, 2010
I don’t exchange drafts with people on the other side of a transaction, so generally I don’t have to worry about metadata. But if unlike me you actually do deals, you should be attuned to the risks of metadata and how to stay out of trouble...

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