AKDS: Attorney Knowledge Demonstration Syndrome

So this morning, during the course of mundane corporate due diligence, I erroneously posited that a certain document truly wasn't a permit in an email. A simple response stating "No Corkie it is" would be sufficient, however, my superior clearly suffers from AKDS.

It is a "Permit"--you should re-read the APA definition. That definition is incredibly broad (too broad if I'm representing the Seller), and intentionally so.

I know a lot of this language looks like "boilerplate" and meaningless but I assure you it is not. A lot of money has been won/lost over terms such as "would reasonably be expected to have a material adverse effect" vs. "could reasonably be expected to have a material adverse effect". Most non-M&A lawyers (or those M&A lawyers that are lazy--intellectually or otherwise) overlook these things and you need to be intellectually curious about why things are put together the way they are.

You should also read as many M&A periodicals about the cases that do get reported. For example, the IPB v. Tyson case seems to be a dry case about whether a Seller's post-signing/pre-closing collapse in business would constitute a "material adverse change" that would entitle the Buyer to "walk" the deal. Undoubtedly most people looking at it without a careful review of the language would say "of course--that Seller sold the Buyer a bill of goods and that's exactly what the MAE clause was for." Upon closer review, however, you'll note that the court carefully analyzed the language and held the Buyer to a high (unreasonably, IMO) standard for proving MAE. In IBP the burden was shifted to the Buyer, who could not meet it, and thus overpaid for a business. Needless to say the counsel for the Buyer likely lost a multi-million dollar client, and I don't want that to happen to my clients. Oh, and the case could have been decided differently had the Delaware court analyzed it under Delaware, rather than New York law, which governed the purchase agreement. One more reason why these "boilerplate" clauses like Choice of Law are also important.

I now consider myself informed.

Day One cont.: R Tard Haters

From: XXXX
Sent: Wednesday, May 02, 2007 5:08 PM
To: XXXX
Subject: RE: Disclosure Schedules and Other Closing Matters

He's a retard and no, it's because Seller and Seller's counsel have their heads up their asses and don't know the difference between an underlying lease and a consent to the underlying lease.

Associate wonders: (a) how that answers his inquiries; (b) how he will get answers to his inquiries; (c) if he could recognize true substantive difference, which leads to (d) is he a Retard?; and (e) what's with all the down syndrome haters?

Day One cont.: Office R Tard

Received this 2 minutes ago:

The Motor Carrier registration should have been worked out in the Disclosure Schedules. If they are not transferable and are needed to run the business, the Seller should have told us on the "Non-Assignable Permits" schedule, so that we (i.e., our client) would know and could either have the individual re-apply post closing or make sure we have it in-house. This is part of the learning process that the young attorney that is handling the disclosure schedules and diligence needs to keep track of in an M&A deal so that day #2 after closing we don't have a problem running the business.

That last part is all that matters, layman translation = you should have had a supporting role in Life Goes On, Corkie.

Day One.

So...I drafted a 50 page Limited Partnership Agreement today and turned it in to my superiors in a timely fashion--big fucking deal right? Well, I made one mistake--used the wrong template. Boss is currently pondering whether I'm inbred or retarded while contemporaneously having phone sex with his wife and jerking off to videobox.com. He sent me the following email today when I left work for 20 minutes to pick up my dry cleaning, and since I am wearing a shirt that I purchased back when I was 17, I mistakenly believed the journey to my favorite Asian place of business as a necessary move:

"We are trying to close the XXXX deal and dry cleaning (along with any other activity outside of the office) needs to wait until after work."

Looks like I am headed for another 18 hour day ... of course, I'll bill the client for all my time spent on this matter so the firm is adequately compensated. Maybe, just maybe, I'll drop 350 hrs on accounting this month. I hate those cunts.