Category Archives: Contract Law

Impose An Obligation On Someone To Control Something They Can’t Really Control – What’s The Point?

16 Monday Feb 2015

Posted by in Breach, Contract Law, Intentional Promise, Performance

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A Reminder About “Shall Cause,” by Ken Adams, Adams On Contract Drafting

http://www.adamsdrafting.com/a-reminder-about-shall-cause/

Reed Smith has published an inaugural issue of Contract-Drafting Bulletin. One item was of particular interest to me. It’s about an October 2014 opinion from the U.S. District Court for the Southern District of New York, World of Boxing LLC v. King (PDF copy here).

Here’s the gist of it: In May 2013, boxers Guillermo Jones and Denis Lebedev fought, with Jones winning. But after the bout Jones failed a drug test and was stripped of the win. In January 2014, boxing promoters Don King and WOB entered into an “agreement in principle” in which King promised to “cause Jones [ ] to participate” in a rematch. But before the rematch, Jones failed another drug test, so Lebedev withdrew.

In the resulting litigation, WOB claimed that King breached their contract by failing to cause Jones to participate in the match. The court agreed (footnotes omitted):

If Jones could not participate in the bout, it follows a fortiori that King could not have caused Jones to participate in the bout. Therefore, King breached the Agreement.

King protests that this interpretation of the Agreement yields “unreasonable and illogical” results. It would require of King “nothing less than … personal supervision of Jones’s every action between the execution of [the Agreement] and the scheduled date of the [bout against Lebedev].” Indeed, in order to avoid liability, King avers that he would have had “to imprison Jones to prevent him from having any access to a banned substance”—clearly an untenable outcome.

While these arguments might have force, they are addressed to the wrong issue. King could be right: under the circumstances, it is possible that his contractual obligations were too onerous to be enforceable. But that question goes to whether King’s failure to perform may be excused, not to whether King in fact failed to perform. As to the latter, Jones’s disqualification plainly put King in breach.

The court then went on to hold that King’s impossibility defense didn’t excuse his breach.

So, what does this case have to say to contract drafters? . . . .

Continue reading →

Write Contracts That Avoid Confusion When Circumstances Change.

30 Friday Jan 2015

Posted by in Contract Law

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Being Specific in Contracts Can Help Avoid Confusion When Circumstances Change, by Ken Adams, Adams On Contract Drafting

http://tinyurl.com/q7wma8d

Recently Eric Goldman (otherwise know as @ericgoldman) alerted me to In re SuperMedia, Inc., an opinion by the Delaware U.S. Bankruptcy Court. (Go here for a PDF copy.) It has a lesson to offer regarding how to avoid confusion over whether contract terms apply to changed circumstances. . . .

Continue reading →

Verizon Zombie Cookies Must Die!

20 Tuesday Jan 2015

Posted by in Android Phones, Cell Phones, Consumer Contracts, Consumer Law, Contract Law, Cybersecurity, Legal Technology

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Zombie Cookies Slated to be Killed, by Julia Angwin and Mike Tigas, ProPublica

http://tinyurl.com/n9d7ago

Tech company Turn said it would stop using tracking cookies that are impossible to delete. The decision came in response to a ProPublica article this week that revealed the controversial practice.

‘We have heard the concerns and are actively re-evaluating this method,’ Max Ochoa, Turn’s chief privacy officer, wrote in a blog post.

He said the company plans aims to suspend the practice by ‘early February.’

Turn’s zombie cookie was exploiting a hidden undeletable number that Verizon uses to track its customers on their smartphones on tablets. Turn used the Verizon number to respawn tracking cookies that users had deleted. The company said it will now re-evaluate its practices.

Turn’s decision to suspend the practice was a sharp reversal from its previous stance. It had previously argued that ‘clearing cookies is not a reliable way for a user to express their desire not to receive tailored advertising.’

Critics across the Web vocally disagreed. Jason Kint, CEO of a trade association for digital content companies, wrote that ‘this kind of surreptitious behavior does nothing to build trust between consumers, advertisers and publishers.’ The Electronic Frontier Foundation, a digital rights organization, said Turn’s action made it ‘ impossible for customers to meaningfully control their online privacy.’

