About the Presenter … · Web view2 days ago · “[W]e are confronted with the task of first...

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ROSS GUBERMAN is the president of Legal Writing Pro LLC and the founder of BriefCatch LLC. From Alaska and Hawaii to Paris and Hong Kong, Ross has conducted thousands of workshops on three continents for prominent law firms, judges, agencies, corporations, and associations. His workshops are among the highest rated in the world of legal education.

Ross holds degrees from Yale, the Sorbonne, and the University of Chicago Law School.

Ross’s Point Made: How to Write Like the Nation’s Top Advocates is an Amazon bestseller that reviewers have praised as a “tour de force” and “a must for the library of veteran litigators.” Ross also wrote Point Taken: How to Write Like the World’s Best Judges, which Court Review called “the best book . . . by far . . . about judicial writing.” He coauthored Deal Struck: The World’s Best Drafting Tips with Gary Karl and created the online contract editor ContractCatch.

Ross’s newest product, BriefCatch, is a first-of-its-kind editing add-in. Its devoted users include lawyers, law firms, judges, courts, agencies, and corporations around the world. BriefCatch was named one of TechnoLawyer’s Top 10 Products of 2019.

An active member of the bar and a former attorney at a top law firm, Ross has also worked as a translator, professional musician, and award-winning journalist. Slate called his investigative reporting about Fannie Mae “totally brilliant and prescient,” and Pulitzer Prize–winner Gretchen Morgenson wrote that his article “made even the most jaded Washingtonian take note.”

For nearly a decade, Ross has been invited to train all new federal judges on opinion writing. He has presented at many other judicial conferences and for the Association for Training and Development, the Professional Development Consortium, the Appellate Judges Education Institute, and the Corporate Counsel Summit, among others. Ross is a founding “Trusted Adviser” for the Professional Development Consortium and consults for Caren Stacy’s OnRamp Fellowship. He is often quoted in such publications as the New York Times and American Lawyer.

Ross won the Legal Writing Institute’s 2016 Golden Pen award for making “an extraordinary contribution to the cause of good legal writing.” He was also honored as one of the 2016 Fastcase 50 for legal innovators, and his feed has been named to the ABA’s Best Law Twitter list.

A Minnesota native, Ross lives with his wife and two children outside Washington, DC. Family travel has taken them everywhere from Argentina and Bhutan to Greenland and Zambia.


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Part One: Commonly Litigated

Terms

Avoid unintended ambiguity.

“This case affords another example of the occult science of drafting big contracts for big undertakings in which elaborate recitals, detailed descriptions and nice definitions, cautiously conjunctive and disjunctive statements and restatements, wondrously complex formulae, deftly balanced essential and nonessential, superior and subordinate stipulations, exceptions and exclusions and provisos, intricately interwoven references back and references forward, multicolored exhibits, and artistically arranged divisions and subdivisions, often crowd out the few plain words that would settle beyond argument the intent of the parties on some fundamental aspect of the agreement.”

Judge Skelly Wright1


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Warm-Ups from the Trenches1. Which of these is the likeliest meaning of this “Best Reasonable

Efforts” definition?

a) AstraZeneca must try as hard as a comparable company would.

b) AstraZeneca must try harder than a comparable company would.

c) AstraZeneca has satisfied the standard if it feels like it has.

2. A man was injured during a festival after he pushed away an extra-large inflatable beachball to avoid getting hit in the head. Is the beachball an “amusement device”?

“An Amusement Device shall include, but not be limited to . . . ‘any device that requires the user to strike, punch, or kick.’”

3. Can Lessee accumulate unused days just one time or more than one time?


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“Lessee shall have the right to accumulate unused days in any 150-day term during the continuous development program in order to extend the next allowed 150-day term between the completion of one well and the drilling of a subsequent well.”

