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.
Selling a Company to an ESOP: A Practical Guide
This guide walks a company owner and counsel through an ESOP sale in the order the work happens, from the feasibility question that should precede everything to the plan administration that runs for decades. It covers the honest downturn-case analysis that determines whether the structure can work, the trustee and appraiser selection that the seller must not control, the diligence and valuation process, and the negotiation whose absence is the defect regulators look for first. Later steps address structuring the debt and any warrants, the section 1042 election and the S corporation conversion, the section 409(p) analysis that must precede the warrant terms, closing mechanics, and the employee communication that determines whether the transaction is understood as promised. Final steps cover the repurchase obligation, ongoing fiduciary work, and responding to an investigation. A running example follows one owner through the process.
Seeking or Opposing Section 1782 Discovery: A Practical Guide
This guide runs a section 1782 matter from the first strategic question through the appeal. For applicants it covers target selection, which is the decision that most often determines the outcome, then venue, the foreign counsel declaration that establishes use and receptivity, and the scope discipline that separates granted applications from denied ones. Filing mechanics cover the ex parte petition, the supporting record, and subpoena drafting. For respondents it covers the response decision, intervention by the foreign adversary, and the motion to quash organized around the Intel factors, with particular attention to obtaining evidence from the foreign forum. Later sections address privilege in a cross-border setting, blocking statutes and data protection, protective orders, negotiated resolutions, appeals, and the defensive application that changes the dynamic.
Securities Disclosure Toolkit: Policies, Blackout Calendars, and 10b5-1 Plans
Working templates for the public company disclosure function. It includes a disclosure committee charter, a sub-certification questionnaire, a one-page Form 8-K trigger protocol, a materiality assessment memorandum format, a Regulation FD policy with a remediation protocol, an insider trading policy with windows and pre-clearance, a pre-clearance request and approval form, a 10b5-1 plan adoption checklist and certification, a blackout notice, an annual disclosure calendar, a restatement response plan, and a risk factor review worksheet. Each carries drafting notes on what the document is for and where programs commonly fail. Adapt everything to the company, the exchange, and current requirements.
Section 1782 Discovery in Aid of Foreign Proceedings: Who Can Ask, What They Get, and What ZF Automotive Changed
Section 1782 lets a party to a foreign proceeding obtain American-style discovery from persons found in the United States, and for a decade it was the most powerful and most contested tool in cross-border litigation. This article sets out the three statutory requirements and the four discretionary factors that govern every application, then explains what ZF Automotive settled and what it left open: private commercial arbitration is out, governmental and intergovernmental adjudicative bodies are in, and the treatment of investor-state tribunals now turns on the consent instrument that created them. It works through the contested questions that remain—what "resides or is found" means for a foreign corporation, whether the statute reaches documents held abroad, and how courts assess foreign receptivity—together with the practical mechanics of an ex parte application and a motion to quash. Separate sections cover the Hague Evidence Convention, foreign blocking statutes, and the strategic use of 1782 by respondents. Worked examples follow a document application, a deposition of a US executive, and a successful challenge.
Section 1782 Application Checklist
This checklist runs a section 1782 matter from the threshold question of whether a qualifying tribunal exists through production, opposition, and appeal. Applicant sections cover the ZF Automotive analysis, the reasonable contemplation record for a pre-suit application, target selection ranked from strongest to weakest, venue considerations, and the foreign counsel declaration that must establish use and receptivity. Scope discipline is set out in detail because courts deny broad applications rather than narrowing them. Respondent sections cover the response decision, the foreign-forum investigation that produces the strongest defences, intervention by the foreign adversary, and a motion to quash organized around the Intel factors. Later sections cover blocking statutes and data protection, cross-border privilege, protective orders, timelines, appeals, and the defensive application.