Bet You Can’t Guess Ken Adams’ Opinion of “Boilerplate” Contract Forms.

29 Monday Dec 2014

Posted by in Boilerplate Forms, Contract Law, Legal Writing

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The Sad Truth About Promiscuous Copying of Contract Language, by Ken Adams, Adams on Contract Drafting

http://tinyurl.com/loyhwy6

I recently came across this blog post on Clio’s website. Clio is software that handles time and billing, calendaring, and collaboration, but this blog post is about something else—how law firms can use ‘commercial legal forms.’ It suggests three possible uses: You can copy them. You can resell them. Or you can create and sell your own. Here’s my take on the first of those suggestions.

The author says that if you’re looking to copy ‘boilerplate,’ you can get it from three sources:

  • from your own files
  • from ‘the same vast library of forms and templates that the public now enjoys,’ which ‘are often crafted by experienced lawyers’
  • from forms sold by the likes of LegalZoom and Rocket Lawyer, one advantage being that checking those forms would ‘take a fraction of the time that would have been spent of compiling a rough draft from scratch’

Regular readers will know that I find the latter two options depressing. Good luck relying on anything you find in, say, the great flea market that is the U.S. Securities and Exchange Commission’s EDGAR system. As for relying on the LegalZooms and Rocket Lawyers of the world, go here for my critique of a LegalZoom contract and go here for my critique of a Rocket Lawyer contract.

The sad fact is that plucking contract language from the random mass and then checking it and revising it appropriately requires serious skill and is time-consuming, despite what the Clio author says. Given the cold realities of quality control, the something-for-nothing appeal of promiscuous copying of contract language is an illusion.

Copying contract language without that sort of scrutiny requires a leap of faith; if you’re putting your faith in some contract you found in a few minutes of rooting around online, you’re screwed before you even start.

Incidentally, given that Clio is now offering advice about where to copy from, I’ll now start writing about time-management software! Not really.

 

Antitrust Laws and Exclusive Contracts.

29 Monday Dec 2014

Posted by in Antitrust Law, Contract Law

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Does an Exclusive-Dealing Agreement Violate the Antitrust Laws?, by Jarod Bona, The Antitrust Attorney Blog

http://tinyurl.com/pgptsjo

Sometimes parties will enter a contract whereby one agrees to buy (or supply) all of its needs (or product) to the other. For example, maybe a supplier and retailer agree that only the supplier’s product will be sold in the retailer’s stores? This usually isn’t free as the supplier will offer something—better services, better prices, etc.—to obtain the exclusivity.

If you compete with the party that receives the benefit of the exclusive deal, this sort of contract can seem quite aggravating. After all, you have a great product, you offer a competitive price, and you know that your service is better. Then why is the retailer only buying from your competitor? Shouldn’t you deserve at least a chance? Isn’t that what the antitrust laws are for?

Maybe. But most exclusive-dealing agreements are both pro-competitive and legal under the antitrust laws. That doesn’t mean that you can’t bring an antitrust action and it doesn’t mean you won’t win. But, percentage-wise, most exclusive-dealing arrangements don’t implicate the antitrust laws. . . .

Shocking! A Court Frustrated by Parties’ E-Discovery Tactics.

24 Wednesday Dec 2014

Posted by in Breach, Contract Law, Discovery, E-Discovery, Litigation, Motion to Compel, Requests for Production

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E=Frustrated Court Crafts ‘New and Simpler Approach to Discovery,’ Identifies Search Terms to be Utilized by Plaintiff, posted in Case Summaries by K&L Gates

http://tinyurl.com/kerbox6

Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2014 WL 6908867 (W.D.N.Y. Dec. 9, 2014)

In this breach of contract case, the court granted in part Defendant’s motion to compel and, in light of Plaintiff’s piecemeal production (which the court had earlier cautioned against) and other discovery failures, fashioned a ‘new and simpler approach’ to discovery, including the identification of 13 search terms/phrases to be utilized when searching ‘ALL [of Plaintiff’s] corporate documents, files, communications, and recordings. . .’ The court also ordered the plaintiff and all counsel of record to file a sworn statement confirming its ‘good-faith effort to identify sources of documents; that a complete search of those sources for each of the [identified] phrases occurred; and that the search results [were] furnished to [Defendant].’

