The Fine Print: Musings of a Corporate Contracts Lawyer

PS: OK, I’m Twitting or Tweaking or Whatever

2009-07-18T08:54:00.001-04:00

Due to nobody’s request, whatsoever, I opened a Twitter account. If you wish to receive somewhat infrequent updates on contract drafting, wine, esoterica and ND football (not necessarily in that order!), and anything else that strikes me as worthwhile to twit about (or is it tweet?), send an email to me: ChadB1216@gmail.com.

And let me know that you’re not following me for commercial gain. So far, I’ve only let my esoterica podcast pal, Tim Binnall, follow me, perhaps you will be number 2!

Summer ‘09 Quaffing – What’s in Your Wine Rack?

2009-07-18T07:26:00.001-04:00

Although at times football weather, Summer is here, and that means a temporary abandonment of the heavier reds and stronger whites for lighter fare. Here’s a list of our favorites this Summer; as usual, all of these are moderately priced (under $20, because last I checked, the TARP money hadn’t yet been deposited) and all are dry:

Whites: Forget Chard, Pinot Gris, and Sauvignon Blanc, we’ve been enjoying a Vermentino from Sardinia, the 2007 Argiolas Costamolino.

This is a dry white that balances acidity with tropical fruit and is not aged in wood. It pairs well with a cold pasta salad containing fresh veggies. Also goes well with spicy Asian dishes.

Reds: The winner this Summer is Cosantino Winery’s The Med (2005), a blend of Mediterranean grape varietals

This wine is not a heavy red. It pairs well with any pasta in a red sauce or pizza. The notes are cherries, tamarind, and ripe tannins. The wine is barrel-aged for 7 months, but the oak taste is subtle.

In second place, I would put an inexpensive yet well done French Bordeaux from the Medoc appellation: the 2005 Chateau La Lauzette

This is a cab-based blend that can be drunk young or ensconced on your wine rack to drink several years from now. It has only a hint of the French barnyard notes that drive us crazy if overdone.

Coffee! A beverage that you can enjoy at 7 AM on a Saturday in July. As I write this, I’m finishing up a cup of Summer Solstice Blend from Intelligentsia. This is direct trade coffee from our favorite coffee purveyor (take that Starbucks!) As the vendor says, this coffee with its butterscotch notes is reminiscent of a great Chardonnay.

So, what are you drinking this Summer and why? Let me know.

My goal is to update this Blog more often, but with several colleagues on vacation, guess who fills in?

Thanks for blogging with me thus far!

Just the Fax Ma’am – What Drafters of Contracts Ponder in the Wee Hours

2009-04-02T20:53:00.001-04:00

As a kid, I was much impressed by how Detective Joe Friday (Jack Webb) in Dragnet could calm even the most hysterical of female witnesses to heinous criminal acts with his deadpan, “Just the facts, ma’am.” I resolved that I too would use this phrase to calm down my mother when she stridently decided that Summer mornings were better spent doing household chores (or even worse, practicing the piano) than watching the 9AM “Early Show” on Channel 8 with such classics as A Night at the Opera, Twelve O’Clock High, and Stagecoach…

Let’s just say that this phrase worked better out of the mouth of Joe Friday than 9-year old Chaddie Busk.

But I digress. As a contracts lawyer, we now ponder the weighty question in the AdamsDrafting Blog of whether, in a contractual notice provision, the drafter should use “telecopier,” “fax,” or “facsimile” to describe “legal” notices sent by this device. After some discussion, Ken Adams (a contracts scholar par excellence), concludes that the term “fax” is now perfectly appropriate even in formal contexts.

Unfortunately, lawyers never agree on anything, which is why, with few exceptions, I try to avoid their company. (I occasionally get a brochure to take a cruise with my fellow lawyers, and they immediately go into the trash. Can you imagine being on a cruise ship with all lawyers, hitting an iceberg and then deciding who gets to go in the lifeboat as opposed to treading water? Yikes!) So, I felt compelled to post the following comment on Ken’s Blog:

I have an easy solution to this problem: leave out notice via fax, facsimile, or telecopier entirely. My company has only a few fax machines on each floor of its headquarters, and it is not unheard of that an important letter sent via fax has languished in a fax machine because no one bothered to check the machine, or the letter was picked up by mistake by the wrong addressee. In my opinion, the best way to assure effective contractual notices is either by overnight courier or US certified mail, return receipt requested.

Then there is the matter of email notices. I allow for email notices as valid if and when acknowledged by the recipient and sent to a generic email address (e.g., legal-notices@ yourcompany.com) which comes to me (in the Legal Department) or another attorney when I am unavailable.

Finally, as other commentators point out, the era of the fax machine is coming to a close, so the tried and true notice provision allowing for faxed, facsimile, or telecopied notices requires updating.

To which Ken kindly responded:

Chad: I acknowledge in my post that fax is unlikely to be with us much longer. And your comment reminds me that I should tackle the question of email notices. Ken

Thanks for blogging with me thus far.

UFO Wine Captured, Probed, Le Disappointing

2009-03-10T20:07:00.001-04:00

After my last post lamented that Le Cigare Volant 2003 the “UFO Wine” could not be found in West Michigan, I happened to find it at a local wine merchant after all and picked up a bottle for around US $30. Normally, this price point for wine is high for me, but since I had a coupon for 20% off (in exchange for my email address, I guess everyone has his price!), I picked up a bottle and with some excellent homemade lasagna and fig salad, ~~uncorked~~ unscrewed the cap with much anticipation. But rather than be abducted by a sublime mixture of ripe fruits, dark chocolate and a hint of tobacco, my palate was greeted instead with a fairly ordinary red wine blend. Blah. Those little gray aliens were smart not to land in the California vineyard producing that wine; the buggers appear to have discriminating taste buds after all, apart from the cattle mutilations, of course.

However, unless corked (ha, no chance of that with a screw top), each bottle of wine can be appreciated to some extent. As Maya remarked in Sideways (and this is one of the best wine quotes ever):

I like to think about what was going on the year the grapes were growing; how the sun was shining; if it rained. I like to think about all the people who tended and picked the grapes. And if it's an old wine, how many of them must be dead by now. I like how wine continues to evolve, like if I opened a bottle of wine today it would taste different than if I'd opened it on any other day, because a bottle of wine is actually alive. And it's constantly evolving and gaining complexity. That is, until it peaks, like your '61. And then it begins its steady, inevitable decline.

