In the intricate world of legal drafting, where every word carries weight, the seemingly simple choice between "and" and "or" can make a world of difference. This is the crux of our latest discussion in the realm of legal language and its nuances. Our focus: a subtle yet pivotal dilemma that every drafter faces at some point in their career.
Consider the phrasing in a critical document like DoorDash's S-1 statement:
“We would cease to be an emerging growth company UPON THE EARLIEST to occur OF: (i) the last day . . . (ii) the date we . . . (iii) the date . . . _____ (iv) the last day of the . . . .”
Would you put “and” or “or” in the blank here? How much do you care? And how much would you bet that you’re right?
Here’s the good news, given how divided we already are these days: either is fine.
If you reworded this construction, you’d write something like this: “We’ll lose the start-up label when we make $1 billion, grace the cover of Forbes, OR go public, whichever happens the earliest.”
The Supreme Court once had a case over the timeliness of securities-fraud complaints, and the relevant language from Rule 10(b) takes this tack:
a securities-fraud complaint is timely if it is “brought not later than the earlier of: (1) 2 years after the discovery of the facts constituting the violation; or (2) 5 years after such violation
You’re offering the reader a choice. Just as you’d say “I have an ace, a king, AND a queen, so pick one” and you’d say “choose between a rock AND a hard place,” you’d write “upon the earliest of Monday, Tuesday, Wednesday, AND Thursday.”
A quick search of the SEC’s EDGAR library shows a rough split between “and” and “or,” with a slight preference for “or.”
The bottom line: Add this to your collection of “things that lawyers love to fight about that don’t really matter”!