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Conspicuous: Difference between revisions
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''“[[Conspicuous]]”, with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is “[[conspicuous]]” or not is a decision for the court. [[Conspicuous]] terms [[including but not limited to|include]] the following: (A) a heading in [[CAPS LOCK|capitals]] equal to or greater in size than the surrounding text, [[or]] in contrasting type, font, or color to the surrounding text of the same or lesser size; [[and]] (B) language in the body of a record or display in larger type than the surrounding text, [[or]] in contrasting type, font, or color to the surrounding text of the same size, [[or]] set off from surrounding text of the same size by symbols or other marks that call attention to the language. | ''“[[Conspicuous]]”, with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is “[[conspicuous]]” or not is a decision for the court. [[Conspicuous]] terms [[including but not limited to|include]] the following: (A) a heading in [[CAPS LOCK|capitals]] equal to or greater in size than the surrounding text, [[or]] in contrasting type, font, or color to the surrounding text of the same or lesser size; [[and]] (B) language in the body of a record or display in larger type than the surrounding text, [[or]] in contrasting type, font, or color to the surrounding text of the same size, [[or]] set off from surrounding text of the same size by symbols or other marks that call attention to the language. | ||
And the judiciary have thrown in their | And the judiciary have thrown in their dime: | ||
:“[[ | :“[[legal eagle|Lawyers]] who think their [[CAPS LOCK|caps lock]] keys are instant ‘make [[conspicuous]]’ buttons are deluded. In determining whether a term is [[conspicuous]], we look at more than formatting. [...] '''A sentence in capitals, buried deep within a long paragraph in [[capitals]] will probably not be [[deemed]] [[conspicuous]].''' Formatting does matter, but conspicuousness ultimately turns on the likelihood that a [[reasonable person]] would actually see a term in an agreement. '''''Thus, it is entirely possible for text to be [[conspicuous]] without being in capitals'''''.” </ref>''[[In Re Bassett - Case Note|In Re Bassett]]'', 285 F.3d 882, 886 (9th Cir. 2002) (''Conspicuity added'')</ref> | ||
Now it is well-established in the literature that text in all caps is ''harder'' to read than ordinary text, so you might form your own opinion as to what possesses securities lawyers to render acres of their prospectuses in a less legible way — so less legible that even their own proof-readers have trouble catching every nuance, as the example from US Nuclear Corp’s [[offering memorandum]], in the panel, illustrates. | Now it is well-established in the literature that text in all caps is ''harder'' to read than ordinary text, so you might form your own opinion as to what possesses securities lawyers to render acres of their prospectuses in a less legible way — so less legible that even their own proof-readers have trouble catching every nuance, as the example from US Nuclear Corp’s [[offering memorandum]], in the panel, illustrates. | ||