The BUSKLAW Newsletter

  Having just read  Stephen King's Fairy Tale in time for Halloween, it's appropriate to examine his asides on poor writing included in the book. (BTW, Fairy Tale is a good read with King's typical well-executed character development, plot, and a great finish to the story. But you have like the whole Grimm fairy tale genre before you read his take on it.)  Stephen King doesn't tolerate anything less than crisp prose. When the story's hero, Charlie Reade, tries to read a book about the origins of fantasy and its place in the world matrix ("what a mouthful"), he can only scan it because: It was everything I hated about what I thought of as "hoity-toity" academic writing, full of five-dollar words and tortured syntax. Maybe that's intellectual laziness on my part, but maybe not. Later on, Charlie tries to focus on a particular chapter in the "origins of fantasy" book about the story of Jack and the Beanstalk but is put off by "t...

  Most lawyers draft contracts. That's what lawyers do. And they use perceived terms of art ("TOAs") because they want to be paragons of contract-drafting precision. But here is where the canker gnaws:  the words that lawyers insert in their contracts as TOAs are actually not, potentially causing problems in clarity and interpretation. And as I've said time and again, these problems lead to disputes, and disputes lead to litigation, which is always time-consuming and expensive for the parties involved.  Let's first define TOAs in the legal context. According to Professor Bryan Garner in his Dictionary of Legal Usage , TOAs have specific, precise meanings that are "locked tight" and based on legal precedent. But then there are the faux TOAs, "whose meanings are often unhinged." Expert contract drafters, Garner says, know that clear, simple drafting is less subject to misinterpretation than using TOAs that are nothing more than "mere jargon....

  Continuing my quest to post about Michigan cases that are relevant to small(er) Michigan companies, there are two recent decisions from Kent County Business Court Judge Christopher Yates that business folks should keep firmly in mind. One case is obvious, the other less so, but let's have at it.  The first case involves the piercing of the corporate veil. You do know about the corporate veil, right? You can set up a corporation to insulate your personal assets from liability, but you can lose that protection if you play games to your creditors' detriment. That was the scenario in V&B Properties v Account-Ability Tax & Accounting LLC, et al . Defendant Account-Ability signed a real estate lease with Plaintiff V&B and then failed to pay $6300 in rent. After attempting to work things out, Defendant's principal (call her "Mrs. J"), decided to bag it, pay nothing to the V&B, and simply, through her husband ("Mr. L"), start a new accounting ...

  I'm at a loss to describe 2021 using American English, sorry. AmE has grown tiresome. Don't believe me? Just turn on your local TV news and listen for how many times the news people use "prior" instead of "before" and pepper their speech with "as well," frequently tacking it on after using "also" in the same sentence, as in "It will also rain tomorrow as well." How can all be WELL when every other sentence ends with AS WELL? Warning: don't play a drinking game to count the number of  AS WELLs or you'll be pished (as they say in Scotland) in 10 minutes. Which reminds me of why we should be thankful for Brit English to describe 2021: it was another year that we good guys got knackered .   Consider: Covid continues unabated - now improved with variants (get your booster, wear a mask)! The peaceful transition of the U.S. government after the 2020 presidential election almost didn't happen (can you say "insurrectio...

Some folks may believe that writing well and Christmas have little in common, but I dispelled that notion two years ago in  my post about writing well on Christmas . And I have uncovered additional evidence for this holiday season.  I wasn't looking for that evidence, but it popped up in a sales contract that I was reading. The line was something like, "If any Good is nonconforming...." Wait a second. How can the "Good" be non-conforming? Wouldn't that fall to the province of the "Bad"? Then it hit me: the drafter was using "Good" as the singular of "Goods," a term of art defined in the Uniform Commercial Code ("UCC"), the statute regulating the sale of Goods adopted by almost every State.  But not "Good." The UCC doesn't use that word. The reason is simple. Would you walk into your local dry cleaners and ask "Is my pant ready?" You would likely get a quizzical expression from the clerk who mi...

