Legal insights
Analysis from the front lines of IP & technology law.
Our attorneys write about the developments shaping intellectual property—from the PTAB and the Federal Circuit to the practical realities of protecting fast-moving technology.
Negotiating a Contract Manufacturing Agreement: A Practical Guide
This guide walks through negotiating and running a contract manufacturing relationship in the order the work happens, from selecting the manufacturer to leaving it. It starts with the diligence that determines everything downstream, then the term sheet that settles the five provisions worth real negotiating capital, and the contract architecture that keeps purchase orders from overwriting the agreement. The middle of the guide covers tooling, capacity and forecasting, the quality agreement written alongside the commercial one, change control, and the pricing mechanism with the audit that keeps it honest. Later steps address supply chain compliance obligations that fall on the customer, monitoring the manufacturer's financial health, running the relationship through scorecards and audits, handling deterioration, and executing a transfer. A running example follows one hardware company through a negotiation and, three years later, a transition.
Negotiating a Colocation or Cloud Infrastructure Agreement: A Practical Guide
Infrastructure agreements are negotiated once and lived with for years, and the provisions that matter are not the ones lawyers usually spend time on. This guide sets out the sequence that produces a good outcome: building the requirement in the units the market actually prices, running a competitive process that preserves leverage, and reading the provider's form for the handful of terms that carry the economics. It works through the power and capacity negotiation, the service level definitions and their exclusions, interconnection and access, and the liability stack. Cloud-specific sections address committed spend, price protection, egress, capacity reservations, and change-of-terms rights. Later steps cover security and audit, regulated-customer requirements, and the exit provisions that must be negotiated before signature because they cannot be negotiated afterward. Worked examples follow a first colocation deal, an enterprise cloud renewal, and a migration between providers.
Navigating the BPCIA Patent Dance: A Practical Guide
A step-by-step operational guide to the BPCIA information exchange and the litigation that follows, written for counsel on both sides and for the regulatory and manufacturing teams whose decisions drive it. It covers the applicant's pre-filing patent landscape and process design, the decision whether to dance and how to quantify the trade secret exposure, each step of the exchange with its deadlines, the negotiation over which patents get litigated, the immediate action, the 180-day notice, and the preliminary injunction that replaces the automatic stay. Separate parts address confidentiality, interchangeability strategy, at-risk launch analysis, and settlement. It includes a worked sequence with named parties, budgets, and a day-count calendar.
Multiparty Arbitration Clause Checklist
This checklist covers the drafting and dispute stages of multiparty arbitration. It opens with the dispute map that identifies who will actually be in the room when a transaction fails, then the compatibility elements that must match across every agreement in a suite, and the consolidation, joinder, flow-down, and multiparty appointment provisions that make the machinery available. Separate sections address the law governing the arbitration agreement, delegation, class and mass claim provisions, and the amendment discipline that prevents most incompatible-clause problems. Dispute-stage sections cover the decision whether to seek consolidation, the non-signatory analysis in order, the jurisdictional objections that must be preserved for enforcement, the first procedural conference in a proceeding with four or more parties, and settlement and costs mechanics.
Multiparty and Multicontract Arbitration: Consolidation, Joinder, and the Non-Signatory Problem
Arbitration was designed for two parties and one contract, and most substantial commercial disputes now involve neither. This article explains the mechanisms that adapt consent-based dispute resolution to multiparty and multicontract reality: consolidation of separate arbitrations, joinder of additional parties, and the doctrines under which a non-signatory may be bound or may compel. It works through the institutional rules that permit consolidation and joinder, the compatibility requirements that determine whether they are available, and the appointment problem that arises when three or more parties must constitute a tribunal without one side losing its equal right to nominate. Separate sections cover the non-signatory theories recognized under domestic contract law and preserved by GE Energy, the class arbitration cases from Stolt-Nielsen through Lamps Plus, and who decides these questions after Henry Schein and Coinbase. Worked examples follow a construction chain, a corporate group, and a failed consolidation.
Motion to Compel Arbitration Toolkit: Clauses, Declarations, and Appellate Strategy
Working templates for arbitrability practice. It includes a full model arbitration clause with delegation, class waiver, carve-outs, and an FAA fallback; the agreement-hierarchy sentence in three variants; a motion to compel with a proposed order; a formation declaration for online terms with the exhibit list courts expect; an opposition outline aimed correctly at a delegation provision; a formation-evidence package specification for engineering and legal; and an annual clause audit worksheet. Each carries drafting notes on what the language does and where it fails. Adapt everything to the jurisdiction and the parties.
