Private Equity

Sometimes deal terminology has to be understood without resort to a dictionary. There is a well-understood body of deal slang that is not actually found in a dictionary, but that most deal professionals quickly pick up in their first transaction.  But some purported deal slang may actually be real words with real meanings that are defined in the dictionary.  A recent case, while unimportant in itself, illustrates this use of deal slang that uses real words with dictionary meanings, which are potentially the exact opposite of their intended meanings.

The case is  Derek S. Jeter, et al. v. Revolutionwear, Inc. CA. No. 11706-VCG (Del. Ch. July 19, 2016).  In response to one of the parties describing the amended pleadings of the other party as being “more fulsome,” Vice Chancellor Glasscock noted in footnote 90 that:

I hereby renounce, in defeat, a pedantic pet peeve: I confess that in today’s United States, ‘fulsome’ is a sesquipedalian synonym for ‘full,’ Mr. Webster’s dictionary be damned. I give up, I give in, I yield to the majority; I will no longer be stuck in fulsome prison.

The “pedantic pet peeve” to which the Vice Chancellor refers is the fact that many dictionaries contain a definition of fulsome that includes “aesthetically, morally or generally offensive,” or “exceeding the bounds of good taste,” or “excessively complimentary or flattering.”

This is not the first time a judge has been exasperated about the misuse of fulsome.  There is a story about an attorney defending a case in a Federal Court sometime in the 70s or 80s.  The case involved allegations of inadequate or misleading disclosure.  Apparently the defense was arguing that there had been more than adequate disclosure.  To emphasize the completeness of the disclosure, the defense lawyer said, in closing argument, that: “This disclosure is the most fulsome disclosure that there could have been.” The Judge, from the bench, said:  “Are you sure you want to rest your case on the fulsomeness of the disclosure?  It’s the plaintiff’s contention that the disclosure was fulsome too.”  [Hint:  i.e., in the sense of it being excessively complementary to the company].  Seeing that the defense attorney was flummoxed, the Judge suggested that the defense attorney go look up the word fulsome and let the Judge know whether he wished to clarify his argument.  Since there was no google then, a dictionary was quickly found, and the now embarrassed, but informed, defense lawyer clarified his argument.

So the next time someone offers you a fulsome set of reps in the back and forth of a deal negotiation, make sure you know what the offeror actually means.