4. Does “subject to” refer to the salary or does it refer to five times the salary?

“Principal Sum”: Five (5) times Salary subject to a Minimum of $100,000 and a Maximum of $1,000,000”

5. Does “may” mean that if the parties cannot resolve a dispute in mediation, they can choose to avoid arbitration?

“The parties . . . agree that . . . all Disputed Matters that are not resolved [in mediation] may be submitted by either Member to binding arbitration . . . .”


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Strange Bedfellows: Conjunction, Disjunction, and DysfunctionHow would you interpret the bolded language? Do you spot any ambiguities?

“Or”1. Would you like coffee or tea?

2. Would you like coffee or cake?

3. Underwriter shall not contact Trump or Pence.

4. “If any oil is discharged from a British ship the owner or master of the ship shall be guilty of an offence.”2

“And”5. Seller shall not contact Biden and Harris.

6. “A security means a stipulated mortgage and any other security held by the mortgagee.”3

Conjunction + Modifier7. “Company shall not give bonuses to more than 50 salaried and part-

time employees.”

One for all?8. Caesars problem:


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The Parent Guarantee shall terminate . . . and the Parent Guarantor shall be deemed to be released from all obligations . . . upon:

(i) the Issuer ceasing to be a Wholly Owned Subsidiary of Caesars Entertainment;

(ii)the Issuer’s transfer of all or substantially all of its assets to, or merger with, an entity that is not a Wholly Owned Subsidiary of Caesars Entertainment . . . ; and

(iii)the Issuer’s exercise of its legal defeasance option or covenant defeasance option . . . or if the Issuer’s obligations under this Indenture are discharged . . . .


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Problem: ShopaholicFrom SouthTrust Bank v. Copeland One:4

You are the owner of a shopping center and want to give a tenant bank an exclusive right to operate just one of the following: (1) an ATM or (2) another type of banking facility.

Please complete this prompt.

Tenant shall have the exclusive right during the term of this lease and any renewals to operate


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The Actual Provision

Tenant shall have the exclusive right during the term of this lease and any renewals to operate an ATM or any other type of banking facility on the Property.


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Problem: Game of Chicken

From Regency Com. Assocs., LLC v. Lopax, Inc.:5

Seller will not sell the parcel to any fast-food restaurant or restaurant facility whose principal food product is chicken on the bone, boneless chicken, or chicken sandwiches.

Can the Seller sell the parcel of land to a restaurant facility whose principal food product is chicken as long as the restaurant facility is not a “fast-food” restaurant facility?

Can the seller sell the parcel to a fast-food restaurant as long as its principal food product is NOT chicken?


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Problem: Trailing Trouble

From Bank of New York Mellon v. Commerzbank Capital Funding Tr. II:6

A German bank organized two affiliated entities under Delaware law. To help the bank raise capital, one of those entities sold a class of securities–Trust Preferred Securities–to investors.

The bank later acquired a second German bank by merger and thus assumed that second bank’s obligations to make payments for some of its securities.

One year later, the Property Trustee for the holders of other securities issued by the acquiring bank sued, claiming that payments on the initial securities triggered an obligation to make payments on the other securities as well.

The original securities were defined as follows:

(ii) preference shares or other instruments qualifying as consolidated Tier I regulatory capital of the Bank or any other instrument of any Affiliate of the Bank subject to any guarantee or support agreement of the Bank ranking pari passu with the obligations of the Bank under the Support Undertaking . . .


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The Delaware Supreme Court recast the definition:

(ii) preference shares [“Term 1”] or other instruments [“Term 2”] qualifying as consolidated Tier I regulatory capital of the Bank [“Internal Modifier”] or any other instrument of any Affiliate ofthe Bank [“Term 3”] subject to any guarantee or support agreement of the Bank ranking pari passu with the obligations of the Bank under the Support Undertaking [“Trailing Modifier”] . . . .

The court held that the Trailing Modifier (“subject to any guarantee or

support agreement of the Bank”) modified only Term 3 (“any other instrument of

any Affiliate of the Bank”) and not Term 1 (“preference shares”) or Term 2 (“other

instruments”).


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Interlude: The War on And/Or

How often do you use and/or? How often do you see it?