Section 101 Toolkit: Claim Drafting, Motions to Dismiss, and Expert Support
Working templates for patent eligibility practice on both sides and at the Patent Office. It includes a screening memorandum, a specification-admissions extraction worksheet, a representative-claim chart, a motion to dismiss outline with drafting notes, an opposition outline, eligibility allegations for a complaint, a conventionality declaration outline, a response to a Section 101 rejection, a specification drafting guide with a functional-to-mechanism conversion table, an allowance memorandum, a portfolio assessment worksheet, and a pre-suit letter. Each carries notes on what courts actually credit and where each side most often fails. A quick-reference table sets out who decides each question and under what standard. Adapt every template to the patent, the record, and the district's practice.
Running or Responding to a Tender Offer: A Practical Guide
Running a tender offer is a logistics exercise wrapped around a legal one, and the logistics are what fail. This guide walks the bidder's side from pre-commencement preparation through commencement, extensions, expiration, acceptance, and the back-end merger, identifying the third parties whose lead times control the timetable. It then walks the target's side: the first forty-eight hours, the ten-business-day clock for the Schedule 14D-9, the board's decision architecture under enhanced scrutiny, and the defensive tools that remain available. It covers the negotiated two-step transaction, now the most common use of the structure, and the mechanics that make a five-week close possible. Worked timetables for both hostile and friendly offers are included.
Running an International Arbitration: A Practical Guide
A step-by-step operational guide to conducting an international commercial arbitration from the request through enforcement. It covers the pre-filing assessment, constituting the tribunal and vetting arbitrators, the first procedural conference and the orders that shape everything after it, the memorial system, document production under the IBA Rules, witness and expert evidence, hearing logistics, post-hearing submissions, and the award. It includes budgets, timelines, staffing, worked examples with named parties, and the mistakes American practitioners make most often. Written to be used by counsel on either side and by in-house lawyers supervising outside teams.
Running an ANDA Litigation: A Practical Guide
A step-by-step guide to prosecuting and defending a Hatch-Waxman case, written for counsel on both sides and for the regulatory and business teams that make the underlying decisions. It runs from the generic's pre-filing analysis and notice letter through the brand's 45-day sprint, the confidential access process, scheduling against the 30-month stay, discovery centered on the ANDA, claim construction, the bench trial, and the settlement and launch decisions. Separate parts cover the skinny-label carve-out and induced infringement, the PTAB track and its estoppel cost, at-risk launch analysis, and the antitrust review every settlement receives. It includes a worked case with named parties, budgets, a realistic calendar, and the mistakes that recur.
Running a Sale Process That Survives Review: A Practical Guide for Boards
A step-by-step operational guide for a board selling the company, written for directors and the lawyers advising them. It runs from the first unsolicited approach through committee formation, advisor selection, the market check, negotiation, deal protections, the proxy, and the vote, explaining at each step what a reviewing court will look for. Separate parts cover controller transactions and the MFW sequence, management conflicts, appraisal exposure, and the documentation that carries the record. It includes a worked sale process with named parties, a realistic calendar, budgets, and the mistakes that convert a clean deal into years of litigation. The organizing principle is that the standard of review is chosen by process decisions made in the first two weeks.
Running a Public Company Disclosure Program: A Practical Guide
A step-by-step operational guide to building and running the disclosure function of a public company, written for general counsel, securities counsel, and the finance leaders who share the work. It covers the disclosure committee and its charter, the sub-certification process that supports the officer certifications, the Form 8-K trigger protocol and escalation paths, documented materiality assessments, the earnings and guidance process, Regulation FD controls, insider trading policy administration including 10b5-1 plans and Section 16, and the annual calendar. Separate parts address what to do when something goes wrong, restatements and internal investigations, and the first ninety days for a newly public company. It includes worked scenarios, budgets, and staffing.
Robinson-Patman Compliance Checklist
Robinson-Patman compliance is an evidentiary discipline, and this checklist collects the steps that produce the evidence. It opens with the screen that determines whether meaningful exposure exists at all, then covers the net price mapping and competing-customer analysis that locate it. Separate sections address each justification—cost, meeting competition, functional discount, and availability—with the requirements that make each hold. It then runs the promotional allowance program, which approaches strict liability and carries an affirmative notification duty, the brokerage provision, and buyer-side exposure. It closes with the sales training points, the ongoing exception reporting, and the red flags that should stop a pricing decision.