So, even though the “UFO wine” was not out of this world, it was still well, wine for God’s sake, and something to be savored with good food, family and friends.

Thanks for blogging with me thus far.

Finally! The Perfect Wine and UFO Pairing

2009-02-05T21:04:00.001-05:00

Picture yourself in a vineyard nearly the sleepy town of Chateauneuf-du-Pape in France’s Rhone region. It is a hot, cloudless day in September, 1954. Ostensibly, nothing is going on to disturb the dignity and repose of the ripening grapes. Suddenly, you see a cloud forming on the horizon, and it is growing much too quickly as it heads straight for the vineyard. Hovering over the winemaker’s chateau, what can only be described as a UFO emerges from the cloud and proceeds to send a destructive death ray on the helpless vines below. Mon Dieu! Shall we call out the Gendarmerie! No, they will likely be ineffectual against this otherworldly assault on the lifeblood of France. Here’s an idea, LET’S PASS A LAW FORBIDDING UFOS FROM LANDING IN THE VINEYARD! Which is exactly what the City Council of Chateauneuf-du Pape did in 1954 to keep those pesky aliens from molesting the grapes from their cigar-like spaceships! And as a result, alien spacecraft have avoided those vineyards ever since, and we can all rest easier knowing that those fantastic Rhone wines will forever be in good supply for imbibing by carbon-based life forms.

Like any lover of wine and science fiction, I’ve spent countless hours wondering what wine would pair well with UFO watching. Finally, the above vintage from Bonny Doon Vineyard should serve nicely and is California winemaker Randall Grahm’s (a/k/a The Rhone Ranger) tribute to the wines from that region. It is a blend of Grenache, Syrah, and Mourvedre and of course (just my luck) it can’t be found in Western Michigan. Should pair perfectly with roast beast, wild game, or a night spent scanning the Lake Michigan horizon for cigar-shaped spacecraft. If only I could find a bottle, I’m certain that I would see numerous alien spacecraft cavorting about after 4 0r 5 glasses!

Thanks for blogging with me thus far, and Cheers!

Generic NDAs: Overlawyered and Overprescribed

2009-01-21T21:02:00.005-05:00

The premise for this post is that Nondisclosure Agreements ("NDAs") are overprescribed and overlawyered. Just as doctors have overprescribed antibiotics, resulting in a degraded efficacy to cure disease, lawyers have prepared too many generic NDAs, resulting in a reduced ability to protect specific and legitimate confidential information of their clients.

Observations in support:

The typically-drafted NDA is too broad and too long to be really useful. It covers about anything disclosed from one party ("discloser") to the other ("recipient"), and its duration is usually undefined. So, we have a broadly-drafted agreement with an indefinite duration. Strike 1 against the discloser attempting to enforce the NDA.
The typically-drafted NDA has too many exceptions to effectively safeguard the discloser's confidential information, including "information already in the public domain" (as commentators have pointed out, "public knowledge;" is actually the intent, but "public domain" has been used so many times that NDA drafters don't even ponder the difference); "information coming into the recipient's possession other than from the discloser;" and "information already developed by the discloser unrelated to the Confidential Information." So, we have an agreement stating a general proposition (i.e., that the discloser's Confidential Information should not be disclosed by the recipient) and multiple exceptions to that proposition. Strike 2 against the discloser attempting to enforce the NDA.
The typically-drafted NDA is vague as to the proper measure of damages claimed by the failure of the recipient to safeguard the discloser's confidential information. Beyond having the right to bring an action against the recipient for injunctive relief to prevent further disclosures of confidential information, the burden on the discloser to prove actual damages resulting from breach of the NDA will be difficult. Strike 2.5 against the discloser.

By my math (lucky this isn't algebra!), that leaves the typical NDA like a half-swing at the plate. Can a half swing hit a home run? Hardly, more likely a lucky single to first base.

If, as a business person, you really need an NDA to pursue a relationship with a new vendor or customer, consider telling your lawyer to first, make the NDA concentrate on specific information to safeguard and be limited in duration; second, eliminate the more general exceptions to the non-disclosure obligation; and third, spell out how damages will be calculated in the event of the recipient’s breach. You don't need a large dose of NDA antibiotics when a legal aspirin in the form of a focused NDA will suffice.

Taking these steps will increase the value of NDAs to your organization, and the recipients of your confidential business information will better understand their nondisclosure obligations.

Thanks for blogging with me thus far!

To Vendors: Your Top 7 Crazy Contractual Tricks

2009-01-04T17:21:00.004-05:00

(or: How NOT to do Business with My Client in 2009)

This post is long overdue. For too many years, I have slogged through contracts that vendors wishing to do business with my client have offered up as the “form agreements that everyone signs.” Excuse me, but that is not the case with this lawyer or his client. So, with all due respect to my client's vendors or prospective vendors of non-resale goods, services or intellectual property who may be reading this, here is my list of the

**TOP 7 CRAZY CONTRACTUAL TRICKS**

that won’t impress me or my client:

1. Presentation of your contract with the cover message that “No one ever changes this Agreement.”

CCB: Ha, no contract is written in stone except for the Ten Commandments, so unless your contract was drafted by Yahveh, I can darn well mark it up! If you won’t give me your form agreement as an unprotected MS Word document, I will just revise it on its face and PDF the doc back to you. And it will be a lot harder for you to understand my changes or discuss them with me than if I had sent you a pretty redlined version!
2. Your contract is written in a font less than 11 point, or in 2 columns.
CCB: Repeat after me 20 times, “A contract is not a newspaper.” Then another 20 times, “A contract should be easily read so that it may be readily understood.” Easy reading does not consist of text in any font under 11 point. If you think that using a small font will dissuade me (or any other transactional lawyer worth his or her salt) from reading or marking-up your contract, think again.
3. Your contract is not paginated.
CCB: It’s scary how many vendors are apparently unaware of MS Word’s automatic page number insertion feature.
4. Your contract contains typographical or grammatical errors.
CCB: I don’t go out of my way to look for these types of errors, but I will correct them if I find them because they are unprofessional and further, if our contract is someday litigated or arbitrated, it is not in the best interest of either side’s lawyer to have such errors that inevitably detract from the text of the doc.
5. Your contract contains Goofy provisions.
CCB: No, my client will not agree to sue you only in the City and State of your headquarters unless we also have a business presence in that City and State. No, my client will not agree that your indemnity to us is triggered only by your gross negligence or willful misconduct. No, my client will not agree that your personnel can perform services on our premises without a certificate of commercial general liability insurance that names us as an additional insured. No, my client will not agree to waive personal service of judicial process. No, my client will not agree to pay you interest on overdue amounts that are disputed in good faith. And so forth…
6. Your contract contains an unrealistic sunset date.
CCB: Although the end of your fiscal year or a particular calendar year quarter is usually a reasonable sunset date for the business terms of a contract, you should not set an arbitrary deadline to ink the deal. This is a common ploy used by shady used car dealers, and I’m sure that you don’t want my client to include you in that bunch.
7. You won’t accept a faxed or imaged signature as an “original.”
CCB: It’s 2009, and because the legal profession (along with the Federal Rules of Evidence and the comparable rules of most States along with various E-sign laws) have finally recognized the digital age, it is stupid to ask for a document containing original ink signatures when a legible PDF copy of a contract with imaged signatures has the same effect as an “original.”If you want a hard copy to stick in a file somewhere (that is so 20th Century!), just print out the PDF version.

So, my dear vendors, here you go. Your contractual life in dealing with me and my client in 2009 has just been made easier.

And thanks for blogging with me thus far!

Christmas Ghosts

2008-12-18T21:45:00.002-05:00

Couldn’t I take ‘em all at once, and have it over, Jacob?

So Ebenezer Scrooge entreats the ghost of Jacob Marley when old Scrooge hears the news that he will be haunted by 3 ghosts in the course of the evening. Although the plea fell upon deaf ears, the triple haunting resulted in Scrooge’s redemption.

Do ghosts haunt you at Christmas? They certainly do me. Because all of my "upstream" blood relatives have passed on, I tend to get re-acquainted with their ghosts around Christmas time each year, when I see and hear them celebrating Christmases long gone in snippets of videos stored somewhere in my gray matter. And of course I am there in those videos as well, wearing a younger man’s clothes.

In a sense, Christmas is the greatest ghost story, for it speaks to the Word becoming flesh and dwelling among us physically for a time, the Ultimate Reverse Haunting, God the Father through the Holy Ghost becoming a physical person with the objective of saving us all. Certainly, it is to humanity’s credit combined with divine grace that He chose to become a human being when He easily could have become something else - or taken His business elsewhere.

After Christmas, the frequency of my hauntings will decline. The videos of the departed Busks will go back into the appropriate mental compartment, and I will focus on enduring a Western Michigan January, February and March. But as Carly Simon sings, There’s always someone haunting someone…and you know who I am, though I never leave my name or number, I’m stuck inside of you…

My Christmas wish for you is simple. Be receptive to your hauntings; let them be a positive force in your life. The shades of the past can often help us live in the present. And if you meet any really interesting spirits, please send them my way, I have questions!

Thanks for blogging with me thus far, and Happy Xmas.

Strange Days; Strange Election

2008-10-19T17:32:00.006-04:00

It’s been a goofy Fall. Regardless of views of Grand Traverse Bay, Michigan, regaled with October’s golden hues amidst a cloudless sky, the global recession brings to mind the eternal conclusion of The Doors’ Jim Morrison:

The future’s uncertain and the end is always near.

What is quite certain is the outcome of the United States presidential election. On November 4, 2008, America will repudiate the conservative agenda (primarily because the Republicans in Congress and Dubya repudiated it themselves first), and we are likely to have a pendulum swing back to the days of the so-called Great Society circa 1964. I would be more disturbed by this were it not for the words of Thomas Jefferson, who prophesied these swings, albeit in a more graphic manner, when he said:

The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.

~~(Hey Tom, so who’s the patriot and who’s the tyrant? Inquiring minds want to know!)~~

The best thing about this presidential election is Governor Sarah Palin satirizing Tina Fey. Or is it Tina Fey satirizing Governor Palin? I don’t know but wish that these Saturday Night Live episodes would continue after November 4. I do believe that Governor Palin has some potential to rival the great Maggie Thatcher if the Gov becomes a seasoned US Senator and develops expertise in dealing with national and international problems, as opposed to those affecting Alaska. But that scenario is down the road and not just around the corner.

We recently finished watching the John Adams HBO mini-series. Every citizen should see this perceptive account of the genesis of the USA. The truth that jumped out at me was that this country was born out of both weakness and truth. The truth is that All Men are Created Equal; the weakness is that kings and dictators can often gain enough power to hide the truth. In significant ways, this country is just as fragile today as it was when John Adams worried about whether we would be ruined by an enveloping conflict between Britain and France, or when Abraham Lincoln confronted the horror of the United States of America on one hand and the enduring Confederate States of America on the other.

Our history teaches that the survival of our country has always been a near thing. Our country's continued existence is the result of over a half million of American men and women who have made the ultimate sacrifice to preserve it. And perhaps a larger force that has, thus far, been mercifully patient with our numerous defects and decided to preserve us as the “shining city on the hill.”

So, vote for the Presidential candidate who you truly believe will preserve and nourish that image. If that person is not on the ballot, it is the nation's loss.

Thanks for blogging with me… thus far.

Contracts 101: Damn Sight Damages

2008-08-05T20:43:00.003-04:00

Constantine is a little Michigan town located near the Michigan and Indiana border. Not much is there: the St. Joseph river, a dam, and the Dam Site Bait Shop, Inc. I figure that the founder of the Dam Site Bait Shop was a lumberman who retired to fish on the river and spent his last penny to launch a business with a questionable return on investment. His wife probably said, "We're goin to go bankrupt over that forlorn Bait Shop of yours! Its a damn sight!" And his reply was, "Honeylumps, it's not the damn sight Bait Shop, it's the Dam Site Bait Shop!"

If dam site bait shops can be confusing, so can dam-ages for breach of contract. In the context of a commercial agreement, damages come in 2 categories: direct and indirect. Indirect damages have further variations called incidental or consequential, but no need to ponder that here. But what are direct vs. indirect damages? The basic distinction isn't complicated.

