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.
Emergency Arbitrators and Interim Measures: Getting Urgent Relief Before a Tribunal Exists
An arbitration agreement is a promise to resolve disputes through a tribunal that does not yet exist, which leaves a gap in the weeks or months before it is constituted. This article explains the two ways that gap is filled: emergency arbitrator procedures under institutional rules, and applications to national courts for provisional relief in aid of arbitration. It covers what emergency arbitrators can and cannot do, the standards they apply, how quickly they act, and the difficult question of whether their decisions are enforceable—which turns on whether an emergency decision is an award. Court applications are addressed alongside, including the doctrine that such applications do not waive the right to arbitrate, the standards courts apply, and the situations where only a court will do. Separate sections cover the categories of relief actually sought, security for costs and for the claim, and the tribunal's own powers once constituted. Worked examples follow an asset-preservation application, an emergency arbitration over a terminated distribution agreement, and an unsuccessful application.
Emergency Arbitration Application Checklist
This checklist runs an urgent arbitration application from the first hour through confirmation by the constituted tribunal. It opens with the six triage questions that determine forum and viability, then the decision whether to apply at all and the standstill letter that often resolves the matter more cheaply. Evidence sections cover the chronology exhibit that answers the delay argument and the documentary proof of irreparable harm that decides most applications. Drafting sections cover the operative order, the fallback, and the security proposal. Respondent sections set out the defences that work in a four-day response window. Later sections cover concurrent court applications and how to run them without prejudice, enforcement where compliance fails, confirmation by the tribunal, and the clause provisions to fix afterward.
Earnouts and Post-Closing Purchase Price Adjustments: Drafting, Measuring, and Fighting About Them
An earnout bridges a valuation gap by deferring part of the price until the future proves someone right, and a purchase price adjustment fixes the price to the balance sheet the buyer actually received. Both are mechanisms for allocating uncertainty, and both generate a disproportionate share of post-closing litigation. This article explains why: the accounting standard is usually ambiguous, the efforts obligation is usually vague, and the dispute mechanism is usually a hybrid that neither side fully understands. It works through the Delaware and federal case law on implied covenants and efforts clauses, the accounting principles hierarchy that Chicago Bridge made famous, the design of an independent accountant determination, and the tax consequences that follow deferred consideration. It closes with drafting that actually prevents the fight.
Earnout Toolkit: Milestone Definitions, Accounting Protocols, and Dispute Submissions
This toolkit assembles the working documents for an earnout or purchase price adjustment: clause language in buyer, seller, and middle-position variants; a sample calculation exhibit structure; an operating covenant schedule; acceleration and security provisions; and the full dispute apparatus from access request through accountant engagement letter and submission. It includes a line-item working capital schedule template, an objection notice form, a covenant compliance log, and a closing-day calendar. Every provision is annotated with what it actually does and what the other side will say about it. Adapt everything; sign nothing as drafted.
Earnout and Purchase Price Adjustment Checklist: A Practical Checklist
This checklist covers both post-closing price mechanisms in an acquisition—the backward-looking purchase price adjustment and the forward-looking earnout—from letter of intent through final payment. It works through metric selection and definition, the sample calculation and accounting hierarchy that prevent most disputes, the operating covenants and acceleration triggers that give a seller a real remedy, and the design of the dispute mechanism. It then covers administration: what a buyer must do on day one, what a seller representative must do the day a statement arrives, and how to preserve rights that expire on a contractual clock. Items that are routinely omitted and routinely expensive are flagged.
Dual-Class Toolkit: Charter Provisions, Sunset Mechanics, and Conflict Procedures
This toolkit provides the charter and governance documents that make a dual-class controlled company work, each annotated with the failure it prevents. It includes class provisions with identical-rights and equal-consideration covenants, conversion and transfer restrictions built around retained voting power, and a full set of sunset triggers. A definitions annex collects the terms that actually decide disputes, with drafting alternatives for each. On the governance side it supplies a conflicts committee charter with the board limitation that makes the committee real, a related-party transaction policy requiring benchmarking in both directions, and MFW condition language to be delivered before any economic negotiation. A pre-transfer review procedure and a disinterested-vote reporting template complete the set. Every provision is annotated with the drafting choice that determines how a later dispute comes out.
