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.
Trademark Licensing and Quality Control: Naked Licensing, Abandonment, and Brand Integrity
A trademark is not property in the ordinary sense; it is a promise about source and consistency, and a license that abandons control abandons the promise. This article explains why trademark licensing carries a quality control obligation that patent and copyright licensing do not, what courts actually require to satisfy it, and how a mark can be forfeited by a licensor who never intended to give anything up. It works through the leading naked licensing decisions, the three routes to establishing adequate control, and the evidence that decides the question years later. It then covers the drafting choices that matter—scope, standards, approvals, audits, sublicensing, termination, and sell-off—along with assignment in gross, licensee estoppel, the bankruptcy consequences after Mission Product Holdings, and the franchise law trap that catches ordinary trademark licenses. A running example follows one brand through a good license and a bad one.
Trademark License and Quality Control Checklist: A Practical Checklist
This checklist runs a trademark license from the pre-deal registration audit through termination, with the quality control provisions treated as the load-bearing part they are. It opens with the ownership and registration work that must precede any license, then licensee diligence, deal economics, and the scope terms that prevent the most common disputes. The central sections cover the quality control architecture, the approval process, the audit and reporting regime, and the control file that proves control years later. Separate sections handle the franchise law screen every royalty-bearing license needs, international adaptations, termination and exit mechanics, and an annual program review. A closing section gives the licensee's own checklist and a short diagnostic for a program you have inherited.
Third-Party Legal Opinions in Transactions: What They Cover, What They Exclude, and Who Relies
A closing opinion is a lawyer's professional judgment on stated legal questions, addressed to someone who is not the lawyer's client, delivered as a condition to a transaction closing. This article explains what that document actually says and what it deliberately does not. It works through the standard opinions—entity status, power and authority, due authorization, enforceability, no conflicts, no consents, and security interest creation and perfection—and through the exceptions and qualifications that do most of the work, including the bankruptcy and equitable principles exceptions that every remedies opinion carries. It covers customary practice as the interpretive frame, who may rely and on what terms, the liability landscape for opinion givers under securities and common law, and how opinions get negotiated in practice.
The Robinson-Patman Act: Price Discrimination, Promotional Allowances, and a Statute That Came Back
The Robinson-Patman Act prohibits charging different prices to competing buyers of the same goods, and for decades it was treated as a statute nobody enforced. That assumption has become unsafe. This article explains what the Act actually requires: two contemporaneous sales, commodities of like grade and quality, a price difference, and a reasonable possibility of competitive injury—plus the defenses that resolve most real cases. It works through the Morton Salt inference and what Volvo did to it, the cost justification defense that almost nobody successfully invokes, the meeting competition defense that most sellers actually rely on, and the functional discount analysis from Texaco v. Hasbrouck. It then covers promotional allowances and services, where the proportionally equal terms requirement operates as strict liability, and buyer-side exposure. It closes with a compliance program that works.
The Digital Services Act and Digital Markets Act: What US Companies Actually Have to Do
Two European regulations now govern how American platforms operate, and the thresholds that trigger them are lower than most companies assume. This article explains what the Digital Services Act actually requires—the notice and action mechanism, statements of reasons, internal complaint handling, out-of-court dispute settlement, trader traceability, advertising transparency, and the escalating tiers that culminate in systemic risk assessment and independent audit—and who each obligation applies to. It then covers the Digital Markets Act, which is not a platform-conduct rule at all but a set of prohibitions and obligations aimed at a designated handful of gatekeepers, and explains why a non-gatekeeper still has to care. Along the way it maps the collisions with United States law, including Section 230 and the constitutional limits the Supreme Court described in Moody v. NetChoice. It closes with what a compliance program actually contains and what it costs.
Termination Rights Toolkit: Notices, Recordation, and Successor Agreements
This toolkit collects the working documents a copyright termination actually requires, on both sides of the transaction. It provides a window computation worksheet, a family tree and majority interest worksheet, annotated notice language for Sections 203, 304(c), and 304(d), a service and recordation packet, and a takers' agreement outline. It also supplies the grantee's tools: a catalog exposure schedule, a derivative works register, a response letter that preserves defenses without conceding anything, and a regrant term sheet for the exclusive negotiation window. Each item is annotated with the drafting decision behind it and the failure it is designed to prevent. Use the worksheets before the notice and the registers before the negotiation.