Let's say that you have 2005 Chili Red Mini-Cooper "S" automobile with 90,000 miles on it.

I want to buy it, but I'm worried about the brakes. "When did you have the brakes replaced last?" I ask. You reply, "These brakes are fine, the brakes are great, and they will stop this car on a dime." I ask you to represent that in a signed and dated purchase agreement for the car. I pay you the negotiated amount for the Mini-Cooper, and then drive it home. On the way, the brakes fail, causing me to hit another car, dents to both. The police report indicates that the brakes should have been replaced a long time ago. I go to a local Mini dealership and pay $900 for new brakes and $2,000 for body work. Then, I think about suing you for breach of our sales contract. How does the law compensate me for my loss? What damages might I recover?

I can recover the amount of $900 for the new brakes and the $2,000 for body repairs, assuming that the Mini dealership's charge for parts and labor was reasonable. I can also recover the amount I spent to fix the damage to the other car caused by the worn-out brakes. But I can also get indirect damages, i.e., the value of my time to take the car in to the Mini dealership to replace the brakes, the price for a rental car that I had to pay while the car was being fixed, and the gas I spent for the rental car; in fact, I decide now would be a good time to switch from Chili Red to British Racing Green, a premium metallic paint color costing me an extra $1,000.

Since indirect damages are inherently uncertain, in contracts between businesses you will usually find a disclaimer provision whereby the parties both agree that they can't recover these "downstream" damages from each other. Courts have no trouble with this concept as long as the damages aren't claimed in connection with personal injury or death, or gross negligence or willful misconduct. Remember that commercial law is focused on the free flow of goods, and if the parties can determine in advance what their liability exposure is if the deal goes south, that is a good thing.

But what about a court awarding me the $1,000 to have the car repainted with the all-time best color for any car in the modern or post-modern world, British Racing Green? No such luck, the law says that I have no right to unjustly enrich myself at your expense. To that I truly say, "DAMN!"

Thanks for blogging with me thus far.

Forget Breakfast, Ebay Eats Tiffany's Lunch

2008-07-14T21:58:00.004-04:00

What happens when the panache of Tiffany's trademark collides with the formidable eCommerce engine of eBay? The context of the battle was Tiffany's action against eBay for trademark infringement on the basis that eBay failed to police its sellers to remove counterfeit goods falsely bearing the Tiffany trademark. By this inaction, Tiffay complained, eBay directly and contributorily infringed upon Tiffany's trademark. eBay responded that whenever Tiffany told it to remove counterfeit goods from ongoing auctions on eBay's website, eBay immediately did so. Tiffany responded that removal at that late date was not enough; eBay should have anticipated infringement of Tiffany's mark; for example, by removing sellers listing more than 5 Tiffany-branded items before the auctions commenced. (Apparently sellers of 4 Tiffany-branded items were usually legitimate, but sellers of 6 items were crooks.)

The case comes before Judge Richard Sullivan in the United States District Court, New York City, for a bench trial. Evidence heard (we don't know if Audrey Hepburn's ghost appeared in support of Tiffany's) and arguments considered. Decision - eBay off the hook.

In his decision (PDF doc here), the Court finds that eBay can lawfully use and allow its sellers to use the Tiffany mark to advertise or sell genuine Tiffany goods, something that lawyers call a trademark's "nominative use. " Further, the Court refused to impose a duty on eBay to take action in anticipation of possible infringement and found that it was enough for eBay to have removed particular counterfeit items when Tiffany told eBay about them:

The law does not impose liability for contributory trademark infringement on eBay for its refusal to take such preemptive steps in light of eBay's 'reasonable anticipation' or generalized knowledge that counterfeit goods might be sold on its website. Quite simply, the law demands more specific knowledge as to which items are infringing and which seller is listing those items before requiring eBay to take action.

Since there is a lot of stake here, Tiffany's will probably appeal this decison. Audrey and her blue boxes may yet prevail. Dinner will be served at the US Court of Appeals in the upcoming months. Who will walk away satiated?

Thanks for blogging with me thus far.

Summer Quaffing - Our Picks!

2008-07-03T21:17:00.016-04:00

There have been a few pleasant surprises in the course of this Summer's winetasting, and if you have been stuck in the rut of Chardonnays for white, Cabs for red, and some sort of fizzy water for sparkling, you might be interested in some recent discoveries:

On the Red Front: A family friend visiting us in Leland brought a bottle of Cab Franc. I was somewhat skeptical, having always identified Francs as blending wines. Also, the Michigan Francs are known to be acidic. But this Franc was the 2005 Franc from Cosentino Winery and was very nice indeed with deep plum and lighter cherry notes with a slightly smoky finish. It paired extremely well with the Raclette cheese from the Leelanau Cheese Factory.We're anxious to try this one again!
On the White Front: Some of the lighter whites have hit the spot recently, including Michigan's own Left Foot Charley 2007 Pinot Blanc, Kim Crawford's 2006 Marlborough Pinot Gris, and for an excellent value from France, La Vieille Ferme Cotes du Luberon Blanc, forget this name, just look for the 2 chickens on the label and a price point under US $10! The latter is a crisp, fruity, dry white wine made from several Rhone Valley grapes: Grenache Blanc, Bourboulenc, Ugni Blanc, and Roussanne. Great for quaffing.

On the Sparkling Front: Unfortunately, the meltdown of the US Dollar has resulted in French Champagne becoming quite expensive. So, falling back on California production, we can heartily recommend the Mumm Napa Brut Prestige. It doesn't have the French refined finish (what I call "subtle bubbles") but a valiant attempt nonetheless at a price point around US $20.

And finally the Big Surprise: My annual bottle of French Brandy was recently empty, so I pondered its replacement. Hiding on the bottom shelf of a local wine/spirits purveyor was a Spanish Brandy with the rather intimidating name of Cardenal Mendoza Solera Gran Reserva with a Wine Spectator rating of 91 and a price point of US $50. This is great stuff, sweet coffee and caramel notes, and it clears the sinuses nicely too! Prefer it over the similar-priced French Martell VSOP.