Which side are you on?

The Hostile View

US judge: “[W]e are confronted with the task of first construing ‘and/or,’ that befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning, or too dull to know what he did mean, now commonly used by lawyers in drafting legal documents, through carelessness or ignorance.”7

UK judge: “. . . the repeated use of the bastard conjunction ‘and/or’ which has, I fear, become the commercial court’s contribution to basic English.”8

The Ambivalent View

Williston on Contracts: “Probably because of its ungainly appearance, indiscriminate misuse, and the difficulties it causes in construction, [“and/or”] has provoked outbursts of invective which are somewhat disproportionate to the amount of harm it causes.”9

Ontario Court of Appeal: “[And/or] has been condemned as ‘a confusing hybrid,’ ‘a grammatical monstrosity,’ ‘a bastard sired by indolence (he by ignorance) out of dubiety,’ and’"an unfortunate expression which I have not met before and which, I hope, I may never meet again’ . . . . Nonetheless, the expression has enjoyed increased usage in contracts and other legal documents, and when properly used can serve as a convenient abbreviation to avoid clumsy circumlocution.” (emphasis added.)10


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Problem: Have It Your WayWhat would you insert in the blank to clarify that the Board has a right both to participate in discussion and to furnish certain non-public information?

The Board of Directors of the Company may (i) participate or engage in discussions or negotiations with any Person that has made a bona fide unsolicited written Acquisition Proposal [. . .] (ii) furnish any non-

public information relating to the Company [. . .] to any Person that . . .

Plain English Interlude: Kanye’s Plea


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From Kanye’s May 2012 Def Jam Profit Sharing Agreement / AmendmentGarden-Variety LegaleseIndustry JargonContract Lingo / Law

In addition to Royalties payable to Artist pursuant to the Recording Agreement in connection with the Master Recordings recorded during the fifth Option Period (the “Album Six Masters”) and the Master Recordings recorded during the sixth Option Period (the “Album Seven Masters”), IDJ will accrue to Artist’s account hereunder fifty percent (50%) of the Profits earned in connection with the Album Six Masters and the Album Seven Masters and no other Master Recordings (Artist’s share of Profits may sometimes be hereinafter referred to as the “Profit Share”); provided, however, that the Profit Share otherwise payable to Artist hereunder shall be applied to the unrecouped balance in respect of the royalty account under the Recording Agreement (the “Royalty Account”), if any. Notwithstanding the foregoing, IDJ shall maintain a separate account with respect to that share of Advances and royalties which are paid directly to RTW (the “RTW Account”) and a separate account with respect to that share of Advances and royalties that are paid directly to Artist (the “Artist Account”). For the


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avoidance of doubt, the RTW Account shall not be deemed payable until such time as the Royalty Account is fully recouped by royalties other than the Profit Share and the Profit Share shall not be paid through to Artist until such time as the Royalty Account is fully recouped.


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The Importance of Importance: “Material”

How would you explain what “material” means in “material litigation”? In “material adverse effect”?

Problem: A Civil ActionFrom Frontier Oil Corp. v. Holly Corp.:11

After Frontier Oil and Holly negotiated the material adverse effect provision below, Erin Brockovich, as in the film of the same name, filed a toxic-tort suit against Frontier for $100 million. Was that lawsuit a “material adverse effect”?

Except as [previously disclosed], there are no actions, suits or proceedings pending against Frontier or any of its Subsidiaries or, to Frontier’s knowledge, threatened against Frontier or any of its Subsidiaries, at law or in equity, or before or by any federal, state or foreign commission, court, board, bureau, agency or instrumentality, other than those that would not have or reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.


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The Court

Although the court agreed that the litigation “could be catastrophic for Frontier,” with potential damages “running into the hundreds of millions of dollars,” it maintained that the suit was weak on the merits. As a result, it found that a jury award was not reasonably likely to occur, and that the costs of Frontier’s defending itself against the litigation would not be “material.”12


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“A” for Effort: Commitment-Phobe Challenge

Rank these seven efforts clauses. Put a “1” next to the clause that puts the heaviest burden on a party. Continue until you have put “7” next to the clause that puts the lightest burden on a party.

