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?
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 . . . .”
Here’s the good news, given how divided we already are these days: either is fine.
The Case for “Or”
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
The Case for “And”
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”!