So, imbibe the above in good health and with good cheer. And don't drink and drive, or you will need the services of one of my barrister brothers and sisters! And they don't come cheap, I hear.

Thanks for blogging with me thus far.

Red Alert: E-Mail Sigs Can Create Enforceable Contracts!

2008-06-10T13:49:00.008-04:00

Crafty lawyers arguing that contracts exist where at least one party intends otherwise are pondering the effect of e-mail "sigs." For the non-geek among us, an e-mail sig is what you automatically paste at the end of your e-mail message that gives your name, your title, and perhaps a business address or other related information. Several courts have recently ruled that an e-mail sig is no different than a manual signature that creates a binding contractual obligation on the signatory.

For proof of the foregoing, rather than give you the case blurbs, go here and also here.

The general thrust of these decisions is that where there is no dispute as to the source and authenticity of the e-mail, the e-mail is "signed" for the purposes of creating an enforceable obligation.

To get around the inference that one's sig can create a contract, consider adding the following disclaimer to your sig:

"Unless expressly stated in this e-mail, nothing in this message should be construed as a digital or electronic signature or writing."

Thanks for blogging with me thus far.

A Force Majeure Clause for the New Millennium

2008-05-25T07:34:00.002-04:00

Standard force majeure contract clauses, where "Acts of God" excuse one party from performing its obligations without such non-performance being deemed a breach, are so 20th Century. The community of contract lawyers desperately needs a force majeure clause for the clear and present dangers of the new millennium! So, I have assumed the heavy burden of drafting such a clause for my colleagues to use freely:

"Either party's non-performance of this Agreement shall be excused to the extent that it is caused by any of the following events:

(i) Alien abduction, invasion, possession or interference. As used herein, "alien" means a life form, whether or not carbon-based, from any other time, world, galaxy, universe, or dimension, and includes angels, Lucifer and his minions, Yeti (a/k/a Bigfoot), Mothman, Chupacabra, Gozer, Pukwudgies and the so-called "Grays." For avoidance of doubt, "alien" does not mean a foreign national without a work visa.

(ii) A pandemic or plague, whether or not caused by an unknown virus released during an alien autopsy at Area 51.

(iii) Seas boiling (whether or not the result of global warming), the rising of the dead (whether or not the dead appear as so-called zombies), mountains falling (but not earthquakes), the re-emergence of Atlantis, and dogs and cats living together.

(iv) Destructive power unleashed by any of the following: the finding of the remaining crystal skulls, the reverse engineering of alien technology, or the discovery of the Ark of the Covenant.

(v) The end of the world on December 21, 2012, according to the Mayan calendar. "

I'm sure that this clause will start to appear in countless of commercial contracts. My fellow contracts lawyers may use it without attribution, but I do request a small donation to my favorite esoteric interviewer, Tim Binnall of Binnall of America.

And remember, as those esteemed scholars of the paranormal stated in the award-winning documentary, Ghostbusters, "These things are real, they exist."

Thanks for blogging with me thus far!

The Passing of Wild Bill

2008-04-12T19:06:00.004-04:00

I just learned of the passing of William Hillegonds, Hope College Chaplain during my tenure there as a student (1970-74). The Chaplain's nickname was Wild Bill. I'm not sure how he earned this nickname, probably because his Chapel sermons were not easily slept through. He was also an outspoken critic of the VietNam war. But, I still remember his favorite prayer, 6 words that have stuck with me these almost 40 years, Lord, I believe. Help my unbelief.

Wild Bill and his family had the (dubious) honor of living next to the campus mini-dorm (Taylor Cottage) that also housed me, my roommate PC, and several other guys during those years. Because at that time the Michigan drinking age was 18, we had some rather good (and loud) parties at Taylor Cottage. Campus parties with anything but soft drinks were forbidden. But Wild Bill never ratted on us, and in fact, one Saturday night came searching for a wine opener, confident in the knowledge that the wild guys of Taylor Cottage would certainly have such a device. We obliged him.

The other thing that I recall about Wild Bill was his coming home to his family residence each evening. I would be studying in our Taylor cottage room with the windows open, plotting how to become the world's greatest lawyer (or at least how to ace my current Poli Sci course), and he would climb up the steps to his front door and announce in the most insightful, reverent voice ever, "Hello Jerry. How was your day?" When I first heard this, I thought perhaps Wild Bill was speaking to a respected colleague, but I heard no answer. Curious, I gazed out the window, only to discover that the Chaplain's greeting was directed to a cat of dubious pedigree. To this day, I'm amazed that Jerry the cat never answered him back.

I trust that he and Jerry are having the best of conversations in Heaven.

Thanks for blogging with me thus far.

Those Crazy EULAs!

2008-04-06T20:22:00.001-04:00

Contracts should not be written in stone. The exception is the Ten Commandments, and when the recently departed Charlton Heston as Moses waives them around like a conquering sword in the 1956 Cecil B. DeMille epic, one realizes that the exception to the general rule is not to be trifled with. But End User License Agreements (EULAs for short) are not the Ten Commandments.

Their authors, my fellow contract lawyers of an information technology persuasion, can and should review their EULAS periodically to verify that the language still fits the business purpose. Consider the recent examples of Apple and Adobe.

Recently, Apple has been trying to promote its web browser, Safari for use by Windows users. The somewhat intrusive strategy involves Apple pushing Safari to Windows users almost automatically when they receive an update to their Windows iTunes software. But the EULA that accompanied the download had a small problem in that the user agreed that Safari could only be used on a MAC computer, not a Windows PC. So, everyone who clicked on the "I accept" declaration when installing Safari on his Windows PC breached the EULA! Fortunately, Apple quickly changed its EULA to conform to its business objective.

More troubling was Adobe's EULA for its recently introduced Photoshop Express, an on-line photo editing and storage application. The first version of Adobe's EULA granted Adobe the right to re-use one's photos for anything, without charge. In a crazy burst of legalese, the EULA said:

Use of Your Content: Adobe does not claim ownership of Your Content. However, with respect to Your Content that you submit or make available for inclusion on publicly accessible areas of the Services, you grant Adobe a worldwide, royalty-free, nonexclusive, perpetual, irrevocable, and fully sublicensable license to use, distribute, derive revenue or other remuneration from, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other Materials or works in any format or medium now known or later developed.