Discovery in this case was contentious and resulted in at least one prior motion to compel, which the court granted in favor of the defendant. At that time, the court warned the plaintiff ‘not to engage in piecemeal production of materials it has located that are responsive to Optimum Energy’s unobjectionable requests.’ Plaintiff subsequently produced documents on nine separate occasions.

Following the prior motion to compel, Defendant also learned, for the first time, of a ‘five-step development process,’ that it believed was highly relevant to its claims, and which caused it to believe that the plaintiff was withholding documents from production. Accordingly, Defendant filed a second motion to compel and sought sanctions for Plaintiff’s discovery behavior, including its delayed production of relevant information.

Taking up the motion, the court expressed its frustration with ‘the continual and growing animosity between the parties, an animosity that has slowed the progress of the case and that has required repeated judicial intervention.’ The court also noted that despite the bickering between parties, neither had ever filed a motion for a protective order ‘[n]or ha[d] any party foregone passive-aggressive snarking and filed a formal motion under Rule 11 or 28 U.S.C. § 1927 to complain about material misrepresentations in motion papers.’ ‘Instead,’ the court continued, ‘the parties would prefer that the Court forget what the actual claims are in this case and start obsessing over details . . . .’

Is It “Shall Not . . . Unless” Or “May . . . Only If”?

09 Tuesday Dec 2014

Posted by in Contract Law, Legal Writing

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“Shall Not … Unless” Versus “May … Only If” (Updated!), by Ken Adams, Adams On Contract Drafting Blog

http://tinyurl.com/mdnboct

One of the privileges of blogging is that it gives you the opportunity to talk utter BS without doing much damage. A case in point is this post, originally published on August 4, 2014.

To recap, the issue was whether one of the two following alternatives was preferable to the other:

Acme shall not sell the Shares unless Widgetco consents.
Acme may sell the Shares only if Widgetco consents.

In an August 6 update I opted for the version with shall not, saying that it avoids the uncertainty inherent in the version using may … only. Well, I’m here to tell you that that’s incorrect, in that both versions incorporate uncertainty.

In the version with shall not, the question is what category of contract language applies if Widgetco consents. Our old friend the expectation of relevance (more about that here) suggests that Acme may sell the Shares if Widgetco consents, but it’s conceivable that it might instead be obligated to sell the Shares if Widgetco consents.

And in the version with may . . . only, the expectation of relevance suggests that Acme may not sell the Shares if Widgetco doesn’t consent, but it’s conceivable that it might instead be obligated to sell the Shares if Widgetco doesn’t consent.

So in terms of uncertainty, there’s nothing to choose between the two. To eliminate that uncertainty you’d have to say the following:

Acme shall not sell the Shares, but it may sell the Shares if Widgetco consents.

(You could say instead Acme shall not sell the Shares unless Widgetco consents, in which case Acme may sell the Shares, but I have a slight preference for the version using except, as it’s shorter.)

Would I go to the trouble of eliminating the expectation of relevance? I think so, but I acknowledge that doing so would be pretty hard-core.

If you don’t want to eliminate the expectation of relevance, which of the two original options would I go for now? Still the version with shall not. The default position is that absent contract restrictions, one may do stuff, so it follows that it’s the prohibition that has teeth; I’d lead with it.

Contracts Must Be Drafted With Specific Language To Enforce Arbitration.

01 Monday Dec 2014

Posted by in 5th Circuit Court of Appeals, Appellate Law, Arbitration, Arbitration, Breach, Contract Law, Employment Law, Legal Analysis, Legal Writing, Precedent

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“Harmonizing” Contract Language Leads Two Circuit Courts To Deny Arbitration, by Arbitration Nation Blog, posted at Lexology Blog

http://tinyurl.com/mh3y6z3

Two parties recently convinced federal circuit courts that the language of their arbitration agreements was not sufficient to compel arbitration of their disputes. Both cases turned on how courts ‘harmonize’ language from different parts of an agreement or from multiple agreements.

