BLT: November 2011

 

Articles

Business & Corporate

Making a Mess of Ambiguity: Lessons from the Third Circuit's Opinion in Meyer v. CUNA Mutual Insurance Society

A complex source of uncertainty in contract language is ambiguity associated with the use of plural nouns and the words and, or, every, each and any. Most courts that encounter this kind of ambiguity are ill-equipped to analyze it. A noteworthy example of this is the opinion by the Court of Appeals for the Third Circuit in Meyer v. CUNA Mutual Insurance Society. Because its flawed analysis caused the court to find ambiguity in an insurance policy where in fact there was none, the court decided the case incorrectly. This case serves as a cautionary tale for judges, litigators, contract drafters, and companies that routinely create contracts.

Business & Corporate

Delaware LLC's and the Implied Covenant of Good Faith and Fair Dealing

The one duty that parties cannot waive in a Delaware limited liability company agreement is the duty to act consistently with the implied contractual covenant of good faith and fair dealings. The Delaware Supreme Court’s recent decision in Nemec v. Shrader raises two issues regarding Delaware’s application of the implied covenant. The authors begin by explaining the pre-Nemec standard, then examine the Nemec decision, and conclude by discussing Nemec's implications for practitioners advising members and managers of Delaware LLC's.

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