“You shall use your _____ to resell the Diving Suits.”

reasonable efforts

reasonable best efforts

best efforts

good-faith efforts

all reasonable efforts

diligent efforts

commercially reasonable efforts


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Problem: Try a Little Harder?

From Nat’l Data Payment Systems, Inc. v. Meridian Bank:13

NDPS promised to buy Meridian’s credit card business. Either party could terminate the agreement if the parties failed to close by a certain date. Four days before the deadline, Meridian decided to pursue another deal. Despite ongoing negotiations, Meridian “let the clock run,” as then-judge Samuel Alito put it, and then terminated the agreement.

NDPS sued, claiming that Meridian breached the agreement when it failed to exercise its “best efforts” to close the deal. The provision is below.

Meridian and NDPS agree to use their best efforts to achieve satisfaction of the conditions to Closing set forth in the Agreement and to consummate the Closing on the terms and subject to the conditions set forth in this Agreement.14


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Problem: Try and Try Again

From Rhodia Int’l Holdings v. Huntsman Int’l LLC:15

Rhodia sold its chemicals business to Huntsman. Concerned about Huntsman’s financial viability, a third-party supplier requested a guarantee from Huntsman. Huntsman refused, and the supplier rejected the novation. Huntsman then notified Rhodia that it would no longer fulfill Rhodia’s obligations under the contract, even though it had begun to do so.

Rhodia argued that Huntsman had failed to use its “reasonable endeavours” to obtain the supplier’s consent by failing to provide the guarantee.

What does it mean to use one’s “reasonable endeavors” to obtain requisite agreements? And what would a party have to do differently if it had to use its “best efforts” or “best endeavors”?

15.1.2 With effect from the date of the [Sale and Purchase] Agreement, [the Second Claimant] and the Purchaser [i.e., Huntsman] shall use their respective reasonable endeavours . . . to obtain all requisite consents or agreements of all parties . . . .


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The Court

In construing the contested provision, the English court offered the following distinction between “best endeavors” and “reasonable endeavors,” and also weighed in on the meaning of “all reasonable endeavors”:

An obligation to use reasonable endeavours to achieve the aim probably only requires a party to take one reasonable course, not all of them, whereas an obligation to use best endeavours probably requires a party to take all the reasonable courses he can. In that context, it may well be that an obligation to use all reasonable endeavours equates with using best endeavours . . . .

What do you think about the different obligations imposed by the court?


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Pushing the Limits: Scope of the Agreement

Problem: Against the GrainFrom VFC Partners 26, LLC v. Cadlerocks Centennial Drive, LLC (1st Cir. 2017):16

Under an indemnity agreement, Borrower, an owner of commercial real estate, has a duty to indemnify Lender against “liabilities of any kind or nature whatsoever . . . in connection with . . . the presence, suspected presence, release, suspected release, or threat of release of any Hazardous Material.” In the next sentence, liabilities are described as follows:

“Such Liabilities shall include . . . the cost required to take necessary precautions to protect against the release of any Hazardous Materials in, on, or under the Property, the air, any ground water, waterway or body of water, any public domain or any surrounding areas to the Property.”

Was Borrower obliged to indemnify Lender for the cost of environmental testing, or was “cost of taking necessary precautions” just an example?


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The Court

The First Circuit held that Defendant did not have to indemnify Plaintiff for the cost of environmental testing because “the second sentence limits the terms of the first.” Given the context, the court held, “it makes more sense to read the second sentence as imposing reasonable limitations on the first” and as offering an exhaustive list of examples:

We also note that the second sentence does not include the typical language parties often use to introduce a list of non-exclusive examples, such as “shall include but not be limited to,” or “without limiting the foregoing, [the term] shall include.” Although such language is of course not obligatory, its absence does weigh against reading the second sentence as a list of non-exclusive examples.