The decision from the Eighth Circuit was a pretty easy one. The parties’ contract required them to mediate any dispute. Then it said: ‘if the dispute is not resolved through mediation, the parties may submit the controversy or claim to Arbitration. If the parties agree to arbitration, the following will apply…’ The party fighting arbitration (a city in South Dakota) argued the quoted language does not mandate arbitration, it makes arbitration an option for the parties, so the case should remain in court. [Emphasis in original.]

The party seeking arbitration emphasized a sentence at the end of the arbitration paragraph saying that the arbitrator’s ‘decision shall be a condition precedent to any right of legal action.’ It argued that the only way to harmonize that language is to conclude that arbitration is required. The court disagreed, finding that a reasonable interpretation is simply that if the parties decided to arbitrate, the arbitration decision is a condition precedent to further legal action. Quam Construction Co., Inc. v. City of Redfield, ___ F.3d___, 2014 WL 5334781 (8th Cir. Oct. 21, 2014). Therefore, the Eighth Circuit affirmed the district court’s denial of the motion to compel arbitration.

The Fifth Circuit had a harder case in Sharpe v. AmeriPlan Corp., __ F.3d__, 2014 WL 5293707 (5th Cir. Oct. 16, 2014). In that case, three former sales directors of a company sued for breach of contract after they were terminated. The company moved to compel arbitration and the district court granted the motion.

Their original employment agreements with the company did not call for arbitration, in fact they set the venue for legal proceedings exclusively in Texas courts. The employment agreements also incorporated a ‘Policies and Procedures Manual.’ The employment agreements could only be modified with written consent of all parties, but the Manual could be unilaterally modified by the company. Years later, the company amended its Manual to provide for mandatory arbitration.

The Fifth Circuit reversed the district court, finding that the new arbitration clause was unenforceable. First, the court concluded that the jurisdiction and venue clauses in the original employment agreements survived the amendment to the Manual, because there was no written and signed change to the employment agreements themselves and because the company had affirmatively relied on the venue clause (calling for Texas courts) when it transferred the case from California to Texas. And second, the court found that the old and new provisions “cannot be harmonized” without rendering the original agreement meaningless.

There are drafting lessons from these cases: if you want to have mandatory arbitration of disputes, the contract must consistently say that, and if you want to modify existing agreements to add arbitration, make sure to honor any language in the original agreement about how that agreement can be amended or modified and be clear what clauses are replaced or superseded.

Compilation of Ken Adams’ Articles on Contract Drafting.

25 Saturday Oct 2014

Posted by in Contract Law, Legal Writing

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Ken Adams’s Articles, Adams on Contract Drafting Blog

http://www.adamsdrafting.com/writing/ken-adamss-articles/

In addition to Ken’s posts from February 2013, this blog contains Ken’s posts from The Koncise Drafter (from December 2010 to February 2013) and from the AdamsDrafting blog (from May 2006 to December 2010).

 

“Lost In Fine Print” – Documentary on Forced Arbitration.

20 Monday Oct 2014

Posted by in Arbitration, Consumer Law, Contract Law

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Documentary on Forced Arbitration, by Nancy Kim, ContractsProf Blog

http://tinyurl.com/kulpycd

The Alliance for Justice has released a documentary on forced arbitration called Lost in the Fine Print.  It’s very well-done, highly watchable (meaning your students will stay awake and off Facebook during a viewing), and educational.  I recently screened the film during a special session for my Contracts and Advanced Contracts students.  It’s only about 20 or so minutes and afterward, we had a lively discussion about the pros and cons of arbitration.  We discussed the different purposes of arbitration and the pros and cons of arbitration where the parties are both businesses and where one party is a business and the other a consumer.  Many of the students had not heard about arbitration and didn’t know what it was.  Many of those who did know about arbitration didn’t know about mandatory arbitration or how the process worked.  Several were concerned about the due process aspects.  They understood the benefits of arbitration for businesses, but also the problems created by lack of transparency in the process.  I thought it was a very nice way to kick start a lively discussion about unconscionability, public policy concerns, economics and the effect of legislation on contract law/case law.

I think it’s important for law students to know what arbitration is and it doesn’t fit in easily into a typical contracts or civil procedure class so I’m afraid it often goes untaught.  The website also has pointers and ideas on how to organize a screening and discussion questions.

When Has An Internet “Term of Use” Contract Even Been Called Entertaining?

