Successful settlements building relationships managing expectations
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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

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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


    Successful settlements building relationships managing expectations

    QUESTIONS

    R. David Donoghue

    Holland & Knight LLP

    131 S. Dearborn Street, 30th Floor

    Chicago, Illinois 60603-5517


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