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James H.S. Levine and Douglas Herrmann of Pepper Hamilton. James H.S. Levine and Douglas D. Herrmann of Pepper Hamilton.

All agreements rely on a mix of provisions to achieve the contracting parties’ objectives. Some of these provisions will necessarily be bespoke—drafted for use in the particular agreement—while others will be boilerplate—stock, uncustomized language usually reserved for more routine aspects of the agreement, such as integration and construction clauses and disclaimers of third-party beneficiaries. But the intersection of those provisions can lead to serious disputes about interpretation of the agreements, and requires courts to determine the impact of potentially conflicting language. In a recent ruling, Dolan v. Altice USA, C.A. No. 2018-0651-JRS, 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, bespoke provision.

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