After the user community, including several well-known techie journalists complained, the EULA was changed to read:

Adobe does not claim ownership of Your Content. However, we do need certain rights from you, with respect to Your Content, in order to operate the Service and in order to enable you to do all the things this Service affords you the ability to do. Therefore, with respect to Your Content, you grant Adobe a worldwide (because the internet is global), royalty-free (meaning we do not owe you any money), nonexclusive (meaning you are free to license Your Content to others) fully sublicensable (so that we can permit our affiliates, subcontractors and agents to deliver the Service on our behalf) license to use, reproduce and modify Your Content solely for the purposes of operating the Service and enabling your use of the Service. With respect to Your Shared Content, you additionally grant Adobe the rights to distribute, publicly perform and publicly display Your Shared Content (in whole or in part) for the sole purposes of operating the Service and enabling your use of the Service and to sublicense Your Shared Content to Other Users subject to the limitations of Section 7 below. These limited licenses do not grant Adobe the right to sell or otherwise license Your Content or Your Shared Content on a stand alone basis. Further, you may terminate Adobe’s right to distribute, publicly perform and publicly display Your Shared Content by making it no longer shared. You may terminate the remainder of Adobe’s rights by removing Your Content from the Service.

The only two differences between the two versions is first, Adobe can only use one's photos in order to operate the Service and second, that a user can terminate Adobe's rights by making his photos private (no longer shared) or removing his photos entirely from the site.

But the phrase, operation of the Service is broad and ambiguous. Seems to me that if Adobe likes a user's publicly-shared photos, it could use them to promote the Service (for example, display the photos on the PhotoShop Express homepage) as a way to encourage folks to open an account (at no charge, but Adobe sells related products for a tidy sum) all without reimbursement to the user.

Fortunately, unlike these EULAs, the Ten Commandments contain no fine print; they were not born in a corporate law department!

Thanks for blogging with me thus far.

"Spend Your Spring Vacation on Duma Key!"

2008-03-25T19:59:00.005-04:00

You may visit the official consumer website of the Sunshine State, www.visitFlorida.com, but you won't find the title to this post among the "places to see, things to do" in that wonderful State. That is because Duma Key exists only in the mind of Author Stephen King as revealed in his current bestseller of the same name. And Duma Key was a place conducive to an artist, a lawyer, and a wealthy (mostly) senile spinster, especially because each suffered brain trauma, making them predisposed to mind control from something better kept on ice or at least in a fresh water environment.

My favorite character in the book is not the narrator, but rather one Wireman, former lawyer and survivor of a suicide attempt with a pistol to the ear, whose favorite sayings are sprinkled with Spanish. And he does an excellent job of reviewing the narrator's art gallery contract and suggesting the following changes just as any good contracts lawyer worth his or her salt would do, i.e.

A more favorable revenue split between the artist and the gallery for proceeds from the sale of the artist's paintings after a certain sales threshold is met.
Decreasing the artist's right to terminate the contract for convenience from 180 days' prior notice to the gallery to 90 days.
Using a colorful term to describe the contract to begin with, as in "bunny-hug, very little to [expletive deleted] with." (I'm so impressed with this terminology, that but for the expletive deleted, I would have to start using this in my memos to my valued clients. I may use "bunny-hug" anyway! )

Is Duma Key a typical Stephen King horror novel? Certainly not. It is the best thing that he's written since The Dark Tower series. The characters in Duma Key are so real that you will be googling them midway through the book to see if anything comes up. The interaction between the three main characters - the artist, the lawyer, and the wealthy (mostly) senile spinster and how they fight the sinister force on Duma Key - represents a masterful work. King has left his typical horror literary fare way behind.

So, whether you spend your Spring Vacation in Florida, Hawaii, or Western Michigan, or for that matter at work, treat yourself to a great read from Stephen King.

Thanks for blogging with me thus far.

"Intellectually Precocious, Spiritually Retarded"

2008-03-16T13:14:00.004-04:00

Here it is folks - right on the head from R. Craig Hogan, Ph.D:

"Today, humankind, especially in the West, is intellectually precocious and spiritually retarded. The result is that those areas of our lives based in technology are advanced and those that rely on understanding the meaning of life are primitive. People are engineering moon landings during their work days and going home to family conflicts, financial stress, and fear of death that leaves their lives full of tension, fear, and unhappiness."

With that, my blog is back, "Reblogged," you might say!

Thanks for blogging with me thus far.

Summer's Defining Moments

2007-08-10T12:28:00.001-04:00

In the late hot Summer of 1962, a 10-year old boy noticed that his Father always had 3 things crowded in his shirt pocket when he went to work:

a Parker fountain pen
a pack of Salem cigarettes
a pack of Beechnut peppermint gum; or
a roll of wintergreen Lifesavers

On weekends, however, these items were replaced with a new invention, a pocket-sized transistor radio, which would inevitably be tuned to Detroit Tigers baseball games. The boy and his Father would park themselves on the dark screened-in porch and hear the young Ernie Harwell do the play-by-play. Unlike the Father's reaction to Ernie's crescendos, to the boy, Ernie's sometimes excited narrative of the Tigers exploits would always turn into a kind of purring which, when combined with the cicadas and occasional burps from the bullfrog in the nearby pond, would put the boy into a long doze. He never could match his Father's love for baseball. But the love he had for his Father was matchless.

That was the boy's defining moment for all his Summers rolled up into one, until the "last" Summer of 1964, when the adored Father was suddenly extracted from this life while the boy was off playing with friends on a Sunday afternoon.

One of the joys of youth is the feeling that bad times will end sooner or later, but good times will continue forever. We grow up and find to our dismay one day that bad times can last longer than they have a right to, and good times never last long enough.

The premier book on defining moments of a Summer long gone is of course Ray Bradbury's Dandelion Wine, in which the exploits of 12-year old Douglas Spaulding in Green Town, Illinois, in the Summer of 1928 are chronicled with magical, eternal significance. In a Forward written many years after the book was first published in 1946, Bradbury admits that the story is mostly autobiographical. The Forward ends with these lines:

"The wine still waits in the cellars below.

My beloved family still sits on the porch in the dark.

The fire balloon still drifts and burns in the night sky of an as yet unburied Summer.

