Category: Contract Law & Beyond

1

The Cerberus Case and Lessons in Law, Society, and Language

Over in the M&A world (that’s mergers and acquisitions for all you non-corporate types), there’s a recent decision from the Delaware Chancery Court, written by Chancellor William Chandler, that is getting a fair bit of play in the blogosphere, including from my friends Larry Ribstein and Steve Davidoff.

One of the reasons I love complex acquisition agreements as the subject of contract theory is that, like life, they are incredibly complex. No mere agreement to buy 100 bushels of wheat in thirty days at X dollars per bushel here! No, the agreements attempt to map a highly contingent future, one in which the environment or the businesses can change, financing may not be available, bet the company lawsuits can be filed, shareholder actions begun, and so on. I’ve argued before that language is often a blunt instrument used to capture the fine lines of an understanding.

I’ve not fully studied the opinion, but it is a fine piece of analysis, even where in very subtle ways I disagree with it. And with all due respect to Larry Ribstein and Steve Davidoff, I think Chancellor Chandler has a better feel for the limitations of law and language. Yes, this could be “sloppy drafting,” but as I alluded in an earlier post, lawyers, for all their pretensions of being at the center of a deal are often flies swarming around the galloping steed that is the deal itself, and the focus on the contract as the source of the problem is merely a fly’s-eye view.

In simple terms, what is the issue? Section 9.10 of the agreement says that the merger target (i.e. the company whose shareholders are going to walk away with cash – let’s call it the seller for ease of reference) has the right to enforce the agreement by injunctive relief for specific performance for a whole bunch of things, including forcing the deal to close. But Section 9.10 says it is “subject to” Section 8.2, which says “notwithstanding” any other provsion in the agreement, the seller’s sole remedy if the buyer walks away is a $100 million termination fee. The buyer walks away, and the issue is simply whether it must close under 9.10 or can walk away for a price of $100 million under 8.2. Got it?

Chancellor Chandler’s opinion says (i) the language is ambiguous on the walk-away right, but (ii) the circumstances of the negotiation make it clear that the seller understood its rights were limited to the $100 million walk-away fee. The crux of the ambiguity (and the source of the “sloppy drafting” criticism) is the fact that one provision (the “left hand”) appears to be taking away what another provision (the “right hand”) is giving. Why would that happen? And, indeed, there was testimony to the effect that it would have been clearer if one of the provisions had been deleted rather than having this “subject to/notwithstanding” trumpery.

I have read the two provisions, and I don’t think they are ambiguous. From the standpoint of the logical construction, the contract is doubly clear that the walk-away right dominates over the injunctive right. This, it seems to me, is as close as we come in the law to a semantical paradox, like the Liar’s Paradox (“this sentence is false”). The problem is that the grammar and syntax are absolute clear, but we rebel against the contradictory content. In short, why is it there? Try this: “Underlying the semantical paradoxes is our naive intuition that ‘paradoxical sentences because they are not ungrammatical, vague, or sortally suspect and encompass no false presuppositions, must yield statements when used.'” (Oren Perez, “Law in the Air: A Prologue to the World of Legal Paradoxes,” in Perez & Teubner, Paradoxes and Inconsistencies in the Law, quoting L. Goldstein, “A Unified Solution to Some Paradoxes,” in Proceedings of the Aristotelian Society.)

Perhaps it is because I have actually been in the shoes of an M&A lawyer trying to craft a linguistic solution, or have been the client of M&A lawyers trying to craft linguistic solutions for me, that I chuckle at the charges of “sloppy drafting” as though lawyers have the absolute power (a reductive, rational, scientific, but unrealistic assumption) to control all outcomes through language. One of my rules of thumb in negotiating language was to change as little as possible to achieve the desired outcome. That’s an art not a science, and Cerberus’ lawyer’s judgment ultimately bore out in this case. Who knows what would have happened if he tried to make the change by deleting rather than trumping?

Moreover, we don’t know what the lawyers were saying to their clients. We do know from the testimony that the seller’s lawyers understood that the walk-away right essentially created a $100 million option. How do we know that the following conversation did not occur in the seller’s executive suite or boardroom – “look, we aren’t going to do much better than this – we will be able to make an argument there’s an ambiguity on the walk-away right, but Cerberus is probably going to win it in the end. On the other hand, the worst thing that happens if we lose is that we get $100 million, and that should be a sufficient litigation war chest if we want to pursue an injunction.”

