Court Holds Extrinsic Evidence Was Inadmissible


As generally understood, the parol evidence rule prohibits the introduction of extrinsic evidence to alter, vary or add to the terms of an integrated agreement.  “Parol” is derived from the French word, “parole” meaning speech.  The parol evidence rule came into being as society became increasingly literate.  It was then that the written word began

With Periphrasis, “Success in Circuit Lies”


I initially titled Tuesday’s post “The Staff’s Position On Unbundling Gets Even Weirder” but I ultimately elected to substitute “More Weird” for “Weirder”.  What I was struggling with was whether to use the comparative or periphrastic form of the adjective “weird”. The comparative form uses inflection, that is the modification of a word to express

The SEC Staff’s Position On Unbundling Gets Even More Weird

“Bundling” was a colonial American practice of unmarried persons sharing the same bed whilst being physically separated by a board or sack.  As might be expected, bundling had its critics.  One Henry Reed Stiles piously carped: Bundling – that ridiculous and pernicious custom which prevailed among the young to a degree which we can scarcely credit –

ISS Ignores Contrary Studies In Adopting Overboarding Policy Change

ISS released its 2016 Benchmark Policy Recommendations last Friday.  I had previously criticized ISS for its proposal to change its recommendation on withholding votes with respect to directors who sit on too many boards: In proposing this policy change, ISS cites surveys that reflect an increase in the time commitment required for board service. ISS

Enjoining The Correct Spelling

In yesterday’s post, I wrote that Judge Leigh Martin May had issued a ruling enjoining a SEC administrative proceeding.  Presumably, Judge May has or will issue an injunction.  This leads me to question why the verb is typically spelt “enjoin” while the noun is spelt “injunction”.  Both words share the same roots – they are formed by

Why The Capitol Is In The Capital


Article III, Section 2 of the California Constitution provides that “Sacramento is the capital of California”.  The building in which the legislators meet, however, is denominated the “capitol” building.  Thus, the state capitol can be found in the state capital.  But why the variant spelling? Both words are derived from the Latin word for head

“Conforming With” May Not Be “Pursuant To”

Lawyers often will write “pursuant to [name of law or regulation]” without expecting the phrase to be the source of controversy.  But language is an inherently ambiguous tool and lawyers will, if adequately feed, argue about just about anything.  In a recent Ninth Circuit Court of Appeals case, several hundred thousand dollars turned on the

This N.C. Case Cries For Comment

A recent North Carolina Court of Appeals, State v. Matsoake, started me to think about what constitutes a communication.  The case involved whether an ex-wife’s testimony about seeing her husband crying should have been admitted.  The defense objected on the basis that it was protected by the marital disclosure privilege.  The Court of Appeals agreed with the trial court

Two Is Not A Lot And It’s Certainly Not Extensive

Vice Chancellor J. Travis Laster’s ruling in In re Aruba Networks, Inc. Stockholder Litigation, C.A. No. 10765-VCL has received widespread coverage.  See, e.g., Kevin LaCroix, Game Over?: Del. Chancery Court Rejects Disclosure-Only Settlement in H-P/Aruba Networks Merger Objection Lawsuit.  Time will tell whether the Vice Chancellor’s ruling will prove to be the passing bell of disclosure-only settlements in merger objection

Did You Ever Wonder Whether “Within” Might Be A Superfluous Pleonasm?

Suppose that you hold an option that must be exercised “within 30 days prior to the expiration of the option”.  Does this mean that you must exercise the option no later than thirty days before the expiration date or that you may exercise the option at any time within the 30 days before the expiration