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.
Deal Governance Toolkit: Board Minutes, Fairness Opinions, and Disclosure Schedules
Working templates for the governance record of a company sale. It includes a special committee authorizing resolution, director and officer conflicts questionnaires, a financial advisor conflicts request, a controller's MFW-compliant opening proposal letter, a board minutes template with annotated do and do-not guidance, an outreach log, a proxy background section outline, a management interests table, and a pre-signing documentation audit. Each carries drafting notes explaining what a reviewing court looks for and where records most often fail. Adapt everything to the entity, the state of incorporation, and the transaction structure.
Data Center Colocation and Cloud Infrastructure Agreements: Power, Space, Capacity, and the Service You Actually Bought
A colocation or cloud infrastructure agreement looks like a services contract and behaves like a lease, a utility supply arrangement, and an insurance policy at the same time. This article explains what a customer is actually buying—power measured in kilowatts rather than square feet, a service level whose only remedy is a credit, and a bundle of access and interconnection rights that determine whether the facility is usable—and what the provider is careful not to promise. It works through the characterization question that decides what happens in the provider's bankruptcy, the availability definitions that make uptime commitments meaningful or hollow, the interconnection and cross-connect terms that quietly control cost, and the cloud-specific issues of committed spend, egress, capacity reservation, and regional availability. Separate sections address data access and law enforcement demands, security and audit rights, and the migration and exit provisions that must be negotiated at signature because they cannot be negotiated later. Worked examples follow a retailer's colocation renewal, a scale-up's cloud commitment, and a provider outage.
Data Center Agreement Review Checklist
This checklist reviews a colocation or cloud infrastructure agreement in the order the provisions matter rather than the order they appear. It opens with the capacity commitment expressed in usable continuous load, the redundancy configuration, and the metering and escalation terms that determine the recurring bill. Service level sections work from the exclusions backwards, covering maintenance caps, demarcation, root cause obligations, credit mechanics, and the chronic-failure termination right that gives the commitment teeth. Interconnection, access, and suspension follow. Cloud sections cover committed spend, price protection, egress, capacity reservations, and change-of-terms rights. Later sections address security and audit, legal process for customer data, liability and insurance, provider insolvency protections, regulated-customer requirements, and the exit provisions. It closes with a post-signature governance list.
D&O and Cyber Insurance Review Checklist
This checklist reviews a directors and officers tower and a cyber programme provision by provision, in the order the provisions decide claims. The D&O sections cover the three insuring agreements and the dedicated Side A limit, the claims-made trigger and notice requirements, the definition of claim, conduct exclusions and their adjudication standard, severability and rescission protections, the insured-versus-insured carve-outs that matter in bankruptcy and derivative litigation, allocation, and the excess tower questions of follow-form conformity, exhaustion, and drop-down. Cyber sections cover every coverage grant and its sublimit, social engineering and its verification condition, business interruption timing, contingent business interruption scheduling, and the war and infrastructure exclusions. It closes with transaction and run-off items, application accuracy, programme coordination, and the claims runbook that should exist before a claim arrives.
Customs, Tariffs, and Country of Origin: Classification, Valuation, and Forced Labor Enforcement
Import compliance is a system of self-assessment in which the importer declares the classification, the value, and the origin, and Customs verifies later—sometimes years later, with penalties. This article explains the reasonable care standard, how the tariff schedule and the General Rules of Interpretation actually work, the transaction value method and its additions and exclusions, first sale valuation, and the substantial transformation test that determines origin. It covers the tariff programs layered on top of ordinary duties—Section 301, Section 232, and antidumping and countervailing duties—plus forced labor enforcement and its rebuttable presumption, the recordkeeping obligation, and the penalty regime under Section 592 with the prior disclosure mechanism that mitigates it. It closes with what a functioning import compliance program contains.
Customs Compliance Toolkit: Classification Files, Origin Support, and Penalty Responses
Working templates for an import compliance program. It includes a product database specification, a classification worksheet that walks the General Rules of Interpretation in order, a binding ruling request format, an origin determination memorandum, an assist identification form for procurement, a first sale documentation checklist, a supplier trade compliance questionnaire with UFLPA traceability provisions, broker standing instructions, an internal entry audit worksheet, a CF 28 response framework, a prior disclosure letter with the shell and full formats, and a protest outline. Each carries drafting notes on what CBP looks for and where importers most often fail. A closing table collects the deadlines and limitations periods that govern the whole area. Adapt every template to the products, the supply chain, and current tariff programs.