16 Monday Jun 2014

Posted by in Contract Law

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Terms of Use as Entertainment, by Nancy Kim, ContractsProfBlog

http://tinyurl.com/p34ybeo

We here at the contracts prof blog are frequently in a lather over adhesive contracts.  Terms of use run amok, arbitration clauses are routinely enforced, and non-compete clauses prevent teenagers from seeking gainful employment.  Yet, where’s the outrage from other quarters?  One problem, as John Oliver notes in this hilarious (and effective) bit on net neutrality, is that some things are just too BORING to grab consumers’ attention.  Towards the end of the clip (about 10:10), he states this truth:  ‘If you want to do something evil, put it inside something boring.’  He speculates that Apple could put the entire text of Mein Kampf inside its user agreement and we would just hit ‘Agree.’ . . . .

Google, Mutuality, and Wrap Contracts – Something Doesn’t Seem Quite Right . . .

25 Sunday May 2014

Posted by in Contract Law, Wrap Contracts

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Mutuality and Wrap Contracts, by Nancy Kim, ContractProf Blog

http://tinyurl.com/m8d9f3s

As I’ve noted in a prior post, there is a lawsuit pending against Google for email scanning which was recently denied class status.  Something that’s puzzled me about wrap contracts generally, including Google’s, is that many of them don’t seem to be contracts at all – and not simply because of the (lack of) consent issue.  They typically contain modification at will clauses and termination at will clauses.  In contracts class, I teach students that generally (with the exception of employment contracts) these clauses lack mutuality unless constrained in other ways, such as a notice period.  While there may be consideration (use of service in exchange for…data?  eyeballs?  not clear), there is no consideration if the promises are illusory and don’t actually bind a party.   Google’s terms of use, for example, state:

‘You can stop using our Services at any time, although we’ll be sorry to see you go. Google may also stop providing Services to you, or add or create new limits to our Services at any time.’

and this unilateral modification clause:

‘We may modify these terms or any additional terms that apply to a Service to, for example, reflect changes to the law or changes to our Services. You should look at the terms regularly. We’ll post notice of modifications to these terms on this page. We’ll post notice of modified additional terms in the applicable Service. Changes will not apply retroactively and will become effective no sooner than fourteen days after they are posted. However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. If you do not agree to the modified terms for a Service, you should discontinue your use of that Service.’

Google then isn’t bound to actually provide anything according to its Terms of Use.

In the email scanning case, Google is making the argument that consent to email scanning was obtained in the context of ‘consenting’ to the Terms of Use.  But if these ‘contracts’ are not really contracts because they lack mutuality, then can Google really claim that their users ‘consented’ to the email scanning?  Is there blanket assent to terms outside of the context of a contract?

Big Banks, Big Business, And The DOJ.

02 Friday May 2014

Posted by in Consumer Law, Contract Law, Criminal Law, Intentional Misrepresentation, SEC, White Collar Crime

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Big Banks, Business and Butter: Highlights From Our Q&A on Corporate Impunity, by Blair Hickman, ProPublica

http://bit.ly/1fCRh1R

Reporter Jesse Eisinger offers his thoughts on the lack of white-collar prosecutions, journalism and the Green Bay Packers.

*     *     *

I don’t think enough attention has been paid to the fact that the white collar laws are inadequate, so there haven’t been many proposed remedies. One thing the DoJ should use is the ‘willful blindness’ or ‘conscious disregard’ charge. As Judge Jed Rakoff wrote recently in the New York Review of Books: Such a charge ‘is a well-established basis on which federal prosecutors have asked juries to infer intent, including in cases involving complexities, such as accounting rules, at least as esoteric as those involved in the events leading up to the financial crisis. And while some federal courts have occasionally expressed qualifications about the use of the willful blindness approach to prove intent, the Supreme Court has consistently approved it.’ . . .

Breach of Contract Claims Against Allstate by Its Employees.