My point is that the contract, as important as it is, is only a piece of the entire social system that is a complex business acquisition. There can be sloppy drafting, but that’s an easy default.

For those interested, I’ve addressed this previously in two respects: (a) the illusion that there was an original mutual intention of the parties when a contract is later capable of colorable conflicting interpretations (The Bewitchment of Intelligence: Language and Ex Post Illusions of Intention, 78 Temple L. Rev. 99 (2005), and (b) the lawyers’ illusion that a contract is the deal (i.e. the game), when in fact it is just a model of the deal.

UPDATE: Larry Ribstein has an insightful follow-up to my comment here, and Steve Davidoff offers a detailed analysis here.

22

ECCO Shoes, Transaction Costs, Reputational Norms, the Limits of the Legal System, and Internet Disintermediation

On October 15, 2007, at the recommendation of my wife, I bought a pair of ECCO shoes at what, for me, was an ungodly amount to pay for a pair of shoes. The reason for the investment is that we live in a city now, and I do a lot more walking. (For comparative purposes, I buy all of my shirts from Lands’ End, and my pants are whatever Dockers – pants for the bigger butted man, as my daughter Arielle and Dave Barry say – are on the table at Costco. So buying shoes at a chi-chi store on Newbury Street was an unnatural act.)

About six weeks later, I happened to notice that the heel had worn through. I wear these shoes a fair amount, but it didn’t seem to me that a pair of shoes at this ungodly price should wear through in six weeks. You can’t just take shoes back to the ECCO store, however. You have to order a prepaid bag from customer service, and send the shoes away to an outsourced “warranty service,” which makes a unilateral judgment whether ECCO will do something about the problem. I duly packed them up and send them away.

The warranty service received them yesterday, and the following is now posted online under my repair ticket: “WEAR IS NOT A DEFECT NORMAL WEAR NO DEFECT.”

From time to time, I teach contracts! I think there’s at least a fact issue whether a sole wearing through in six weeks of relatively normal wear on a pair of $190 shoes constitutes a breach of the implied warranty of merchantability under Section 2-314 of the U.C.C. I channeled Ronald Coase a few minutes ago, and he told me that in the absence of transaction costs, clear default rules, and freedom of contract, the initial allocation of legal rights as between ECCO and me would be irrelevant to an efficient outcome. And when I channeled Frank Easterbrook, he referred me to Hill v. Gateway 2000, and told me I was bound by a warranty disclaimer that was available on the ECCO website if I had read the sales slip and clicked my way through to find it before I wore the shoes.

I am not finding either of those results particularly satisfying at this minute. But wait! I also channeled Lisa Bernstein who has studied diamond brokers in New York City, and they don’t rely on formal law. Do a deal, say “mazel v’broche” (luck and blessing), and reputational norms will do the rest. Hmm. I wonder what that means, if anything, in a world of internet information disintermediation. I’m kind of a “you pays your money and you takes your chances” on this kind of stuff anyway. Personally, that’s the last pair of ECCO shoes for me. But you can make your own decision.

30

Law Talk: George R. R. Martin

gm-lochness-t.jpgIn today’s episode of Law Talk, we hear from George R. R. Martin, the prolific author of the “high fantasy” series The Song of Ice and Fire. George has also been a screenwriter and Hollywood producer, an editor, a chess tournament director, a union leader, and a volunteer media director for the Cook County Legal Assistance Foundation. As I’ve previously written, George is a leader in the movement to bring a degree of realism to fantasy, and he has been dubbed (by Time Magazine) “The American Tolkien.”

George and I talked for almost an hour, on topics ranging from the role of law in fantasy books (starting 3.5 minutes in); the limits of magic as a plot device (20 minutes in); law professor Robert Cover (22 minutes in, brought up by me, to my shame); why most fantasy novels seem to be set in merry olde england (28 minutes in); fan fiction and copyright infringement (31minutes in); how writing sci-fi is like selling music, and whether he likes Radiohead’s distribution model (35 minutes in); how to keep control over your work when it is transformed into another medium (39 minutes in); and inheritance law (toward the end).