Why and how?

Because I say it is so."

And so it is with my Summer of 1962. That Summer is only sleeping somewhere, its resurrection a certainty.

Thanks for blogging with me thus far.

Red, White and Woody

2007-05-29T20:16:00.000-04:00

The Rocky Mountain Coral geraniums have been planted in containers around the front door to our condo (take that, vile mole creature!) lavender plants were installed because they are supposed to require little care and last a decade, the exterior foundation was duly sprinkled with some weird dust to kill ants at 40 paces, so we are now left with pondering the appropriate white wine to cool us down.

Immediately, Sauvignon Blanc comes to mind. SBs from New Zealand and Chile are better than those from California and have better price points for the quality. That is, assuming that you like your SB to be crispy rather than peachy, tangy rather than syrupy. If the notion of a citrus tangy finish puts you off, stick with the California varietal.

We tasted two very nice SBs recently: Drylands from New Zealand and Cono Sur from Chile. The former is priced at around US $15 and is just as crispy and refreshing as the more expensive Kim Crawford SB that we found so enjoyable last year. But the Cono Sur is really a find. Priced at under US $10, this is a great wine for a Summer aperitif and would also pair well with unsauced fish or chicken. It is a bit more complex and softer than the Drylands.

SBs are a good alternative to Chards. Remember, when you order a Chard you are in grave danger of getting "wine on a plank" because less expensive Chards tend to be over-oaked. If you like your wine woody, you will not mind it, but consider inquiring if the Chard was oaked in French barrels rather than American, because French oak is more subtle than American oak. If you want to play it even safer, you can find an unoaked Chard (the Kim Crawford version is excellent) that will still bring forth the varietal's buttery tones but without the wood. When in doubt, tell the wine steward to bring you a taste of both before you buy that glass or bottle to go with that special dinner under the Summer sky (preferably near some water, as in Lake Michigan, as in Leland, Michigan, but more to come on that later).

Thanks for blogging with me thus far.

Hard Evidence But...(The Problem of Pain - Part II)

2007-04-04T19:49:00.000-04:00

"In the end we all get dropped,
We all get black and blue."
---Carly Simon

We were talking about theodicy, or in practical terms, why, if there is a God, does He permit suffering, evil and pain? On the macro side, why didn't God intervene to kill the SS Troops as they gathered the Jews to send to the concentration camps? Why did He not act to prevent 9/11? On the micro side, why does God permit a loved one to contract a terminal illness, suffer a debilitating stroke, or a child to be born with serious mental and physical impairments? If God is what He is cracked up to be, He could easily prevent evil and pain, both macro and micro. And for those who believe in Him, shouldn't we get a break? Shouldn't membership in the theist (God-believing) community "have its privileges?"

The rationale behind God's failure to prevent pain in this world has been debated for a long, long time. One can find complicated explanations of God's failure to act and more simple apologies. For example, in The Problem of Evil Blog, grad student David Wood proposes that God values men's free will so much that the evil springing therefrom is not worth God's zapping evil wherever it appears and in effect, humans becoming puppets to Him. In the story of Job, a story that predates the Old Testament's version of it, the explanation is that no mortal has the right to ask God to account for His behavior, because no human can ever hope to comprehend the mind of God. Further, God has no need to answer Job because God Himself is the answer.

But this is a tough concept to grasp intellectually and does nothing to assuage the pain that one might feel at this moment. So, as Job was tempted to do, we could curse God and die. Many have done just that, overtly or covertly, certainly the rational approach. The only problem with that course is that our idea of what is rational can hardly be the same as God's idea of what is rational. If, as Christians believe, God sacrificed His Son, how rational is that, God becoming flesh (in part) and then dying and not staying dead! And for the avowed purpose of giving our sorry souls enough worth to merit eternal life. Preposterous? We may have trouble accepting a mystery of this magnitude. But our lack of acceptance results from our human preoccupation with what can be seen, touched, balanced, drafted, nailed or browsed (hard evidence) and does not negate the mystery itself.

Frederick Buechner in his little book Whistling in the Dark perceptively views the problem of evil in the context of both the Old and New Testament:

"The Old Testament speaks of the elusive figure of the Suffering Servant who though 'despised and rejected of men' and brutally misused has nonetheless willingly 'borne our griefs and carried our sorrows' and thereby won an extraordinary victory in which we all somehow share (Isaiah 52:13-5312). The New Testament speaks of the Cross, part of whose meaning is that even out of the worst the world can do, God is still able to bring about the best."

This lawyer is without the ability to say it any better.

Thanks for blogging with me thus far, and Happy Easter!

Hard Evidence But...(The Problem of Pain - Part I)

2007-03-11T20:02:00.000-04:00

My clients sometimes ask about the different standards of evidence in modern jurisprudence. So, I explain to them the difference between evidence beyond a reasonable doubt (i.e., the usual standard for a criminal conviction) as compared to a preponderance of the evidence (i.e., the usual standard required to prove civil liability).

With this in mind, I was somewhat amazed at the recent claim of James Cameron and Simcha Jacobovici that they have located the Lost Tomb of Jesus, his wife, siblings and his son. As proof, they have produced ossuaries (a/k/a limestone bone boxes) inscribed with the names of Jesus' clan, together with a statistical analysis concluding that there is a one-in-600 chance that those same names would have come together in a family that didn't belong to Jesus of Nazareth.

Biblical archaeologists of all religious persuasions have refuted these claims with evidence that I would deem persuasive. See for example, Jodi Magness' article, Has the Tomb of Jesus Been Discovered? published on the website of the Biblical Archeology Review ("BAR"). In addition, Statistician Carl Bialik refutes the one-in-600 finding in a recent article in the Wall Street Journal, available here.

In researching this topic, I purchased the March-April 07 issue of BAR's magazine and was amazed to find evidence that early Christians, consisting of Roman legionaires, had no doubt that Jesus Christ is God. At a site in northern Israel near a modern-day prison near the base of Tel Megiddo, a prayer hall was recently unearthed that may be the earliest Christian church ever discovered in the Holy Land. Dating back to around 230 AD, the prayer hall seems to have been built and used by occupying Roman soldiers who had converted to Christianity; this at a time before Christianity became the religion of the Roman empire in the early 4th century! And on well-preserved mosaic floor tile, we see the clear inscription "God Jesus Christ."