01 Thursday May 2014

Posted by in Contract Law, EEOC, Employment Contracts, Employment Law, Intentional Misrepresentation

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New York Times Report on Litigation Challenging an Allstate Waiver Agreement, by Jeremy Telman, Contracts Prof Blog

http://bit.ly/1kwF7GI

According to this article in today’s New York Times, 6,200 Allstate employees, who joined its Neighborhood Agents Program in the 1980s and 1990s, were called into meetings in 1999 at which they were told that they would now proceed as independent contractors, forfeiting health insurance, their retirement accounts or profit-sharing, and terminating the accrual of their pension benefits.   If they wanted to continue to sell Allstate insurance, they had to sign waivers in which they agreed not to sue the insurer.  Thirty-one agents signed but have now sued nonetheless, alleging age discrimination and breach of contract.

They sued thirteen years ago, but the case is still far from over.  They are still seeking class certification.  The Times article indicates that cases such as this one are hard to win, but the judge in this case has already stated that those that signed the waivers were made substantially worse off, that Allstate’s claimed corporate reorganization was actually a disguised staff reduction, and that Allstate’s conduct was ‘self-serving and, from most perspectives, underhanded.’  In addition, Allstate seems to have misrepresented to the agents the consequences of not signing the waiver, having told the agents that they would be barred for life from soliciting business from their former customers.  Allstate has already paid $4.5 million to settle an age-discrimination claim brought by the EEOC on behalf of 90 of the agents.

Get It In Writing!

22 Saturday Feb 2014

Posted by in Intentional Misrepresentation, Intentional Promise, Promissory Fraud

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“When I Get The Big Money, I’ll Take Care Of You,” by Myanna Dellinger, ContractProf Blog

http://tinyurl.com/lfs2gpy

Do such words imply an enforceable promise to give an employee additional compensation both for work already performed and for work to be performed in the future if the speaker actually obtains a sizeable chunk of money?

U.S. Supreme Court’s “Instruction Manual” on Class Action Litigation.

11 Tuesday Feb 2014

Posted by in Appellate Law, Arbitration, Class Actions, Class Certification, Consumer Contracts, Contract Law, Credit Repair, Employment Law, Litigation, United States Supreme Court

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Recent Developments For Litigation Risk Mitigation: The U.S. Supreme Court’s Prescription, by Daniel P. Shapiro, Katten Muchin Rosenman LLP  

(This piece is adapted from Daniel P. Shapiro’s article published in the November 2013, issue of AHLA Connections. © 2013 American Health Lawyers Association.)

Read Mr. Shapiro’s analysis of recent U.S. Supreme Court cases that have created an instruction manual of sorts for reducing litigation risks for American businesses, as stated below in the excerpt to his post.

There is a hyperlink at the end of the article that will take you to the original article. -CCE

 http://tinyurl.com/ldd7s2o

Over the past three years, since mid-2010, the Supreme Court has handed down a series of related decisions that, taken together, constitute an instruction manual for American business on how to reduce litigation risk. As the world has ‘flattened’ and trade has increasingly globalized and become borderless, it has been impossible to ignore that only in the U.S. economy is litigation such a prominent line item for business. This is particularly true with regard to class action litigation. No other country has the sort of class—or collective—action rules that the United States does. Perhaps in response to these facts, the Supreme Court has made it clear that through a combination of arbitration (as opposed to litigation) and class action waiver clauses properly used, businesses can contract out from under a great deal of litigation risk for the future and fundamentally change their litigation environment.

The new Supreme Court decisions offer instruction on how, exactly, to use arbitration clauses and class action waivers to mitigate litigation risk.

Indiana Takes On Liquidated Damages in Contract Law.

11 Tuesday Feb 2014

Posted by in Appellate Law, Contract Law, Damages, Indiana Court of Appeals, Litigation, State Appellate Courts

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Indiana Court of Appeals on Liquidated Damages, by Jeremy Telman, ContractsProf Blog

http://tinyurl.com/lqqbvpw

As you can see from the quote below, this is the fifth in this series. I encourage you to read the entire series to get the full big picture. -CCE

This is the fifth in a series of posts that draw on Michael Dorelli and Kimberly Cohen’s recent article in the Indiana Law Review on developments in contracts law in Indiana.

Is It Herein, Hereunder, Or Over Yonder?