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Problem: Full Force Which drafter did a better job of foreseeing COVID-19?

Issue Hillside Country Club

Water’s Edge

Condition: Examples If acts of God or government authorities, natural disasters

[Performance is subject to] acts of God, war, government regulations or advisory, disaster, fire, accident or other casualty, strikes or threats of strikes, labor disputes, civil disorder, acts and/or threats of terrorism, or curtailment of transportation services,

Condition: Expansion of Examples

or other emergencies or similar cause

Condition: Descriptor beyond a party’s reasonable control

beyond the control of Waters Edge

Shall We?: Obligations

Problem: The M&M Defense

Here is a famous rider from Van Halen’s standard contract. Does it create an affirmative obligation?

There shall be no brown M&M’s in the backstage area, upon pain of forfeiture of the show, with full compensation.

Problem: Who Done It?


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Could you cure any ambiguity in the second boldface phrase below by changing “shall”?

No later than fifteen (15) days after the closing of any Capital Transaction, all Partnership Capital Event Receipts (subject to requirements of applicable law with respect to the priority of other creditors of the Partnership, if any) shall be paid or distributed[.]


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Operative ProvisionsPlease analyze these provisions from Felicity Huffman’s plea agreement. Consider (1) what type of provision it is, (2) whether it arises upon execution or only post-execution, (3) whether it applies to a party or to a non-party, and (4) what language would best reflects those points.

Dear Mr. Murphy:

The United States Attorney for the District of Massachusetts (“the U.S. Attorney”) and your client, Felicity Huffman (“Defendant”), agree as follows:

Provision Affirmative covenant/ negative covenant/

right/ future occurrence/ condition/

consequence/ legal

construct?

Arises at

execution or post?

Party?

Language choice?

1. No later than April 30, 2019, Defendant will waive Indictment and plead guilty to count one . . . .

2. Defendant also agrees to waive venue . . . .

3. The U.S. Attorney agrees that . . . no further criminal charges will be brought against the defendant . . . .

4. Defendant . . . reserves the right to argue that her offense


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level should be increased by 2, not 4.

5. Defendant may not withdraw her guilty plea if . . . .

6. The U.S. Attorney agrees to recommend the following sentence to the Court: restitution in an amount to be determined by the Court at sentencing.

7. Defendant agrees that . . . [s]he will not challenge her conviction on direct appeal . . . .

8. Defendant keeps the right to later claim that her lawyer rendered ineffective assistance . . . .

9. Defendant hereby waives and releases any claims . . . .

10. Defendant understands that if she


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breaches any provision of this Agreement, Defendant cannot use that breach as a reason to withdraw her guilty plea.


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Now let’s do the same with these provisions from Amazon’s letter agreement purchasing The Washington Post.

Provision Affirmative covenant/ negative covenant/

right/ future occurrence/ condition/

consequence/ legal

construct?

Arises at

execution or post?

Party?

Language choice?

1. The Seller agrees to sell, and the Purchaser agrees to purchase, for an aggregate purchase price of $250,000,000 in cash . . . all of the issued and outstanding equity interests . . . .

2. Prior to the closing . . . the Seller shall take or cause to be taken such actions as may be necessary to transfer the following assets . . . so that, as of the Closing, the Excluded Assets . . . shall not be transferred to the Purchaser as part of the Transactions.

3. From and after the Closing, the Purchaser shall assume all liabilities that relate to providing post-retirement welfare benefits to Post Employees, and the Seller shall retain all


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liabilities that relate to providing post-retirement welfare benefits to Former Post Employees.

4. Seller agrees that it shall be solely responsible for any cost, liability or expense under any employment agreement, retention agreement and incentive awards . . . .

5. The Company will change its corporate name within 60 days following the closing.

6. The Purchaser will not acquire the Company’s interests in Classified Ventures, LLC, The Slate Group LLC . . . .

7. The Seller and the Purchaser shall agree to treat the Transactions as asset sales for U.S. Federal income tax purposes.

