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When Boilerplate, Customized Clauses Collide in Media Merger Deals
All agreements rely on a mix of provisions to achieve the contracting parties' objectives. Some of these provisions will necessarily be customized for use in the particular agreement, while others will be boilerplate-stock, uncustomized language usually reserved for more routine aspects of the contract, such as integration and construction clauses and disclaimers of third-party beneficiaries. But the intersection of those provisions in a merger agreement involving the acquisition of Cablevision Systems Corp., one of the largest U.S.-based cable operators, led to a serious dispute — and cautionary tale for the merger-laden entertainment and media industries — about interpretation of the agreement, requiring a Delaware court to determine the impact of potentially conflicting language.
In the recent court ruling, Dolan v. Altice USA Inc., 2018-0651, the Delaware Court of Chancery confronted this issue and concluded that a boilerplate third-party beneficiary disclaimer did not necessarily eliminate obligations to third parties when they may be the only parties capable of enforcing a substantive, customized provision.
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