Dual-Class Stock and Controlled Companies: Voting Power, Sunsets, and the Limits of Founder Control
Dual-class structures let a founder keep control of a company they no longer own most of, and they have gone from unusual to routine in technology listings. This article explains how the structures are built, what the high-vote shares actually do, and what constrains them: exchange listing rules, index provider policies, sunset provisions, and the fiduciary law that applies to a controller regardless of how the control was obtained. It works through the Delaware cases on charter amendments that reallocate voting power, the exclusive-benefit test that separates permissible controller conduct from self-dealing, and the practical governance architecture a controlled company should adopt whether or not it is required to. Worked examples cover a founder-led IPO, a sunset that triggers unexpectedly, and a controller transaction that has to survive scrutiny.
DSA and DMA Readiness Checklist: A Practical Checklist
This checklist runs European platform-regulation readiness from the scoping determination through the annual transparency report, with the tier question first because every other obligation depends on it. It covers appointing a legal representative and the two distinct points of contact, the terms and conditions rewrite, the notice and action mechanism, and the statement of reasons with its prescribed elements and public database submission. Later sections handle the internal complaint system and out-of-court dispute settlement, marketplace trader verification, advertising and recommender transparency, dark patterns, misuse suspensions, and the authority and trusted flagger channels. Closing sections cover the harmonize-or-differentiate decision, business user rights against gatekeepers, the geo-blocking option done properly, and an annual scope recheck. Every item is written so a "no" tells you what to do next.
Drafting and Litigating Arbitrability: A Practical Guide
A step-by-step guide to moving to compel arbitration, opposing such a motion, and drafting clauses so the fight does not happen. It covers the first-week assessment, the contract hierarchy question that Coinbase v. Suski put first, waiver risk under Morgan v. Sundance, building the formation record, briefing delegation, the stay-versus-dismissal decision, and interlocutory appeal strategy under Section 16. It includes worked scenarios with named parties, realistic budgets and timelines, a drafting section with model language, and the mistakes that decide these motions. Written for counsel on both sides and for in-house lawyers maintaining a clause library.
Drafting and Administering a Trademark License: A Practical Guide
This guide walks through building a trademark licensing program from the decision to license through termination, in the order the work actually happens. It starts with the registrations and ownership questions that must be settled before any deal, then covers licensee selection, deal economics, and the scope provisions that prevent the most common disputes. The heart of the guide is the quality control architecture—standards, approvals, sampling, inspection, and the records that prove all of it—followed by audit rights, termination, and the franchise law review every royalty-bearing license needs. Later steps address international adaptation, onboarding, the operating rhythm of administration, handling a licensee that goes wrong, and running a program-level annual review. A running example follows a growing apparel brand through its first three licenses.
Documenting a Unitranche Facility and an AAL: A Practical Guide
A unitranche is two documents that must agree with each other, and most of the defects in the structure come from their failing to. This guide runs the documentation process: sequencing the credit agreement and the agreement among lenders so they are drafted together, allocating the tranches and the skim, drafting the trigger event and the waterfall, and building the voting construct with sacred rights and a standstill. It covers the buyout option in detail, the turnover and bankruptcy provisions that carry the enforceability risk, and the agent's joinder that lets payments be applied directly. It closes with the definitional reconciliation that should be the last step before signing, and with the ongoing administration and amendment process.
Distressed Debt Toolkit: Exchange Offer Documents, Consent Solicitations, and Covenant Analyses
This toolkit supplies the working documents of a liability management transaction from both sides, annotated with what each provision does and how it fails. It provides a covenant analysis template and a capacity computation schedule, a designation certificate, and exit consent and supplemental indenture language for an exchange offer. On the defensive side it provides a cooperation agreement, a notification letter that stops a transaction before it starts, and an excluded lender demand letter that frames the capacity challenge. It closes with the protective drafting that closes each opening—sacred rights additions, a defined open market purchase, IP transfer blockers, and anti-double-dip language—and a settlement term sheet.