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SUCCESSFUL SETTLEMENTS : BUILDING RELATIONSHIPS & MANAGING EXPECTATIONS. R. David Donoghue Holland & Knight LLP 131 S. Dearborn Street, 30th Floor Chicago, Illinois 60603-5517. KEYS TO DRAFTING EFFECTIVE & ENFORCEABLE AGREEMENTS:. Settlement agreements as beginnings & ends

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successful settlements building relationships managing expectations

SUCCESSFUL SETTLEMENTS :BUILDING RELATIONSHIPS & MANAGING EXPECTATIONS

R. David Donoghue

Holland & Knight LLP

131 S. Dearborn Street, 30th Floor

Chicago, Illinois 60603-5517

keys to drafting effective enforceable agreements
KEYS TO DRAFTING EFFECTIVE & ENFORCEABLE AGREEMENTS:
  • Settlement agreements as beginnings & ends
  • Understand your needs & your opponent’s
  • Draft lasting robust clauses
  • Engage the experts
  • Get client buy in
settlements as end points
SETTLEMENTS AS END POINTS
  • No continuing obligations
  • Lump sum payments
  • No monitoring requirements
settlements as end points1
SETTLEMENTS AS END POINTS:
  • Arbitration clauses
  • Liquidated damages
  • Press releases/non-disclosure clauses
press releases non disclosure clauses
PRESS RELEASES/NON-DISCLOSURE CLAUSES:
  • Do not leave to the last minute
  • Corporate clients: Clear through all channels
  • Manage disclosures
settlement agreements as beginnings
SETTLEMENT AGREEMENTS AS BEGINNINGS:
  • Take time to understand opponent’s goals & needs
  • Consider corporate SOP when setting deadlines
      • 60 days to process = 90 day royalty payments
      • 30 days for sales report = 45 days for royalty report
settlement agreements as beginnings1
SETTLEMENT AGREEMENTS AS BEGINNINGS:
  • Know your goals:
      • Upfront cash
      • Revenue stream
      • Being free of future litigation
      • Ongoing relationship/joint venture
settlement agreements as beginnings2
SETTLEMENT AGREEMENTS AS BEGINNINGS:
  • Draft to all parties’ goals
      • Use precedent thoughtfully
      • Engage licensing/corporate attorneys
due diligence knowing the parties needs
DUE DILIGENCE: KNOWING THE PARTIES’ NEEDS
  • Understand your client’s needs & limits
      • Define wins & break evens
  • Robust discussion before drafting
      • Avoid “lawyerly” hang-ups
  • Do not just exchange revisions - DISCUSS
draft robust lasting clauses
DRAFT ROBUST LASTING CLAUSES
  • Do not skimp on dispute resolution:
      • Arbitration
      • Back to court
        • Pick exclusive jurisdiction to avoid courthouse race
        • Decide which issues can be litigated
        • Can you really get federal jurisdiction?
draft robust lasting clauses1
DRAFT ROBUST LASTING CLAUSES
  • Confidentiality/non-disclosure
      • Know your limits
      • Set limits your Client & opponent can meet
        • Sales people
        • Serial licensors
        • Public reporting
draft robust lasting clauses2
DRAFT ROBUST LASTING CLAUSES
  • Press releases
      • Draft & approve early
      • Approve language & timing
draft robust lasting clauses3
DRAFT ROBUST LASTING CLAUSES
  • Avoid legalese
  • Use precedent carefully
draft robust lasting clauses4
DRAFT ROBUST LASTING CLAUSES
  • Periodically have a colleague review
  • Spend the time & money to normalize
engage the experts
ENGAGE THE EXPERTS
  • Tax
  • Importing
  • Intellectual property
  • International law
  • Licensing
get client buy in
GET CLIENT BUY IN
  • Settlements is not an insular process
  • Involve:
      • Business Executives
      • Accounting
      • Public Relations
      • Tax
keys to drafting effective enforceable agreements1
KEYS TO DRAFTING EFFECTIVE & ENFORCEABLE AGREEMENTS:
  • Settlement agreements are beginnings & ends
  • Understand your needs & your opponent’s
  • Draft lasting robust clauses
  • Engage the experts
  • Get client buy in
slide18
QUESTIONS

R. David Donoghue

Holland & Knight LLP

131 S. Dearborn Street, 30th Floor

Chicago, Illinois 60603-5517

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