  (Author's aside: Why no post since May? Because things have been busy here at BUSKLAW HQ - practicing law for clients!) When both parties to a contract breach it, what's a court to do? This was the issue presented to Kent County Circuit Court Judge Christopher Yates in Zackary Electric, Inc. v Knoebel Construction, Inc.  The facts are straightforward. Defendant Knoebel Construction was hired as a general contractor to build out an Altar'd State clothing store in Woodland Mall in Grand Rapids, Michigan. Knoebel in turn hired Zackary Electric as its electrical subcontractor for the project, and Zackary started work in July 2018.  On August 12, 2018, Zackary sent an invoice to Knoebel for $47K, but Knoebel did not promptly pay Zackary because Knoebel hadn't yet received any payment from Altar'd State. Unhappy with not being paid, Zackary left the job site on August 31, 2018, and it sent a letter to Knoebel declaring it to be in breach of the subcontract between ...

  In my August 2020 newsletter, we discussed lessons from the New York Supreme Court's rejection of the Trump family NDA. Drafting lesson #1 is the need to specifically describe the information covered by the NDA rather than vague references.  Unfortunately for Trump, this lesson wasn't learned, as evidenced by a recent New York U.S. District Court decision in the case of  J essica Denson v Donald J. Trump for President, Inc.   Plaintiff Denson was employed as a national phone bank administrator for the 2016 Trump campaign. Before she was hired, she signed the standard Trump employment contract containing broad non-disclosure and non-disparagement provisions. Confidential Information was defined as: ...all information (whether or not embodied in any media) of a private, proprietary or confidential nature or that Mr. Trump insists remain private or confidential, including, but not limited to, any information with respect to the personal life, political affairs, and/o...

In last month's post, we highlighted the story of the guy who purchased a vase from an uninformed seller at a Connecticut yard sale for $35. The vase turned out to be from the 15th century Chinese Ming dynasty, and it was auctioned off on  March 17 for over $700K . We discussed the contract doctrine of unilateral mistake that gives the seller no recourse and concluded that the application of the Golden Rule ("do unto others as you would have them do unto you") would lead to a different result.  As brought to my attention by the always informative ContractsProf Blog , it turns out that there's a somewhat similar "windfall" case (i.e., an unexpected financial benefit from getting something that is ostensibly worth little - or nothing)  involving the acquirer of someone else's assumed trash who, after applying some good old-fashioned mental elbow-grease, turned it into a treasure. And then applied the Golden Rule. But where did the Golden Rule come from? I...

  (not the real bowl, but can you tell the difference?) Buys a porcelain floral bowl for 35 bucks. As CNN reported  here , the man then decides to have the bowl appraised, suspecting that it might be worth something. Turns out, the bowl was commissioned by China's imperial court during the 15th Century and is worth up to $500,000 when Sotheby's auctions it off this month.  You are the seller's attorney, what do you do (besides getting your fee upfront, you'll see why). You check the well-established case law on what constitutes a unilateral mistake of fact. Based on the known facts of this case, you have bad news for your client.   Here, the seller mistakenly underpriced the bowl, a unilateral mistake. Generally, courts are reluctant to void a contract when only one party is mistaken. But you forge ahead anyway and sue the buyer (before the auction) to rescind - or set aside - the contract. You tell the court that your client will gladly return the $35 purchase...

  A recent decision out of the U.S. District Court (Judge David Hurd) for the Northern District of New York, Ford, et al v. Rensselaer Polytechnic Institute , examines the consequences of an educational institution's pandemic-induced failure to honor its promises for in-person, campus-centered instruction. Plaintiffs are students of Rensselaer Polytechnic  of Troy, NY ("RPI"). RPI markets itself as providing a unique educational experience through intense campus-based instruction, mandating that all first and second-year students live on campus and even spend the summer between their second and third years on campus "to afford more meaningful interaction with RPI's professors." When the Covid pandemic caused RPI to replace on-campus instruction with on-line learning and shut down all campus activities, Plaintiffs sued RPI for damages resulting from the alleged lesser value of their remote education. RPI asked the Court to dismiss their claims. The resulting ...