Of course, this discovery does not prove that Christ is in fact God, or his Son. But, it proves that enough Roman soldiers thought He was to build a prayer hall in an ancient town that they occupied in 230 AD. I surmise that Roman soldiers are much like their contemporaries in uniform in that they don't believe in wild tales. This suggests that the crucifixion, death and resurrection of Jesus Christ were accepted as a matter of fact by those soldiers at that location, date and time. Hard evidence. How (divinely) cool is that?

But then I read another article in the BAR magazine, about how several prominent biblical archaeologists have lost their Judeo-Christian faith in the course of their prominent careers. They have not come to terms with theodicy, the question of how God can be righteous, given the amount of suffering in the world. According to one of the scholars, I decided that I couldn't believe in a God who was [not] in any way intervening in this world, given the state of things. So, that's why I ended up losing my faith."

This "problem of evil" is as old as Job in the Old Testament, as new as contemporaneous blogs debating this question between Jews and Christians on one side and agnostics and atheists on the other.

And my take on this issue for you will have to wait until Part 2 of this post. Thanks for blogging with me thus far!

The Alien Technology Post

2007-02-17T19:46:00.000-05:00

I love alien technology. Velcro, the microprocessor, Tang and shred-proof dental floss - all are gifts from our little gray friends from very far away. They have also given us free unlimited and non-polluting energy, exactly like the kind that powers their ships, but Big Oil is blackmailing Big Government to keep it away from the masses. Big Oil's blackmail is rather obvious. It will disclose that the Government made a treaty with the aliens in the late 1940s to allow them to abduct humans at will (and including Will) in order to create a new alien-human race. Why? Because the aliens' gene pool was severely depleted over the millions of years of their existence. How will this wicked secret war between Big Oil and Big Government end? Will the aliens take sides? Who knows... but you may want to sell your oil stocks this year!

Actually, the above is just a ruse. I know that the aliens are abducting us and taking samples of our brain tissue because they can't believe that our brains are so large and yet we behave exceeding stupid. Witness the following recent examples from the national media:

The diaper-wearing astronaut charged with attempted kidnapping in a love triangle.

The drunken Australian fisherman who decided to catch a shark with his bare hands.

Britney Spears enters rehab, exits rehab, shaves head and gets tattoos.

If I were defending the worth of humanity before some galactic council, based on this evidence, for starters, I would find my case somewhat weak.

There are, however, some glimmers of hope:

A Mr. Bean #2 movie is scheduled for release.

Stephen King's The Dark Tower books will be turned into a movie or TV mini-series.

By all that is Holy, The Lord of the Rings translated very well to the cinema.

And so has most of Shakespeare!

Actually, I have no idea what those "smells like cinnamon or cardboard" gray dudes have up their hairless, transparent sleeves. But whatever their plans for continued interaction with the human race, I hope that they have spent most of February in suspended animation rather than surfing the Internet to see what those zany carbon-based Earthlings have been up to.

Thanks for blogging with me thus far!

After the Lights: Soup and Harp!

2007-01-02T10:52:00.000-05:00

The Xmas decorations are mostly down, the New Year has begun, and as one of my colleagues noted, it's time for the dark months. But one's attitude does not have to suffer along with a dearth of sunlight. Here is my New Year's prescription to endure until spring:

First, cook up some Russian Mushroom and Potato soup; the recipe is available here. We added the leftovers of a Christmas Eve ham which enhanced the flavor even more. Hint: use fresh mushrooms that have some flavor, such as Baby Portobellos.

(In case you are interested, the Tea Countess prepared the soup, not this blogger. It all dates back to when I decided that French class was better for a future lawyer than Home Economics at East Grand Rapids Junior High School. One of life's unfortunate choices. But as the photo attests, I can stir pretty well - and don't mind cleaning up.)

When you have the soup prepared and uncorked a good Pinot Noir to enjoy with it, why not enjoy it with a concert DVD: Invention and Alchemy, the fantastic appearance of famed Harpist Deborah Henson-Conant with the Grand Rapids Symphony Orchestra?

Ms. Henson-Conant can make the harp do strange and wonderful (and decidedly some un-harp-like) things. Along with the world-class Grand Rapids Symphony Orchestra and its Conductor, David Lockington, the CD version of this performance is a 2007 Grammy Nominee for Best Classical Crossover Album. There is even a special appearance of Mr. and Mrs. Akopian from the Grand Rapids Ballet Company.

The Invention and Alchemy DVD and CD are both available at the Invention and Alchemy website and perhaps at another major midwest retailer (if I can exercise my persuasive powers tomorrow).

So, have a little soup and harp, and you'll be smelling those spring flowers sooner than you think.

Thanks for blogging with me thus far.

My Christmas Wish: May Ye Be Visited by Ghosts

2006-12-07T19:55:00.000-05:00

Christmas in my mind should be a time to emerge from selfishness to selflessness. We may be selfish and not even know it. Too many hours at the office? Too many hours at Xmas parties? Too many hours surfing the Net or watching football? Perhaps these activities are not a waste of time, but overdone, they are just as selfish and egocentric as traditional vices. And I am guilty along with you, of course.

Perhaps you don't need my wish for you this Christmas, perhaps you do. But here you go:

May something totally unexpected and good-frightening happen to you to kickstart your Christmas.

Charles Dickens wrote about this in A Christmas Carol when Scrooge encountered three Christmas Eve ghosts who in turn showed him nostalgia, previously unappreciated family cheer around him currently, and a good dose of future terrible loss to change his miserly ways.

The human condition tends to selfishness. Can't be helped unless something outside of ourselves - supra-human as it were - intervenes to push and prod our tired souls to the next iteration or as C.S. Lewis said, "Further up and further in." And that is what Christmas is all about, glorious divine intervention, certainly undeserved and never sufficiently appreciated.

Accordingly, I hope in the wee hours of Christmas morning, after Father Christmas has emptied whatever elixir you have left on your hearth for him, you are visited by at least one Christmas ghost (or failing that, an ET of your choice) who will either scare you silly or soothe you immeasurably so that you wake up on Christmas morning ready to enjoy the Day like never before.

Thanks for blogging with me thus far.