8. The Arbitrator shall within 15 days of the receipt of such materials render a decision[.]


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Part Two: CommonUsage Issues


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Usage Challenges

Edit any usage errors. Slashes mean that you should choose between the alternatives. Quotation marks mean that the language was litigated.

Which Word?

1. [Principal/Principle] and interest; [Principal/Principle] and agent; According to this tax [principal/principle]; [Principal/Principle] place of business; [Principal/Principle] reason for our conclusion

2. Please feel free to contact John or [I/me/myself] if you have any questions on the attached draft.

3. This agreement is made [between/among] three parties: Wal-Mart, Microsoft, and General Motors.

4. We have received [less/fewer] than five bids in [less/fewer] than five weeks.

5. “In making these representations, you [assure/insure/ensure] that you have no outstanding debts.”

6. “Employee may claim these Funds on the earlier of January 1, 2014 [and/or] at the time that Company first issues its preferred stock.”

Grammar Gaffes

1. We are taking these measures due to an internal investigation of a senior official [who/whom] the SEC alleges violated insider-trading laws.

2. “All documents related to the business, except customer lists, [which/that] are the property of Agent, are the property of Company.”17

Drafting Dodges


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1. “Earnout payments will be deemed to be accepted . . . except to the extent, if any, that [Parties] shall have delivered . . . a statement describing their objections.”

2. “Tenant may vacate the premises, provided, however, that Tenant first give Landlord a reasonable opportunity to mitigate its damages.”

3. “This Agreement is made solely for the benefit of the Issuers and the Portfolio Manager, their successors and assigns, and no other person shall have any right, benefit or interest under or because of this Agreement, except as otherwise specifically provided herein.”18

Punctuation Pain

1. Seller shall provide 30 days notice.

2. The non-prevailing party will be responsible for attorneys fees.

3. We have launched an inquiry into CEO Jones’ compensation package.

4. The Sale is conditioned on Buyer and Seller’s approval.


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Usage ModelsWhich Word?

1. Principal and interest; Principal and agent; According to this tax principle; Principal place of business; Principal reason for our conclusion

2. Please feel free to contact John or me if you have any questions on the attached draft.

3. This agreement is made between three parties: Wal-Mart, Microsoft, and General Motors.

4. We have received fewer than five complaints about our reinsurance provider.

5. “In making these representations, you ensure [UK: insure is also acceptable] that you have no outstanding debts.”

6. “Employee may claim these Funds on the earlier of January 1, 2014, or [“and” is also acceptable] when Company first issues its preferred stock.”

Grammar Gaffes

1. We are taking these measures because of an internal investigation of a senior official who the SEC alleges violated insider-trading laws.

2. “All documents related to the business, except customer lists that are the property of Agent, are the property of Company.”

Drafting Dodges


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1. “Earnout payments will be deemed to be accepted . . . unless [Parties] have delivered . . . a statement describing their objections.”

2. Tenant may vacate the premises only if Tenant first gives Landlord a reasonable opportunity to mitigate its damages.

3. [specify whether you mean provision, section, or agreement]

Punctuation Pain

1. Seller shall provide 30 days’ [hyphen optional] notice.

2. The non-prevailing party will be responsible for attorney’s fees or attorneys’ fees.

3. We have launched an inquiry into CEO Jones’s [though consistency is more important] compensation package.

4. The Sale is conditioned on Buyer’s and Seller’s approval.


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Endnotes

1 Ill. Cent. R.R. Co. v. Gulf, Mobile & Ohio R.R. Co., 191 F. Supp. 275, 276 (E.D. La. 1961) (construing 190-page agreement between New Orleans and railroads).