  Before SNL's Weekend Update , before Colbert, before YouTube and its ubiquitous political satire, there was  That Was the Week that Was, a/k/a TW3.  Each week from 1963 to 1965 sexy folksinger Nancy Ames would belt out the TV show's theme song that began "That was the week that was, it's over, let it go..."  Which is how I feel about 2020.  The problem is that many of us can't let 2020 go. Until the vaccine is rolled out, you can still get Covid and suffer from lingering side effects. Like me, you may have lost a loved one in 2020 and are mourning their loss - in relative isolation. Or perhaps you lost your job because of Covid and are trying to figure out how to pay your bills, as the Washington politicians bring out their assorted axes to grind in the last days of the Trump administration. And the gap between the very rich and everyone else is growing. Be that as it may, we persevere. And so we move from deep thoughts about 2020 to the more navigable wat...

  In April, 2019, I wrote about the purchase and operating agreements for the Icon A5 light sport amphibious aircraft, a/k/a the "Jet Ski with Wings."  Come to find out that Law Insider has a Contract Teardown Show hosted by Mike Whelan where contract mavens can discuss the vagaries of contracts that populate cyberspace. So I thought that these unique Icon agreements would be suitable for the show, and the rest, as they say, is history.  I'd like to thank Mike for having me on the show and hope to return for a repeat engagement. (Next time: darker shirt, better microphone.) Would you like to pilot an Icon A5? Anyone can fly it in the safety of their own home, if you have a robust gaming PC and Microsoft Flight Simulator 2020.  It's a fun plane to fly in virtual reality, and you always walk away from a crash.  __________________________________ I f you find this post worthwhile, please consider sharing it with your colleagues. The link to this blog is  www...

  Are you a party to a Michigan employment contract that includes non-competition, non-solicitation, and confidentiality provisions? Have you wondered whether these restrictive covenants have teeth, i.e., are they enforceable via a preliminary injunction? That's a great question, and we have the answer from Michigan Business Court Judge Christopher Yates in his recent decision:  Aaron Symonds v Lighthouse Insurance Group, Inc. Let's start with the facts. Mr. Symonds was a shareholder (i.e., not a mail clerk) in the Lighthouse Insurance Group . He signed an employment agreement that included non-competition, non-solicitation, and confidentiality obligations. He then voluntarily left Lighthouse to work for a Lighthouse competitor,  Collins & Associates , as their Vice-President of Commercial Lines. In that capacity, he began to solicit several Lighthouse clients to move their property and casualty insurance over to Collins. Symonds conceded under oath that his work fo...

  Children's literature can provide unique insights into best practices and procedures related to my legal specialty: business and technology contracts. Consider Bilbo Baggins's frustration when faced with a contract rife with legal jargon in J.R.R. Tolkien's The Hobbit, a subject that my colleague Michael Braem and I wrote about here . Or how about using Lewis Carroll's  Alice in Wonderland  to discuss - and refute - curious excuses for legal jargon in this Michigan Bar Journal article . And in J.M. Barrie's  Peter Pan , we hear Peter accuse the ineffectual Captain Hook of being a codfish, causing the old pirate Smee to consider if the brigands have been captained by a codfish, adding "it's lowerin' to our pride." Let's talk about leadership in the context of organizational contract management. In my experience, many companies - large and small - don't grasp the importance of the careful and continuous tending of their contracts. They are ...

  DISCLAIMER: probably not the real Marley. Still cute.  Having just survived the dog days of a Michigan summer, it's only fitting that we discuss a case involving a dog: Marley, a Labradoodle. How this cute canine could be the subject of a lawsuit before Kent County Judge Christopher Yates is questionable, but hey, lawyers argue, and they actually get over paid for it! (Most dogs don't argue, except for Huskies ; my working hypothesis is that Huskies are just reincarnated trial lawyers.) The plaintiff in the case is  Bainbridge Labradoodles , a Labradoodle purveyor at  $3K per puppy. Defendant is Susan Viele, a Labradoodle aficionado. In June 2016, Bainbridge and Viele signed a "breeder agreement," under which Bainbridge loaned Marley to Viele until Marley yielded four litters of puppies that would go to Bainbridge for breeding or placement. Marley gave birth to seven healthy puppies in September 2016, but despite repeated attempts, that was all. And now the th...