George is a fantastically interesting, well-read, thoughtful guy, and I think you will enjoy this interview quite a bit. (If you aren’t a fan of the books, ignore my constant, irritating, references to characters you have never heard of.) Finally, if you want to learn more about George, visit his blog (which he says isn’t one) and join the hordes of folks waiting for the next installment of the series, A Dance With Dragons, to ship.

Missed the link? Here’s the interview again. Warning: it’s a big file!

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

For other posts in the “Law and Hard Fantasy” Interview Series, see:

Confronting Contractors

brokedown.jpgThere’s a nice review of Barry B. Lepatner’s Broken Buildings, Busted Budgets in the WSJ today. Lepatner offers an interesting economic model of traditional business methods here:

Firms aren’t really competing to deliver quality for the lowest possible price. Instead, according to Mr. LePatner, “they compete for the future right to increase the initial cost of their agreement.”. . . “We end up with many firms,” Mr. LePatner writes, “but little head-to-head competition on the big economic variables of time, quality and price.”

Construction firms often make unrealistically low bids to get jobs, Mr. LePatner notes, but they can count on finding plenty of reasons later to jack the price up enough to allow for a profit. When the building is under way, it becomes prohibitively expensive to fire the contractor and start anew. The owner has become a hostage.

Yet another reason to suspect “lock-in” as a business model. On the bright side, LePatner suggests that cyberspace’s enhancement of “reputation nation” should make experiences like our guest Jeff Lipshaw’s less likely in the future:

[LePatner suggests] hiring experts who can monitor builders and who have financial incentives to prevent needless overruns. Tougher contracts should enforce fixed costs or, at least, severely limit the scope for escalation. And thorough background checks — looking for lawsuits, public complaints and financial troubles — may lower the chance of hiring dodgy engineers and construction teams.

Photo Credit: night86mare.

0

A Nod to Angie’s List as an Alternative to Contract Law

As I’ve written in Models and Games, I think contract law is often a poor template and, hence, a poor solution for issues in transactions.

My lousy experience with builders and contractors is the stuff of legend. I was walking home from the Porter Square T station, looking at the old Cambridge houses, and wondering how, in the view of the general level of competence out there, any building actually manages to withstand entropy. We have a brand new house in Cambridge, and notwithstanding my contractual right to have an entire punch list of repairs done, and notwithstanding the builder’s one year warranty, and notwithstanding his earlier promises to show up, he has disappeared with only a voice mail message as evidence that he ever existed.

Contract law is not going to solve my problem, except in the most indirect sense. Because I have a contract, I can sue the builder, get a judgment (I assume it will be a default judgment in small claims court), and have the judgment satisfied by a guaranty fund that the Commonwealth of Massachusetts established with the builders’ license fees. Other than that, the accepted wisdom is that you never resort to the contract in arguing a money issue with your builder. You may win the battle, but you will lose the war, particularly if you never manage to get inside the walls to discover he used 1/4 inch rather than 3/4 inch plywood or a lower grade of insulation to make back what he lost in the other battle.

An even better tack is to deal with people who will do what they say will do regardless of the contract. In that regard, let me recommend Angie’s List. This was founded by a person in Indianapolis, where we used to live, and has spread around the country. We got referrals for the electrician and the plumber from the list of A-rated companies, and I just finished posting excellent reviews of both.

0

Models and Games

This seems like an auspicious occasion to announce that, following in the Larry Solum model of developing a paper from blog post to short idea piece to full-blown article, I’ve posted on SSRN the complete version of what was known in a prior iteration as “Aboutness, Thingness. . . .” The last thing to go was the old title, and the second to last were the first several paragraphs of the old introduction, I suppose because the words are like children, these particular words had been around since I first put fingers to keyboard, and, if truth be known, I thought they were really clever. But these are all aspects either of self-deception or unwillingness to make choices, and who of all people inspired me but Katie Holmes (or at least her character in Wonder Boys, Hannah Green) who observed to Michael Douglas (as Grady Tripp) that writing was about making choices and he had made none in the manuscript of his second novel.

The gist of the piece, if I were to put it blog-colloquially, is how some modes of making sense of cause-and-effect, particularly in the realm of human behavior, just plain miss the boat. In natural science, an example would be trying to explain dog behavior and conditioning at the level of physiology. That level of explanation might suffice for a physiologist who is interested in measuring muscle contractions at feeding time, but it doesn’t tell the microbiologist much, nor does it do much to explain at the level of operant conditioning. In the social sciences, the distinction would be (courtesy of historian Thomas Haskell), the difference between explanatory cause and attributive cause. If you ask the thug why he beat the old man, an answer that involves neural pathways and muscular contractions may explain cause and effect at one level, but it doesn’t make sense in the same way this answer does: “because I wanted his wallet full of money.”