Merger Review Toolkit: HSR Filings, Second Request Responses, and Remedy Proposals
This toolkit supplies the working documents of a merger review, ordered by when they are used and weighted toward the pre-signing work where outcomes are decided. It opens with an overlap matrix, a document assessment protocol built around the themes agencies actually find, and an antitrust risk term sheet that translates those findings into the efforts covenant and reverse termination fee. It provides a reportability memorandum, a second request scope negotiation worksheet that fixes the budget, a review protocol, and a clean team protocol with the gun jumping rules business teams need. Later tools cover timing agreement terms, an economic submission outline, a customer outreach protocol, a divestiture package specification with upfront buyer criteria, a regulatory calendar covering the other reviewers, and a decree compliance calendar. Each item is annotated with the failure it prevents.
Merger Review and Second Requests: HSR Timing, Substantive Analysis, and Remedies
A second request turns a transaction into a litigation project, and most of what determines the outcome happens before anyone files. This article explains the substantive standard under Clayton Act Section 7, how the agencies actually analyze a merger—market definition, concentration, unilateral and coordinated effects, entry, and efficiencies—and how vertical and conglomerate theories differ from horizontal ones. It then covers the procedural machinery: the waiting period, the pull-and-refile device, what a second request demands and what complying with it costs, timing agreements, and the certification of substantial compliance that restarts the clock. It works through remedies and why structural divestitures are preferred, the litigation posture if no remedy is agreed, and the deal terms that allocate antitrust risk between buyer and seller. It closes with the documents that decide these cases and how to avoid creating the bad ones.
Merger Clearance Checklist: A Practical Checklist
This checklist runs a transaction through antitrust review from diligence to post-closing decree compliance, in the order the work happens. It opens with the overlap mapping and document assessment that should precede signing, because that is where outcomes are largely determined, then the risk allocation terms those findings should set. It covers reportability, the initial waiting period and the pull-and-refile device, and the second request scope negotiation that fixes the entire budget in three weeks. Later sections address the substantive campaign run in parallel, certification and timing agreements, gun jumping controls and the clean team protocol, remedy design with an upfront buyer, the litigation posture, and the other regulators whose clocks set the closing date. Closing sections cover witness preparation, running the business during review, divestiture execution, and decree compliance.
Mass Arbitration: How Thousands of Individual Claims Became a Strategic Problem
Companies spent two decades building arbitration clauses to defeat class actions, and then plaintiffs' firms used those same clauses to file claims by the thousand. This article explains how mass arbitration works, why the filing-fee economics are so unforgiving, and what happened when businesses tried to escape the process they designed. It covers the AAA and JAMS mass arbitration rules, batching and bellwether structures, the unconscionability decisions that struck down the first generation of countermeasures, and the informal dispute resolution provisions that are now standard. It closes with what a defensible consumer arbitration program looks like and why the honest answer sometimes is to litigate.
Mass Arbitration Toolkit: Clause Architecture, Batching Protocols, and Response Plans
Working templates for building and running a consumer or worker arbitration program that can absorb mass filings. It includes a complete dispute resolution article with informal resolution, batching, bellwethers, carve-outs and fairness terms; a claimant-matching declaration; a process arbitrator submission outline; a settlement segmentation worksheet; an IDR intake script and log schema; a litigation hold notice; and a tabletop exercise agenda. Each carries drafting notes on what the language does, why courts have enforced it, and where the first generation of countermeasures failed. A closing table sorts the common provisions into those courts have enforced and those they have struck down. Adapt every template to the jurisdiction, the institution's rules, and the specific business.
Mass Arbitration Readiness Checklist: A Practical Checklist
A working checklist for preparing for mass arbitration before it happens and for responding when it does. It audits the clause against the provisions courts have enforced and the provisions they have struck down, then covers the four operational capabilities that matter more than drafting: claimant matching, formation evidence, informal dispute resolution at scale, and claims triage. The response sections walk day one through month four, including the process arbitrator submission and settlement segmentation. Separate sections cover the employment variant, governance, and a biennial tabletop exercise.