Tender Offers and the Williams Act: Schedule TO, the 14D-9, and the Rules That Govern a Bid
A tender offer is a bid made directly to stockholders over the board's head, and the Williams Act exists to make sure they have time and information before they decide. This article explains what legally counts as a tender offer, what the bidder must file and when, what the target must say and by when, and the substantive rules—all holders, best price, withdrawal, proration—that constrain how an offer is run. It then covers the defensive side: the poison pill, Unocal review of board responses, and why a pill that once ended offers now mostly buys time. It closes with the two-step structure that has made tender offers fast again, and with the insider trading rule that catches people who trade on knowledge of a coming bid. Worked examples follow a hostile bid from the first accumulation through the back-end merger.
Tender Offer Toolkit: Offer Documents, Recommendation Statements, and Conditions
This toolkit assembles the operative documents of a tender offer in drafting-ready form. For the bidder it provides a summary term sheet skeleton, a full conditions article with annotations on each condition's failure mode, extension and results press releases, and the merger agreement provisions that make a Section 251(h) two-step work. For the target it provides a holding statement, the board resolutions supporting a recommendation and a rights plan decision, the Schedule 14D-9 items most often omitted, and a compensation committee resolution securing the best price safe harbor. A Rule 14e-3 information barrier memorandum and a document production timetable complete the set.
Tender Offer Compliance Checklist
Tender offers fail on procedure more often than on strategy, and the procedures are unforgiving because the deadlines are measured in business days and cannot be cured. This checklist covers both sides. For the bidder it runs pre-commencement preparation, the Schedule TO and offer document contents, the substantive rules governing how an offer is conducted, extension and amendment mechanics, and closing. For the target it runs the first forty-eight hours, the ten-business-day clock, the Schedule 14D-9 disclosure items most often omitted, and the board process that supports a defensive response. A deadline table completes it.
Taking a Company Public: A Practical Guide
This guide runs an initial public offering in the order the work actually happens, which means it starts eighteen months before the filing. It covers the readiness assessment that determines the timetable, the financial reporting and capitalization work that is the usual cause of delay, and the governance and contract housekeeping that is far cheaper before underwriter diligence than during it. It then walks the transaction itself: selecting underwriters and counsel, the organizational meeting, drafting the registration statement, building the due diligence record that supports the Section 11 defense, the confidential submission and comment process, and the communications discipline that must hold from the first meeting through the lockup. Later steps cover the road show, pricing as a board decision, closing, and the public company obligations that begin immediately. A running example follows one company through twenty-two months.
Syndicated Loan Documentation Checklist: A Practical Checklist
This checklist works a syndicated credit facility from commitment letter through closing, administration, and workout. It front-loads the provisions that decide outcomes years later: the EBITDA definition and its add-back caps, the sacred rights list and whether lien subordination sits inside it, the unrestricted subsidiary machinery, and incremental capacity. It then runs the collateral and perfection steps, the full conditions precedent list, and the post-closing letter that so often goes untracked. The administration sections cover compliance certificate review, assignment and register mechanics, and the information wall, and the last sections cover amendments, lender group organization, and intercreditor terms. Items that decide restructuring outcomes are flagged.
Syndicated Credit Facilities and Intercreditor Arrangements: Agents, Lenders, and Priority
A syndicated credit facility is a single contract among a borrower and a group of lenders who do not trust each other, administered by an agent who is paid to be nobody's fiduciary. This article explains the architecture that results: the agent's carefully limited role, the required-lender voting structure and the sacred rights that sit outside it, the assignment and participation mechanics that determine who ends up holding the paper, and the reason courts have held that syndicated loans are not securities. It then turns to priority—intercreditor agreements, subordination enforceable in bankruptcy, credit bidding, and the liability management transactions that have made covenant drafting an adversarial exercise between lenders rather than between borrower and lender. It closes with what to negotiate and where the leverage actually is.