The part of the piece with which I had the most fun was where I applied the foregoing to the 2003 Yale Law Journal article by Alan Schwartz and Bob Scott on contract interpretation. In a nutshell (but you will have to read the piece to see why), my claim was that their mode of explanation simply missed the boat in the same explanatory versus attributive way.

The article is Models and Games: The Difference Between Explanation and Understanding for Lawyers and Ethicists. The abstract follows the fold.

Read More

2

Predatory Lending: Meet Jonathan Swift

plalogo.gifAt the new website of the Predatory Lending Association, aspiring lenders can find concentrations of “working poor” customers in their neighborhood, calculate effectively usurious loans, not blacklist crusaders against payday lending, including Liz Warren, and learn all the arguments that goo-goos will make against high-interest borrowing. One Q&A in particular should be familiar to contracts professors (or maybe just those, like me, who use Randy Barnett’s Perspectives book):

Myth: Payday lending is comparable to selling yourself into slavery.

Reality: Although there is a market need for slavery, people do not choose to sell themselves into slavery. Free choice is the difference between payday lending and slavery.

(There is even a neat chart to make the connection more clear.) On the discussion boards, you can share your thoughts with other predatory lenders. Sure, it all seems a little too cute, but it’s worth checking out anyway.

0

“Cops” for Commercial Law Profs

Today in my Article 9 class, we reached one of my favorite parts of the course: the law of the repo man. I have blogged before about the philosophical significance of the repo man, but today we focused on the more mundane issue of what constitutes a breach of the peace under UCC 9-609. Fortunately, YouTube came to my rescue. It turns out that there is a whole YouTube genre of repo-men (and a few women) filming and posting their work. Its like “Cops” for commercial law profs. (Warning: profanity)

My class was pretty unanimous in their belief that this constituted a breach of the peace, but — I am happy to say — could not agree on when the breach actually happened. Now if I could find some YouTube videos on the Statute of Frauds.

1

Regulating Private Military Companies

privatemilitary.jpgBlackwater has of course been in the news. And the House has acted twice in the past week to regulate private military companies. One, H.R. 2740, according to the Times “would bring all United States government contractors in the Iraq war zone under the jurisdiction of American criminal law. The measure would require the F.B.I. to investigate any allegations of wrongdoing.” The other, H.R. 400, is designed “to make it easier to convict private contractors of defrauding the federal government during wartime.”

A couple of years ago I wrote an article about this area. One thing is clear: the use of private military contractors is not going away soon and can often have benefits. As such I proposed that rather than looking to legislation alone, the U.S. government, which accounts for massive portions of many private military contractors income stream, should take an old school contract approach to the jurisdiction problem. In short if the government wants to be serious about the issue, it can simply demand that any contractor adhere to human rights and international laws and agree to U.S. jurisdiction over common crimes. An additional legislative layer is required, however. Protection for whistleblowers is vital for any criminal or profiteering law to have teeth. These events occur far away and when people have come forward as happened in Bosnia, the company involved was quick to try and paint those who spoke up as trouble makers with all the usual employment repercussions. Peter Singer’s work in the area details much of the problem and is worth a read. My paper, Have Your Cake and Eat It Too: A Proposal for a Layered Approach to Regulating Private Military Companies, covers some of the history of the use of PMCs by governments and NGOs, the way PMCs can be used well, the reasons international law falls short of addressing many of the issues that are bound to arise, and then offers a possible solution to at least make sure that when crimes occur people know about them (a real problem in many cases), and they can be prosecuted. There is of course much to do in this area. The paper seeks to be a starting point.