2 Federal Steam Navigation Co. v. Department of Trade and Industry [1974], 2 All ER 97 at 110.

3 Home Building Society Ltd v Pourzand (2005) WASCA 242 at 48.4 SouthTrust Bank v. Copeland One, LLC, 886 So. 2d 38 (Ala. 2003).5 Regency Commercial Assocs., LLC v. Lopax, Inc., 373 Ill. App. 3d 270 (2007).6 Bank of N.Y. Mellon v. Commerzbank Capital Funding Grp., 2013 Del. LEXIS

145 (March 19, 2013).7 Employers’ Mut. Liab. Ins. Co. of Wis. v. Tollefsen, 263 N.W. 376, 377 (1935).8 Bonitto v. Fuerst Bros. & Co. [1944] AC 75 at 82 (HL) per Viscount Simon.9 Williston on Contracts § 30:12 (4th ed. 2011).10 Higgins v. Orion Ins. Co (1985), 50 OR (2d) 352 (CA). See also

http://www.slaw.ca/2011/07/27/grammar-legal-writing/.11 Frontier Oil Corp. v. Holly Corp., No. Civ. A. 20502, 2005 WL 1039027 (Del.

Ch. Apr. 29, 2005).12 Courts rarely find that any change rises to the level of a “material adverse

change” or “material adverse effect.” Three exceptions, two at the trial-court level and one at the appellate level, prove the rule, either because the court construed “material” as “significant” rather than “deal-breaking” or because an extreme financial downturn was combined with regulatory violations. See Allegheny Energy, Inc. v. DQE, Inc., 74 F. Supp. 2d 482, ¶¶ 243, 245-246 (W.D. Penn. 1999) (holding that public utility commission’s refusal to award company compensation for $1 billion in stranded costs was materially adverse to the company, rejecting GAAP definition of materiality invoking “real importance or great consequences” definition); Genesco, Inc. v. Finish Line, Inc., No. 07-2137, slip op. at 33- 36 (Tenn. 20th J. Dist. Ch. Ct. Dec. 27, 2007)(noting in dicta that earnings drop was “durationally significant” and thus material because the change was “significant”). Akorn, Inc. v. Fresenius Kabi AG, C.A. No. 2018-0300-JTL (Del. Ch. Oct. 1, 2018)(finding a material adverse effect based on a dramatic and sustained financial downtown combined with regulatory malfeasance).

13 Nat’l Data Payment Sys., Inc. v. Meridian Bank, 212 F.3d 849 (3d Cir. 2000) (Alito, J.).14 Cal. Pines Prop. Owners Ass’n v. Pedotti, 141 Cal. Rptr. 3d 793 (Cal. Ct. App.


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2012).15 Rhodia Int’l Holdings v. Huntsman Int’l LLC [2007] EWHC 292 (Comm).

See also Stewart v. O’Neill, 225 F. Supp. 2d 6, 14 (D.C. Cir. 2002) (“[T]he agency was obligated to use its best efforts—that is, all reasonable efforts—to comply with all terms of the settlement agreement.”)(emphasis added); PRC Realty Sys. v. Nat’l Ass’n of Realtors (1992 U.S. App. LEXIS 18017) (4th Cir. 1992) (finding that defendant failed to satisfy a best- efforts provision because its efforts to persuade one of its members to use plaintiff’s services “did not constitute a diligent, reasonable, and good faith effort to accomplish the goal”) (emphasis added); Transfield Pry Ltd v Arlo International Ltd (1980) 144 CLR 83 at 101 (A “best endeavours” clause thus prescribes a standard of endeavour which is measured by what is reasonable in the circumstances, having regard to the nature, capacity, qualifications and responsibilities…in the light of the particular contract.”) (emphasis added); Farnsworth on Contracts 383-84 (4th ed. 2004) (noting that best efforts “has diligence as its essence”).

16 VFC Partners 26, LLC v. Cadlerocks Centennial Drive, LLC, 735 F.3d 25 (1st Cir. 2013)(emphasis added).

17 AIU Ins. Co. v. Robert Plan Corp., 836 N.Y.S.2d 483 (Sup. Ct. 2006).18 Bayerische Landesbank, New York Branch v. Aladdin Capital Mgmt. LLC, 692

F.3d 42 (2d Cir. 2012).

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