10 Monday Feb 2014

Posted by in Bad Legal Writing, Contract Law, Legal Analysis, Legal Writing, Legalese

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“Herein” (And I Need A Label For This Kind Of Ambiguity), by Ken Adams, Adams on Contract Drafting Blog

http://tinyurl.com/lg9nuer

Ken Adams explains why to avoid “herein,” “hereunder,” and antecedent ambiguity when drafting contracts. -CCE

I’ve previously entertained you with court opinions addressing confusion over what part of a contract is being referred to in a contract provision. Who can forget the confusion over a “hereunder”? (See this post). Or over “except as provided below”? (See this post.)

Well, I have another treat for you. (Yes, I know, I’m too generous.)

The case is Bayerische Landesbank, New York Branch v. Aladdin Capital Mgmt. LLC, 692 F.3d 42 (2d Cir. 2012) (PDF here). (I learned about it from this Paul Hastings newsletter.)

Recent Kansas Case Ignores Sperm Donor Parties’ Written Agreement.

01 Saturday Feb 2014

Posted by in Child Support, Contract Law, Family Law, Litigation

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Sperm Donor Ordered to Pay Child Support Despite Agreement, by Nancy Kim, ContractsProfBlog

http://tinyurl.com/lsm5zth

A man responded to a Craigslist ad for a sperm donor posted by two women. Each of them signed an agreement that the man waived his parental rights and responsibilities. A child was born as the result.

Regardless of the parties’ written agreement, the Kansas Department of Children and Families, not the two women, sued to have the man declared as the legal father of the child. As the legal father, the Kansas Department of Children and Families asked the Court to award it $6,000 award against the man for past and future child support.

Because a Kansas statute requires a physician to perform the artificial insemination procedure, a Kansas District Court ruled that a sperm donor’s self-designation in the parties’ agreement was insufficient to waive parental rights and responsibilities. Therefore, the Judge decided that the Kansas Department of Children and Families was right – the man was indeed the legal father and owed the demanded child support. -CCE

Proper Punctuation Matters, Especially When Drafting Contracts.

25 Saturday Jan 2014

Posted by in Contract Law, Legal Writing

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My Forthcoming Article, “Bamboozled by a Comma: The Second Circuit’s Misdiagnosis of Ambiguity in American International Group, Inc. v. Bank of America Corp.” by Ken Adams, Adams On Contract Drafting Blog (to be published in 16 Scribes J. Legal Writing (forthcoming 2014).

http://tinyurl.com/kzvf8e2

It may sound picky but, as Ken Adams’ example illustrates in this post, proper punctuation matters. A misplaced comma can completely change the meaning of a sentence.

A refresher on how to use commas properly never hurts. Julia Layton explains “10 Completely Wrong Ways to Use Commas” on How Stuff Works. -CCE

http://people.howstuffworks.com/10-wrong-ways-to-use-commas.htm

Ending Confusion To End Litigation.

18 Monday Nov 2013

Posted by in Bad Legal Writing, Contract Law, Legal Writing, Legalese

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More Antecedent Ambiguity: “Thereof,” by Ken Adams, Adams on Contract Drafting

http://tinyurl.com/n7fup2u

Do we use legalese because we think it simply sounds “legal”? Why do we choose legalese over plain, clear writing? There is no statute, court rule, or case law that requires it. These words are not a legal term of art. Why do we cling to it with such a passion? CCE

There’s No Place Like Home For Homeowner’s Insurance

18 Monday Nov 2013

Posted by in Appellate Law, Contract Law, Insurance Law, Trial Tips and Techniques

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Seventh Circuit: Mailing Addresses Don’t Necessarily Identify What’s Insured, by Brian Jones, The Bose Insurance Blog

http://tinyurl.com/mkuntnh

Where Plaintiff Knew Likelihood of Possible Litigation, Magistrate Judge Sanctions Plaintiff for Inexcusable Failure to Issue Litigation Hold.

09 Saturday Nov 2013

Posted by in Contract Law, Discovery, E-Discovery, Litigation Hold, Sanctions, Trial Tips and Techniques

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Law, Justice, Legislative, Legal force, Force ...

Plaintiff in Diaper Lawsuit Hit with Adverse Inference to Remedy Spoliation from Failure to Issue Legal Hold, by Legal Pro Blog

http://bit.ly/1hoswqk