10

Drafting a Group Blog Operating Agreement

special_large.gifConcurring Opinions organized as an LLC some months ago, for all the obvious reasons. But filing papers with the Secretary of State doesn’t begin to answer the legal issues that arise when people come together to blog. Indeed, it creates a host of new ones. Over the last few months, to solve the problems that becoming a legal entity creates, we have been working to finalize our operating agreement, tailored to the unique needs of blogging. Now that we’re done, I thought I’d share a few thoughts about the major issues we considered, and the solutions that we settled on. I’m going to be a little bit general here, and, as always, nothing about this post constitutes legal advice, on the off chance you were in the market for it. To preempt the objection that considering the pittance of money that we get from advertising, most of this is overkill, I would just respond: they probably used to think that at Google too. (Or, more humbly and accurately, if it is worth doing, it is worth doing right).

1. Governance: We decided to go with a member-operated entity (rather than the formal route of having officers). This seemed like an overdetermined choice. But it leaves some big questions on the table: what kind of majorities do you need for which kinds of decisions; how many members constitute a quorum; do all members get equal votes? We decided on super-majority rules for every decision, and permitted voting by email with a “quorum” defined as participation in the email “meeting” within a set period of time. We also decided on equal voting shares for existing members.

2. Exit: So there you are, blogging away as a member of an LLC, and one of your members decides to sell his or her stake to an outsider, who chooses to blog on (the horror!) international law instead of privacy, or simply write multiple posts about Jennifer Aniston or other trivial sundries. Can you stop this nightmare before it starts? With difficulty. Transfer restrictions must be reasonable, which means (generally) that you need to draft an LLC buy-out as an alternative to an outside sale that provides a fair estimate of the worth of a stake in the entity. That isn’t an easy to problem to solve. We started with a six month revenue figure and backed into a valuation: I’m sure that there are better options available. Similarly, we made provisions for non-voluntary exit (i.e., removing a member) with an appropriate valuation and notice provisions. This is a sensitive drafting problem, but a necessary one in a world where people sometimes simply get tired of blogging.

3. Intellectual Property: Does the blog own the posts, or do the authors? If the former, then you’ve got multiple problems: what about guests? Who will control licensing? If the latter, you’ve got to worry about protecting the Blog’s marks (such as they are), and also make sure that you set up a licensing system within the operating agreement. We settled on a scheme were the authors retained IP rights, except that the Blog will own its own marks, such as they are.

4. Distribution of Profits: The options here are legion, and fraught with potential hard feelings. Starting with the presumption that most blog LLCs will want to be taxed like partnerships, the legal problem is to find a way to distribute revenue in rough proportion to contributions to the operation of the company. I’ve heard other blogs have very complicated formula to distribute cash, like, say, dividing the total numbers of words posted by some denominator and then creating an index productivity score. This seems to me to create bad incentives to overwrite, in a medium where omitting needless words is valued. So, we went with a three-track system: a threshold number of posts to receive any distributions, coupled with an incentive bonus for the percentage of total posts over that threshold, and finally something extra for administrative service. The devil is in the details.

5. Negotiation: In a blog of our size (seven permanent members) it wasn’t terribly difficult to reach an agreement, although seven lawyers means lots of line editing and persnickety (but useful) language nits. We did have the help of a lawyer’s basic draft agreement to get us along the way, and if you are trying to do this without a law degree, I think you should hire a lawyer. Generally, if you go lawyer-free, I’d recommend appointing a smaller committee of the whole to flesh out the issues, appointing a drafter, and then have that person be responsible for incorporating changes into the master document.

I know that most law professors who blog with others think of this as sort of a hobby/professional sidelight. To the extent they’ve thought about governance issues, they’ve probably done so in the context of a revenue discussion, where the “owner” has told the other editors, perhaps with some input, about how the money will flow. This is a fine model if you think of yourself as an employee (and it shifts most real risk to the “owner” and his or her homeowner’s policy). But I doubt that many folks on group blogs have thought much about whether they should have a right to compensation if they are removed as a contributor, or whether they should get a veto on adding new members. Or what were to happen if a co-blogger tried to prevent them from syndicating “their” posts with another outlet. Or whether blog-related business opportunities must be shared with co-bloggers?

Airing these issues is one of the big benefits to sitting down and drafting an operating agreement. That is, formalizing the legal status of a blog, whether in an LLC or not, has benefits apart from merely shielding members’ assets. Talking together about governance helps to get everyone’s expectations out in the open, and generates good will and emotional investment into the enterprise. If blogs are going to mature to be permanent institutional parts of the media/academic/legal marketplace, as so many predict, people should get serious about how they are run. A good agreement is the place to start.

(Image Credit: These folks, who will make it all look pretty.)