Cross-Border Sales Toolkit: CISG Opt-Outs, Incoterms Selection, and Shipping Documents
This toolkit provides the operative clauses of a cross-border sale of goods contract in drafting-ready form, annotated with the failure each one prevents. It opens with governing law and CISG treatment, including the exclusion formula that works and the supplements needed if the Convention is retained. It supplies an Incoterms selection matrix and a delivery clause, an insurance clause calibrated to the delivery term, and a documentary credit reconciliation worksheet. For performance and disputes it provides an inspection and notice regime, a Nachfrist notice, a rejection notice, and a compliance clause covering export controls and sanctions. Force majeure, dispute resolution, and an order of precedence clause for framework arrangements complete the set.
Cross-Border Government Demands for Data: The Stored Communications Act, the CLOUD Act, and MLATs
A cloud provider with customers in three countries will be asked for the same data by governments that disagree about who may ask. This article maps the law that governs those demands: the Stored Communications Act's tiered process, the CLOUD Act's answer to the territoriality question and its comity safety valve, the executive agreements that let some foreign governments serve United States providers directly, and the mutual legal assistance treaties that remain the slow default. It then covers the demands that are not criminal process at all—civil subpoenas that the Act generally blocks, section 1782 applications after ZF Automotive, and national security process with its own rules and its own silence. It works through the conflict between disclosure obligations here and blocking rules elsewhere, and closes with what a law enforcement response program actually looks like. A running example follows one provider through four demands in one quarter.
Cross-Border Discovery Toolkit: 1782 Applications, Hague Requests, and Blocking Statute Analyses
This toolkit assembles the documents used in cross-border evidence gathering. It opens with a target selection matrix and a qualifying-tribunal analysis reflecting what ZF Automotive settled and left open, followed by a section 1782 application shell and the foreign counsel declaration that must establish use and receptivity. Subpoena and protective order templates are calibrated to what courts actually grant, and a scope annotation method ties every request to a foreign pleading paragraph. Respondent materials include a foreign-forum investigation instruction, a motion to quash outline organized around the Intel factors, and a negotiation letter that resolves most matters. Later tools cover a Hague letter of request, a blocking statute and comity analysis, a cross-border privilege protocol, a defensive application memorandum, and a matter tracker for parallel applications.
Cross-Border Data Demand Response Checklist: A Practical Checklist
This checklist runs a government demand for customer data from intake to production, in the order the work happens and with the validation pass that catches the defective third of demands placed first. It covers the routing decision tree, the tiered process requirements that determine whether a demand is facially sufficient, and the separate handling that foreign demands, civil subpoenas, section 1782 applications, emergency requests, and national security process each require. Later sections cover scope negotiation, nondisclosure orders and the customer notice they collide with, preservation tracking, production review, and when to challenge. Closing sections give the contract terms the whole program depends on, a program build-out list, and a diagnostic for a function that has been running without one. Every item is written so a "no" tells you what to do next.
Criminal Antitrust and the Leniency Program: Cartels, Grand Juries, and Corporate Exposure
Price fixing, bid rigging, and market allocation are felonies, prosecuted by the Antitrust Division, and the only way to avoid conviction entirely is to be the first conspirator through the door. This article explains the per se offenses and what makes them criminal rather than civil, the leniency program that structures the entire enforcement landscape and creates a race among conspirators, and the penalty framework including the alternative fines provision that makes exposure a function of the conspiracy's commerce rather than any statutory cap. It covers the grand jury investigation as it is actually experienced—the unannounced approach, the subpoena, the search warrant—and the immediate decisions a company must make in the first forty-eight hours. It then addresses individual exposure, plea negotiation, the follow-on civil litigation that usually dwarfs the fine, and the compliance program that would have prevented all of it.
Corporate Compliance Programs: The ECCP, Monitorships, and What Regulators Actually Credit
Corporate criminal liability attaches through respondeat superior on facts that are trivially easy to establish, which means the practical question in almost every corporate investigation is not liability but consequence. This article explains the machinery that decides consequence: the Sentencing Guidelines credit for an effective program, the Justice Department's evaluation framework and the three questions it asks, the resolution ladder from declination to guilty plea, and the monitorship that sits on top. It works through what regulators actually credit—risk assessment tied to observed conduct, testing rather than training, compensation consequences, and root cause analysis—and what they discount. It also covers the Delaware oversight duty, the whistleblower architecture that supplies most of the tips, and the design choices that make a program credible before anything goes wrong.